DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Van Gentevoort 2025 ONOCT 22

Date: 2025-04-05

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

Michael William Van Gentevoort, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MICHAEL WILLIAM VAN GENTEVOORT (REGISTRATION #441701)

PANEL: Kimberley Westfall-Connor, Chair Anne Laflamme, OCT Linda Staudt, OCT

HEARD: June 22 and 23, 2023; December 4, 2023; April 30, 2024; September 10 and 26, 2024; November 1, 2024; and December 2, 2024

Danielle Miller, for the Ontario College of Teachers

Andrea Wobick and Simone Truemner-Caron, for Michael William Van Gentevoort

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 identities of Student 1, 2, 3, 4, 5 and 6 who were allegedly the subject of sexual misconduct.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on June 22 and 23, 2023, December 4, 2023, April 30, 2024, September 10 and 26, 2024, November 1, 2024 and December 2, 2024 in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (“Rules”).

2Michael William Van Gentevoort (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 College Counsel on behalf of Student 1, Student 2, Student 3, Student 4, Student 5, and Student 6, who were allegedly the subject of sexual misconduct. Accordingly, no person shall publish the identity of or any information that could disclose the identity of these students.

B. overview

5The College alleged that the Member engaged in professional misconduct in his Grade [XXX] [XXX] and [XXX] classes. Among other things, the College alleged that the Member made a comment about surgery and catheters to students, as well as a sexually suggestive comment to a student in class. The College also alleged that the Member yelled at students, arbitrarily removed students from class, publicly discussed students’ performance on a quiz, and told students not to have hope in his Grade [XXX] [XXX]class.

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, contravening subsections 1(7), 1(7.2), 1(14), 1(15), and 1(18) of Ontario Regulation 437/97. The Panel also finds that the Member engaged in sexual misconduct as defined in section 1 of the Act. The Panel did not find that the Member contravened subsection 1(19) of Ontario Regulation 437/97.

C. THE ALLEGATIONS

7The allegations against the Member in the Notice of Hearing dated April 21, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Michael William Van Gentevoort is guilty of professional misconduct as defined in 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 engaged in sexual misconduct as defined in section 1 of the Act;

(d) he failed to comply with the Act or the regulations or the by-laws, specifically section 26 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(e) he 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);

(f) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. The Member is a member of the College in the Inactive/Non-Practising status.

2. At all material times, the Member was employed by the Ottawa-Carleton District School Board (the “Board”) as a teacher at [XXX] School in Nepean, Ontario.

3. At all material times, Student 1 was a Grade [XXX] female student in the Member’s [XXX]class. Student 2 was a Grade [XXX] female student and Student 3 was a Grade [XXX] male student in the Member’s [XXX] class.

4. In or about September 2019, during the Member’s Grade [XXX] and/or Grade [XXX] [XXX] class, the Member:

(a) told the class that he had surgery in his genital area when he was younger and/or required the use of a catheter;

(b) told the class that he was happy that he had a female nurse because the female nurse would not understand why the catheter was so big and/or long;

(c) told the class that he tried to join women’s only gyms;

(d) told the class that he was being stalked and/or that the stalker wanted to burn down his house;

(e) referred to one or more transgender students as “it”;

(f) commented that, “I never know how to make them [transgender students] happy, I know them as this, the next they are this…,” or words to that effect.

5. In or about September 2019, the Member asked Student 1, “Would you like to play with my chalk?” and/or “Come play with my chalk. Come on, you don’t want to play with my chalk?”

6. In or about September 2019, during the Member’s Grade [XXX] and/or Grade [XXX] [XXX] class, the Member:

(a) yelled at one or more students;

(b) arbitrarily removed one or more students, including Student 2 and/or Student 3, from class;

(c) discussed the grades of certain students in the presence of other members of the class;

(d) publicly identified three students who passed a quiz and/or directed other students in class to clap for them;

(e) handed back a quiz to one or more students and stated aloud in the presence of other students, “Oh, you got this one wrong,” or words to that effect;

(f) handed back a quiz to one or more students and told them in the presence of other students that they received a “R-, R or R plus,” which meant that the affected student had failed and would have to rewrite the quiz;

(g) stated to a student in front of the class, “That’s scary that you thought that you did better [on the quiz]. You should not believe in yourself. You should not have hope…It’s [the class] is not about emotions. You should not be having emotions in this class,” or words to that effect.

7. The Member’s employment was terminated by the Board on August 21, 2020.

D. THE MEMBER’S PLEA

8The Member denied the allegations set out in the Notice of Hearing.

E. THE EVIDENCE

9The Panel ordered that the witnesses in this matter be excluded from the hearing until called to give evidence, in accordance with rule 13.12 of the Rules. Relevant portions of the evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary of the parties’ evidence.

(1) College Witnesses

10The College called four student witnesses, as well as Mr. Mark Harris, the principal of [XXX]School (the “School”) and Mr. Richard Sinclair, General Counsel for the Ottawa-Carleton District School Board.

(a) Student 1’s testimony

11In September 2019, Student 1 was a Grade [XXX] student enrolled in the Member’s Grade [XXX] [XXX] class.

12Student 1 testified that the Member made an inappropriate comment about chalk to her. She said the Member repeatedly commented to her, “Why don’t you come up here and play with my chalk?” and “Don’t you want to come play with my chalk?”. At the time, Student 1 did not understand what the Member meant but felt uncomfortable and laughed nervously. Afterward, she spoke with a student who observed the incident and came to think that the Member’s tone of voice insinuated a sexual suggestion.

13Student 1 testified also about how the Member distributed [XXX] quiz results to the class. She recalled that there was an occasion where all but three students failed a [XXX] quiz, and that the Member called out these students and made the class clap for them. Further, Student 1 explained that the Member told the class they should not have hope. She recalled laughing nervously when the Member made this comment because she was uncomfortable and upset and felt it was inappropriate for a teacher to say this to students.

14According to Student 1, the Member often seemed angry in class, his face would turn red, and he spoke to them in a higher tone when the class became disruptive. Student 1 recalled that the Member called her out of the classroom one time, along with Student 2 and Student 3, and spoke to them alone in the hallway about being disruptive in class.

(b) Student 3’s testimony

15Student 3 was in the Member’s Grade [XXX] [XXX] class in September 2019 and was repeating the course for a second time.

16Student 3 had been in the Member’s Grade [XXX] [XXX] class and Grade [XXX] [XXX] class in the second semester of the previous school year (Spring 2019). Student 3 testified that he did not feel good about repeating the Grade [XXX] [XXX] class with the Member in September 2019 and testified that the environment in the [XXX] class was toxic.

17Student 3 testified and maintained during cross-examination that the Member shared individual grades, including his, in front of the [XXX] class. Student 3 testified about a time that the Member told the class that almost the whole class failed a test and instructed the class to clap for the three students who had passed.

18Student 3 also testified about a time when the Member called him, Student 1 and Student 2 out into the hallway before class began. He explained that the Member was upset and informed them it was their fault that the rest of the class was failing and that they often went off-topic in class.

19With respect to the chalk incident, Student 3 recalled that the Member repeatedly, with a smirk on his face, asked Student 1, “would you like to come play with my chalk?”. Student 3 felt this was a sexual comment as the Member directed this comment specifically to Student 1 and repeated the question five to eight times.

(c) Student 4’s testimony

20In September 2019, Student 4 was a Grade [XXX] student in the Member’s Grade [XXX] [XXX] class at the School.

21Student 4 testified that the Member’s mood in the class was unpredictable. She explained that the Member raised his voice if students asked him questions about their marks and refused to give individual help to students.

22Student 4 also testified that there were discussions in the class that were off topic that made her uncomfortable. She testified, and maintained during cross-examination, that the Member spoke about a female nurse and a catheter. While she could not provide more details about that conversation, Student 4 testified that it was unrelated to what they had been learning in class.

