DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Haughton 2024 ONOCT 46

Date: 2024-06-24

DECISION, REASONS FOR DECISION AND ORDER

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

AND IN THE MATTER OF a discipline proceeding against Anthony James Haughton, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANTHONY JAMES HAUGHTON (REGISTRATION #533397)

PANEL: Damienne Lebrun-Reid, Chair Susan Arbour, OCT Brian Serafini, OCT

HEARD: February 7 and 8, 2024

Jordan Stone, for the Ontario College of Teachers Julian C. Renaud, for Anthony James Haughton Rebecca Durcan, Independent Legal Counsel

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on February 7 and 8, 2024, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the“Rules”).

2Anthony James Haughton (the “Member”) attended the hearing and had legal representation.

A. PUBLICATION ban

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

4Additionally, 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. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. OVERVIEW

5It is alleged that the Member engaged in inappropriate conduct and crossed professional boundaries with a female Grade [XXX] student in his class (“Student 1”) during the 2021-2022 academic year. Further, the College alleged that on June 24 and/or 25, 2022, the Member engaged in inappropriate and personal communications that violated professional boundaries with Student 1 over social media.

6The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel finds that the Member engaged in professional misconduct in contravention of subsections 1(7), 1(7.2), 1(7.3), 1(18) and 1(19) of Ontario Regulation 437/97. The Panel also finds that the Member engaged in sexual abuse of a student as defined in section 1 of the Act.

C. THE ALLEGATIONS

7The allegations against the Member in the Notice of Hearing dated February 1, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

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

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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Anthony James Haughton is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed as a teacher at [XXX] (the “School”), a private school in [XXX], Ontario.

3. In the 2021-2022 academic year, Student 1 was a grade [XXX] student in the Member’s class at the School.

4. On or about June 24 and/or 25, 2022, the Member engaged in communications of a personal and/or inappropriate nature with Student 1 over social media that violated appropriate professional boundaries, including but not limited to:

(a) sending Student 1 photographs of himself and receiving photographs from Student 1 including, but not limited to, photographs with suggestive and/or flirtatious comments;

(b) telling Student 1 that he would take her out in 5-10 years, asking her to answer, repeatedly referencing the 5-10 years comment, and asking Student 1 to not tell anyone he had made that comment;

(c) telling Student 1 that she could be an eye model;

(d) telling Student 1 that she was a beautiful girl;

(e) telling Student 1 that he loved her and other students;

(f) asking Student 1 if she deleted the messages they exchanged;

(g) telling Student 1 that he liked how she looked in the photographs she sent him;

(h) telling Student 1 that he should go to bed before he got himself in trouble;

(i) telling Student 1 that he had never messaged with a student so late at night;

(j) asking Student 1 what she was thinking about;

(k) asking Student 1 if she was sleeping yet;

(l) asking Student 1 if she practiced the faces she made in the photographs she sent him;

(m) asking Student 1 why she was looking at him a certain way in the photographs she sent him;

(n) Referencing that his conversation with her might lose him his job; and/or

(o) sending Student 1 voice messages.

5. Following the communications exchanged with Student 1 on or about June 24, 2022 and/or June 25, 2022, the Member engaged in further communications with Student 1 over social media in June 2022 that violated appropriate professional boundaries.

6. During the 2021-2022 academic year, the Member engaged in conduct with Student 1 that was inappropriate and violated appropriate professional boundaries, including but not limited to:

(a) asking Student 1 for her social media account(s);

(b) after Student 1 declined to provide her social media account(s) to the Member, finding her social media account(s) and following her;

(c) asking Student 1 why she removed him as a follower from her social media account(s);

(d) adding himself as a follower on Student 1’s social media account(s) after Student 1 removed him as a follower;

(e) on one or more occasions, calling Student 1 “little butt cheeks,” or words to that effect;

(f) on one or more occasions, winking at Student 1;

(g) on one or more occasions, sitting beside Student 1 so closely that their legs/thighs touched;

(h) on one or more occasions, giving Student 1 a hug; and/or

(i) giving Student 1 a towel that he had received at a hockey game.

D. THE MEMBER’S PLEA

8The Member denied the allegations set out in the Notice of Hearing. However, during the course of the proceedings, the Member advised the Panel that he understands and accepts that his conduct in communicating with Student 1 over social media while intoxicated was unbecoming a member of the teaching profession.

E. THE EVIDENCE

9The College presented oral and documentary evidence to prove the allegations set out in the Notice of Hearing. The Member also testified at the hearing. The parties requested and the Panel ordered that witnesses, other than the Member, be excluded from the hearing until called to give evidence. This order was made in accordance with Rule 13.12 of the Rules.

10The following is a brief summary of the evidence. Relevant portions of the evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below.

(1) College’s Evidence

(a) Documentary and Electronic Evidence

11The College tendered 45 videos, which recorded some of the communications that the Member had with Student 1 the night of June 24 and/or 25, 2022 (Exhibit 3). These videos were taken by Student 1’s cousin and depicted some of the Member’s messages on Student 1’s phone screen and Student 1 viewing the Member’s messages. The parties noted that the media files included audio comments by Student 1 and her cousin and jointly requested that the Panel review the files without audio, on the basis that the audio is neither relevant nor helpful to the Panel’s assessment of the evidence. The parties agreed that the Panel should view these videos without audio and only listen to the audio of the Member’s voice messages.

12Additionally, the College provided the Panel with copies of:

• screenshots of some of the communications that the Member had with Student 1 on June 24 and/or 25, 2022 (Exhibit 4);

• the School’s Guidelines for Electronic Communications (Exhibit 7); and

• a letter the Member sent to his principal on June 25, 2022 (Exhibit 8).

(b) Witness Testimony

i. Motions

13At the outset of the hearing, College Counsel brought a motion for orders permitting Student 1 to testify behind a witness screen or other similar device, pursuant to Rule 13.06, and to be accompanied by a support person, pursuant to Rule 13.07. College Counsel noted that the request for a support person was being made as a precautionary measure and that Student 1 intended to testify without a support person. The Member did not object to the either motion. The Member advised that he was willing to turn his camera and microphone off for the duration of Student 1’s testimony and reminded the Panel that any support person accompanying Student 1 should not speak with her during her testimony.

