DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Byam 2024 ONOCT 43

Date: 2024-08-12

DECISION ON FINDING AND REASONS FOR DECISION

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

Bernadette Yolande Byam, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BERNADETTE YOLANDE BYAM (REGISTRATION #519305)

PANEL: Rebecca Forte, OCT, Chair Jonathan Rose

HEARD: January 25, February 8-9, March 22, March 24, April 18, and May 16, 2023

Andrew Matheson and Kate Martini for the Ontario College of Teachers

Olanyi Parsons, for Bernadette Yolande Byam

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.

By order of Justice P.A. Schreck of the Superior Court of Justice, there is also a publication ban on any information that could identify the victim or a witness in this matter, pursuant to subsection 486.4(1) of the Criminal Code.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on January 25, February 8-9, March 22, March 24, April 18, and May 16, 2023 in accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2Yolande Bernadette Byam (the “Member”) attended the hearing and had legal representation.

3On January 25, 2023, Panel Member Nouini became unable to continue as a Panel member due to a personal matter. With the consent of the parties, the hearing proceeded with Chair Forte and Panel Member Rose pursuant to section 4.4 of the Statutory Powers Procedure Act (“SPPA”).

4Following the conclusion of this hearing, the Panel reserved its decision. What follows is the Panel’s decision and reasons for the decision. The Panel has applied the professional misconduct regulation under the Ontario College of Teachers Act, 1996 (the “Act”) that were in force between January 2004 and July 2004. The Panel did not apply the professional misconduct regulation that was in force at the time of the hearing or at the time that the Notice of Hearing was issued. The Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7) [as in force in 2004] and 1(18). The Panel finds that the College has failed to prove the remainder of the allegations of professional misconduct that were alleged in the Notice of Hearing.

A. PUBLICATION ban

5The Panel ordered the mandatory publication ban pursuant to subsection 32.1(3) of the Act). 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.

6Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of Student 1, who was allegedly sexually abused or the subject of sexual misconduct. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

7Additionally, the Panel received a certified copy of the transcript of the Trial Proceeding from the Member’s criminal proceeding before Justice P.A. Schreck (Exhibit 6). In the proceedings at the Superior Court of Justice, an order restricting publication was made pursuant to section 486.4(1) of the Criminal Code of Canada. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim (i.e., Student 1) or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.

B. THE ALLEGATIONS

8The allegations against the Member in the Notice of Hearing dated October 9, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Bernadette Yolande Byam is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 in that:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7)¹ and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(c) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(e) she 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;

(f) she failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(g) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(h) she 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Bernadette Yolande Byam is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board as an educational assistant at [XXX] (the “School”) in Toronto, Ontario.

3. In or about September 1, 2001 to June 30, 2004, Student 1 was a male student at the School.

4. In or about the period between September 1, 2001 to September, 2004, the Member:

(a) engaged in an inappropriate personal relationship with Student 1;

(b) engaged in inappropriate physical contact with Student 1;

(c) engaged in sexual touching with Student 1.

C. THE MEMBER’S PLEA

9The Member denied the allegations set out in the Notice of Hearing.

D. THE EVIDENCE

(1) The College

10College Counsel intended to call Student 1 as its first witness. On the first day of the hearing, however, the Panel was advised that Student 1 would not be able to testify. As a result, College Counsel relied on three pieces of evidence to prove its case against the Member. First, the College filed transcripts of the Member’s testimony from her criminal trial, given on September 11, 2018. Second, the College filed a recording of a phone call between the Member and Student 1, which occurred sometime in 2016. Finally, the College called Ed Stavnitzky to testify as an expert regarding the duties and responsibilities of educational assistants and to give an opinion as to whether the Member’s conduct was contrary to those duties and responsibilities.

(a) Transcripts of Member’s Trial Testimony

11College Counsel emphasized six specific areas that the Member testified about at her trial and provided excerpts of the Member’s trial testimony (Exhibit 5) for the Panel’s review. These are summarized below.

12First, the Member testified that, between 2001 and 2004 she worked as an educational assistant at the School. She first met Student 1 when he came down to the special education resource room after a behavioural issue (he threw a desk) in his [XXX] class. The Member testified that Student 1 later explained to her that the behavioural issue arose because of personal problems that Student 1 had with his girlfriend. The Member tried to counsel Student 1 regarding this personal issue.

13Second, the Member testified that she had sent Student 1 a letter responding to a letter that he had written her. In his letter, he had written that nobody cares about him and that he was thankful to have someone (i.e., the Member) to listen to him. In response, the Member wrote to Student 1 that he was valuable, he was “worth it”, and that he can do a lot better than he thinks he can.

14Third, the Member testified that in the summer of 2004 (she was not sure of the exact date), she was not successful in her application to teachers’ college. She was very upset and depressed about this and testified that it was a very dark time for her. Student 1 happened to call her around the same time that she received the letter regarding teachers’ college. She testified that he likely called because he was having personal problems, possibly with a girlfriend or with his parents. The Member then suggested that Student 1 come over to her house to talk. She had invited students to her house in the past and did not believe that it was a big deal to meet a student at her house. At the time of her criminal trial, the Member could not remember whether Student 1 came to her house on his own or whether she picked him up in her car and drove him to her house. In any event, Student 1 was at the Member’s house at night and they had sex on that one occasion at her house. The Member testified that Student 1 was no longer a student at the School, and that she believed that Student 1 was either 18 or 19 at the time, because they had discussed Student 1’s application to [XXX] and she remembered that Student 1 had told her that he did not need his parents’ permission to apply. However, during her criminal trial, the Member admitted that she did not remember the date of the evening and therefore she could not say for sure whether she had sex with Student 1 before or after his 18th birthday (Student 1’s 18th birthday was on [XXX]). The Member did not remember how the evening ended – whether Student 1 slept at her house that night or whether she drove him home. She testified that she was in a very vulnerable position, that it was very painful, and that “there were tears”.

15Fourth, the Member testified that she believed that she had crossed a line by having sexual intercourse with Student 1, regardless of his age, because they had met in the school context. Student 1 looked up to the Member and she likely was a mentor to him. She admitted that her actions likely hurt Student 1.

16Fifth, the Member testified that she often “talk[ed] sports” with Student 1, particularly regarding NFL football. According to the Member, this meant that they discussed the outcome of football games and attempted to predict which teams would win and by how much. Student 1 was very good at making these predictions. Unbeknownst to the Member, Student 1 placed a bet with a bookie after one of these conversations. Student 1 then told the Member that the bookie was “looking for him” because he now owed this bookie $3,000 and he did not have the money. The Member did not know about the bet before Student 1 placed it; she only learned about it when Student 1 told her about it after the fact. The Member testified that she borrowed $3,000 from her friend Tracy and gave it to Student 1 to help him pay the bookie. She asked Student 1 to sign a document stating that he would pay the Member back. Student 1 did not ever repay the Member this $3,000 loan. The Member testified that she thought this was a “funny memory”.

17Sixth, the Member testified that Student 1 visited her house following the visit in 2004 when they engaged in sexual intercourse. She did not remember details but recalled that he may have visited “a couple of times” and stayed for “maybe an hour”.

(b) Phone call between the Member and Student 1

18College Counsel played a phone call between Student 1 and the Member (Exhibit 8). Student 1 called the Member and recorded the call. College Counsel could not confirm the exact date of the phone call but advised the Panel that it likely occurred sometime in 2016, or approximately two years prior to the Member’s criminal trial (which took place in September 2018). The phone call is two minutes and 48 seconds in length.

19During the phone call, Student 1 told Member that he called because he was “thinking about the shit we did in the classroom, like your parents’ house and shit”. The Member replied “that was over, and then we became friends. Of all the stupid shit that we used to do. We used to gamble, that’s all…. the sexual stuff ended”. During the call, the Member asked Student 1 how old he was. When he replied that he is turning 30 soon, the Member said “well, we could do more dirty things if I was not...”, to which Student 1 says “married”. The call ended shortly after this.

(c) Ed Stavnitzky

20The College called Ed Stavnitzky to testify about the duties and responsibilities of educational assistants and to provide an opinion as to whether the Member’s conduct was contrary to those duties. The College sought to qualify him as an expert regarding the duties and responsibilities of educational assistants. Member’s Counsel opposed the qualification of Mr. Stavnitzky as an expert in this case. While the Member had no objection about Mr. Stavnitzky testifying about the duties of an educational assistant, she objected to Mr. Stavnitzky providing an opinion regarding the Member’s conduct for two reasons. First, Mr. Stavnitzky had not taught educational assistants since 2012, and therefore was not up to date as to their roles and responsibilities. Second, he had no experience with the Board specifically, and therefore would not be appropriately qualified to decide whether the Member complied with the Board’s policies.

(i) Analysis Regarding Expert Witness Evidence

21Expert evidence is admissible on matters requiring specialized knowledge. The test to determine whether expert opinion is admissible was established in the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and R. v. Abbey, 2009 ONCA 624. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court of Canada further clarified the analysis for admissibility of expert evidence. This test is a two-step inquiry. The first step is the threshold requirement, where the Panel must determine whether the evidence is relevant, necessary, whether there is an exclusionary rule that prevents the witness from testifying, and whether the expert witness is properly qualified. If these threshold requirements are met, the second step is for the Panel to balance the potential risks of admitting the expert evidence with the benefits of admitting it in the particular case.