23Student 4 also recalled that the Member made multiple comments to Student 1 like, “do you want to touch my chalk?”, “do you want to play with my chalk?”, and “do you like the new chalk?”. Student 4 testified and maintained during cross-examination that she thought the Member had sexual intent in making these comments. Student 4 testified that she felt uncomfortable by the Member’s comments to Student 1.

24With respect to their [XXX] quiz, Student 4 testified that the Member called students to his desk one by one to return their quiz, starting with the students who had the best marks. The Member indicated his disappointment in how poorly the class did on the quiz and when he heard a student say they wished they had done better, he made a comment that they should not have hope in [XXX].

(d) Student 5’s testimony

25In September 2019, Student 5 was a Grade [XXX] student in the Member’s Grade [XXX] [XXX] and Grade [XXX] [XXX] classes. These classes were held back-to-back every afternoon.

26According to Student 5, the Member would become agitated, pacing around the class and shouting at students when they repeatedly asked him questions or disrupted his class.

27Student 5 also recalled that one day in [XXX] class, the Member repeated approximately five to seven times comments to Student 1 such as “do you like my chalk?”, and “do you want to play with my chalk?”. Student 5 recalled that the Member was smirking and giggling when he repeated these statements. Student 5 observed Student 1 and other students in the class laugh awkwardly in response. Student 5 felt uncomfortable when the Member continued to repeat the statements to Student 1 while smirking; the questions seemed to be a “sexual entendre”.

28With respect to their [XXX] quiz, Student 5 recalled that students had to walk up to the Member’s desk to submit their quiz and that the Member started grading them immediately, without waiting for the entire class to finish. Additionally, as he was marking, the Member made comments about the students’ performance on the quiz, saying: “oh you got that wrong”.

29Student 5 testified that when the Member handed back their quizzes a few days later, he announced that everyone in the class received “R” grades (whether a R, R+ or R-, meaning a “redo”, or “fail”) except for three students, who received above a “1+” (i.e. 60%). The Member made the class clap for these three students. Student 5 also recalled that a student said that she had thought she would have done better on the test. Student 5 testified that the Member responded by commenting that that the students should not believe in themselves, have hope in themselves, or hope to do well in [XXX] class, but should do better because [XXX] was not an emotional course but a logical one.

(e) Mr. Mark Harris

30Mr. Harris has been an educator for the past 32 years and has held several roles as a teacher and administrator at numerous schools within the Board. He was the principal at the School from February 2015 until his retirement in January 2023. Mr. Harris testified about receiving complaints from students about the Member and his involvement in the investigation of the Member’s conduct.

31Mr. Harris testified that he received two emails from parents in September 2019 complaining that the Member was not creating a supportive learning environment for students in his Grade [XXX] [XXX] class (Exhibit 7 and Exhibit 8). He notified his superintendent as well as an official from Human Resources at the Board of the complaints. He also started interviewing students from the Member's Grade [XXX] [XXX] class on the morning of September 19, 2019. During the interviews, some of the students mentioned an incident when the Member made a comment about chalk to a student in class. Mr. Harris took handwritten notes during his interviews and then typed them up later that afternoon (Exhibit 9). Mr. Harris recalled that students reported that the comment made them feel uncomfortable. He also testified that all of the students had characterized the comment as being “sexual” (though they may have used different terms like “sexual reference” or “sexual nature” when talking about the comment) and that is why he used the word “sexual innuendo” in his notes. He testified that he received an email later that day instructing him to stop his interviews and advising him that the Board would conduct its own investigation of the Member.

(f) Mr. Richard Sinclair

32Mr. Sinclair works as a general counsel for the Ottawa-Carleton School Board. Mr. Sinclair testified about his involvement with the investigation of the Member’s conduct, the Board meetings with the Member and the Member’s responses to the allegations.

33Mr. Sinclair testified that he attended the Board’s meetings (the “Opportunity to respond meeting”) with the Member in December 2019 and in June 2020. He testified that Ms. Setterington (the investigation advisor of the Board at the time) conducted these meetings with the Member and that Mr. Sinclair was the designated note-taker. He typed his notes during the meetings (Exhibit 11). He explained that the notes were close to verbatim and that some changes to the notes were made by Ms. Setterington later to add some clarity and correct some blatant typos that were not substantive. He testified that it was not unusual for him to ask others who were present at a meeting to have a look at his notes and make sure they were accurate and fill in things that were missing. Mr. Sinclair said that he agreed with what Ms. Setterington had added to his notes and that he was satisfied that his notes accurately captured what was said during the meeting.

34Mr. Sinclair recalled Ms. Setterington asking the Member whether he talked about a catheter and his genitals in class. According to Mr. Sinclair, the Member admitted that he talked about having surgery and having a catheter. He recalled that the Member explained that the comments were said during a class discussion about gender equity and underrepresentation of women in certain professions. The Member discussed nursing and said there may be a need for male nurses; he gave the example of requiring the use of a catheter and that male nurses may be better in some cases. Mr. Sinclair testified that the Member was asked repeatedly if he understood why that might make some students uncomfortable, and the Member responded that the student who had made the complaint to the School had not been uncomfortable. Mr. Sinclair further testified that when asked a couple of times if the subject might make children uncomfortable, the Member eventually said yes. Mr. Sinclair testified that the Member became reactive, angry, and loud during their conversation about the catheter comment. He explained that the Member shouted and raised his voice and asked him and Ms. Setterington whether they thought a catheter was sexual. Mr. Sinclair recalled that the Member showed them a magazine cover of a dirt bike rider with a catheter on the side of his legs (Exhibit 15) and pointing and shouting, red in the face, and asked them whether they thought that it was sexual.

(2) College’s Documentary and Audio Evidence

35College Counsel submitted documentary and audio evidence throughout the witnesses’ testimonies. In addition to the documentary evidence admitted through the witnesses, the Committee also accepted into evidence the Member’s Registered Member Information (Exhibit 2) as well as three audio clips (Exhibit 3). These three audio clips are a recording by Student 1 of a conversation between her, the Member, Student 2, and Student 3.

F. member’s evidence

(1) Member’s testimony

36The Member testified that he started working as a teacher in 2001 and that he started teaching at the School in the Fall of 2013. During the Fall semester of 2019, he taught Grade [XXX] college level [XXX] and Grade [XXX] college level [XXX].

37The Member testified about how he distributed [XXX]quiz results to the class and explained that his usual practice was to announce the highest-achieving student on the quiz. With respect to the quiz in question in this case, the Member explained that three students had tied for the highest grade, and he proceeded to announce them in front of the class, congratulated them, and handed back those three quizzes first. The Member testified that he did not direct students to clap for the top three achieving students. He however noticed that students were unimpressed and showed no interest in the top grades and he sarcastically asked, “No applause?” and then proceeded to hand back the remainder of the quizzes.

38The Member testified that he did not tell students who received an R- (a failing grade) when handing back their quizzes but rather, the students themselves announced out loud their grade after receiving their quiz. The Member acknowledge that, before handing back the [XXX] quizzes, he told the class that the median mark was a failing grade and that more than half of the students had failed the quiz.

39The Member denied saying to a student that she should not have hope in [XXX] class. He testified that he was talking to a student who sat close to his desk, and she had failed the [XXX] quiz and was hoping that she would have gotten at least an 80% as a grade. The Member then proceeded to tell her that “hope has nothing to do with it”, but was then interrupted by Student 1, and at that point, he had to speak with Student 1 in the hallway. When he returned to the class, he explained that hope cannot be the sole factor in achieving good grades and told the students that they had to put in the work to obtain good grades.

40The Member denied that he yelled at students or removed them from class. The Member admitted that he would raise his voice by a few decibels. He also explained that he did not remove students from class but did request that students join him in the hallway. However, this was not during class but at the beginning of class while the students were already in the hallway.