14The Panel granted both motions and ordered that Student 1 be allowed to testify in a manner that will prevent her from seeing or hearing the Member, and, if required, to be accompanied by a support person.

15In addition to considering the Member’s consent to the College’s motions, the Panel found that the criteria for witness screens and support persons set out in Rules 13.06 and 13.07 respectively were met in the circumstances. Rules 13.06 and 13.07 permit the Panel to grant accommodations for young and vulnerable witnesses testifying about allegations of sexual abuse. At the time of the hearing, Student 1 was [XXX] years old. Student 1 is a young, vulnerable witness who has made a complaint of sexual abuse against the Member. Allowing Student 1 to be accompanied by a support person and to testify behind a screen or similar device would arguably permit Student 1 to testify without additional stressors and would not impede the Member’s right to a fair hearing. As the hearing was conducted electronically, the Panel was satisfied that the Member’s suggestion of turning his camera and microphone off for the duration of Student 1’s testimony would be appropriate. This sufficiently balanced both Student 1’s interests and the Member’s ability to make full answer and defense. The parties would be able to see and hear Student 1, as required by Rule 13.06(4), and the Member’s ability to communicate with his counsel and cross-examine Student 1 would not be unduly impaired. However, the Panel still proceeded with the order in case additional measures were required. Student 1 ultimately did not require a support person throughout her testimony.

ii. Student 1’s Testimony

16Student 1 testified about her interactions with the Member during the 2021-2022 school year. The Member was her Grade [XXX] teacher that year. Student 1 testified that she had a close relationship with the Member and that he treated her differently from other students. For example, the Member required all other students to go up to his desk for assistance. However, when she needed help, the Member came to her desk and sat so close to her that, on occasion, his leg would rub against her leg. Student 1 gave evidence about how the Member did the same when they were together for meals during their [XXX] trip. She also testified that he sometimes put his arm around her when they walked around campus, gave her flowers from the campus, gave her a towel that he had gotten from a Toronto Maple Leafs’ game for her birthday, and wrote a personal note in the Bible she received for [XXX] . Additionally, Student 1 recalled that the Member swore in front of her, gave her the nickname “Little Butt Cheeks”, and winked and stuck out his tongue at her in class.

17Student 1 also testified that on one occasion the Member brought her into a small locker room. Student 1 testified that she did not know why he brought her into the room. They stood in the room and talked, and then the Member started walking towards her. Student 1, in turn, started walking backwards into a corner of the room until her friend came in and interrupted the interaction. Student 1 testified that she did not know what would have happened if her friend hadn’t come in when they did. During cross-examination, Student 1 advised that she disclosed this incident to College Counsel a couple of days prior to the hearing.

18Student 1 also testified about her communications with the Member on social media. She testified that the Member asked for her Instagram and TikTok accounts during school, but she told him that she did not have them because she did not want the Member to see her accounts. Student 1 claimed that the Member later found her accounts of his own accord and followed her, after which she removed him as a follower. The next day, the Member asked Student 1 why she removed him as a follower, and requested she add him as a follower again. Student 1 testified that she did not do so at this time because she felt that it was “not right,” but told the Member that she would once she had service on her phone. However, she testified that the Member followed her accounts again. Student 1 did not remove him the second time around because she did not know what to do. Student 1 also testified that she asked all of her classmates, and they confirmed that the Member had not messaged them on social media.

19According to Student 1, she and the Member communicated on social media quite often during the school year, often on the weekends, about “normal things” like hockey (which was a mutual interest) or how their days were going. Student 1 testified that the Member responded privately to her with a heart emoji when she posted a photo to social media and messaged her on Instagram, which he did on the night of her [XXX], saying how he “missed her already”.

20With respect to the social media conversations on June 24 and/or June 25, 2022, Student 1 testified that she sent the Member a video on Instagram of her and her [XXX] -year-old cousin singing to the Member’s music. The Member responded and they initially talked about the Member’s music. However, as the evening progressed, Student 1 testified that the messages from the Member became inappropriate as he started making comments that she interpreted as a compliment on her physical appearance, such as responding with a “fire emoji” to a picture of her face, and on another occasion, stating that she could be an eye model, and another comment indicating that he wanted to take her out in 5-10 years’ time. When Student 1 reviewed the video recordings of some of the Member’s messages (Exhibit 3) during her testimony, she provided her recollections of the context of each message. She testified that the Member’s messages were in response to her sending him pictures of her face, shoulder and wall and that her expressions in her responses were generally “normal” or “confused” as she did not know how to respond to the Member’s messages to her.

21Student 1 testified that she asked her cousin to record the Member’s messages as proof of what the Member was saying. She did not want to take screenshots of the Member’s messages because she believed that the Member would be provided with a notification that she had done so and did not know how the Member would react. When she eventually told the Member he was being inappropriate, he sent her numerous messages and called her about 27 times until noon the next day, asking her to forgive him, to move past the evening, and suggesting that she not tell anyone about their conversation.

22Student 1 testified that the Member then spoke with the principal himself. Student 1’s parents were informed and they asked her to explain to the principal what had happened. Student 1 spoke with her principal and, at her mother’s counsel, also spoke with the police.

23Student 1 spoke of the negative impact that the Member’s conduct had on her. She initially thought of the Member as a mentor, role model, and family member. He was her favourite teacher. During cross-examination, she admitted that she had written the Member a letter over the course of May 31 and June 2, 2022, detailing how she “loved” him and how important he was to her (Exhibit 5). However, Student 1 testified that the Member’s Instagram messages on June 24 and/or June 25, 2022, made her feel gross, made her reassess her perspective on the Member’s previous actions towards her during the academic year, and caused her stress as she did not know how to respond to him or what to do about his conduct. Student 1 testified that she did not know that the Member had been drinking that evening until he told her. Student 1 testified that she was looking forward to returning to the School for Grade [XXX] , but after she told a couple of friends about the Member’s messages to her, she had a difficult time upon her return because nobody believed what she said about the Member, and she lost all the positive relationships that she previously had with her friends and teachers. She became very depressed for a while and eventually moved to a different school.