22Mr. Stavnitzky became a teacher in 1989. After teaching for just over 10 years at various school boards, he has worked as an administrator in public and private school boards for over 20 years. As a teacher, Mr. Stavnitzky worked closely with educational assistants in the classroom. In his roles as vice-principal and principal, he has also supervised both teachers and educational assistants in their duties. In this capacity, he became very familiar with the required duties of educational assistants. Additionally, Mr. Stavnitzky is a professor in the Brock University Faculty of Education Teacher Training Program. He instructs teacher candidates in various areas such as professionalism, classroom programming, and teacher research. Mr. Stavnitzky’s written opinion describes the role of educational assistants in Ontario secondary schools, citing relevant legislation. His opinion also reviews the expectations and standards that apply to educational assistants. Finally, Mr. Stavnitzky provides an opinion as to whether the Member met the expectations and standards applicable to educational assistants, based on the Board’s policy regarding dealing with abuse and neglect of students and based on his review of the transcript of the Member’s criminal trial testimony.

23Under the first line of inquiry, there are four questions for the panel to decide. First, the Panel must determine whether the evidence of Mr. Stavnitzky is relevant, second, whether it is necessary, third, whether there is an exclusionary rule regarding his evidence, and fourth, whether Mr. Stavnitzky is a properly qualified expert regarding the duties of educational assistants. Regarding the first question, the Panel finds that the evidence of Mr. Stavnitzky is relevant to two issues in this hearing – whether the Member’s relationship with Student 1 was inappropriate and whether the Member failed to maintain the standards of either the teaching or the educational assistant profession through her relationship with Student 1. Regarding the second question, the Panel is guided by the Divisional Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”). In Novick, the Divisional Court ruled that the Committee cannot find that a member’s behaviour is contrary to the standards of the profession without first receiving expert evidence as to what standards should have been followed in that member’s case, unless the conduct at issue is so notorious that expert evidence is not required. The Panel recognizes that it does not need expert evidence to determine the most serious allegations in this case – whether the Member’s alleged sexual intercourse with Student 1 is below the standards. This is because sexual intercourse with a student is conduct which is so egregious that such expert evidence is not necessary (see: Novick at para 71). However, the Panel notes that there are broad allegations in this case regarding whether the Member’s conduct constitutes an inappropriate personal relationship between an educational assistant and a student and whether this relationship amounted to a breach of the standards of either the teaching profession or the educational assistant profession. In order to make this determination, the Panel is guided by the direction of the Court in Novick and finds that it is necessary to receive expert evidence as to what would be the appropriate scope of a relationship between an educational assistant and a student, and what particular standards should apply in this case. This is particularly true because the Panel are not subject matter experts regarding educational assistants and the specific professional boundaries that exist in the unique relationship between educational assistants and students. Regarding the third question, the Panel did not receive any submissions and is not aware of any exclusionary rule that would make Mr. Stavnitzky’s evidence inadmissible in this case. Finally, the Panel finds that Mr. Stavnitzky is a properly qualified expert given his experience with and knowledge of the duties of educational assistants.

24Under the second line of inquiry, the Panel must balance the potential risks of admitting the evidence of Mr. Stavnitzky against the potential benefits. Member’s Counsel submitted that Mr. Stavnitzky’s evidence will be overly prejudicial to the Member. However, he did not specify or elaborate as to the prejudice that would be experienced by the Member as a result of the expert evidence. The Panel can find no specific prejudice that would be experienced by the Member by Mr. Stavnitzky’s evidence. Mr. Stavnitzky’s evidence was not expected to be unduly complicated or lengthy, and the evidence is not so granular and technical as to distract from the main issues in this hearing. Additionally, Mr. Stavnitzky acknowledged his duty to provide opinion evidence that is fair, objective, and neutral. The Panel therefore found that the probative value of Mr. Stavnitzky’s evidence is greater than its prejudicial effect and as such, accepted that he should be qualified as an expert witness in this hearing.

25Finally, the Panel recognizes that it has the authority to admit any evidence that is relevant to the subject matter of the proceeding as long as it is not unduly repetitious, pursuant to section 15 of the SPPA. The Panel relies on this authority in admitting the evidence of Mr. Savnitzky in addition to the analysis above.

(ii) Evidence of Ed Stavnitzky

26Mr. Stavnitzky began by testifying about the varied role of the educational assistant. An educational assistant’s role is to support vulnerable students in a multitude of ways. There can be a lot of variability in the way that students are vulnerable (for example, they may have social anxieties, behavioural issues, mobility issues, etc.), and there is corresponding variability in the support that is provided by an educational assistant to students (for example, they may assist with academics, behaviour modification, or toileting). Overall, the role of an educational assistant was created to provide individualized support to particularly vulnerable students so that they are better able to achieve their educational goals. According to Mr. Stavnitzky, academics is about one-third of the responsibility of educational assistants; the rest of their work is teaching students how to behave appropriately with others and how to self-regulate so that they can focus on their academic work and go on to lead full social lives after graduation.

27According to Stavnitzky, an educational assistant is required to be as involved in a student’s education as much as is necessary for that particular student. There are a multitude of ways that an educational assistant can support a student academically. For example, an educational assistant may accompany a student to the classroom, provide extra tutoring, provide physical assistance (i.e. transcribing notes, taking part in one-on-one learning activities with a student), or provide learning opportunities in a small group or classroom. Frequently, an educational assistant may assist a student to emotionally or physically regulate themselves so that they can focus on their academic work.

28Mr. Stavnitzky testified about the importance of having a plan for each student who requires the support of an educational assistant. This plan should be created collaboratively with an in-school team that includes administrators, educational assistants, teachers, social workers, and any other professionals who are required to assist a student’s particular needs (for example: guidance counselors, mental health professionals, etc.). The plan should try to anticipate issues that may arise and should outline potential solutions to those issues. When a behavioural issue arises that requires intervention by an educational assistant, the best practice is to brainstorm collaboratively with the team regarding the best course of action for that student. An educational assistant’s opinion is encouraged and valued in these conversations, as they are often very familiar with the student and are in the best position to evaluate potential courses of action. Mr. Stavnitzky testified that it is important to involve both in-school and out-of-school professionals for situations where school staff may not have the expertise that is necessary for a particular student. For example, if a student has a certain disability, it is important to have a professional who is an expert in that particular disability on the student’s team to provide input. When a student goes through concerning behavioural changes, Mr. Stavnitzky testified that the expectations from an educational assistant depend on the context. However, most situations would require the educational assistant to escalate the issue either to the student’s teacher or to an administrator. In more serious situations, the educational assistant should also involve the police or an ambulance, depending on the circumstances. Additionally, if a student was in distress, the expectation is that their parents are notified.

29Mr. Stavnitzky testified about the importance of educational assistants maintaining boundaries with students. Because of the nature of an educational assistant’s work (i.e., assisting students with emotional regulation, physically supporting students, etc.), it is expected that some sort of relationship will form between a student and an educational assistant. However, he stressed the importance of an educational assistant managing any boundary crossing by the student and educating the student about how to behave appropriately if the student attempts any intimacy with the educational assistant. If any boundary violations are initiated by the educational assistant, this would be grounds for discipline.

30A part of his expert report, Mr. Stavnitzky reviewed the Toronto District School Board Policy P045 – Dealing with Abuse and Neglect of Students, which was adopted by the Board on October 27, 1999 (Exhibit 12). He advised that the principles about sexual abuse that are outlined in the policy – primarily that older children can also be victims of abuse and that the long-term effects of that abuse can be enormous – were prevalent in the educational community at the time of this policy. He also testified that the prohibition on sexual abuse would have applied to any staff member of the school, including educational assistants.

31Mr. Stavnitzky testified regarding the propriety of the Member’s behaviour, as admitted in her testimony during her criminal trial. He gave his opinion as to whether her behaviour was in accordance with the expectations and standards applicable to educational assistants. He testified regarding four admissions made by the Member – that she gave Student 1 her personal cell phone number, that she counselled Student 1 regarding his mental health issues, that she lent Student 1 $3,000 to pay off a gambling debt, and that she had sexual intercourse with Student 1. The Panel will review his opinion in this order.

32First, Mr. Stavnitzky opined that, while there may be a legitimate reason for a student to have their educational assistant’s personal cell phone number, this should be done with the knowledge of the student’s circle of care, including the student’s parents. Additionally, this should only be done in the circumstance where the educational assistant is the best person to deal with the student’s particular issue. Otherwise, sharing a personal phone number with a student is an act that crosses the boundary from professional to personal relationship. Therefore, in his view the Member did not act appropriately by sharing her personal phone number with Student 1.

33Second, according to Mr. Stavnitzky, it was not appropriate for the Member to counsel Student 1 about his personal and mental health issues, as this was outside of her duties as an educational assistant. When faced with Student 1’s [XXX], the Member ought to have escalated this to a teacher, an administrator, or another member of the student’s care team (such as a social worker or counsellor). Additionally, she should have ensured that Student 1’s parents were informed of the situation, so that they could have been provided with resources in the community that could assist Student 1. The Member should have avoided using language such as “you’re so [XXX]” when speaking to Student 1. Instead, she should have asked probing questions and obtained as much information about Student 1’s mental health state so that she could take her concerns to an administrator, a counselor, or a social worker, with the goal of obtaining broader support for Student 1. According to Mr. Stavnitzky, it was improper for the Member to attempt to manage Student 1’s mood issues, including his [XXX], on her own, without involving additional staff from the school and without involving Student 1’s parents. It was also improper for the Member to pick Student 1 up in her car when he was seemingly in a mental health crisis.