41The Member testified that he never told the class that he had surgery in his genital area or required the use of a catheter. The only time the Member mentioned a catheter was in his [XXX] class in the Spring semester of 2019. According to the Member, the class was discussing employment equity at the end of class, and he asked the students if there were any professions that they thought were not equal amongst genders. He gave the example of a nurse, because Student 6 was involved in the discussion, and he knew her [XXX] was a nurse. He then explained to his class that in certain medical situations it is possible a patient would want a nurse of a particular gender. He recalled that students asked him for examples, and he gave the example of having a catheter removed. He also testified that he made a brief statement to a Children’s Aid Society (“CAS”) worker about having surgery in his youth and requiring a catheter at that time but denied ever saying this in any class.

42With respect to the allegations regarding the chalk comment, the Member testified that he brought colored chalk to help Student 1 better understand the graphs he drew on the chalkboard because she had said that she had difficulty understanding them. He testified that Student 1 often doodled on the chalkboard and so he told her that the chalk was not for playing and that it was in short supply. She responded by saying that she was going to enjoy playing with his chalk. She then made a joke to the other students, and they started to laugh. The Member asked Student 1 what was so funny and repeated to her that she could not play with his chalk. The Member testified that the students kept laughing so he asked them what was so funny about him saying “no you may not play with my chalk”. The Member denied in his testimony that the statements had a sexual intent.

G. SUBMISSIONS OF COLLEGE COUNSEL

43College Counsel submitted that they were not seeking a finding for particulars 4(b) through 4(f) contained in the Notice of Hearing and did not provide any evidence in support of those particulars. College Counsel also submitted that the College was not seeking a finding of professional misconduct under subsection 1(19) of Ontario Regulation 437/97.

44According to College Counsel, all their witnesses were generally credible and reliable, and the evidence presented to the Panel proves the remaining allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel noted that Student 4’s testimony regarding the Member talking about a catheter in [XXX] class was wrong, because the discussion allegedly took place in [XXX] class the year prior. College Counsel submitted that the Panel should reject that portion of Student 4’s testimony. However, College Counsel argued that the Panel should not reject the remainder of Student 4’s evidence as it was not a deliberate attempt on her part to fabricate examples of misconduct to frame the Member. College Counsel argued that Student 4’s evidence on the other particulars is internally and externally consistent and there is no basis upon which the Panel should reject her evidence as a whole.

45College Counsel also advised the Panel that paragraph 4(a) of the Notice of Hearing contains an error regarding the year and class in which the misconduct occurred. College Counsel clarified that the Notice of Hearing alleges that the Member made his comments about a catheter in a September 2019 [XXX] class, but it should refer to a Spring 2019 [XXX] class. College Counsel submitted that the caselaw establishes that a Notice of Hearing is not construed in the same way as a criminal indictment and that exact wording is not necessary in the administrative law context. Rather, the legal test for an error contained in a Notice of Hearing is a question of whether a member has been given fair notice of the allegations and particulars against them and whether a member has the necessary information to participate effectively in the hearing. College Counsel argued that there would be no prejudice to the Member if the Panel would make a finding under particular 4(a) of the Notice of Hearing because the Member has long been aware of the details of the allegations that he made a comment about catheters in class. College Counsel argued that the Member has known from the time he received the Board investigator’s report that the catheter comment was part of the complaint against him and reminded the Panel that the Member confirmed during his examination-in-chief that the complaint was brought forward during the Board Opportunity to respond interview of December 2019.

H. submissions of member’s counsel

46Member’s Counsel submitted that the Member did not engage in professional misconduct as alleged in the Notice of Hearing. Member’s Counsel further submitted that with respect to the Member’s admissions regarding some of his conduct, that conduct does not rise to the level of professional misconduct.

47Member’s Counsel argued that the Panel ought to make findings on the particulars listed in the Notice of Hearing and to reject and disregard evidence going beyond the particulars as alleged. Member’s Counsel submitted that the College presented evidence regarding the catheter comment that is not particularized in the Notice of Hearing and argued that the Panel should disregard that evidence. Member’s Counsel also noted that student witnesses testified that the Member wasted time in class sharing irrelevant information and argued that this is not particularized in the Notice of Hearing. Member’s Counsel submitted that the Member did not receive these allegations as part of the complaint to the College, therefore the Discipline Committee has no jurisdiction to hear them.

48Finally, Member’s Counsel submitted that particular 6(a) (that the Member yelled at one or more students), was a broad assertion without reference to a particular date and any information about to whom the Member was yelling. Member’s Counsel argued that the evidence presented in this hearing does not provide the Panel with specificities upon which to ground this allegation. Further, Member’s Counsel submitted that the Member had a teaching style that did not appeal to the witnesses who testified and that is an issue about competence as a teacher and not an issue of professional misconduct.

I. DECISION ON FINDING

(1) Onus and standard of proof

49The 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 SCR 41, which is proof on a balance of probabilities.

(2) Decision

50Having 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(14), 1(15), and 1(18). The Panel also finds that the Member engaged in sexual misconduct as defined in section 1 of the Act. The Panel did not find that the Member contravened subsection 1(19) of Ontario Regulation 437/97.

J. REASONS FOR DECISION

51The 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.

52In 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

53The Panel found that Student 1 was credible and was able to recall the events in question and she was honest when she was unable to recall. Her testimony was consistent with the other student witnesses’ testimonies.

54As for Student 3, the Panel found that he was generally credible. The Panel found he was able to observe and recall the events that he testified to. He was honest when he was not able to recall certain alleged facts or events. His evidence was also externally consistent with other student witnesses.

55Although Student 4’s testimony contained an inconsistency about the alleged catheter incident, which the Panel ultimately rejected (which will be addressed in Factual findings section below), the Panel found her otherwise credible and reliable. Her evidence is also supported by the other student witness’s evidence. There were no other major concerns with her testimony.

56The Panel found Student 5 a credible witness. She had the ability to observe the events being in two classes of the Member in September 2019 and her evidence was internally consistent through her chief examination and cross-examination. Her testimony is also corroborated by documentary evidence, such as the text message she sent to her mother (Exhibit 4) and the email her mother sent to Mr. Harris (Exhibit 8).

57As for Mr. Harris, the Panel notes that he did not observe the alleged events firsthand but had knowledge of them from student interviews he conducted. The Panel notes that Mr. Harris’ evidence contains hearsay, including the email communications he received from parents (Exhibits 7 and 8). However, hearsay is admissible in hearings before the Committee. The Panel found Mr. Harris generally credible and while the Panel is not solely relying on Mr. Harris’ testimony to make the findings below, his testimony provided further clarity and narrative regarding the alleged events.

58Although Mr. Sinclair referred to his notes on numerous occasions to refresh his memory throughout his evidence, the Panel found him generally credible and reliable. At times Mr. Sinclair did not have independent recollection of the Board Opportunity to respond meetings and relied on his notes, however he was honest when he could not recall certain events. Mr. Sinclair’s Board Opportunity to respond meeting notes were also consistent with his testimony.

59Finally, as for the Member, the Panel notes that the Member had the ability to observe the events as he was present in the alleged events and generally had a good recollection of the events. However, his testimony was not consistent with that of the other witnesses in this hearing. The Panel notes that most of the time he did not fundamentally disagree with the description of events by other witnesses, but he had a very different perspective on them. The Panel also notes that the Member was internally inconsistent with regards to the catheter incident; his description of the event changed from his examination-in-chief to his cross-examination (which the Panel will further explain in the findings section below).