24On cross-examination, Student 1 was pressed about, and eventually admitted that she (and her parents) has an outstanding proceeding before the Human Rights Tribunal of Ontario against the Member in which she is seeking monetary compensation from the Member. During Student 1’s cross-examination, the Member provided the Panel with copies of a letter that Student 1 had written dated May 31, 2022 to June 2, 2022 and given to him just prior to [XXX] (Exhibit 5) in which she expressed her appreciation for all that he had done during the school year and for the positive impact he had made in her life; told him that she loved him; and told him that she considered him to be “family”. When this letter was presented to the Panel during the hearing, the Panel took a brief recess to review it.

(2) Member’s Evidence

(a) Documentary evidence

25In addition to Student 1’s letter to the Member (Exhibit 5), the Member also provided the Panel with a message of gratitude that Student 1’s mother had written to the Member earlier in the school year (Exhibit 6), in which she expressed gratitude for the Member’s care for Student 1, how he “changed her life for the better”, how his “words are thoughtful” and that the care the Member has given Student 1 is the “BEST gift [they] could ever receive”.

(b) Member’s Testimony

26At the time of the events in question, the Member had been a teacher at the School for approximately 10 years. He was inspired to become a teacher as a result of the challenges he faced in his upbringing and the positive impact that several teachers had on his life. He testified about his aspirations to become a relational teacher who makes a positive impact on his students, uplifting and inspiring them, helping them to identify and use their God-given gifts, and empowering them with the skills to self-regulate and to overcome challenges with resilience. To that end, he created two music channels on YouTube and other social media platforms including Instagram, on which he shares music with uplifting messages about overcoming challenges and negativity.

27In response to the allegations against him, the Member denied treating Student 1 differently from other students in his class. He testified that he hugged and winked at all of his students, in a friendly, encouraging manner. He denied every being alone with any student or calling Student 1 “Little Butt Cheeks” and testified that any touching of Student 1’s leg would have been accidental. He acknowledged that he gave Student 1 a towel that he received at a hockey game, as a birthday gift, as he knew that she was a Toronto Maple Leafs’ fan, but that this was not unusual as he has given many students gifts over his teaching career, based on the students’ needs and interests. He also testified that he writes notes for every student in their [XXX] gifts.

28With respect to the allegation of communicating with Student 1 on June 24 and/or June 25, 2022 (and not the content of the messages), the Member acknowledged that it was inappropriate for him to have communicated with Student 1 on social media. The Member testified that at the time of the conversations, he was aware of the College’s Professional Advisory on Professional Boundaries which was approved by Council on October 1, 2020 and the Professional Advisory on Maintaining Professionalism – Use of Electronic Communications and Social Media which was approved by Council on September 27, 2017. He also acknowledged that his conduct was contrary to the School’s online communication policy, which he helped draft. (Exhibit 7).

29According to the Member, students were aware that he was a musician and encouraged his musical endeavours, including following his social media accounts (Youtube, Instagram, Facebook, Spotify), suggesting what to post and how to make TikTok videos. The Member put his social media handles on his classroom’s whiteboard, and followed any student who followed him, including Student 1. The Member admitted that aside from his senior basketball team and some international students and their parents, this was the first and last time that he followed all of his students back on social media. He testified that he had sent Student 1 a picture of the arena, on the night of the hockey game where he got the Maple Leafs towel that he gifted her, and that he had ‘liked’ some of her posts, but the night of June 24, 2022 was the first time he had a conversation with Student 1 on Instagram. The Member admitted that he was intoxicated on the night of their conversation and has a “broken memory” of his conversation with Student 1. He could not recall every message they exchanged but did recall that Student 1 initiated the conversation that night.

30The Member adamantly maintained throughout his testimony and on cross-examination that there was nothing sexual in his conversation with Student 1. He testified that Student 1 sent pictures of her with her cousin, funny faces she made, a close-up of her eye, her face dipped in flour, a picture of Student 1 with a puzzled and thinking expression, and a picture of an outfit she bought with other kids, and that his messages were in response to this context. He explained that his comments about taking Student 1 out in 5-10 years was meant as a joke in response to the difficulties she expressed regarding [XXX]and leaving his class. He did not mean that he wanted to take her on a date and had no romantic feelings toward her. Although the Member acknowledged that he showed a lack of professional judgment in speaking to Student 1 over social media that night, he expressly denied sending messages that were flirtatious or sexually suggestive.

31As their conversation progressed that night, the Member testified that he started to panic, as Student 1 started asking questions that suggested that she was not interpreting his messages in the way that he intended. For instance, when the Member told her that he would take her out in 5 to 10 years, Student 1 asked him where he wanted to take her and what he wanted to do. The Member thought that these were weird questions and asked her what she was trying to do here. The Member knew that he should not be speaking to students under these circumstances and tried to navigate out of the conversation, but Student 1 kept prompting him to respond. Against his good judgment, the Member continued to respond until Student 1 ultimately told him that she had proof to ‘take him down’. The Member testified that he was in a drunken, emotional panic, realizing the seriousness of the situation and how he could be painted as something he was not. The Member admitted sending several voice and text messages to Student 1 the remainder of the night and the morning of June 25 to ‘backpedal’ from the trouble he knew he could find himself in. He also admitted to deleting their conversation as he was in a state of panic. Once he became sober the next morning, the Member realized he needed to take responsibility for his actions and he reported his conversation with Student 1 to the School’s principal.

32The Member expressed regret at having even responded to Student 1 when she messaged him on Instagram that evening. He was intoxicated and in a low emotional state, having buried his childhood friend earlier in the day. He expressed remorse for what took place and its impact on Student 1, her family, and his own family. He testified that he has since changed his social media practices, and no longer communicates with anyone who is under the age of 18 on social media (who is not a family member).

F. SUBMISSIONS OF COLLEGE COUNSEL

33College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel noted that the courts have held that a notice of hearing in a disciplinary case should not be construed in the same way as criminal indictments (Brooks v. Ontario Racing Commission, 2016 ONSC 1136, [“Brooks”] at paragraphs 39-41) and that the criminal law principle that prohibits multiple convictions for the same acts (the Kienapple principle) does not apply to professional regulation matters.