34Third, Mr. Stavnitzky opined that it was inappropriate for the Member to lend Student 1 $3,000 so that he could pay off a gambling debt. He testified that, in general, it is appropriate for an educational assistant to help a student if they get into personal trouble. However, this should be done by informing the student’s larger circle of care, including getting administrators and parents involved. This circle of care can then put an appropriate plan in place to support the student emotionally and figure out how to help repay the debt. It was inappropriate for the Member to unilaterally loan the student $3,000. This put Student 1 in a further power imbalance relative to the Member, as he now owed her a significant amount of money.

35Finally, Mr. Stavnitzky testified that it was inappropriate for the Member to have sexual intercourse with Student 1. In his opinion, even if Student 1 was no longer in the Member’s class, there is no length of time after which it would be appropriate for an educational assistant to have sex with one of their students (or former students). He also testified that, if a student initiated sexual intercourse, it was incumbent on the educational assistant to stop any romantic or sexual behaviour before it continued. Mr. Stavnitzky also confirmed that, in the early 2000’s, it was widely accepted that teachers and other educators (such as educational assistants) have a responsibility to avoid seeing students individually in their homes, becoming personally involved in students’ affairs, or making physical contact of a sexual nature with students.

36In cross-examination, Mr. Stavnitzky confirmed that he did not speak with Student 1 in preparing his report. He also was not aware of the Member’s specific duties as an educational assistant at the School, he did not review the Member’s job description, and he did not reach out to the Board to obtain a job description for the Member at the relevant time. Mr. Stavnitzky was also not aware whether the Member was working in a parallel capacity as a child and youth worker, youth counsellor, and educational assistant while at the School. Mr. Stavnitzky also did not review Student 1’s individual education plan prior to providing his opinion. Mr. Stavnitzky also agreed that it is the role of educational assistants to provide empathy and support to students who are going through personal problems but that, “empathy has its limits”, and that there is a point at which an educational assistant’s actions would cross the line from being supportive and empathetic to working beyond their scope of practice and what is considered appropriate. Mr. Stavnitzky also admitted in cross-examination that he was not aware of exactly what behaviours were reported by the Member to her supervisor. However, in his opinion, had a principal or vice-principal been aware that the Member had given out her personal telephone number to Student 1, it would have likely been “dealt with” by the administrator. Finally, Mr. Stavnitzky maintained in cross-examination that, in his opinion, the sexual intercourse that occurred between the Member and Student 1 was not an isolated incident but was something that happened after several earlier boundary violations by the Member.

(2) The Member

37The Member testified in her defence, and she called four additional witnesses as part of her case.

(a) The Member’s Testimony

38The Member testified that she worked as an educational assistant at the School from the fall of 1996 until 2005. She worked primarily within the special education resource room. The resource room students were sometimes dedicated students that were assigned to the room, or they could have been students with particular issues or behavioral challenges who attended the resource room on a less regular basis for extra help or assistance. When the Member started working at the School, her role was to support the resource room students with their academics. The Member was trained regarding the curriculum of all the academic classes, and she worked with students in those classes to support various difficulties that they had (i.e. understanding language, reading, grasping mathematical concepts, etc.). As she spent more time at the School, her role included a broader range of tasks aimed at supporting students with learning disabilities. Prior to working at the School, the Member worked as a child and youth worker and a mental health worker, so she used her skills obtained in those roles when it came to conflict resolution. As part of her training as a child and youth worker, the Member was taught about the vulnerability of students and the importance of maintaining strict professional boundaries with her students. She also testified that there was generally a lot of awareness about sexual misconduct arising in schools and the need to maintain boundaries to avoid any harm coming to students. In addition to her educational assistant duties, the Member coached four sports teams at the School. The Member testified that she often worked with “at risk” students, by which she meant that she worked with students who experienced a variety of challenges at home and therefore had behavioural issues, may have joined gangs, and may have been considering dropping out of school. The Member drew on her experience as a child and youth worker to mentor these students, build relationships with them, and to provide them with a non-judgemental space and a sense of community. Many of these students went on to become successful adults following her mentorship.

39The Member decided to train to become a teacher after she saw the impact that she had on her students and after being encouraged to go back to school by one of her colleagues. In 2001, the Member started taking part-time courses to complete a degree while continuing to work as an educational assistant. She completed her Bachelor of Arts in June of 2004. The Member applied to teacher’s college at the University of Toronto but was not admitted; she ultimately received her Bachelor of Education from the University of Windsor in June of 2007.

40The Member testified that she first met Student 1 in early 2004 – sometime between January and March. Student 1 was a senior who was brought into the special education resource room following an incident in his [XXX] class where he flipped a table and told the teacher to “fuck off”. The Member had not met Student 1 prior to 2004. In the resource room, the Member was supposed to provide [XXX] support to Student 1. However, Student 1 did not want to talk about [XXX] and instead wanted to discuss his personal problems – problems at home, with family, with his friend, and issues that he was having with his girlfriend. The Member had several conversations with him about these personal matters where she just listened to him talk. She attempted to engage him in [XXX] but he was not receptive. During the Member’s cross-examination, the College introduced Student 1’s record of absences for the 2003/2004 academic year. Based on the absence record, the Member acknowledged that Student 1 attended the [XXX] course that was offered for special education students and that it may have been taught in the resource room.

41The Member testified that on the second or third occasion that she met Student 1, he gave her a letter in which he stated that he was grateful that someone cared about him, because nobody else did. The Member testified that she showed this letter to her supervisor, Stephen Fryer, so that he could get an idea of what kind of student Student 1 was and how they might go about best serving him in the resource room. The Member also wrote a letter in response to try and encourage Student 1. In this letter, the Member wrote something along the lines of “you’re better than that” and “you’re a child of God”. She denied writing anything inappropriate in this letter.

42The Member testified that she had a practice of providing her personal phone number to her students to ensure that they arrived home safely following extra-curricular activities and school events that she oversaw. The Member’s phone number would often be written on permission forms for these extra-curricular events. Additionally, the Member always told students that they could call her if they were in any kind of trouble and wanted to talk. According to the Member, the students’ parents were aware that the students had her phone number and so was school administration. The Member was never reprimanded by the administration for providing her personal phone number to students nor advised that she was not permitted to do so. The Member provided Student 1 with her personal phone number because he often had “bad days” and needed somebody to speak to. She asked him to call her instead of taking out his anger in unhealthy ways and “doing something stupid”. The Member testified that Student 1 called her from time to time (once or twice per month) and gave a few examples of the contents of their conversations – Student 1 called her on one occasion to discuss the possibility of joining [XXX], and on another occasion he called her when he broke up with his girlfriend. Additionally, Student 1 sometimes called her to tell her about erratic and potentially [XXX] behaviour. On one occasion, he told her that he had punched a wall and hurt his hand; on another occasion he called her and told her that he [XXX]. The Member was not always sure whether to believe Student 1, as she did not observe any physical injuries following these conversations. The Member testified that she reported some of these conversations to her supervisor, Stephen Fryer, but she did not report that Student 1 told her that he [XXX]. She also did not report these conversations to Student 1’s parents. The last time the Member heard from Student 1 while he was a student was when he called her in the summer of 2004 to advise her that he decided to enroll at a different school to finish his diploma.

43The Member testified that she sometimes told Student 1 that he was “[XXX]” because his mood was often erratic and she periodically observed drastic changes in his mood. Sometimes the Member said this in a joking manner. However, she mostly said this to communicate to Student 1 that he needed help. The Member believed that Student 1 needed mental health support from a professional and she encouraged Student 1 to see his doctor or a mental health professional. Student 1 told the Member that he had made an appointment with his doctor but the Member did not remember what kind of doctor Student 1 was referring to or what became of this appointment. The Member also did not report this behaviour to Student 1’s parents or to anyone at the School.

44On one occasion towards the end of the school year in 2004, Student 1 called the Member and advised that he was “out on the street” and that he wanted to [XXX]. The Member evaluated that Student 1 did not have a concrete plan to [XXX], and she drove to meet him. She then drove around in the car with Student 1 until she was certain that he did not have a plan to [XXX] and that he was safe. The Member testified that she may have notified her supervisor when they were back at school on the following Monday. However, when she received the call from Student 1, she did not feel that it was important to report the situation to anyone. She simply ensured that Student 1 was safe and that he did not have a plan for [XXX]. The Member testified that Student 1 was not an ordinary special education student and that he was only in the resource room “on and off”. As a result, she did not take some of the reporting steps that she ordinarily would have taken if a special education student advised her about [XXX]. The Member also testified about another occasion when Student 1 called her with [XXX]. According to the Member, this likely occurred in late June of 2004, after the school year had completed. Following this phone call, Student 1 came to the Member’s house to figure out his next steps in terms of his schooling. Student 1 and the Member sat outside the Members house during this discussion and Student 1 did not enter her house on that occasion. The Member testified that it was her practice to invite students to her house from time to time. Sometimes she sat outside with students and other times students entered her house. At times her students also met her family. These meetings were usually for the purposes of mentoring her students or former students.

45The Member testified about lending Student 1 $3,000. She described that she often discussed football with Student 1. These discussions included guessing which teams would likely win upcoming games but did not involve gambling with money or actually placing bets on the outcome of any particular game or the performance of any particular player. One day following a football game, Student 1 told the Member that he had placed a bet with a bookie on the outcome of one football game and, as a result, owed the bookie $3,000. The Member was not clear whether Student 1 had asked her for help to pay this bookie back. Nevertheless, the Member borrowed $3,000 from a friend, lent the money to Student 1, and had him sign an “IOU” document in which he promised to pay her back. The Member expected that Student 1 would pay her back, but he did not ever repay the $3,000. The Member acknowledged that lending him the money created an inappropriate relationship between herself and Student 1. The Member did not report this exchange to the student’s parents or to anyone else at the School.