(2) Factual Findings

(a) The Member made inappropriate comments in his Grade [XXX]or Grade [XXX] [XXX]class- Particular 4 (a) to (f)

(i) Catheter incident - Particular 4 (a)

60The Panel accepts that there is an error in the Notice of Hearing with respect to particular 4(a), which alleges that in or around September 2019 the Member told his Grade [XXX] and/or Grade [XXX] [XXX] class that he had surgery in his genital area when he was younger and/or required the use of a catheter. Having heard the parties’ submissions with respect to this error, the Panel determined that it can, nevertheless, hear evidence on whether the Member made a comment about surgery and catheters to students in class. Based on the evidence before it, the Panel finds that the College has proven on a balance of probabilities that the Member talked about his own surgery and catheter in [XXX]class of Spring 2019 but does not find that the College has proven that the Member spoke of surgery in his genital area.

Error in particular 4(a)

61College Counsel sought to introduce evidence on particular 4(a) of the Notice of Hearing through Mr. Sinclair’s testimony and noted there was an error in the Notice of Hearing. College Counsel advised that particular 4(a) in the Notice of Hearing should have stated the comment was made in the previous semester, Spring 2019 in the Member’s Grade [XXX] [XXX] class, rather than in September 2019 in the Member’s Grade [XXX] or [XXX] [XXX] class. College Counsel submitted that the administrative law context is different from the criminal context (where there is strict adherence to the wording of charges) such that the Panel can proceed with the allegation regarding the catheter comment as long as it would not cause unfairness to the Member. College Counsel argued that the Member had fair notice of the catheter allegation.

62On the other hand, Member’s Counsel submitted that the Panel’s jurisdiction is constrained by the Notice of Hearing and that the Member is owed a duty of procedural fairness. Accordingly, the Member’s position was that the Panel should disregard any evidence about allegations not particularized in the Notice of Hearing.

63Having considered the submissions of the parties and the cases they presented on this issue; the Panel finds that it would not be unfair to the Member to proceed with the particular regarding the surgery and catheter comments. The Panel acknowledges that the Notice of Hearing is the guiding document on which the College is seeking to make findings. However, the Panel has considered Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (“Rudinskas”), and notes that it is a recognized principle that a Notice of Hearing in disciplinary cases is not to be construed as criminal indictments (Rudinskas, at paragraph 50). Further, the Panel finds that the circumstances in the Member’s case are distinguishable from Ontario College of Teachers v. Phillips, 2020 ONOCT 224 (“Phillips”) where the panel determined that a member would be denied procedural fairness if a Discipline Committee were to hear allegations that are not specified in the Notice of Hearing (Phillips, at paragraph 38).

64In this instance, the Panel is satisfied that the Member would not be denied procedural fairness by hearing the allegation outlined in particular 4(a) of the Notice of Hearing. The error contained in is merely an error of the date and class in which the alleged incident happened but does not change the substance of the allegation (i.e. that the Member made comments about having surgery and about catheters to students in class). The Panel is of the view that despite these errors, the Member had fair notice of the allegations against him. For one, the Panel notes that the Member testified in his examination-in-chief that he had been made aware of the concern regarding the catheter comment shortly after the class discussion in which it occurred. He testified that he received an email from Mr. Harris asking him to meet with Student 6’s parent after Student 6 approached the principal’s office with her concerns. Further, the Member confirmed during his examination-in-chief that the catheter incident was raised in the Board Opportunity to respond interview of December 2019. It is also evident from Mr. Sinclair’s testimony and the Board Opportunity to respond interview notes (Exhibit 11) that the Member knew about the concern surrounding the comment about surgery and catheters and was able to properly respond to it during the Board Opportunity to respond meetings. The Panel is of the view that the Member was able to properly respond to the allegation that he made a comment about having surgery and catheters during his testimony as well.

The Member made comments about surgery and requiring a catheter to students

65The Panel finds that, on a balance of probabilities, in or about Spring 2019, the Member told his Grade [XXX] [XXX] class, that he had surgery in the past and had required the use of a catheter. The Panel is not satisfied that the College has proven that the Member had spoken about having surgery in his genital area when he was younger.

66The Panel heard evidence regarding the catheter comment from Mr. Sinclair, Student 4, and the Member.

67Mr. Sinclair testified that in the Board Opportunity to respond interview meetings, Ms. Setterington asked the Member whether there were discussions in class about surgery in the genital area and whether he talked about genitals in class. Mr. Sinclair said the Member consistently denied having talked to his class about having surgery to his genitals or even talking about genitals in class, but the Member did agree that he talked about having surgery and having needed a catheter multiple times (i.e., 5 surgeries and 3 or 4 catheters). According to Mr. Sinclair, the Member then explained that it was part of class discussion about gender equity and that he had wanted to discuss the overrepresentation of women in nursing and how there may be a need for male nurses. The Member then explained that he shared with the class that he had a catheter, as an example when it might be preferable to have a male nurse. Mr. Sinclair recalled that Ms. Setterington repeatedly asked the Member if he understood why his comments might make students uncomfortable and the Member responded that the student in question was not uncomfortable, her [XXX] was a nurse, and that the student brought forth the concern because she was biased. The Member ultimately, however, agreed that the comments might make students uncomfortable and also said that was the point of making them. Finally, Mr. Sinclair recalled the Member being reactive, increasingly upset and argumentative during the Board Opportunity to respond meeting. According to Mr. Sinclair, the Member pointed towards a magazine he had showed earlier in the meeting of a dirt bike rider with a catheter showing on the side of his leg and started shouting and asking Ms. Setterington and Mr. Sinclair whether they thought a catheter was sexual.

68The Panel accepts Mr. Sinclair’s testimony and notes that his testimony was consistent with his contemporaneous interview notes (Exhibit 11). Mr. Sinclair testified about some back-and-forth discussion between Ms. Setterington and the Member where Ms. Setterington asked the Member if he talked about genitals in class, which the Member denied. Ms. Setterington then asked the Member what the conversation in class was about, and the Member explained that there was a discussion about gender equity and most of the examples were about male-dominated fields and he felt it would be helpful to talk about female-dominated fields as well. The Member gave an example that there might be a need for males to be nurses and gave the example of him having catheters and that might be why it is appropriate to have a male nurse. Mr. Sinclair testified that the Member said there were comments and guffaws from the students so he explained that a catheter was a tube inserted to remove liquids during surgery. Mr. Sinclair testified that the Member made it explicit that a female would have the exact same catheter inserted.

69Mr. Sinclair’s notes indicate that on Day two of the Board Opportunity to respond meetings, the Member admitted again to Ms. Setterington that he spoke to his students about having a catheter. Shortly thereafter, Mr. Sinclair’s notes indicate that the Member says, in part: “I apologize, I was just responding to the student’s questions. It wasn’t my intent to make students uncomfortable and I didn’t perceive any discomfort. Lasted less than a minute” (Exhibit 11, page 16).

70The Member testified that he did discuss catheters in a [XXX] class in Spring 2019 but denied that he told the class he had surgery in the genital area and had a catheter removed. He testified that there was a class discussion on employment equity, and he asked the class whether they thought some professions were not equal amongst gender, for example female-dominated professions. He then explained that Student 6 was involved in the discussion and knew her [XXX] was a nurse, so he shared the example of a nurse. He explained to the class that there are certain medical situations that we would want a certain gender. He recalled that students asked him for examples, and he gave the example of having a catheter removed. He however denied talking to the class about his own catheter removal or having surgery. He also testified that he made a brief statement to a Children’s Aid Society (“CAS”) worker about having surgery in his youth and requiring a catheter at that time but denied ever saying this in any class.

71The Panel notes that in cross-examination, the Member testified that during the Board Opportunity to respond meetings, he thought Ms. Setterington was asking him about a conversation with CAS as opposed to what the class discussion was. The Panel does not find the Member credible on this point. The Panel has considered Mr. Sinclair’s testimony, which is supported by his contemporaneous notes. The Panel finds that it is implausible that the Member would think that Ms. Setterington was asking him about his discussions with CAS when the questions asked are regarding discussions he had with the class. Mr. Sinclair’s evidence, supported by his notes, demonstrate clearly that the Member admitted during the Board Opportunity to respond interview that he spoke to his class about having surgery and needing a catheter and that he even apologized for doing so during the interview.