34College Counsel referred the Panel to three cases regarding the credibility assessment of child witnesses in sexual abuse cases: R. v. A.R.D., 2017 ABCA 237; R. H.C., 2009 ONCA 56; and R. v W.R. [R.W.], 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. College Counsel submitted that Student 1’s reluctance to answer the Member’s question about her other legal proceedings against him does not detract from her credibility and that overall, she was a credible and reliable witness whose testimony was supported by the documentary evidence. College Counsel submitted that it would be a legal error for the Panel to find Student 1 less credible on the basis that her statements were not corroborated: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R., 439 at paragraph 30, or that she delayed disclosing some of the Member’s acts toward her during the school year to the College: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paragraph 65. Moreover, College Counsel submitted that Student 1’s explanations of what transpired were more believable and reliable than those of the Member who, by his own admission, has a “broken memory” of the messages in question. Additionally, College Counsel submitted that the Panel should not rely heavily on the Member’s demeanour as an indicator of his credibility: R. v. C.(G.M.), 22 ONCA 2 at paragraph 68.

35College Counsel referred the Panel to the definition of sexual abuse in the Act and noted that it is up to the Panel to determine whether the Member’s behaviour and remarks toward Student 1 were of a sexual nature. College Counsel urged the Panel to consider the public protection mandate of the Act, per Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, [2012] O.J. No. 5076 and College of Nurses of Ontario v. Dumchin, 2016 ONSC 626. College Counsel submitted that the Panel should adopt a broad purposive interpretation of the definition of sexual abuse, as it serves to protect children.

36College Counsel noted that many regulators have adopted the test set out in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 (“Chase”), to determine whether certain conduct is “sexual in nature”, and therefore constitutes sexual abuse. College Counsel noted that the Committee had found in Ontario College of Teachers v. Mousseau, 2023 ONOCT 15 and Ontario College of Teachers v. Smith, 2021 ONOCT 92, that inappropriate but not explicitly sexual comments made to a student constituted sexual abuse as defined in the Act. College Counsel also referred the Panel to Ontario College of Teachers v. Bujacz, 2023 ONOCT 12 (“Bujacz”) to demonstrate the application of Chase test, where a member had contested allegations of sexual abuse and that the Panel should consider the evidence in light of all the circumstances to determine whether the Member’s conduct and communications with Student 1 were objectively sexual in nature.

37It was the College’s position that the Member sexually abused Student 1, as evidenced by some of the comments made by the Member to Student 1. Further, College Counsel argued that the circumstances of the Member’s communications with Student 1 taken as a whole, and in light of his interactions with her throughout the school year which, in the College’s view constituted grooming behaviour, were also sexual in nature and constitute sexual abuse of Student 1. College Counsel submitted that the Member manipulated Student 1 and that Student 1’s testimony about the negative impact of their conversation demonstrated that the Member engaged in psychological and emotional abuse of Student 1. Additionally, College Counsel submitted that the Member’s conduct was dishonourable, disgraceful and unprofessional, as well as conduct unbecoming a member of the College.

G. SUBMISSIONS OF MEMBER’S COUNSEL

38The Member acknowledged that his conduct was unbecoming but disputed the other allegations of professional misconduct. The Member submitted that the allegations were duplicative and should be dismissed in accordance with the Kienapple principle. The Member suggested that based on the facts, conduct unbecoming would be the appropriate finding. Moreover, the Member argued that the evidence did not support findings of either psychological or emotional abuse or sexual abuse.

39The Member emphasized the importance of context in the Panel’s determinations of this case and submitted that, unlike in the cases presented by College Counsel, the evidentiary record in this proceeding was largely one-sided and incomplete. The College had only relied upon the Member’s individual messages, without tendering the entirety of the conversation including Student 1’s responses. As such, the Member requested the Panel draw an adverse inference from the College’s failures to adduce the full conversation in question and to call other witnesses who could corroborate Student 1’s testimony, despite the fact that the Member’s misconduct was alleged to have occurred in the presence of other people (i.e., Student 1’s cousin; Student 1’s classmates). The Member argued that he was a credible witness who was upfront about the inappropriateness of his actions in speaking with Student 1 on social media and willing to take responsibility for them. On the other hand, the Member submitted that there were several factors that detracted from Student 1’s credibility, including her delayed disclosure of some of the Member’s alleged interactions with her during the school year, as well as her evasiveness with respect to the questions about her outstanding civil proceeding against the Member.

40The Member submitted that the evidence did not support a finding of psychological or emotional abuse, as the Member’s comments about love and family were innocuous and should be considered in the context of how those terms were regularly used in his class. In a similar vein, the Member submitted there is no evidence to support a finding of sexual abuse. The comments he sent Student 1 and his conduct towards her throughout the school year were not on their face nor intended to be sexual. The Member argued that the College was attempting to construct a grand narrative of sexual abuse from normal, everyday, innocuous interactions. The Member warned of the chilling effect this could have on members from showing kindness towards students for fear of having their actions misconstrued as being sexual.

41The Member reminded the Panel that he is more than willing to accept a finding of conduct unbecoming and submitted that the proceedings were a result of the College’s refusals to withdraw the allegations of sexual abuse by the Member. The Member noted that he will be asking for costs from the College if the Panel finds that he did not engage in sexual abuse as alleged by the College.

H. ADVICE OF INDEPENDENT LEGAL COUNSEL

42Independent Legal Counsel (“ILC”) reminded the Panel that the College bears the burden of proving on a balance of probabilities the allegations against the Member that are set out in the Notice of Hearing. ILC advised that Kienapple principle has not been adopted in the regulatory context. Courts have ruled that while they may be similar, allegations of professional misconduct in disciplinary proceedings have distinct purposes towards protecting the public interest and as such, should be distinguished from the criminal context.

43ILC advised that in making their factual and legal findings, the Panel should consider all of the evidence before them and assess the credibility of each witness. ILC further advised the Panel that while it has the discretion to make adverse inferences against a party, they should not do so unless warranted in the circumstances and only after considering various factors such as whether the College had a legitimate explanation for not calling a witness or not tendering particular evidence.

44ILC advised that the Panel must determine whether the Member’s comments and conduct toward Student 1 was sexual in nature to determine whether the Member engaged in sexual abuse of a student as defined in section 1 in the Act. In making this finding, ILC confirmed that the objective test set out by Chase is commonly adopted by discipline committees of regulatory bodies when assessing whether something is sexual in nature.

I. DECISION ON FINDING

45Having 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), 1(7.2), 1(7.3), 1(18) and 1(19). The Member also engaged in sexual abuse of Student 1 as defined in section 1 of the Act.

46As required by subsection 30.2(1)(b) of the Act, the Panel makes an interim order directing the Registrar to suspend the Member’s certificate of qualification and registration until the Panel makes its order on sanction.