46The Member testified that Student 1 often made sexual comments to her or “hit on her”, which she likely ignored. She may have asked him to stop making such comments, but she did not remember exactly what her response was every time. The Member maintained that other than the sexual encounter with Student 1 in her home, there had never been any physical contact between them at any time.

47The Member testified that in the summer of 2004, she and Student 1 engaged in one instance of sexual intercourse, which occurred at her home. During her trial testimony, the Member was not certain whether Student 1 was 17 or 18 years old at the time of the intercourse (it was not in dispute that Student 1 turned 18 on [XXX]). At the discipline hearing, however, the Member testified that she was fairly certain that Student 1 had already turned 18 at the time of the sexual intercourse, because she recalled talking to Student 1 about quitting school and joining [XXX], and that he told her that he could [XXX] without his parents’ permission because he was 18 years old. When discussing the events leading up to having sex with Student 1, the Member testified that she applied to teacher’s college at the University of Toronto, hoping to attend in the 2005/2006 school year. She was not successful in her application and as a result had “a dark moment” and a lapse in judgement. According to the Member, she was not thinking clearly at the time. She otherwise could not remember what particularly led up to the sexual intercourse. In her words, “I let [Student 1] into my house and it just happened.”

48The Member admitted that overall, she had formed a personal relationship with Student 1. She admitted that he was vulnerable. Additionally, she admitted that she engaged in serious boundary violations with Student 1, including by spending time with him alone at her house and by engaging in sexual intercourse with him.

(b) Gerry McCann

49Gerry McCann worked as the vice-principal at the School from February 2002 until June 2007. In 2004, Mr. McCann was the only vice-principal at the School. As such, he dealt with all issues that arose at the School, including disciplinary issues, unless they were brought directly to the principal. Mr. McCann confirmed that a student could be assigned to the resource room either through a formal evaluation where it was determined that they required special education support or through a recommendation from a teacher or another educator if it was deemed that the student required some additional support. However, he could not recall the circumstances under which Student 1 was assigned to the resource room. Mr. McCann could not recall any concerns with the Member’s performance as an educational assistant, her competence as an educator, or receiving any complaints about her work during his time at the School.

50Mr. McCann testified that educational assistants or teachers were expected to alert him to any issues that arose with students including behavioural issues, mental health concerns, [XXX], or involvement in illicit gambling. He also testified that these kinds of issues would likely be raised with a student’s parents, unless there was advice from a social worker or psychologist not to involve the parents for a particular reason. If any educator or educational assistant had concerns about a student’s well being, these concerns should have been brought up to an administrator who can assist in deciding how to follow up on these concerns. Mr. McCann testified that he was not aware that teachers or educational assistants were providing their personal phone numbers to students in 2004. He would not have found it appropriate for this to occur or to be common practice. Furthermore, he would have deemed it inappropriate if an educational assistant who found out that a student was [XXX], drove to see the student but took no other follow up action. Instead, he would expect the educational assistant to call 911 and to report the incident to administration. Mr. McCann also testified that it would be inappropriate to loan students money in any amount. While he has given money to students for food or other necessities, it would be inappropriate for any educator to lend a student money as it would change the power dynamic between the educator and the student.

51At the time of his testimony, Mr. McCann was not aware of the relationship between the Member and Student 1. In particular, he was not aware that the Member had given Student 1 her personal phone number, that Student 1 had contacted the Member and told her that we was [XXX], that the Member loaned Student 1 $3,000 to pay off a gambling debt, that the Member was concerned about Student 1 having a [XXX], that the Member invited students to her house, and that Student 1 had attended the Member’s house. Additionally, Mr. McCann was not aware that the Member had admitted to having sexual intercourse with Student 1 in the summer of 2004.

(c) Tracy Segre

52Tracy Segre has been the Member’s close personal friend for over 20 years. Ms. Segre did not know Student 1 personally, but she recalled hearing about him from the Member. The Member advised Ms. Segre that Student 1 was being threatened by bookies to whom he owed money. The Member then asked Ms. Segre to lend her the money to help Student 1 repay his debt. Ms. Segre did not remember the amount the Member borrowed from her but believed that it was approximately $4,000. Ms. Segre was not concerned about this request and did not find it unusual as she knew that the Member was always going above and beyond to help her students with various purchases that they could not afford. The Member repaid the money she borrowed from Ms. Segre.

(d) Stephen Fryer

53Stephen Fryer has worked as a teacher at the School from 1999 until his retirement in 2022. In the 2003/2004 academic year, he worked as the head of the special education program. In this role, he designed and implemented that program. The Member reported directly to Mr. Fryer while she was an educational assistant at the school. Mr. Fryer testified that at the time that the Member taught at the School, the School had many students whose parents were not very involved in their education due to a variety of circumstances (i.e., being single parents, working multiple jobs, living below the poverty line, etc.). As a result, many differently abled students were either not formally identified, or they were brought into the special education program without much parental involvement. Students who required support from the special education department were usually identified by a team that included Mr. Fryer, the school administration, as well as professionals such as social workers. However, the process was very ad-hoc, often reactive, and it was not as formalized as it has become in the years since the Member left the School. Furthermore, the special education department did not organize any formal training for its staff or the educational assistants in particular. Additionally, there was not any formal evaluation process for educational assistants in the special education department at the time.

54Mr. Fryer testified about the role of an educational assistant in the resource room. He often encouraged educational assistants to take on tasks that were suitable to their strengths. For example, if an educational assistant had expertise in a particular academic area, he would encourage them to teach that subject to students. His goal was for the students in the resource room to see the educational assistant as part of the educator team and not as someone who was “less than” a teacher. Mr. Fryer testified that the Member had an excellent rapport with many students in the resource room and he encouraged her efforts at counseling students about a variety of subjects, particularly assisting to develop their executive functioning and other cognitive skills, and not only counseling them academically.

55Mr. Fryer became familiar with Student 1 when he attended the resource room after an incident in his [XXX] class. To Mr. Fryer’s recollection, Student 1 was displaying some behavioural issues such as resistance, anger, and lack of cooperation in his [XXX] class. Mr. Fryer assigned the Member to assist Student 1 with [XXX] Mr. Fryer then consulted with the larger team (including administration) to determine how it would be best to assist Student 1 in the resource room. He did not recall ever interacting with Student 1’s parents or consulting them in the process, though he testified that he likely would have tried to get parents involved. Mr. Fryer testified that he did not remember if the Member approached him to discuss any possible mental health issues or exceptionalities that Student 1 had. However, he was certain that if something had come up, that the Member would have talked to him about it and that he would have likely referred both the Member and Student 1 to the administration for additional supports. During his time supervising the Member, Mr. Fryer did not observe any interactions between the Member and Student 1 that caused him any concern. However, Mr. Fryer also did not recall knowing that Student 1 often “hit on” the Member, or that the Member lent Student 1 $3,000 to repay a debt to a bookie. He also did not recall seeing a letter that Student 1 had written to the Member, being advised that Student 1 reported [XXX] behaviours to the Member or that Student 1 told the Member that he wanted to [XXX].

56Mr. Fryer testified that teachers and educational assistants sometimes provided their personal phone number to students for a variety of reasons. If a teacher or an educational assistant coached a sport or organized extra-curricular activities off school property, they sometimes provided their phone number to students to coordinate attendance for events related to those activities. For example, Mr. Fryer recalled the Member organizing a baby shower for a student who was kicked out of her house following her pregnancy, and that the Member shared her phone number with students for that purpose. Additionally, Mr. Fryer recalled that the Member organized a trip for students to see a play, and that she provided her phone number to students for this purpose. Mr. Fryer testified that he gave his personal phone number to students on occasion as well. However, the fact that students were provided with an educational assistants’ phone number is not something that would ordinarily be concealed from the students’ parents. Additionally, it would not be appropriate for an educational assistant to share a phone number with a student for the purpose of engaging in personal communications.

57Mr. Fryer testified that if an educational assistant observed serious or chronic behavioural issues with a student at the school, he would have expected those to be brought to the attention of the administration. The issues would then be discussed among the administration, the special education teacher, and any educational assistants that were involved in the student’s education, along with any available support people (i.e., a social worker or psychologist). He testified that the student’s parents would also likely be involved. Mr. Fryer would have expected any indication of a student engaging in [XXX], [XXX] behaviour, or incurring serious gambling debt to be reported to the administration.

58Generally, Mr. Fryer was very complimentary regarding the Member’s work as an educational assistant in his classroom. Mr. Fryer wrote the Member a recommendation letter to use in her teacher’s college application as a result of the excellent work that he had observed her doing.

(e) [XXX]

59[XXX] was a student at the School from 2000 until 2004. He was a special education student in the resource room every year that he was at the School, and he became familiar with the Member through his time in the resource room. The Member has assisted him throughout his time in school and has continued to assist him with other professional endeavors since his graduation. He felt that the Member truly cared about her students and was always very generous with her time and resources. Overall, [XXX] had an excellent relationship with the Member. [XXX] was also familiar with Student 1 during his time at the School; they had some mutual friends but they were not very close because Student 1 was a couple of years younger than him. [XXX] remembered Student 1 attending at the resource room from time to time but not being there during every class. He recalled Student 1 attending the resource room for the first time in 2002 or 2003 but he was not certain about the exact year. He also recalled Student 1 being involved in some gambling with his friends, but he did not believe that teachers were aware of this.

60[XXX] testified that the School was very small and it was a tight knit community. If anyone was in any kind of relationship – personal or otherwise – everyone tended to know about it. He did not recall observing any inappropriate behaviour between the Member and Student 1.