72Further, in cross-examination the Member was asked by College Counsel how was it possible that a student happened to know he had surgeries and catheters and report those concerns to school administrators. The Member responded that a student shouted from the back of the classroom “oh he had one” and because he did not deny it the students assumed he had a catheter. The Panel finds that the Member’s response is inconsistent with his testimony in examination-in-chief that he did not tell the class he had surgery in his genital area and required the use of a catheter, but that he did discuss catheters in general. The Member’s version of events has changed since the Board meetings, his examination-in-chief and his cross-examination which affects his credibility. The Panel finds that these inconsistencies make the Member’s evidence less persuasive and therefore finds Mr. Sinclair’s evidence preferable.

73Finally, the Panel has decided to disregard Student 4’s evidence regarding this particular. Student 4 testified that the Member went off topic and talked about female nurses and about a catheter in his September 2019 [XXX] class but could not quite recall how the conversation was brought up. College Counsel submitted that Student 4 was wrong about hearing this in [XXX] class because the majority of the evidence on this point suggests that it happened in [XXX] class the previous semester (Spring 2019). College Counsel suggested that Student 4 could have heard about the comments from other students and mistakenly believed that it took place in[XXX], and submitted that it was not a deliberate attempt on her part to fabricate examples of misconduct to frame the Member. The Panel notes that Student 4 testified that September 2019 was the first time she had the Member as a teacher and therefore she would not have heard the comment about catheters in that class because it occurred in a different class in the previous semester. For this reason, the Panel rejects Student 4’s evidence regarding the catheter comment.

74For all of the reasons above, the Panel finds on a balance of probabilities that the Member spoke in his [XXX] class in the Spring of 2019 about having surgery and about having a catheter. The Panel notes that the Member consistently denies talking about having surgery “to his genitals” and the Panel acknowledges that the need for a catheter can occur in relation to many different kinds of surgeries. The Panel notes that there was no evidence presented to it to substantiate that the Member ever spoke about having surgery to his genitals. Therefore, the Panel does not find that the Member talked about having surgery specifically in his genital area to the class.

(ii) Particulars 4 (b) to (f)

75The Panel does not find that in or about September 2019, during the Member’s Grade [XXX] and/or Grade [XXX] [XXX] class, the Member:

• told the class that he was happy that he had a female nurse because the female nurse would not understand why the catheter was so big and/or long;

• told the class that he tried to join women’s only gyms;

• told the class that he was being stalked and/or that the stalker wanted to burn down his house;

• referred to one or more transgender students as “it”;

• and commented that, “I never know how to make them [transgender students] happy, I know them as this, the next they are this…” or words to that effect.

76The College did not present any evidence in support of these particulars. Therefore, the Panel does not make any findings of professional misconduct based on these particulars.

(b) The Member asked Student 1 “Would you like to play with my chalk?” and/or “Come play with my chalk. Come on, you don’t want to play with my chalk”- Particular 5

77The Panel finds that on a balance of probabilities, in or about September 2019, the Member asked Student 1, “Would you like to play with my chalk?” and/or “Come play with my chalk. Come on, you don’t want to play with my chalk?”.

78The Panel heard evidence about this particular from all four student witnesses, Mr. Harris, and the Member. The Panel accepts the evidence of the student witnesses, who were all present to observe the incident and who all testified that the Member made comments about wanting to play with chalk to Student 1 during their grade [XXX] [XXX] class in September 2019.

79In particular, Student 1 recalled that she laughed at the Member when he was talking about colored chalk in class. The Member asked her more than twice, “Why don’t you come up here and play with my chalk? Don’t you want to play with my chalk?”. Student 1 testified that she didn’t at first take the Member’s comment to be sexually suggestive, but after discussing it with other students she then believed it to be sexually suggestive.

80Student 3 could not recall who initiated the conversation about chalk but recalled that the Member repeatedly asked Student 1, “would you like to come play with my chalk?”. He testified that the Member made this comment five to eight times while looking at Student 1 and that he was smirking when he said it. Student 3 testified that he interpreted it as a sexual comment because the Member repeated the comment and directed it only to Student 1.

81Student 4 recalled that when Student 1 asked the Member if he had brought a new box of chalk to class, the Member made multiple comments to Student 1 like, “do you want to touch my chalk?”, “do you want to play with the chalk?”, and “do you like the new chalk?”. Student 4 also testified that it felt as though there was an underlying sexual intent from the comments. Student 4 testified that she felt uncomfortable by the Member’s comments to Student 1.

82Finally, Student 5 recalled that after Student 1 indicated that she liked the colored chalk that the Member was using, and the Member asked Student 1 about five times, “Do you like my chalk?” and “Do you want to play with my chalk?”. Student 5 testified that the more the Member repeated the comments the more it sounded sexual, and she recalled the Member smirking and giggling. Student 5 observed Student 1 and other students in the class laugh awkwardly in response. Student 5 felt uncomfortable when the Member continued to repeat the statements to Student 1 while smirking; the questions seemed to be a “sexual entendre”.

83Mr. Harris who testified that in the course of asking students about the Member’s conduct in his September 2019 Grade [XXX] [XXX] class, several students reported to him that the Member made a comment about chalk that made them feel uncomfortable because they thought they it was of a sexual nature. He testified that he interviewed students about the comment and took notes of these interviews (Exhibit 9). These notes indicate that in addition to the four-student witnesses, there were four other students who had reported concerns to Mr. Harris about the Member’s chalk comment (Exhibit 9). Mr. Harris testified that all of the students he spoke with said something about the sexual nature of the comment. He further explained that some, but not all of the students used the term “sexual innuendo” to describe the comment, and that he used “sexual innuendo” in his interview notes for all of the students because it was his interpretation of what the students relayed to him as to the nature of the Member’s comment to Student 1.

84As for the Member, the Panel notes that he did make a comment to Student 1 about chalk but provided a different explanation of the comment. The Member testified that Student 1 had made a comment about the Member bringing new colored chalk to class and he told her “you may not play with my chalk”. He recalled some students laughing, including Student 1, then asking her what was so funny and proceeded to say to her a few times to “not play with his chalk”. He also testified that he does not think that Student 1 thought it was a sexual innuendo. The Panel notes that the Member’s testimony is consistent with Mr. Sinclair’s testimony of what the Member said during the Board Opportunity to respond meeting regarding the chalk comment.

85The Panel acknowledges that there were slight variations in the students’ recollections of the Member’s exact wording of the “chalk” comment. However, every student witness testified that the Member used the term “play”. The Panel also notes that there were slight variations in the students' recollections of how many times the Member made these comments, however, they all testified that the Member said it more than once to Student 1 during [XXX] class in September 2019 and that they interpreted the comment to be a sexual one. The Panel does not feel that these discrepancies were significant to the Panel’s findings on this particular. The students’ testimonies were all substantively consistent. All student witnesses observed the event in question and their testimonies are externally consistent with one another, which is why the Panel prefers to rely on their evidence rather than the Member’s evidence. Further, the students’ recollections are supported by Mr. Harris’ testimony and his interview notes (Exhibit 9).

86Therefore, the Panel finds that it is more likely than not that the Member repeatedly asked Student 1 “Do you want to play with my chalk?” in or around September 2019.

(c) The Member yelled at one or more students in his [XXX] class- Particular 6 (a)

87The Panel finds that in or about September 2019, the Member yelled at one or more students during his Grade [XXX] and/or Grade [XXX] [XXX] class.