J. REASONS FOR DECISION

47The Panel has carefully reviewed the evidence and submissions presented in this matter. 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 a finding of professional misconduct, as alleged in the Notice of Hearing.

(1) Credibility

48In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding whether to accept a witness’ testimony, the Panel can consider 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 & Social Services, 1985 CanLII 2053, “Pitts”). The Panel can also determine credibility based on logic, common sense, and its experience.

49The Panel found that both witnesses (Student 1 and the Member) were generally credible and displayed some of the markers of credibility outlined in Pitts. They were obviously party to the events in question, and the Panel is satisfied that they recounted the events and were upfront about the details they could not recall. Both parties gave their evidence in a clear, measured manner, and did not appear to embellish their evidence. The Panel will deal with the differences in their versions of events in its factual findings below.

50In making this assessment, the Panel did not place great emphasis on either witnesses’ demeanor during their testimonies. Both Student 1 and the Member were emotional during their testimonies, which is understandable given the nature and significance of the allegations. Additionally, the Panel did not place any weight on the fact that Student 1 is seeking monetary compensation in an outstanding proceeding against the Member. The Panel considers this to be a neutral factor, as both witnesses would be motivated to present their best case in all proceedings that they are involved in, including this proceeding. The Panel notes that proceedings before this Committee are separate and distinct from those before the Human Rights Tribunal of Ontario.

(2) Factual Findings

51The 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.

(i) Allegations regarding social media conversations in June 2022

52The Panel finds that on or about June 24 and 25, 2022 the Member engaged in communications of a personal and/or inappropriate nature with Student 1 over social media that violated appropriate professional boundaries, as alleged in paragraph 4 of the Notice of Hearing (excluding paragraph 4(k), for which the College did not tender any evidence and therefore, did not discharge their onus of proving the particular). After Student 1 raised alarm at the Member’s comments, the Member continued to engage in communications with Student 1, which violated appropriate professional boundaries, as alleged in paragraph 5 of the Notice of Hearing. The Panel made these determinations largely based on the recordings and screenshots of the Member’s messages to Student 1 (Exhibits 3 and 4), Student 1’s testimony, and the admissions made by the Member during his testimony and to his principal shortly after the conversation (Exhibit 8).

53The Member did not dispute that Exhibit 3 and Tab 1 of Exhibit 4 contained screenshots and recordings of some of the messages that he sent Student 1 on Instagram on June 24 and/or June 25, 2022. They included recordings of several voice messages that the Member sent Student 1 in which he apologized to Student 1, asked for her forgiveness and understanding, and tried to explain his conduct (Files 33, 38, 39, 40, 41, 43, and 44 of Exhibit 3). Additionally, they included messages where the Member:

• told Student 1 that he would take her out in 5-10 years (File 5 of Exhibit 3) and prodded her response as if asking her to answer his proposition (Files 6, 7, and 8 of Exhibit 3);

• repeatedly referenced the 5-10 years comment (Files 3, 16, 20, 23) and asked her not to tell anyone he had made that comment (File 22 of Exhibit 3);

• told her that she could be an eye model (File A50 of Tab 1 of Exhibit 4);

• told her that she was beautiful (File A33 of Tab 1 of Exhibit 4);

• told her that he loved her and other students (Files 32, 44 and 45 of Exhibit 3; A31 and A119 of Tab 1 of Exhibit 4)

• asked if she deleted the messages they exchanged (File 17 of Exhibit 3);

• told her that he should go to bed before he got himself in trouble (File 11 of Exhibit 3);

• told her that he had never messaged a student so late at night (File 13 of Exhibit 3);

• asked her what she was thinking about (File A29 of Tab 1 of Exhibit 4);

• asked her if she practiced the faces she made in the photographs she sent him (File 10 of Exhibit 3 and A35 of Tab 1 of Exhibit 4);

• asked her why she looked at him in a certain way in the photographs that she sent him (File 1 of Exhibit 3 and File A45 of Exhibit 45); and

• referenced that his conversation with her might lose him his job (Files 18, 35, 40 and 45 of Exhibit 3).

54The Panel is satisfied that the Member sent at least one message to Student 1 about her physical attractiveness. For example, when Student 1 sent the Member a picture of her eye, the Member told Student 1 that she could be an eye model. During cross-examination, the Member admitted that his comment was to express that he thought she had nice eyes. Additionally, the Member admitted in his letter to his principal on June 25, 2022 that he told Student 1 that she was “Purrrty” (Exhibit 8).

55The Panel was not persuaded by the Member’s explanations that his photos and messages were innocent jokes and that he did not make any flirtatious or suggestive comments to Student 1. There were several comments that, by the Member’s own admission, were open to flirtatious and suggestive interpretations, including his use of fire emojis. The Panel was not persuaded by the Member’s explanation that he used that emoji to connote that something was “lit,” meaning that it was “good” or “Leader In Training”. The Panel prefers Student 1’s interpretation of the emoji as indicating that someone was attractive in a sexual way.

56Additionally, the Panel finds that the Member was being coy and flirtatious when he sent cryptic messages like “I CAN’T BUT I THINK YOU CAN GUESS” (File 15 of Exhibit 3) and “5-10 YOU’LL FIND OUT (emoji of a monkey covering his eyes)” (File 16 of Exhibit 3), based on a careful review of the media files, in which the Panel finds that the Member made flirtatious and salacious gestures while sending these messages. It is reasonable to conclude that some of the Member’s messages were sexually suggestive, considering the unseemly videos and pictures of the Member that accompanied his messages. Some examples include when the Member:

• tilted his head and winked in the message where he wrote “I’LL TAKE YA OUT … IN LIKE 5-10YEARS” (File 5 of Exhibit 3);

• showed his legs apart while he lay reclined on his couch in shorts, with the message “SHOULD GO TO BED BEFORE I GET MYSELF INTO TROUBLE” (File 11 of Exhibit 3)

• sent a video that showed him in a tank top, and which panned from his midsection up to his face with the comment “KILLIN MEEEEE” (File 19 of Exhibit 3); and

• stroked his chest when he asked Student 1, “WHAT YA TRYING TO DOOOO” (File 21 of Exhibit 3).