61At the time of his testimony, [XXX] was not aware of the content of the allegations against the Member or about any of the admissions that she made in this hearing or at her criminal trial.

E. SUBMISSIONS OF COLLEGE COUNSEL

62College Counsel submitted that the Panel should accept that all the particulars in the Notice of Hearing have been made out, as they have been admitted to by the Member either at this hearing or during her criminal trial. College Counsel submitted that the Panel should pace a great deal of weight on the Member’s admissions. At her criminal trial and during her testimony at this hearing, the Member admitted that she had sexual intercourse with Student 1 in the summer of 2004, which she appropriately characterized as crossing a line. The Member further admitted to having a number of inappropriate interactions with Student 1, namely that: Student 1 had her phone number and called her numerous times for personal reasons; she met with Student 1 and gave him a ride in her car outside of school hours; she wrote Student 1 a personal letter; Student 1 had been to her residence; Student 1 advised her that he wanted to [XXX] and she did not report this to authorities or the School’s administration; and she lent Student 1 $3,000 to pay off a gambling debt. College Counsel submitted that these admissions should lead to a finding that the College has successfully proven all the particulars in the Notice of Hearing.

63College Counsel submitted that the Member did not provide any excuse for the conduct. The Member did not consider that the relationship fostered with Student 1 was inappropriate and dangerous, and ultimately led to her crossing the line. In fact, College Counsel submitted that the Member tried to deflect blame for the sexual intercourse on Student 1, tried to minimize her actions, and tried to rationalize them. This demonstrates a lack of insight, remorse, and accountability for her actions. Additionally, the Member attempted to downplay her interactions with Student 1 in ways that were not credible.

64College Counsel further submitted that the Panel should not give much weight to the testimony of the witnesses called by the Member. Their testimony was not relevant to whether or not the conduct occurred because they did not witness it. Additionally, they had no knowledge or appreciation of the admissions made by the Member at this hearing or during her criminal trial. As such, even as character witnesses, their testimony is not valuable and should not be relied on by the Panel (see: Law Society of Upper Canada v. Robert Allen Stewart, 2012 ONLSAP 30).

65College Counsel noted that there is no precedent for making a finding of professional misconduct based on pre-registration conduct. However, the Panel should feel comfortable in doing so due to the broad purpose of the Act – protection of the public. Therefore, the Panel should not only look to any plain language in the Act but should take more of a purposive interpretation approach. In doing so, the Panel should take into consideration the fact that the broad purpose of the Act is to protect the public, with a focus on protecting students. It is self-evident that protection of students is engaged when an educator has sexual relations with a student. It would not be principled to find that there was no breach of trust simply because the educator was not a member of the profession at the time of the misconduct.

66College Counsel submitted that the Panel should make findings under three headings of the misconduct provisions that applied in 2004: 1(7)², 1(18), and 1(19). College Counsel submitted that, as the conduct occurred in 2004, the appropriate version of the Act and corresponding regulations to apply are the versions that were in force during the time of the misconduct (i.e., in 2004). The College did not request withdrawal of the remaining allegations. However, College Counsel did not make any submissions and did not ask the Panel to make a finding regarding those remaining allegations.

67The College has asked the Panel to find that the Member had physically, sexually, verbally, psychologically or emotionally abused Student 1 contrary to subsection 1(7) of Ontario Regulation 437/97 (which applied in 2004). According to College Counsel, all aspects of this subsection are clearly met. The Member physically, psychologically, emotionally, and sexually abused Student 1 when she had sexual intercourse with him in the summer of 2004. Additionally, the Member verbally abused Student 1 by telling him that he was “[XXX]” on a number of occasions. College Counsel submitted that the Panel should not apply the definition of “sexual abuse” in section 1 of the Act with respect to the allegation of “abusing a student … sexually” in subsection 1(7) of the misconduct regulation for two reasons. First, because the Panel should take a broad purposive interpretation of the wording in the misconduct regulation to interpret that for an educator to have sex with a student would obviously amount to abusing a student sexually. Second, because the wording of the definition in section 1 (i.e. “sexual abuse”) is different than the wording in subsection 1(7) of the regulations (i.e. “abusing a student sexually”) and therefore the definition in section 1 was not intended to apply to the misconduct definition in the regulation but to create a separate offence.

68College Counsel submitted that that Panel should find that that the Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable, and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. College Counsel submitted that the Panel should rely on the evidence of three members of the College (Mr. Stavnitzky, Mr. McCann, and Mr. Fryer) who testified that the Member’s actions were inappropriate and amounted to boundary violations to make this finding. Additionally, College Counsel submitted that the Member’s actions clearly and self-evidently fit into the definitions of all three elements of this subsection as the Member’s actions were an egregious breach of trust and a tremendous boundary violation.

69Finally, College Counsel submitted that the Panel should find the Member engaged in conduct unbecoming a teacher contrary to subsection 1(19) of Ontario Regulation 437/97. Namely, that due to the Member’s position of trust as an educator of Student 1, and her egregious breach of that trust through her abuse of Student 1, that permitting her to continue as a teacher would cause the public to lose confidence in the teaching profession.

F. SUBMISSIONS OF member’s counsel

70Member’s Counsel submitted that the Panel should not find the Member guilty of professional misconduct as alleged by the College. Member’s Counsel acknowledged that the Member made several admissions regarding her conduct – that she shared her personal cell phone number with Student 1, that she loaned Student 1 $3,000 to pay off a gambling debt, and that she engaged in one intimate sexual encounter with Student 1. However, at all times, the Member was acting in the best interests of Student 1 and was attempting to support him through the challenges he was experiencing in his personal life. Additionally, Member’s Counsel submitted that the Member is remorseful for any harm that she may have caused Student 1 prior to becoming a member of the College. Despite this harm, Member’s Counsel submitted that the Member did not breach any of her obligations as a member of the College, because she was not a member of the College at the time of the events. During the relevant time, there was no clear rule for the professional standard of educational assistants. Ontario Regulation 437/97 does not and did not govern educational assistants and should therefore not be applied to the Member.

71Member’s Counsel further submitted that Mr. Stavnitzky’s testimony should not be considered in determining the standard of practice for an educational assistant for three reasons. First, his experience was not particular to schools in an urban setting. He was a teacher and a principal in suburban and rural Ontario. Second, he did not interview the Member or Student 1 before preparing his report. Finally, his evidence was unclear and contradictory. Instead, Member’s Counsel submitted that the Panel should prefer the evidence of Mr. McCann and Mr. Fryer and in particular the fact that they testified to the lack of standards regulating educational assistants in general and at the School in particular. In the absence of a standard of conduct regulating educational assistants, finding the Member guilty of professional misconduct would be absurd and unreasonable.

72Member’s Counsel submitted that the Panel should draw an adverse inference from Student 1’s failure to testify at this hearing. An adverse inference may be drawn against a party for a failure to produce a material witness reasonably assumed to be favourably disposed to that party (see: R. v. Ellis, 2013 ONCA 9). As such, Member’s Counsel submitted that the Panel should infer that, if he testified, Student 1 would not have provided evidence helpful to the College’s case. Additionally, Member’s Counsel submitted that by relying on the Member’s admissions instead of Student 1’s testimony in this case, the College has failed to discharge its burden to prove that the Member had engaged in professional misconduct.

73Overall, the Panel should find that the College has failed to discharge its onus and that the Member did not commit professional misconduct as alleged.

G. DECISION ON FINDING

74The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

75Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7) and 1(18), as they were in force in 2004. The Panel finds that the College has failed to prove the remaining allegations in the Notice of Hearing, i.e., that the Member engaged in acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(14), 1(15) and 1(19), or section 1 of the Act [in force in 2004 or any other time as alleged].

H. REASONS FOR DECISION

76The Panel has carefully reviewed the evidence and submissions presented in this hearing. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to two findings of professional misconduct.

77As stated above, the College has the burden of proving the allegations. This means that first the College must prove, on a balance of probabilities, that the behaviour alleged in the Notice of Hearing occurred – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such behaviour constitutes the professional misconduct that was alleged.

78In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When evaluating each witness’ testimony, the Panel has considered the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence (see: Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services, 1985 CanLII 2053 (ON SC)). The Panel can also apply its logic, common sense, and its experience when making credibility findings.

(1) Credibility assessments

79The Panel found that Ed Stavnitzky was credible and knowledgeable regarding his own experience and dealings with educational assistants. However, the College ultimately did not make submissions and did not ask the Panel to make a finding regarding the allegations that Mr. Stavnitzky’s evidence addressed (i.e., with respect to the standards of practice that applied to educational assistants, and with respect to subsection 1(5) of Ontario Regulation 437/97). The Panel was not tasked with determining whether the Member failed to comply with the standards of either the profession or the educational assistant profession and did not have to grapple with the questions of what would have been the appropriate standards to apply to an educational assistant and whether/how to apply the standards of the teaching profession to an educational assistant. As such, Mr. Stavitzky, while credible and a properly qualified expert, did not assist the Panel in its determination of the ultimate issues before it. The Panel therefore placed limited weight on his evidence.