88The Panel notes that Member’s Counsel argued that it would be unfair to the Member for the Panel to make a finding under this particular because it was a broad assertion with no specific date and information with respect to whom the Member would have yelled. Member’s Counsel submitted that allegations in a Notice of Hearing must be specific and relied on Ontario College of Teachers v. Okafor, 2022 ONOCT 109, where the allegations about “yelling” include specific dates and information. The Panel finds that the characterization of this allegation is not unfair to the Member because the allegation, and evidence tendered at the hearing, is that the Member’s yelling in class was a general occurrence. This is shown throughout the student witnesses’ evidence where they all testified about the Member’s mood in class (i.e. raising his voice, becoming angry, face turning red). As well, particular 6 limits the allegation to the timeframe of “in or about September 2019”, which is only a period of one month, and to either or both of the Member’s two [XXX] classes. As such, the allegation is quite limited in time and location.

89The Panel heard evidence from all four students and Mr. Sinclair in support of this particular, while the Member denied yelling at students.

90The Panel accepts the testimonies of Student 1, Student 4, and Student 5 that the Member raised his voice in class. Student 1 testified that the Member was angry when the class became disruptive, his face turned red, and he would speak in a higher tone. Student 4 testified that the Member’s mood in class was unpredictable and that he raised his voice if students asked him questions about their marks. Likewise, according to Student 5, the Member’s mood varied from day to day and changed quickly in class, becoming quickly agitated or angry at times. Student 5 noted that the Member would become agitated when students asked him questions repeatedly and would pace around the class and yell at them for a few minutes. He would also shout at students if they disrupted the class. While Student 3 could not recall the tone of the Member’s voice in class, he recalled that the Member’s mood was negative on most days and described the environment of the class as being “toxic”.

91Further, the Panel accepts Mr. Sinclair’s testimony that during the Board Opportunity to respond meetings, Ms. Setterington asked the Member if he stared, yelled, or spoke to students harshly and the Member admitted that he will raise his voice if the class becomes loud. Mr. Sinclair’s testimony is consistent with the Board interview notes (Exhibit 11, p. 8). In addition, the Panel also notes that the Member admitted in cross-examination that he would raise his voice about 100 decibels in class.

92The Panel also accepts Mr. Sinclair’s evidence that the Member was reactive, angry and louder at times during the Board’s Opportunity to respond meetings. For example, Mr. Sinclair recalled the Member shouting and raising his voice at Ms. Setterington when questions about the catheter incident were being asked. The Panel acknowledges that there is no allegation particularized in the Notice of Hearing about the Member raising his voice during the Board Opportunity to respond meetings; the allegation is that the Member yelled to students in class. However, the Panel finds that Mr. Sinclair’s testimony about the Member yelling during the Board Opportunity to respond meetings forms part of the narrative and also makes it less plausible that the Member did not yell at students in class during his Grade [XXX] and/or [XXX] [XXX] classes in September 2019.

93Given the above, the Panel finds that on a balance of probabilities, the Member yelled at one or more students in his Grade [XXX] [XXX] class.

(d) The Member arbitrarily removed students from his [XXX] class- Particular 6(b)

94The Panel does not find that the College has proven on a balance of probabilities that in or about September 2019, the Member arbitrarily removed one or more students, including Student 2 and/or Student 3, from his Grade [XXX] and/or Grade [XXX] [XXX] class.

95The Panel notes that Student 1, Student 3, and Student 4 gave evidence about the Member sending students to the hallway. Student 1 and Student 3 both testified that there was an incident where the Member took them, along with Student 2, into the hallway to speak to them. The Panel heard a recording of part of their conversation with the Member (Exhibit 3). Student 3 testified that the Member brought them into the hallway before class started. Student 4 did not refer to a specific incident involving Student 1, Student 2 and Student 3 but testified that there were situations that happened in class that were “uncalled for” like students getting sent to the hall.

96The Member testified that he does not think he removed students from class. He testified that he did request students to join him in the hall before even taking their seats in class. His testimony is consistent with Mr. Sinclair’s Board Opportunity to respond interview notes (Exhibit 11) where it is noted that Ms. Setterington asked the Member whether he kicked students out of class. The Member responded that it was very rare for him to kick out students of the class and that instead, he usually asks students to speak with him in the hall (Exhibit 11, p. 8-9).

97The Panel finds that there is some evidence showing that the Member spoke with students in the hallway, but the College has not provided sufficient evidence to substantiate that the Member arbitrarily removed students from class. There is evidence that students were in the hall with the Member, such as the audio clips of the conversation between Student 1, Student 2, Student 3 and the Member (Exhibit 3). However, the Panel is unable to determine from these recordings, whether the Member had arbitrarily ejected them from class. Therefore, on a balance of probabilities, the Panel does not find that the Member arbitrarily removed students from class.

(e) The Member made students’ performance in his [XXX] class known publicly- Particulars 6 (c) to (f)

98The Panel finds that, on a balance of probabilities, in or around September 2019, in his Grade [XXX] and/or [XXX] [XXX] class, the Member discussed the grades of certain students in the presence of other students in the class, publicly identified three students who passed the quiz, and asked other students to clap for them as alleged in particulars 6 (c) and 6 (d) in the Notice of Hearing.

99The Panel accepts the student witnesses' evidence regarding these particulars. All of the student witnesses testified how the Member publicly distributed the results of the [XXX] quiz to the class. Student 1 testified that the Member pointed out students who passed and made the class clap for them. Student 3 testified that the Member announced to the class that almost the whole class failed the quiz; that only 25% of the class passed. He also recalled the Member instructing the class to clap for the students who passed. Student 4 testified about how the Member gave back [XXX] quizzes in a public way (i.e. calling students one by one to his desk). Student 5 testified that the Member announced that the class received an “R” (i.e., a failing grade) except for a few students who got above a “1+” and that he told the class to clap for these students. The Panel also considered the text message that Student 5 sent to her mother about how the Member shared students’ results (Exhibit 4), which Student 5’s mother wrote about to Mr. Harris as well as other concerns she had about the Member’s conduct in class (Exhibit 8).

100Mr. Harris testified about concerns he heard from students of the Member sharing students’ grades in front of the class which was that the Member announced grades in front of the class. The Panel notes that this is consistent with Mr. Harris’ interview notes with students. In fact, seven students (other than the student witnesses in this hearing) reported to Mr. Harris concerns regarding the Member sharing grades in front of the class (Exhibit 9). For instance, students reported concerns of the Member “announc[ing] some people’s marks to the whole class”, “Call four or five people these people got the highest mark”, “Only three people passed got level three- Called out the people that passed”, and “Mr. Van G. is giving back quizzes- he said most people did not pass.” (Exhibit 9).

101Mr. Sinclair testified about the Board Opportunity to respond meetings with the Member where Ms. Setterington asked the Member whether he called out students when handing back their [XXX] quizzes. Mr. Sinclair testified that the Member acknowledged that he shared with the class the median mark, which was a failing grade, and that it was his practice to announce the top grade and ask the students to clap for them. Mr. Sinclair’s testimony is consistent with his notes from the Board Opportunity to respond meetings (Exhibit 11, p. 3).

102In addition, the Panel notes that the Member testified that his practice was to announce the highest performance on the quiz and that in this case, it was a tie between three students, and he announced them and congratulated them in front of the other students in the class. He testified that he did not direct students to clap for these students but asked sarcastically “what, no applause?”. The Member also testified that he announced to the class that the median grade on the quiz was a failing grade and that more than half of the students had failed the quiz. He testified that it is possible that he told the students specifically what grade they received but does not think he did so. He further testified that when he was handing back their quizzes, many students announced their grades out loud and said they got an R.

103The Panel finds that the students’ testimonies were substantially consistent with one another, that the Member called out, in front of the class, the students who did the best on the quiz. Their testimonies slightly vary in terms of whether the Member said the “three students with the highest mark” or “three students who passed”. However, the Panel does not find these differences to be significant. Also, the Panel notes that the Member did not deny in his testimony that he identified the top three grades in front of the class, his testimony slightly varies from the student witnesses, in that he testified that it was his usual practice to announce the top grade and that he asked sarcastically “No applause?” rather then directing the class to clap for the students. Accordingly, the Panel finds that in or around September 2019 the Member, in his Grade [XXX] [XXX] class, publicly discussed the grades of certain students in the presence of other members of the class when he identified the top three student grades, identified that the median grade was a fail and also said that more than half of the students had failed the quiz. The Panel also finds that the Member had directed the class to clap for the three students who passed the quiz.

