Ontario College of Teachers v. Cha, 2023 ONOCT 79

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Cha 2023 ONOCT 79

Date: 2023-11-13

DECISION, REASONS FOR DECISION AND ORDER

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against Yee-Min Cha, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS – and – YEE-MIN CHA (REGISTRATION #447182)

PANEL: Hanno Weinberger, OCT, Chair Wanda Percival, OCT Emile Ramlochan

HEARD: November 1, 2023

Lisa Feinberg, for the Ontario College of Teachers Parmbir Gill, for Yee-Min Cha Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing, or the person who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 1, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Yee-Min Cha (the “Member”) attended the hearing and had legal representation.

3The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

4The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18-years old and is a witness in a hearing or is the subject of evidence in a hearing.

5Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of the Student, who was allegedly the subject of sexual misconduct. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of the Student.

B. THE ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated January 18, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(b) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;¹

(c) he engaged in sexual misconduct as defined in section 1 of the Act;

(d) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

C. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. At all material times, Yee-Min Cha was a member of the Ontario College of Teachers. Attached as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. The Member obtained his teaching certificate in 2001. At all material times, the Member was employed by the Peel District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Mississauga, Ontario. He has no prior disciplinary record with the College or the Board.

3. From September 2015 until June 2019, [XXX] (the “Student”) was a female student at the School. The Student turned 18 years old on [XXX], 2019. Her last day as a student at the School was June 28, 2019.

4. During the 2018-2019 school year, when the Student was in grade [XXX], the Member taught the Student [XXX] in semester one and [XXX] in semester two.

5. In semester one, the Member and the Student met regularly to discuss [XXX] in the [XXX] office or [XXX] at the School. During one of these discussions, the Member invited the Student to message him directly on his personal Twitter account, if she ever needed any help with [XXX]. The Student agreed to do so.

6. Starting in December 2018 and continuing until the Student’s graduation, the Member and the Student sent each other private messages after school hours, including very late at night, about personal topics, such as relationships, dating, and school gossip about students and teachers.

7. In semester two, the Member and the Student met regularly alone in the Member’s classroom during lunch or after class to discuss [XXX]. During these meetings, the Student sought advice from the Member about her personal life, including academic challenges, conflicts with her friends, and romantic relationship issues. The Member regularly gave the Student advice about these topics.

8. The Member and the Student hugged on one occasion while she was a Student at the School. The hug was not sexual in nature.

9. The Student was bullied by her peers for various reasons, including her close relationship with the Member. When the Student brought up to the Member that there were rumours that the Student and the Member were in a romantic relationship, the Member reassured the Student that their relationship was “normal”, not romantic, and that the rumours would go away once she turned 18 and graduated.

10. In late June 2019, the Member gave the Student his personal phone number.

11. On or about [XXX], 2019, the Member gave the Student a gift at school for her [XXX] birthday. The gift was a [XXX] that said her name on it. The Member gave her the gift and told her she was special when he gave it to her.

12. Near the end of June 2019, before the Student’s graduation, the Member and the Student exchanged letters with one another. In the Member’s letter, the Member described the Student as special, saying that there was “something about the way she looked at [him]”, thanked her for letting him into her life, sharing about her past and inner circle on their direct messages, and giving him something to look forward to every day, and told her he missed her already. The Member signed his letter “Your friend (and mentor?)”. In the Student’s letter to the Member, the Student said that the Member was that person who always made her happy and who she could talk to about anything, thanked the Member for making coming to school a joy and for motivating her to improve in her studies, and told the Member she would miss him so much. The Student signed her letter “Your friend (and mentee?)”.

13. Between June 23 and June 26, 2019, the Member and the Student engaged in lengthy text conversations about personal matters over Twitter, including the following:

(a) In one conversation, the Student told the Member about places where other students had lost their virginity, including inside a Walmart, and expressed confusion about their choices. The Member responded to the Student’s comments with his own opinions on the topic, stating “I’m just speaking in general” and “My ‘you’ isn’t you specifically”. The Member added: “I don’t know how I could go on with life with the memory of f*ucking for the first time in a Walmart”, and “some unsolicited advice: it’s better without restrictions (space, volume/loudness). Please make sure your first time is somewhere comfortable and private.”