80The Panel found the Member to be generally credible on the primary issues that she testified to and particularly, regarding the conduct she admitted. Individuals do not lightly admit conduct that may put them in professional or criminal jeopardy and, as such, the Panel has placed great weight on the fact that the Member admitted many of the factual allegations in the Notice of Hearing both in her trial testimony and at this hearing. Additionally, the Member acknowledged that it was a serious boundary violation for her to have sexual intercourse with Student 1 and she was remorseful for her actions. However, the Panel had concerns about four elements of the Member’s evidence. These concerns do not diminish the weight placed on her admissions but rather, the Panel finds that they show that the Member was, at times, attempting to diminish the severity of her actions during her testimony. First, the Member testified that Student 1 was not a regular student in the resource room in 2004. However, the Panel was presented with Student 1’s absence record, which confirmed that Student 1 was a student in the [XXX] course which was taught in the resource room in the 2003/2004 academic year. This information was also confirmed by Mr. Fryer. Despite having access to this evidence well in advance of the hearing, the Member was steadfast that Student 1 was simply an occasional visitor in the resource room at the time of the relevant events.

81Second, the Member began her testimony by claiming that she only worked with Student 1 in the resource room “a couple of times”, in cross-examination when confronted with her trial testimony, she admitted that she saw him quite often.

82Third, she testified that she had a practice of reporting incidents to her supervisor and that she believed that she reported many of the interactions that she had with Student 1 to Mr. Fryer. However, Mr. Fryer testified that he was not aware of any issues that Student 1 was facing. In particular, he was not aware of any [XXX] or incidents of [XXX] expressed by Student 1 to the Member. The Panel prefers Mr. Fryer’s evidence here and finds that it is more likely than not that the Member did not report any of the issues that arose with Student 1 to Mr. Fryer or to anyone else.

83Finally, the Member’s testimony often went beyond the scope of the allegations and into irrelevant good character statements about her practice as an educational assistant and examples of her behavior with other students. The Panel finds this to be self-serving and either indicative of a failure to appreciate the gravity of many of the facts that she admitted during this hearing or an attempt to portray herself in a positive light.

84The Panel found Mr. McCann and Mr. Fryer to be generally credible and reliable witnesses. The Panel notes that Mr. McCann and Mr. Fryer did not observe many of the events at issue at this hearing as they occurred privately between Student 1 and the Member. However, both witnesses had the opportunity to experience and observe the events to which they were testifying, their evidence was clear, they were measured in their testimony, and they did not seem to embellish their evidence. Both Mr. McCann and Mr. Fryer were honest about any elements of the events that they did not remember, and they were consistent between direct and cross examination. The Panel has therefore relied on their evidence where appropriate.

85The Panel did not have concerns with the credibility of Ms. Segre and [XXX]. While they clearly had a good relationship with the Member, there is no indication that they themselves had an interest in the outcome of the hearing. However, the Panel did not find the evidence of these witnesses helpful to determine the issues before it. They provided good character evidence for the Member (though the Panel notes it may have limited value as they were not familiar with the nature of the allegations against the Member), but this evidence did not assist in determining whether the Member engaged in the specific behaviour alleged in the Notice of Hearing as they did not witness the Member’s behaviour with Student 1. As such, the Panel has put very limited weight on their evidence in determining the issues in this hearing.

(2) Adverse Inference

86An adverse inference arises where a party, without a reasonable explanation, does not call a witness where it is anticipated that this witness should be called. When this occurs, the Panel may draw an adverse inference against that party because it can be inferred that the witness’ testimony would not have been favourable to that party. This is not what occurred in this case. The College did call Student 1 to testify, and he was indeed planning to testify, but he became too upset to go through with his testimony after briefly appearing on the electronic hearing platform and, presumably, seeing all the participants in the hearing, including the Member. As such, there is a reasonable explanation for Student 1’s failure to testify and the Panel finds that this is not an appropriate case to draw an adverse inference as requested by Member’s Counsel. While the Panel recognizes that College Counsel could have required Student 1 to participate pursuant to a summons, the Panel realizes that there are policy reasons for not doing that with respect to a witness who would be testifying about sexual conduct and in light of the Member’s admissions at her criminal trial, the Panel does not find College Counsel’s decision in this regard to be unreasonable.

(3) Factual Findings

87The Panel finds that the College has successfully proven the factual allegations in the Notice of Hearing, as alleged in particulars 1-4, on a balance of probabilities. These factual allegations were either admitted or not contested by the Member. However, as the allegations were worded very broadly and span from 2001 to 2004, the Panel will review its precise factual findings regarding the allegations and in particular, allegation 4. Specifically, the Panel will outline its findings regarding when and how the Member engaged in an inappropriate personal relationship with Student 1, when and how the Member engaged in inappropriate physical contact with Student 1, and when and how the Member engaged in sexual touching with Student 1.

(a) The Member engaged in an inappropriate personal relationship with Student 1 (particular 4(a))

88The Panel finds that the College has proven that the Member engaged in an inappropriate personal relationship with Student 1. The College has proven, based on the Member’s sworn statements at her trial, and confirmed by the Member’s testimony at this hearing, that the Member’s relationship with Student 1 went beyond the professional and into the realm of an inappropriate personal relationship. While College Counsel attempted to elicit some evidence in the Member’s cross-examination that the Member knew Student 1 prior to 2004, the Panel did not hear any clear and convincing evidence that the Member knew Student 1 prior to January 2004. As such, the Panel finds that all elements of the Member’s inappropriate relationship with Student 1 occurred from January 2004 to September 2004 (the temporal end point of the allegations in the Notice of Hearing).

89The Panel finds that there were four elements to the Member’s relationship with the student that were inappropriate. First, the Member gave Student 1 her personal phone number and encouraged him to contact her for any reason. The Panel heard evidence from Mr. Fryer that it was sometimes appropriate for a teacher or an educational assistant to provide a student with their personal phone number for a specific purpose, such as coordinating travel for a field trip or extra curricular event. However, in this case, the Member admitted that she gave her phone number to Student 1 “because he often had bad days and needed somebody to speak to.” The Member further admitted to telling Student 1 to call her anytime he was having a hard time. The Member testified that Student 1 called her to discuss personal issues such as problems with his girlfriend, his family, and his schooling. The Panel finds that this is beyond the scope of an appropriate professional relationship for any educator to have with a student. The Panel heard evidence from Mr. McCann and Mr. Fryer that, while it was sometimes appropriate for an educational assistant to provide a personal phone number to a student, the reason for doing so should be related either to a school event or for some other appropriate purpose. Additionally, they testified that in most cases, it would be inappropriate for an educational assistant to provide her phone number to a student without notifying that student’s parents. In this case, the Member was tasked with supporting Student 1 with his [XXX] work, with specific focus on working with him in the resource room. Instead, the Member crossed a professional boundary by giving Student 1 her personal phone number (without advising his parents) and encouraging him to contact her if he needed to talk about anything at all, including his personal problems. The Panel did not hear any evidence that the Member gave Student 1 her phone number for any school-related purpose. Therefore, the Member’s behaviour crossed a line into an inappropriate personal relationship as alleged in the Notice of Hearing.

90Second, the College has successfully proven on a balance of probabilities that the Member lent Student 1 $3,000 to repay what he told her was a gambling debt. According to the Member’s trial testimony and confirmed by her admission in her testimony at this hearing, the Member and Student 1 frequently chatted about NFL football and about which teams were more likely to win the upcoming games. On one occasion during the 2003/2004 academic year, Student 1 informed the Member that he placed a bet with a bookie about the outcome of one of the games following one such conversation. As a result of this bet, he told the Member that the bookie was looking for him because he owed $3,000. The Member did not notify Student 1’s parents or anyone in the School administration about this. Instead, she borrowed $3,000 from her friend, gave it to Student 1, and asked Student 1 sign a note confirming that he owed her $3,000. The Panel finds that this is an entirely inappropriate transaction between an educator and a student. There is inherently a power imbalance between educators and students, as educators are formally in charge of students. By lending Student 1 a large sum of money, the Member tipped the scales in what should have been a professional student-educator relationship and created an inappropriate personal and debtor-creditor relationship with Student 1.

91Following this loan, Student 1 was beholden to the Member for what is an enormous sum of money for any 17- or 18-year-old child. The Panel recognizes that, by lending Student 1 $3,000, the Member’s intention was to assist Student 1 with a very difficult situation. However, the Member exhibited a serious error in judgement when she did not notify her supervisor, the administration, or Student 1’s parents of the fact that Student 1 was in significant gambling debt. The Member could have taken steps to actually help Student 1 if she had raised the issue with administration who could have involved a professional. Due to her lack of judgement in this situation, the Member instead created a problematic and unsafe situation for herself and Student 1.

92Third, the College has successfully proven on a balance of probabilities that the Member spent time with Student 1 outside of school hours or extra-curricular activities. This occurred when Student 1 was in particularly vulnerable position and was experiencing [XXX]. Based on the transcript of the Member’s testimony at her trial, and as admitted by the Member through her testimony at the hearing, the College has proven the Member picked Student 1 up in her car on at least one occasion when he called her and told her that he wanted to [XXX]. The Member testified that, towards the end of the 2003/2004 school year, Student 1 called her and told her that he wanted to [XXX]. The Member did not remember any other details about what Student 1 said, though she believed that he may have told her that something happened at home. The Member then picked up Student 1 and drove with him in her car until she was sure that he did not have a plan to [XXX] and until he seemed stable. The Member testified that she reported this incident to her supervisor the following day at school. However, Mr. Fryer testified that he did not have any recollection of the Member advising him of any [XXX] experienced by Student 1. Furthermore, the Member testified that she often told Student 1 that he was “[XXX]”, that he needed help, and that he needed to contact a doctor about his mental health issues. However, the Member did not ever formally refer Student 1 to any professional mental health support. Instead, she simply told him that he should contact his doctor. The Panel finds that this behaviour by the Member was part of her inappropriate relationship with Student 1.