104Further, the Panel finds that it is more likely than not that the Member handed back a quiz to one or more students and stated aloud in the presence of other students, “Oh you got this one wrong”, or words to that effect as alleged in particular 6 (e) of the Notice of Hearing.

105The Panel relies on Student 5’s testimony; she recalled that the Member started marking students’ quizzes as they were being submitted and made comments like “oh you got that wrong” out loud in front of the class. Student 5 testified that the Member reviewed the quizzes out loud, and students would know who the Member was talking about.

106The Member did not outright deny this allegation. The Member testified that he handed back the quiz to one student because the student had not attempted all of the questions. The Member could not recall what he had actually said to the student, but testified that the comment was more about the level of completion and he had asked the student to give the quiz another try.

107The Panel accepts Student 5’s version of events, Student 5 was a reliable and credible witness. Her testimony was internally consistent. Further, the Panel finds that the Member did not outright deny this allegation, but rather provided his rationale for saying that comment to a student.

108Moreover, the Panel does not find that the Member handed back a quiz to one or more students and told them in the presence of other students that they received a R-, R or R+ as alleged in particular 6 (f) in the Notice of Hearing.

109The Member denied this in his testimony and the Panel only heard from Student 3 regarding this particular. The Member testified that he never handed back a quiz to a student and told them that they received a R-, R or R+. According to Student 3, the Member handed back quizzes and instructed the class to clap for students who passed and then shared grades for individual students and said “oh you got an R or got an R-”. Although the Panel found Student 3 credible and reliable, his evidence that the Member indicating individual grades to students in the presence of other students is not consistent with the other student witnesses’ evidence. Student 3’s evidence regarding the Member handing back quizzes and instructing the class to clap for the students who passed is externally consistent with the other student witnesses’ evidence, however, the Panel has not heard from any other student witness that the Member shared individual grades and said: “you got an R or got an R-”.

110The Panel does not find that the College has proven on a balance of probabilities, that the Member specifically said to individual students that they received an R, R- or R+.

(f) The Member made a comment to students about not having hope in [XXX] class- Particular 6 (g)

111The Panel finds that on a balance of probabilities, in or around September 2019 in his Grade [XXX] [XXX] class, the Member stated to a student in front of class, “That’s scary that you thought that you did better [on the quiz]. You should not believe in yourself. You should not have hope… It’s [the class] not about emotions. You should not be having emotions in this class,” or words to that effect.

112The Panel accepts the student witnesses' testimony regarding this particular. All four student witnesses testified that the Member had made comments to them about not having hope in [XXX] class. Student 1 recalled the Member telling the class they should not have hope about their future in [XXX] class and in general. She understood him as saying that they should not be hopeful about their mark in his class. She recalled being upset and leaving the class and that the Member had asked her to join him in the hallway, but she decided to leave class instead. Student 3 also testified that the Member made comments in class about not having hope in [XXX] class. Student 4 testified that a student made a comment that “they hoped they did better” on the quiz and the Member proceeded to tell the student that they should not have hope in [XXX]. Student 5 testified that one student said they had thought they did better on the quiz, and the Member responded by saying “that is shocking, you shouldn’t have hope to do better” and then made tangential comments about hope. She recalled feeling crushed when the Member said this and sent a text message to her mother when it happened (Exhibit 4).

113The student witnesses’ testimonies are consistent with Mr. Harris’ interview notes with students. The Panel notes that seven other students relayed concerns to Mr. Harris about the Member making comments about not having hope, with slight variations between each of the students' accounts including: “Don’t have hope”, “You shouldn’t have hope”, “need to stop having hope”, “We need to learn to live without hope” and “Don’t have hope to succeed” (Exhibit 9). However, the Panel notes that throughout the evidence it is consistent that the Member made comments to students about not having hope in [XXX].

114Mr. Sinclair testified that the Member said that a student was overly optimistic which led to a conversation about not having hope but was interrupted by Student 1, the Member was trying to relay to students that if they don’t do the work then there is not hope. Further, Mr. Sinclair recorded in his notes of the Board’s Opportunity to respond meetings, that the Member was asked whether he made a statement about hope and not believing in yourself, that his response was that he said “there is no hope” and then got interrupted by Student 1 (Exhibit 11, p. 5).

115As for the Member, he testified that a one student who sat near his desk, said out loud that she had hoped to do better on the quiz. He responded to her that hope had nothing to do with it and then was interrupted by Student 1. The Member testified that he did not intend to say they should not have hope but was interrupted mid-sentence by Student 1 and then needed to speak with her in the hallway. He testified that when he came back to class, he finished the conversation about hope saying to the class that hope cannot be the sole factor in achieving good grades and that they had to work for their grades.

116The Panel notes there are slight discrepancies in the evidence as to the exact words used by the Member but is not persuaded that these discrepancies are material. The student witnesses’ testimonies are externally consistent that the Member made a comment to the class to not have hope in [XXX]. Also, the Panel finds that the Member does not deny that he made a comment about hope in class, but rather provided the intention of what he was trying to relay to his class. In addition, Mr. Harris’ interview notes and the fact that other students relayed concerns regarding the Member saying to the class they should not have hope corroborates the student witnesses’ evidence.

(3) Legal Conclusions

117The Panel finds that the Member’s conduct set out above gives rise to findings of professional misconduct. In particular, the Panel finds that the Member engaged in the following acts of professional misconduct contrary to Ontario Regulation 437/97: he abused students verbally contrary to subsection 1(7); he abused students psychologically or emotionally, contrary to subsection 1(7.2); he failed to comply with section 26 of the by-laws, contrary to subsection 1(14); he failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15); and he 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). The Panel also finds that the Member engaged in sexual misconduct as defined in section 1 of the Act. The Panel does not find that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97.

(a) The Member abused students verbally

118The Panel finds that the Member abused students verbally contrary to subsection 1(7) of Ontario Regulation 437/97 by yelling at his students. As noted above, the Member often displayed frustration and anger in class. Some of the student witnesses testified about the Member yelling and raising his voice in his Grade [XXX] [XXX] class. The Member himself admitted to raising his voice by a few decibels. From the evidence presented, the Panel found that the Member’s yelling in class was a general occurrence. Given the narrative provided by the student witnesses’ evidence that the Member raised his voice in class, was agitated and that he would often get angry, the Panel is of the view that the Member created an intimidating classroom environment and considers the Member’s yelling at students as verbal abuse. The Panel recognizes that being a teacher can be challenging; however, yelling is not an appropriate form of communication with students. Teachers are expected to interact respectfully with students and to model appropriate behaviour, including managing their anger.

(b) The Member abused students psychologically or emotionally

119The Panel finds that the Member psychologically or emotionally abused students contrary to subsection 1(7.2) of Ontario Regulation 437/97. The prevailing theme throughout the students’ evidence was that they felt anxious and discouraged in the Member’s [XXX] class. Student 5, for example, testified about the impacts of being in the Member’s classroom and that at the end of one day, when the Member was particularly agitated in class, her hands were visibly shaking. The Panel accepts the students’ testimony that the Member created an atmosphere of unpredictability and as such students felt stressed and anxious to be in his class. The Panel also finds that the Member’s comment “Don’t you want to come play with my chalk” to Student 1 would reasonably have a negative emotional impact on students. In fact, the student witnesses testified that they felt uncomfortable as a result of the Member’s comments. The Panel finds that the Member emotionally and psychologically abused students by creating such a negative learning atmosphere. The Member also displayed a general lack of empathy towards students in his [XXX] class when he announced the top three grades on the quiz and that almost the whole class had failed. Additionally, instead of being supportive of the students who had failed, the Member chose to be sarcastic by asking “no applause?” and asking students to clap for the students who did better than them on the quiz. This shows a disregard for the students’ emotional well-being. Further, the Member made a comment about hope to the class. Student 5 testified that hearing the Member tell the class they should not have hope “crushed [her] hopes”. The Panel notes that these types of behaviour from a teacher, who is supposed to support students in their learning, would reasonably discourage students and amounts to psychological or emotional abuse of students.