(b) In another conversation, the Member told the Student about teachers who had married former students with whom they were close in age. The Student asked the Member if he was already married when he started teaching at the School. The Member responded “Yes, but you just hear so many stories…you start to think/wonder if you could be tempted.” The Student asked the Member how these kinds of relationships came to be known in the school community. The Member responded “it becomes so obvious that people just know (this is how it was in the 90s!)[.] Like you just knew Mrs. So-and-so was f*cking Tommy the QB, for example.”

(c) In another conversation, the Member noted that the Student’s mother might have concerns with the length of time the Student was spending with the Member. The Student explained that her mother “wouldn’t get pissed, she knows how close we are”. The Member responded “Phew 😊.”

(d) In another conversation, the Student asked the Member if they could meet at school on a day when no classes were scheduled. The Member, who was in school marking exams during this time, proposed that they meet in a classroom near the Student’s locker so that the meeting would appear coincidental rather than planned. The Member and the Student met briefly in the classroom. There was no touching or sexualized behaviour.

(e) On June 25, the Member sent the Student fourteen digital pictures of himself posing with various students during the course of his teaching career. One of those fourteen pictures depicted the Member and the Student posing at a school prom. The Member added a heart eyes emoji to the photo followed by the slang term “lol”, meaning “laugh out loud”. The Student stated “why is ours the worst quality picture :(…I can *see the pixels.” The Member responded “bad quality picture, good quality ppl.”

14. Between July 2019 and March 2020, after the Student had turned 18 and graduated, the Member and the Student communicated through text message over various digital platforms and met in-person on several occasions. During this period the Member:

(a) met the Student at an escape room;

(b) met the Student at a library;

(c) visited the Student at her university campus on two occasions;

(d) drove the Student in his car to and from their outings;

(e) hugged the Student on multiple occasions, but not in a sexual manner;

(f) hosted the Student at his home for a dinner while his family was away on vacation, showed the Student his bedroom, where the Student saw the Member’s wife’s lingerie and their stash of condoms and where the Member read the Student discipline summaries from the College newsletter;

(g) showed the Student that he had downloaded pictures from social media of her and other students that he considered “cute” or “memorable” onto his computer;

(h) sent inappropriate emotionally intimate messages to the Student in which he discussed his sexual preferences, complimented the Student’s appearance, told her that he missed her, and described difficulties in his marriage and his wife’s concerns about his relationship with the Student;

(i) sent a handwritten letter and an email to the Student in which the Member told the Student that he did not regret anything, would never stop caring for her deeply and that his heart would always break for her.

15. The Student was negatively impacted by the Member’s conduct, experiencing anxiety and guilt about their relationship both while she was a student and after graduation.

PLEA OF NO CONTEST

16. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to paragraphs 1-15 above (the “Uncontested Facts”).

17. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him, being more particularly:

(a) in respect of paragraphs 5-13 and 15 of the Uncontested Facts, breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(18), and 1(19);

(b) in respect of paragraph 14 of the Uncontested Facts, breaches of Ontario Regulation 437/97 subsections 1(18) and 1(19).

18. The Member further pleads no contest to the allegation that the Uncontested Facts described at paragraphs 13(a) and 13(b) constitute “sexual misconduct” as defined in Section 1 of the Act.

19. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(f) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

20. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E.23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in this or any other civil, criminal or administrative proceeding.

21. In light of the Uncontested Facts and the circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

8Counsel for the College requested that the allegations of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97 and engaged in sexual abuse of a student or students as defined in section 1 of the Act, be withdrawn. Sexual abuse is defined as including (a) “sexual intercourse or other forms of physical sexual relations between the member and the student,” (b) “touching, of a sexual nature, of the student by the member,” or (c) “behaviour or remarks of a sexual nature by the member towards the student.” College Counsel submitted that the Uncontested Facts did not support a finding of sexual abuse of a student, as the Member did not target his comments of a sexual nature towards the Student. The Panel granted this request.

9Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 1, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(18) and 1(19). The Member also engaged in sexual misconduct defined in section 1 of the Act.

E. REASONS FOR DECISION

10The Member did not contest the facts and exhibits referred to in paragraphs 1 to 15 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the heads of misconduct set out above. More specifically, the Member acknowledged and the Panel accepts that paragraphs 5 to 13 and 15 of the Uncontested Facts constitute professional misconduct in breach of subsections 1(7.2), 1(18) and 1(19) of Ontario Regulation 437/97; paragraph 14 of the Uncontested Facts constitutes professional misconduct in breach of subsections 1(18) and 1(19) of Ontario Regulation 437/97; and paragraphs 13(a) and 13(b) of the Uncontested Facts constitute “sexual misconduct” as defined in section 1 of the Act. The Uncontested Facts demonstrate that the Member engaged in a pattern of inappropriate behaviour with the Student in which he continuously violated professional boundaries while she was a student and after she had graduated.

11The Panel finds that the Member abused a student psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member violated the professional boundaries between a teacher and a student through his inappropriate behaviour while the Student was his student at the School. The Member initiated a personal relationship with the Student, by first inviting her to message him on his personal Twitter account and later providing her with his personal phone number. The Member’s communications with the Student were also inappropriately intimate and personal, as the Member spoke to the Student about issues such as dating, relationships, sex, and how a teacher can start to think or wonder if they could be tempted to have a personal or sexual relationship with a student, all of which are beyond the scope of a professional relationship between a member and a student. In or around this time, the Member also hugged the Student on one occasion. When the Student was bullied and rumours arose about the inappropriate nature of her relationship with the Member, the Member assured the Student that their relationship was “normal” but then in or around this time, proposed a plan for them to meet at a particular classroom in order for their interaction to be perceived as a coincidence. The Member also intensified his personal relationship with the Student, by not only providing her with his personal phone number, but gifting her personalized [XXX], and a letter in which he made more inappropriate comments about how she looked at him and his feelings towards her. Members of the teaching profession are expected to work to ensure students’ psychological or emotional safety at all times. Members are trusted to not take advantage of the power imbalance with students who are inherently vulnerable to members’ influence and authority. The Member’s exploitation of the Student’s vulnerability in pursuing and engaging in intimate and personal relations with her as a student was psychologically or emotionally abusive. In addition to the Member’s repeated inappropriate actions and comments, it was particularly psychologically or emotionally abusive for him to assure the Student that their personal relationship was “normal,” when it was not, and then continue to engage with the Student inappropriately with no regard to her well-being. As a result of the Member’s actions, the Student experienced anxiety and guilt about her relationship with the Member. Given the negative impact on Student 1’s psychological and emotional well-being, the Panel finds that the Member psychologically or emotionally abused the Student.

12The Panel finds that the Member engaged in sexual misconduct as defined in section 1 of the Act by engaging the Student in two text conversations over Twitter regarding losing one’s virginity and sexual relationships between teachers and students. At this time, the Member was one of the Student’s teachers. In one conversation, the Member told the Student that having sex is “better without restrictions (space, volume/loudness)” and that she should “make sure [her] first time is somewhere comfortable and private.” In the second conversation, the Member alluded to hearing stories and starting to think or wonder if he could be “tempted” to engage in relationships with students, and then made a comment about a teacher having sex with a student. A reasonable person would expect the Member’s sexual comments to cause distress to the Student, be detrimental to her physical or mental-well-being, or create a negative environment at the school. By exposing the Student to his sexual comments, his personal opinions on sex, and unsolicited advice about having sex for the first time, the Member engaged in sexual misconduct.