93The Member clearly crossed a line between having a professional in-school relationship with Student 1 when she did not report his [XXX] and mental health issues to authorities, but instead took it upon herself to pick up Student 1 in her car and drive around with him ostensibly for the purpose of providing emotional support to him. While the Panel recognizes that the Member drove to see Student 1 because she wanted to make sure he was safe, her actions were indicative of a personal relationship and not one between an educator and a student. It was incumbent on the Member to maintain a professional relationship and to notify her administration if she believed that Student 1 was having [XXX] issues, particularly ones that may endanger his safety. Mr. McCann testified that he would have expected the kinds of issues experienced by Student 1 to be reported to him or to another administrator. The Panel finds that the Member’s failure to notify her superior of this incident is indicative of the fact that the Member viewed her relationship with Student 1 as a personal one, and not one for which she had a professional responsibility to report if he was in distress. Additionally, spending time driving around alone with a student for any reason that is not related to school or extra-curricular activities is inappropriate behaviour for an educator and is indicative of an inappropriate personal relationship. The Panel finds that by picking up Student 1 and driving him around in her car, the Member crossed a line into an inappropriate personal relationship with Student 1 as alleged in the Notice of Hearing.

94The Panel further finds that it was improper for the Member to repeatedly tell Student 1 that he had mental health issues. Educators must be sensitive and professional in the way that they speak to students, which the Member failed to do by calling Student 1 “[XXX]” in a casual manner. The Panel finds that casually and playfully calling Student 1 “[XXX]” was further evidence of an inappropriate relationship between the Member and Student 1.

95Fourth, the Panel finds that the College has successfully proven on a balance of probabilities that the Member spent time with Student 1 alone at her house outside of school or extra-curricular activities. Based on the Member’s sworn testimony at her criminal trial, and confirmed by the Member’s admission at this hearing, the College has shown that Student 1 attended at the Member’s house in the summer of 2004. The Member and Student 1 had sexual intercourse at the Member’s house on one occasion. The Panel finds that spending time alone with a student in a private setting, and particularly at her home, is evidence of an inappropriate personal relationship, beyond what is acceptable for a student and an educator. Additionally, having sexual intercourse with Student 1 is obviously and self-evidently behavior that is indicative of an inappropriate personal relationship.

96The Panel finds that writing a letter to Student 1, in and of itself, was not inappropriate behavior or indicative of an inappropriate relationship between the Member and Student 1. Without more information regarding the content of the letter, the Panel cannot find that writing a letter to a student is inappropriate behavior, particularly when it was written in response to a letter written by Student 1. The Panel did not hear any convincing evidence about the content of the letter as the Member lacked a specific memory of what she wrote in the letter (except for a couple of lines) both during her trial testimony and during her testimony in this hearing. Without convincing evidence as to the content of the letter, the Panel cannot find that writing a letter to Student 1, on its own, was inappropriate behaviour by the Member.

97In total, the Panel finds that the Member engaged in an inappropriate personal relationship with Student 1 as alleged by giving him her personal phone number, lending him $3,000 to pay off a gambling debt, picking up the student in her car and driving around with him, calling him “[XXX]” and telling him that he needed help without actually reporting his mental health issues to the administration, spending time with Student 1 alone at her home, and by having sexual intercourse with Student 1.

(b) The Member engaged in inappropriate physical and sexual touching of Student 1 (particulars 4(b) and 4(c))

98The Panel finds that the College has successfully proven on a balance of probabilities that the Member engaged in inappropriate physical and sexual touching of Student 1. The College has submitted sworn testimony from the Member during her criminal proceedings, confirming that the Member and Student 1 had sexual intercourse in the Member’s house in the summer of 2004. Additionally, the Member has admitted in her testimony at this hearing that she had sex with Student 1 on one occasion at her house in the summer of 2004. It is not contested that, at this time, Student 1 was no longer the Member’s student, but he had not yet graduated high school and had enrolled in a different school at the Board in September of 2004 and therefore he was still a student. The Panel finds that, by having sex with Student 1, the Member engaged in inappropriate physical and sexual touching as alleged.

(4) Legal Conclusions

99In their final submissions to the Panel, College Counsel requested that the Panel make a finding that the Member contravened subsections 1(7), 1(18), and 1(19) of Ontario Regulation 437/97 as it was in force in 2004. College Counsel did not request to withdraw the remaining allegations but also did not ask the Panel to make any findings with respect to these allegations. As a result, Member’s Counsel also did not make submissions regarding the remaining allegations. The Panel finds that it would be procedurally unfair to the Member to conduct an analysis of whether the Member is guilty of the remaining allegations in the absence of fulsome submissions from both parties as to the Member’s professional liability under those heads of misconduct. In the absence of such submissions, the Panel finds that the College has failed to prove the remaining allegations in the Notice of Hearing, namely, that the Member committed professional misconduct under subsections 1(5) [in force as of 2004], 1(7.1), 1(7.2), 1(7.3) [in force as of May 5, 2008], the definition of sexual abuse in section 1 of the Act [in force as of 2004], 1(14), or 1(15) [in force as of 2004].

100It is not controversial that the Member was an educational assistant, and not a member of the College at the time of the events in question. A majority of the Panel has previously decided that the Committee could hear this case despite the fact that it involved pre-membership conduct (Ontario College of Teachers v. Byam, 2022 ONOCT 20) on the basis that the Act is silent with respect to the Committee’s jurisdiction over pre-membership conduct and that the public interest mandate of the Committee, the severity of the allegations, and the fact that the allegations address the Member’s suitability to continue being a teacher granted the Committee jurisdiction to hear this particular case. In that ruling, the Panel considered the wording of sections 18 and 30(2) of the Act to determine the Committee’s jurisdiction, but did not review the regulations and did not make any ruling as to whether the Member would ultimately be found to have committed professional misconduct as alleged.

101Having heard the evidence and having determined that the particulars in paragraphs 1-4 of the Notice of Hearing have been proven (as it related to the Member’s conduct towards Student 1 between January and September 2004) the Panel must now determine whether that conduct constitutes professional misconduct. The Panel accepts the submissions of College Counsel and the advice of its Independent Legal Counsel that the appropriate versions of the Act and the professional misconduct regulation, Ontario Regulation 437/97, to apply in this case are the versions that were in force at the time of the alleged events.

102The Panel has considered Member’s Counsel submission that applying the version of the Act and regulations as they were in 2004 is inconsistent with the allegations in the Notice of Hearing. According to Member’s Counsel, even though it was not specified, the Notice of Hearing clearly refers to legislation that was in effect in 2019 and, as such, the College intended to prosecute the Member based on 2019 legislation. Therefore, Member’s Counsel submitted that the Panel should apply either the 2019 legislation as outlined in the Notice of Hearing or the Panel should apply the legislation as it was at the time of the Member’s registration with the College. The Panel does not agree with these submissions. While the Notice of Hearing includes a broader range of allegations, College Counsel has specifically and clearly asked the Panel to only make findings that the Member committed professional misconduct under the heads of misconduct that were in force in 2004, based on behavior that was admitted by the Member and that occurred between January and September 2004. While there may have been some ambiguity in the Notice of Hearing, College Counsel was ultimately clear in his final submissions that he is not expecting the Panel to rely on the legislation as it read in 2019 to make a finding of professional misconduct.

103The Panel finds that, in the absence of any relevant transitional provisions, it would be improper to apply legislation that existed other than at the time that the Member engaged in the alleged acts to determine whether those acts constitute professional misconduct. It is improper for the Panel to look beyond the language of legislation in force at that time, and to either ignore the language of the regulation or to import language into the regulation which is not present. In determining whether the Member committed professional misconduct between January and September of 2004, the Panel will apply the Act and regulations in force from January 2004 to September 2004. In making this decision, the Panel notes that it is not making any ruling regarding which penalty provisions should apply to the Member. The Panel leaves this issue for the penalty stage of the hearing.

104In 2004, subsection 30(2) of the Act stated:

A member may be found guilty of professional misconduct by the Discipline Committee, after a hearing, if the member has been guilty, in the opinion of the Committee, of professional misconduct as defined in the regulations.

105In 2004, the relevant sections of the professional misconduct regulation, Ontario Regulation 437/97 stated:

1.The following acts are defined as professional misconduct for the purposes of subsection 30(2) of the Act:

(7) Abusing a student physically, sexually, verbally, psychologically or emotionally.

(18) An act or omission that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

(19) Conduct unbecoming a member.

(iii) Subsection 1(7)

106The Panel finds that the Member physically, and emotionally or psychologically abused Student 1 contrary to subsection 1(7) of Ontario Regulation 437/97 as it read in 2004. This subsection is not specifically worded to require the abuse to be committed by a member of the College and, as such, the Panel finds that it can apply to the Member in this case.

107The Panel finds that the Member’s conduct constitutes physical abuse of Student 1. The Member was in a significant position of power over Student 1 – she was more than 15 years older than him, she was recently his educator, and he was indebted to her for approximately $3,000. In the summer of 2004, Student 1 had not graduated from high school and he would go on to enroll in school in September 2004. As such, it is not controversial that he was a student. Additionally, the Member had spent the months prior to the summer of 2004 cultivating an inappropriate personal relationship with Student 1 and exploiting the power imbalance between them. Sexual intercourse with a student is a form of physical abuse as it involves physical touching of a student. As such, the Panel finds that any sexual intercourse between the Member and Student 1 could reasonably be characterized as physical abuse of Student 1 by the Member. It was entirely inappropriate for the Member to engage in sexual intercourse with a student, regardless of what she was going through in her personal life. The Panel finds that the Member’s sexual intercourse with Student 1 was an egregious breach of trust and constitutes physical abuse of a student.