57The Panel finds that all of the above-noted messages that the Member sent to Student 1 were inappropriate and violated professional boundaries. The messages were unrelated to school, written in an informal manner, exchanged late at night on social media while the Member was intoxicated, and several of them were sexually suggestive. The Member’s communications were contrary to the requirements of the School’s Guidelines for Online Communication (Exhibit 7) and many of the recommendations set out in the College’s Professional Advisories: Maintaining Professionalism – Use of Electronic Communication and Social Media (approved by Council on September 27, 2017) and Professional Boundaries (approved by Council on October 1, 2020).

58The Panel also reviewed the messages the Member sent to Student 1 via Instagram, the day after their initial conversation (Tab 2 of Exhibit 4) and finds that they were also inappropriate and violated professional boundaries. Among other things, the Member expressed not wanting to lose his career; that he had wanted to offer Student 1 a leadership position; and requests for forgiveness and a second chance. In the Panel’s view, these messages intimated that Student 1 should not report the conversation they had the night before, and that she could be rewarded with a leadership position for her silence. The Panel finds that the Member’s messages were manipulative and unacceptable.

59Accordingly, the Panel finds that the particulars particularized in paragraphs 4 and 5 of the Notice of Hearing, except particular 4(k), have been proven on a balance of probabilities.

(ii) Allegations regarding conduct during the 2021-2022 academic year

60The Panel finds that the College has not proven on a balance of probabilities that the Member engaged in inappropriate conduct with Student 1 that violated professional boundaries during the 2021-2022 academic year, as particularized in paragraphs 6(a) to 6(d) and 6(f) to 6(i) of the Notice of Hearing. The Panel is satisfied that the Member called Student 1 by an inappropriate nickname, as particularized in paragraph 6(e) of the Notice of Hearing.

61The Panel does not find that the Member asked Student 1 for her social media account(s), then found her account(s) and followed her, asked her why she removed him as a follower and then added himself as a follower again, as alleged in paragraphs 6(a) to 6(d) of the Notice of Hearing. The Member and Student 1 agreed that they both followed each other’s Instagram accounts at the time of the allegations, but provided different explanations of how they initially found each others’ Instagram accounts. According to Student 1, the Member asked for her social media accounts one day in class. She testified that she declined, but that the Member found and followed her TikTok and Instagram accounts later that night. She testified that she deleted the Member as a follower and he told her to add him back. She did not do so, and the Member added himself back again. Student 1 testified that she did not remove him as a follower for a second time, because she did not know what to do. The Member provided a different account of these events. He testified that he put his social media accounts on the whiteboard in the classroom, leaving it open for his students to follow him. When they did, the Member reciprocated and followed those students’ accounts back. At no point did he seek out students’ accounts and follow them first. As mentioned, the Panel found both witnesses generally credible. In this instance, the Panel found both explanations equally plausible and there was insufficient evidence to persuade the Panel that Student 1’s testimony was preferable over the Member’s testimony. Accordingly, the Panel finds that the College has not discharged its onus with respect to the particulars set out in paragraphs 6(a) to 6(d) of the Notice of Hearing.

62The Panel also finds that paragraphs 6(f) through to 6(i) as worded have not been proven on a balance of probabilities. The Panel is satisfied that during the 2021-2022 school year, the Member winked at Student 1, hugged her, and gave her a towel that he received from a hockey game, and that his legs touched hers when he sat beside her in class. However, the College alleged that these actions were “inappropriate and violated appropriate professional boundaries”. While the Panel accepts that the particularized conduct occurred, the Panel is not satisfied that the Member’s conduct was inappropriate and in violation of appropriate professional boundaries, as alleged by College Counsel.

63The College relied solely on Student 1’s testimony to try and prove the particulars in paragraphs 6(f) to 6(i) of the Notice of Hearing. Student 1 testified that the Member winked at her in class, sat so closely to her in class when he helped her with her schoolwork that his legs rubbed against her, and that he gave her a towel that he received at a hockey game for her birthday. While Student 1 did not testify about the Member allegedly hugging her, she testified that the Member occasionally walked around campus with his arm around her. She also testified that he did not sit beside other students in the class when they needed help, and that she was not aware of him giving gifts to any other student in the class. Student 1 testified that she did not think deeply on the Member’s conduct towards her during the school year but her perspective about these events changed after their conversation on June 24 and/or 25, 2022.

64The Member denied showing Student 1 any preferential treatment and treating her differently from other students. The Member testified that he may have winked at Student 1, but that winking was a part of his usual mannerisms in acknowledging students, especially after they were required to wear masks in class per COVID-19 protocols. Likewise, Member admitted to hugging Student 1 on at least one occasion at [XXX]when she was crying, but this was not unusual as it was his normal teaching style to give his students side hugs. Similarly, the Member admitted that he gifted Student 1 a Toronto Maple Leafs’ towel from a hockey game he attended because he knew that she was an avid hockey fan and it was her birthday. However, the Member maintained that this was not unusual, as it was his practice to give students gifts, including birthday cakes for international students who were living apart from their parents, and shoes for students who could not otherwise afford them. The Member denied putting his arm around Student 1 while walking around campus. He also denied sitting with Student 1 in class and explained that he would not have enough space to do so, given the set-up of the classroom and the social distancing protocols that prevented people from sitting closely with other people. The only plausible possibility of the Member touching Student 1’s legs would be if he knelt beside her as she did her work, which he did to other students when checking in with them. The Member maintained that if he did touch Student 1’s leg during these instances, it was wholly incidental and accidental.

65The Panel finds that the Member was forthright in his admissions, and that his testimony was plausible and reasonable. The Panel does not accept the College’s argument that the Member was trying to groom Student 1. Rather, the Panel prefers the Member’s evidence that he did not treat Student 1 differently from the other students in his class, that his teaching philosophy is to be a supportive, relational teacher for all students, and that it was part of his usual mannerisms and practices to wink at, hug, and give gifts to students. Further, Panel also accepts his testimony that that any contact his legs made with Student 1’s in class as alleged, was accidental. As such, the Panel is not prepared to find that the Member’s actions of winking, hugging, giving her a birthday gift, or any accidental touching Student 1’s leg (if at all) crossed the threshold of inappropriateness or boundary violations with Student 1.

66Although the Panel does not find any wrongdoing by the Member here, the Panel notes that teachers must be careful in their efforts to cultivate positive relationships with students to avoid boundary violations. Being overly friendly and excessive expressions of attention can create a culture that more easily allows for blurring and violations of professional boundaries.