13The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. In making this finding, the Panel considered case law presented by College Counsel: Ontario College of Teachers v. Mansfield, 2022 ONOCT 48; and Ontario College of Teachers v. Paterson, 2022 ONOCT 58. In addition to behaving inappropriately with the Student while she was attending the School, the Member continued his personal relationship with the Student after she graduated. The Member had personal outings with the Student, hugged her on multiple occasions, hosted her at his home for dinner while his family was not present, and showed her his bedroom, where the Student saw the Member’s wife’s lingerie and their stash of condoms. The Member also continued to make inappropriate, emotionally intimate comments to the Student, discussing personal topics, such as his sexual preferences, his marital issues, the Student’s appearance and how he felt about her. The Panel finds the Member’s actions to be entirely unacceptable. Members of the teaching profession hold a privileged position of trust and authority in the school community. As such, they have a moral and professional duty to respect students’ dignity, protect their well-being and act in their best interest. Members are expected to uphold such duties and values regardless of whether students have since graduated from their classes, as their significant influence over students does not immediately come to an end upon graduation. Members are expected to act professionally and honourably with their current and past students. The Member failed to meet these expectations on multiple occasions. The Member demonstrated significant moral and professional failings when he exploited the Student’s vulnerability. His brazen conduct in pursuing and maintaining a personal relationship with the Student over a significant period of time was indicative of his profound lack of moral and professional judgment.

14The Panel finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Students, parents, and the public expect that members of the teaching profession will exercise sound judgment in caring for students. The Member failed in this regard on multiple occasions by his inappropriate relationship with the Student. As such, the Member has eroded the trust that the public places in members of the teaching profession and seriously undermined the reputation of the teaching profession.

F. PENALTY Decision

15The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 1, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered electronically, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of twenty (20) months commencing on the 15th calendar day following the date of the Oral Decision and the Order of the Discipline Committee relating to this matter.

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding professional relations and boundaries, subject to the following conditions:

(i) the Member shall provide the course practitioner approved by the Registrar a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

(b) within 30 days of his completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

(c) Prior to the end of the Member’s suspension outlined in paragraph 2 above, the Member shall undergo therapy or counselling at his own expense with a licensed psychotherapist, psychologist or psychiatrist (the “Treating Professional”), subject to the following conditions:

(i) prior to the first session, the Member shall provide the Treating Professional a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) the number of sessions shall be at the discretion of the Treating Professional but shall be no fewer than 6 sessions; and

(d) within 30 days of his completion of the therapy or counselling outlined in paragraph 3(c) above, the Member shall provide to the Registrar a report from the Treating Professional stating that the Member has attended and actively participated in a minimum of 6 therapy or counselling sessions.

G. REASONS FOR PENALTY DECISION

16The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.² The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Crowther, 2019 ONOCT 18; Ontario College of Teachers v. MacDonald, 2019 ONOCT 104; Ontario College of Teachers v. Montgomery, 2018 ONOCT 4; Ontario College of Teachers v. Duncker, 2020 ONOCT 137; Ontario College of Teachers v. Walker, 2022 ONOCT 29; and Ontario College of Teachers v. Williams, 2023 ONOCT 2.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct and the fact that it negatively affected the Student’s psychological and emotional well-being. In terms of mitigating factors, the Member did not contest his misconduct, which saved the time and expense of a contested hearing and spared the Student from testifying about her experience with the Member, and the fact that the Member has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

18The Panel finds that the Member’s pattern of inappropriate conduct and boundary violations warrants a reprimand. Members are expected to serve as role models for students and protect their well-being by respecting their dignity and boundaries. The Member failed to do so when he engaged in an inappropriate relationship with the Student, particularly while she was his student. The Member’s misconduct demonstrated a significant lack of concern for the Student’s emotional well-being and for his professional and moral obligations. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

19Given the nature and severity of the Member’s misconduct, the Panel finds that a twenty-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. By removing the Member from the classroom for a lengthy period, the suspension will also protect the public. In accordance with the parties’ joint submission, the Member’s suspension will begin on November 16, 2023, which is 15 days after the Panel’s Oral Decision and Order.

20The Panel finds that the course of instruction regarding professional relations and boundaries and therapy and counselling will assist in the rehabilitation of the Member. It will remind the Member of his obligations as a teacher and will help him make better decisions in any future interactions with students.

21The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1This allegation was withdrawn at the request of College Counsel.
2. 2See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; Bradley v. Ontario College of Teachers, 2021 ONSC 2303; and Ontario College of Teachers v. Merolle, 2023 ONSC 3453.