108The Panel finds that the Member’s conduct constitutes psychological or emotional abuse of Student 1 contrary to subsection 1(7) of Ontario Regulation 437/97. Psychological or emotional abuse is characterized as behaviour that can seriously interfere with a student’s cognitive, emotional, psychological, or social development. The Panel finds that, through her conduct, the Member exploited her professional relationship with Student 1 in a way that had the capacity to interfere with his cognitive, emotional, psychological, or social development. Student 1 came to rely on the Member for emotional support as he called her “all the time”, he was indebted to her for $3,000, and he trusted her enough to call her at times of emotional crisis. This kind of relationship between a student and an educator can be incredibly damaging to a student. Teenage students can have strong feelings and can be easily misled and confused by the kind of power imbalance created when they rely too heavily on an educator. This confusion can lead to the student failing to learn how to have healthy relationships in adulthood. The role of an educator is not to be a friend or emotional support person to a student. Instead, an educator is supposed to be a positive role model to students, to maintain a healthy professional distance, and to teach and inspire them so that they are successful in their future. For this reason, it is imperative that educators (whether it be teachers or educational assistants) have the judgement to determine when it is appropriate to simply listen to a student and provide advice, and when to report issues to those who are better qualified. In this case, the Member failed to use appropriate professional judgement in failing to report many of the sensitive things that Student 1 shared with her – that he wanted to [XXX], that he was engaging in [XXX], and that he had taken on an enormous gambling debt. The Panel finds that the Member’s failure to do so led to psychological or emotional abuse of Student 1.

109Additionally, the Panel finds that it is self-evident that having sexual intercourse with an educational assistant or an educator is emotionally abusive. As an educational assistant and a coach, the Member was in a position of trust and authority and was expected to ensure a safe space for Student 1 by maintaining professional boundaries. This is always the responsibility of the educator, and not the student. Blurring this boundary is emotionally difficult for young and adolescent students to understand, it is extremely confusing, and it has the potential to seriously interfere with their social and emotional development. Therefore, the Panel finds that the Member engaged in emotional abuse of Student 1.

110The Panel finds that the College has failed to prove that the Member verbally abused Student 1 contrary to subsection 1(7) of Ontario Regulation 437/97. College Counsel submitted that telling a student that he is [XXX] is self-evidently verbal, psychological and emotional abuse, and the Panel should make this finding regarding the Member. The Panel disagrees with this submission. While it is certainly inappropriate and unprofessional for a Member to describe a student as “[XXX]” in jest, without evidence about the impact on Student 1 of her calling him [XXX], the Panel cannot find that simply saying “you’re so [XXX]” to a student is in and of itself verbally abusive.

111The Panel finds that the College has failed to prove that the Member sexually abused Student 1 contrary to subsection 1(7) of Ontario Regulation 437/97 (as it read in 2004). College Counsel submitted that the Panel should not rely on the definition of sexual abuse in section 1 of the Act (a definition which existed in 2004) to make its finding, but rather, on the “ordinary meaning” of sexual abuse and on the basic premise that sexual intercourse with a student is sexual activity and therefore that the Member abused a student sexually contrary to subsection 1(7) of Ontario Regulation 437/97 (as it read in 2004). The College’s submission is that “sexual abuse” in section 1 of the Act is a separate charging section and is not meant to define “abusing a student sexually” in the professional misconduct regulation. The Panel disagrees with this submission. Section 1 is a definitions section, specifically meant to define certain terms in the Act. When reviewing the Act as it was in 2004, aside from the definition section, the term “sexual abuse” appeared in the Act twice. First, to explain what is meant by a person who has special needs (section 43.1); second, to clarify that definition of professional misconduct in the regulations is deemed to sexual abuse of a student by a member (subsection 40(1.1)). As such, the Panel finds that it would be absurd if it were to use a different “ordinary” meaning for “abusing a student sexually” in subsection 1(7) of the regulations when the Act clearly states that the definition of “professional misconduct” in the professional misconduct regulation shall be deemed to include “sexual abuse of a student by a member”, which is defined in section 1 (to include sexual intercourse, etc.). The Panel finds that, in 2004, the language used in the Act did not create a different charging section and was meant to define the professional misconduct offence of sexual abuse. Applying this definition, “sexual abuse” of a student by a member means,

(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;[3]

The definition section of the Act clearly describes behaviour between a member of the College and a student. There is no dispute that the Member was not a member of the College at the time of the misconduct. Therefore, in 2004, when the Member was an educational assistant and not a teacher and therefore not a member of the College, none of the elements of the definition of sexual abuse were met by the Member’s actions. As such, the Panel declines to make a finding that the Member abused Student 1 sexually contrary to subsection 1(7) of Ontario Regulation 437/97 as it read in 2004.

112Having said this, the Panel would like to make it clear that this finding does not diminish the seriousness of the Member’s actions. There is no question that the Member inappropriately crossed a professional boundary and that she breached the trust that exists between educators and students. The Member’s actions likely led to significant harm to Student 1. Nothing in the Panel’s decision should be taken to lessen the seriousness of the Member’s decision to have sexual intercourse with one of her students when she was an educational assistant.

(iv) Subsection 1(18)

113The Panel finds that the College has proven on a balance of probabilities 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. The Panel finds that the Member’s conduct clearly falls under all three subheadings of misconduct – disgraceful, dishonourable, and unprofessional. Disgraceful conduct is the most severe – this is conduct that casts serious doubt on the Member’s moral fitness or ability to be a member of the profession. Dishonourable conduct is similar but not as severe – this is conduct that has an element of moral failing and usually includes, but is not limited to, dishonest, deceitful or fraudulent conduct, or other similar moral shortcomings. Unprofessional conduct is conduct that involves poor professional judgment by a member. The Panel finds that the Member’s conduct would reasonably be regarded by member’s as being disgraceful, dishonourable, and unprofessional. The Member’s conduct is clearly disgraceful. Her repeated disregard of boundaries with respect to Student 1 and the fact that she cultivated a close personal relationship with him over the course of several months reflects negatively on her suitability as an educator. She repeatedly disregarded her obligation to maintain a professional relationship with Student 1. She did so by providing Student 1 with her personal phone number and taking calls from him about personal matters, by picking him up in her car after he had disclosed that he was [XXX], by spending time with him alone at her house (whether indoors or outside of the home), by referring to him jokingly as “[XXX]”, and ultimately by engaging in sexual intercourse with him. The Member’s conduct was similarly dishonourable. Among other things, she concealed her relationship with Student 1 from his parents, from her supervisor, and from administration. This kind of behavior is contrary of what is expected of an individual who is responsible for student safety and would be reasonably regarded by members as dishonourable. Additionally, the Member’s behavior was unprofessional. The Member referred to the student as “[XXX]” in jest, which is entirely unprofessional, particularly when referring to a student that was particularly vulnerable and may have been suffering from significant mental health issues. It is entirely unacceptable for anyone in a position of power and trust to engage in such conduct and to foster such a relationship with a student. By doing so, the Member acted in a way that was disgraceful, dishonourable, and unprofessional.

(v) Subsection 1(19)

114The Panel finds that the College has failed to prove that the Member has engaged in conduct unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. College Counsel submitted that the Panel should find the Member engaged in conduct unbecoming a member for two reasons. First, the Panel should extend the principles of off-duty conduct to pre-membership conduct. As articulated by Justice La Forest in Ross v. New Brunswick School District, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, and adopted by the Committee in Ontario College of Teachers v. Patterson, 2022 ONOCT 58:

…a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and in the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the educational system.

Second, while the Member was not a teacher, she was in a position of trust, confidence and responsibility as an educator in relation to a vulnerable student. In combining these two principles, College Counsel submitted that the Member’s conduct undermines the profession as a whole and is therefore unbecoming a member (even though she was not a member).

115The Panel agrees with College Counsel that the Member was an educator, and that she exhibited the kind of conduct that, if she was a teacher, would degrade the public confidence of the teaching profession. However, the Panel finds the fact that the Member was an educational assistant, and not a member (i.e., a teacher or administrator) to be critical to the offence of committing conduct unbecoming a member. The Panel disagrees with College Counsel’s submission that an individual who is not a member of the College but who is nevertheless in an educational role and holds a position of trust in relation to vulnerable students is capable of committing conduct that undermines the reputation of the teaching profession. In the Panel’s view, misconduct by a member of one profession cannot undermine the reputation of another profession, even if they are of a similar nature. For example, misconduct by a nurse can not and does not undermine the reputation of physicians, even though they are both medical professionals who hold positions of significant trust over vulnerable patients. In the same way, public confidence in teachers does not diminish when an educator who is not a teacher commits misconduct, even if it is as egregious as the misconduct committed by the Member. For this reason, the Panel disagrees with College Counsel that it can analogize off-duty conduct in this case. The reason that off-duty conduct can constitute professional misconduct is because it is committed by a member of the profession, even if it is not committed on the job. Therefore, off-duty conduct is capable of undermining the reputation of the teaching profession as a whole. This is not true of conduct that is committed by someone who is not a member of the profession. As such, the Panel finds that the College has failed to prove on a balance of probabilities that the Member engaged in conduct unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97.

I. PENALTY

116The Tribunals Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.

Date: August 12, 2024

Rebecca Forte, OCT Chair, Discipline Panel

Jonathan Rose Member, Discipline Panel

[3] Emphasis by the Panel.

Footnotes

1. 1This allegation reflects the wording of subsection 1(7) as it existed between December 4, 1997 to May 4, 2008, and was in force at the time of the alleged misconduct.
2. 2The College’s written submissions contained a typographical error by referring to 1(17) but it was clear that the College was referring to 1(7).