67With respect to the particular in paragraph 6(e) of the Notice of Hearing, the Panel finds that the Member called Student 1 by the nickname “Little Butt Cheeks” or words to that effect during the 2021-2022 academic year. Student 1 testified that the Member said this to her in front of the class on one occasion, and then called her by this nickname when they were alone. The Member denied this allegation and testified that the only nickname he and the rest of the class had for Student 1 was [XXX] “” or [XXX] “”. He submitted that this allegation was “ridiculous” and “flat out lie”, and that if there was any mention of “butts”, it would have been a comment directed to the whole class along the lines of instructing them to “get [their] little butts out of here”. The Member further denied referring to Student 1 in this manner while alone, as he never spent time with her alone. The Panel preferred Student 1’s evidence on this allegation. As mentioned, the Panel found both witnesses generally credible. With respect to this particular issue, there was nothing that suggested to the Panel that Student 1 was mistaken or untruthful in her recollections. Rather, the Panel found Student 1 to have been firm and unwavering in her testimony that the Member referred to her by this nickname. The Member denied ever calling Student 1, “Little Butt Cheeks” and proffered that the comment about “butts” (if there had been any) was made to the class as a whole and was likely more along the lines of “get your little butts out of here”. The Panel notes that this was not a specific recollection but rather, a general suggestion and explanation of Student 1’s recollection. The Panel finds that Student 1’s evidence with respect to the use of the nickname “Little Butt Cheeks” is more credible than the Member’s evidence on this point because her evidence and recollection was more specific and more plausible than the Member’s general explanation that the Panel found to be more vague in comparison. In light of Student 1’s consistently specific testimony, the Panel preferred Student 1’s clear recollection and evidence and found her testimony more plausible than the Member’s vague explanation. Referring to a student by their body part, like “Little Butt Cheeks,” is inappropriate and violated professional boundaries. Accordingly, the Panel is satisfied that paragraph 6(e) has been proven on a balance of probabilities.

(3) Legal Conclusions

The Member engaged in professional misconduct

68The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member abused a student verbally contrary to Ontario Regulation 437/97, subsection 1(7); he abused a student psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); he abused a student sexually contrary to Ontario Regulation 437/97, subsection 1(7.3); he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and, he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The Panel finds that the Kienapple principle in criminal law does not apply to discipline matters before this Committee. Pursuant to the Divisional Court in Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (as cited in “Brooks”), the Kienapple principle has not been adopted in the regulatory context. The Divisional Court has ruled that while they may be similar, allegations of professional misconduct in disciplinary proceedings have distinct purposes towards protecting the public interest and as such, should be distinguished from the criminal context. The Panel accepts this reasoning and follows the guidance of the Divisional Court in this case.

(c) The Member abused a student verbally

69The Panel finds that the Member verbally abused Student 1, contrary to subsection 1(7) of Ontario Regulation 437/97. The Panel finds that the Member’s nickname, “Little Butt Cheeks” for Student 1 was inappropriate and a violation of professional boundaries. In the Panel’s view, it is verbally abusive and demeaning to refer to a student by a nickname that comments on her buttocks.

(d) The Member abused a student psychologically or emotionally

70The Panel finds that the Member psychologically or emotionally abused Student 1, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Panel finds that the Member’s messages on the night of June 24 and/or June 25, 2022 were psychologically or emotionally abusive, as they negatively impacted Student 1 when she received them. The comments and suggestive gestures made her feel uncomfortable, awkward, confused, and her stomach turned when he called her a “beautiful girl”.

71The Panel further finds that the messages the Member sent to Student 1 the following day, were also inappropriate and psychologically and emotionally manipulative. In sending these messages, the Member attempted to abuse his unique position of trust over Student 1, as her teacher. The Panel accepts that it was part of the culture of the School to say “I love you” and to consider each other like family, as both witnesses testified to that effect. However, it is the Panel’s view that when the Member told Student 1 that he loved her as a student in the same way that he loves other students (File 32 of Exhibit 3), and reminded her that they are family (File 30 of Exhibit 3), the Member was (as he himself admitted in his testimony) attempting to “backpedal” his comments from the prior day. He was attempting to downplay the severity and suggestive nature of his comments to her, as well as influence her response to them. He was persistent in his attempts to impel Student 1 to not interpret his messages as inappropriate, by sending her numerous messages into the noon hour on June 25, 2022, in which he pleaded for Student 1’s forgiveness and asked for a chance, expressed concerns for his career and regret that his future was in her hands. Student 1 testified that these comments “messed with her head”, made her feel sad because she did not know how to react and did not want to forgive him, and made her feel stressed because she felt that the Member was putting a lot of pressure on her.

72Teachers hold a position of influence and authority over students. In this case, it was or should have been abundantly clear to the Member that he was a person of significance to Student 1 given the letter he had received from her shortly before the end of school (Exhibit 5). Student 1’s letter expressed appreciation for all that the Member had done during the school year and for the positive impact he had made in the life of Student 1. Student 1 also wrote that she loved him and that she considered him to be family. Irrespective of Student 1’s personal attachment to the Member, the Member had an overarching professional responsibility to govern himself appropriately. The Panel is of the view that when he received Student 1’s letter, the Member ought to have recognized that Student 1’s attachment to the Member could lead to the blurring of professional boundaries and should have exercised extra caution to ensure that his subsequent interactions with her could only be interpreted as professional, so as to not take advantage of Student 1’s personal feelings towards the Member.

73With respect to Exhibit 6, the Panel gave this little to no weight. The evidence demonstrates that Student 1’s mother sent this message to the Member around the time of Christmas 2021, well before Student 1 and the Member exchanged the electronic messages at the subject of this proceeding.

74While Panel acknowledges the Member’s expressed remorse, it was inappropriate and psychologically or emotionally abusive for him to have used the positive relationship and sentiments that Student 1 had developed for him during the school year, to try and pressure her to keep his conduct a secret.

(e) The Member abused a student sexually

75The Panel finds that the Member sexually abused Student 1, contrary to subsection 1(7.3) of Ontario Regulation 439/97 and as defined in section 1 of the Act.