(c) The Member engaged in sexual misconduct as defined in section 1 of the Act

120The Panel finds that the Member engaged in sexual misconduct when he repeatedly asked Student 1 in front of other students in class, “Do you want to play with my chalk?”. The definition of sexual misconduct in section 1 of the Act is “inappropriate behaviour or remarks of a sexual nature by the member, that is not sexual abuse of a student, where:

(a) one or more students were exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and

(b) a reasonable person would expect the behaviour or remarks to have the effect of,

(i) causing distress to a student exposed to the behaviour or remarks,

(ii) being detrimental to the physical or mental well-being of a student, or

(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.”

121The Panel finds that this was a sexual comment. The Panel is satisfied that a reasonable person would find that the words “come play with” have a sexual connotation when coupled with “my chalk” and repeatedly directed at Student 1. The Panel is of the view that if the Member did not know from the first time that he said the chalk comment that it was sexual innuendo, he ought to have known it was from the class’s reaction (i.e. laughter) when he repeated the comment to Student 1. The Panel accepts that all of the student witnesses who heard the comment understood it to have sexual undertones. While Student 1 did not know what the Member meant as he was making the comments to her about playing with his chalk, she felt nervous at being singled out by him, and eventually, after speaking with another student who had witnessed the incident, came to feel that his tone insinuated a sexual comment. Student 3 also thought the comment was sexual and he developed this impression because the Member repeatedly directed his comments to Student 1 while having a smirk on his face. Student 4 felt the Member’s comments were sexually suggestive because they “dragged on”. Further, Student 5 testified that the more he repeated the statements while smirking, the more they seemed like “sexual entendre”.

122Further, the Panel finds that a reasonable person would expect that students exposed to those types of remarks would become distressed by them; that the Member’s remarks would have a detrimental effect on the physical or mental well-being of a student; and that the Member’s remarks would create a negative environment in the classroom. In this instance, the Panel heard evidence that Student 1 felt uncomfortable and laughed nervously when the Member made the chalk comment to her. Student 5 also testified that she felt uncomfortable by the Member’s repeated comments about chalk and that she perceived that the other students in the class also felt uncomfortable because they laughed awkwardly at the comments. The Panel also accepts Mr. Harris’ testimony that many of the students he interviewed reported being made uncomfortable by the chalk exchange because they identified the comments as being of a sexual nature, sexual reference, or sexual innuendo. The Panel finds that the Member should have known that repeatedly directing this comment to Student 1, would have made her uncomfortable and create a negative learning environment, especially when he saw that the class was laughing at the comments.

123On the other hand, the Panel does not find that the Member’s discussion of surgery and requiring a catheter amount to sexual misconduct. The Panel found that the Member told the class that he had surgery and that he required the use of a catheter but did not find that the Member told the class he had surgery in his genital area specifically. While the Panel considers it is inappropriate for the Member to discuss his personal surgery (regardless of what the surgery was) and use of catheters in an equity employment discussion in [XXX] class and is of the view that the Member could have easily picked another topic to demonstrate his point that some female-dominated professions could benefit from increased representation from men, the Panel does not find that the remarks are of a sexual nature. Further, there was also no evidence presented that a reasonable person would expect the Member’s remark to cause distress or be detrimental to the physical or mental well-being of a student, or create a negative classroom environment.

(a) The Member failed to maintain the standards of the profession

124The Panel finds that the Member failed to maintain the standards of the profession contrary to subsection 1(14) of Ontario Regulation 437/97. The Member breached the standard of practice “Commitment to student and student learning” which requires members to be dedicated to the care and commitment of students and treat them equitably and with respect. The Member failed to maintain this standard when he shared students’ grades on a quiz in front of the class, and instructed students to clap for their peers with the three highest marks on the quiz, and when he made a discouraging comment to students not to have hope in class. This behaviour is clearly not treating students equitably and with respect. The students’ evidence that these comments made them feel anxious and discouraged demonstrates that the Member created a negative learning environment that did not promote student learning.

125Further, the Panel finds that the Member breached the ethical standards of “Care” and “Respect”. The ethical standard of “Care” includes “compassion, acceptance, interest and insight for developing students' potential. Members express their commitment to students' well-being and learning through positive influence, professional judgment and empathy in practice.” The ethical standard of “Respect” requires members to “honour human dignity, emotional wellness and cognitive development”. The Member did not demonstrate compassion and acceptance towards students, and did not treat them equitably or with respect, when he publicly shared grades (including that the median mark on a quiz was a failing grade), told the class not to have hope, and when he reviewed student quizzes out loud and said, “oh you got that wrong”. Further, the Member did not honour Student 1’s dignity and emotional wellness and also demonstrated a lack of commitment to students’ well-being when he made a sexually suggestive comment along the lines of: “Don’t you want to come play with my chalk” multiple times to Student 1.

(b) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act

126The Panel finds that the Member failed to comply with section 264(1) of the Education Act contrary to subsection 1(15) of Ontario Regulation 437/97. Section 264(1)(b) of the Education Act provides that it is the duty of a teacher to, “encourage pupils in the pursuit of learning.” The Member did the opposite when he told students not to have hope in [XXX] class. The Panel notes that this was after the Member distributed the quiz results to the class, announced that almost the whole class failed the quiz, and made the class clap for three students who had achieved the highest marks on the quiz. Sharing students’ academic performances in a public manner clearly fails to encourage students in their ability to learn and grow in the classroom. However, instead of being supportive towards his students, the Member further chose to discourage students by telling them they should not have hope in [XXX]. The Panel heard evidence of the negative impact of this comment from Student 5 who testified that the Member’s comment had “crushed [her] hopes”.

(c) The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional

127The Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Disgraceful conduct casts serious doubt on a member’s moral fitness to perform their professional duties and on their ability to be a member of the profession. Like disgraceful conduct, dishonourable conduct has an element of moral failing, but it need not be as severe. Dishonourable conduct often involves, but is not limited to, acts of dishonesty, deceit, fraud and theft. Unprofessional conduct does not require a moral element but involves acts demonstrating persistently poor professional judgment.

128The Panel finds that the Member’s misconduct can reasonably be characterized by all three terms. The Member’s chalk comment towards Student 1 is both disgraceful and dishonourable. It is inappropriate for a teacher to make a sexual innuendo or joke to a student or students. The Member knew or ought to have known from seeing the class react with laughter, that he was making a sexual innuendo by repeatedly making the comment to Student 1. Making sexual innuendos/jokes at a student casts serious doubt on the Member’s moral fitness and his ability to discharge his professional obligation to ensure students’ well-being. The Member also repeatedly demonstrated poor professional judgment by talking to students in his Spring 2019 Grade [XXX] [XXX] class about his own surgery and requiring the use of a catheter, and in his September 2019 Grade [XXX] [XXX] class when he made students’ performances on a quiz publicly known in [XXX] class, and engaged in conduct that discouraged students (i.e., telling them not to hope).

(d) The Member did not engage in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

129During the closing submissions, College Counsel asked the Panel not to make a finding under this head of misconduct and submitted that the Member’s conduct occurred in his professional capacity in the classroom and is captured under subsection 1(18) of Ontario Regulation 437/97. The Panel agrees and makes no such finding.

K. PENALTY

130The Tribunals’ Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.