76The definition of sexual abuse at section 1 of the Act includes “behaviour or remarks of a sexual nature by the member towards the student”, including remarks made by electronic communications. The Act does not define what may be considered a “sexual nature”, though section 1(8) of the Act notes some exceptions. The determination of what is “sexual in nature” is an objective test, considering the Member’s conduct in its circumstances.

77The Panel notes that the documentary evidence did not include many of Student 1’s messages to the Member and consisted mainly of the Member’s messages in response to Student 1. The Member asked the Panel to draw an adverse inference against the College and also argued that the Panel lacks the context to make an objective assessment as to whether the Member’s conduct and communications to Student 1 on the night of June 24 and/or June 25, 2022 were sexual in nature. The Panel disagrees. This proceeding is concerning the Member’s conduct and not Student 1’s conduct. In the Panel’s view, Student 1’s messages are irrelevant to the assessment of whether the Member’s conduct was sexual in nature. It is not necessary for the Panel to consider what Student 1 said to the Member, or to determine Student 1’s motivation or intent in messaging the Member. The Panel is tasked with determining whether the Member engaged in behaviour or made remarks toward Student 1 that were sexual in nature, based on his actions toward Student 1.

78The Panel finds that the Member sexually abused Student 1. In making this finding, the Panel relied most significantly on its finding that the Member sent Student 1 messages and images that are on their face, sexual in nature. The Member complimented Student 1’s appearance throughout the conversation, including when he called her beautiful and told her that she could be an eye model. The Member also used the fire emoji, which he admitted can be used to convey that someone is attractive or sexy which is how Student 1 interpreted the emoji.

79The Panel also found the Member’s comments to be sexual in nature, when considered in light of the videos and pictures that accompanied his messages. The Member offered to take Student 1 out in 5-10 years via a video message where he tilts his head and winks (File 5 of Exhibit 3) and made multiple teasing references to his invitation throughout the night (Files 16 and 20 of Exhibit 3). These comments were interspersed with flirtatious messages on top of videos and pictures of the Member making suggestive gestures while in a tank top and shorts (Files 11, 19 and 21 of Exhibit 3) and requests to keep his messages secret given their inappropriate nature, including when he asked her:

• “YOU DELETE OUR CHAT EACH TIME?” (File 17 of Exhibit 3) followed by the message “THAT WAY I CAN KEEP MY JOB LOL” (File 18 of Exhibit 3); and

• “PLEASE PLEASE DON’T SAY ANYTHING ABOUT 5-10 LOL THAT’S JUST FOR YOU…PINKY PROMISE” (File 22 of Exhibit 3).

80In the Panel’s view, a reasonable person looking objectively at the circumstances and the entirety of the Member’s messages to Student 1 would view the Member’s conversation with Student 1 to be sexual in nature. As such, the Panel finds that the Member engaged in sexual abuse of Student 1, as defined in the Act.

81The Panel does not make a finding that the Member engaged in conduct that was sexual in nature during the 2021-2022 school year. As stated above, the Panel was not satisfied that that the Member’s actions of winking at and hugging Student 1, or touching her leg while sitting with her, or giving her a hockey towel were inappropriate or that the Member had violated appropriate professional boundaries with Student 1. Further, the Panel does not find the Member’s use of the nickname “Little Butt Cheeks” to be sexual abuse. While highly inappropriate, the Panel did not receive evidence that this nickname was used to groom Student 1 for a future relationship with her or to indicate that the Member’s use of the term was otherwise sexual in nature.

(f) The Member 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)

82The Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. While these terms are not legislatively defined, and are considered to be disjunctive, the Panel finds that the Member’s conduct can be properly characterized by all three terms.

83“Disgraceful conduct” has been used by this Committee to refer to misconduct of a reprehensible and most egregious nature that casts serious doubt upon the Member’s moral fitness to uphold their duties and responsibilities as a member of the profession. This Committee has used the term “dishonourable” to refer to misconduct that infers an element of a moral failing but is less serious than disgraceful conduct. The more knowledge that a member has or ought to have had about the wrongfulness of the conduct at the time it occurs, the more likely the Committee will find the conduct to be “disgraceful” rather than merely “dishonourable”. “Unprofessional conduct” has been considered by this Committee to refer to acts that display a lack of professional judgment by a member but not necessarily a moral failing.

84At the very minimum, the Member’s misconduct in calling Student 1 “Little Butt Cheeks”, as well as having a conversation of a personal nature with a student at night on a social media platform that is not approved by the School was unprofessional. The fact that the Member was drunk when he engaged in an Instagram conversation with Student 1 further demonstrates his unprofessionalism. By his own testimony, the Member acknowledged that he lacked professional judgment simply by responding to Student 1’s message on the night of June 24, 2022.

85However, the Member’s conduct on June 24 and 25, 2022 went beyond mere unprofessionalism. As someone who helped draft the School’s Guidelines for Electronic Communications (Exhibit 7), the Member knew or ought of have known that he should not have engaged in communications with Student 1 over a personal social media platform like Instagram, and that he was required to maintain professional boundaries with students. However, he acted with blatant disregard for his professional obligations in communicating with Student 1 that night. In the Panel’s view, this demonstrates significant moral failing and warrants a finding that the Member acted dishonorably.

86As stated above, the Member sent sexual messages to Student 1 over Instagram on June 24-25, 2022. Such conduct is of the most serious nature and is clearly disgraceful, dishonourable, and unprofessional. Additionally, the Member’s attempts to convince Student 1 to keep his messages secret so that he can keep his job were reprehensible and abusive. He acted disgracefully, as his actions cast significant doubt upon the Member’s moral fitness and ability to uphold his duties and responsibilities as a teacher.

(g) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

87The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession. The Member admitted that his communications with Student 1 on June 24 and 25, 2022 were inappropriate and unbecoming. However, by making remarks of a sexual nature towards a student, the Panel finds that the Member’s conduct was egregious. The Member’s misconduct undermines the trust that students, parents, and the public place in the teachers and has tarnished the teaching profession as a whole.

K. INTERIM ORDER

88As the Panel has found the Member to have engaged in the sexual abuse of a student, the Panel is required by subsection 30.2(1)(b) of the Actto make an interim order directing the Registrar to suspend the Member’s certificate of qualification and registration until the Panel makes its penalty order. The Panel therefore makes this interim order.

89The Tribunals’ Office will schedule a subsequent hearing date for the penalty portion of this hearing.