Sullivan v. Ontario College of Teachers, 2018 ONSC 942
CITATION: Sullivan v. Ontario College of Teachers, 2018 ONSC 942
DIVISIONAL COURT FILE NO.: DC-17-854 (Hamilton)
DATE: 2018-02-09
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MATHESON, GLUSTEIN and DIAMOND JJ.
BETWEEN:
Timothy Cyril Sullivan Appellant
– and –
Ontario College of Teachers Respondent
Self-Represented Christine Wadsworth, Counsel for the Respondent
HEARD at Hamilton: February 7, 2018
MATHESON J. (ORALLY):
[1] This is a statutory appeal under s. 35 of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 (“OCTA”). The appellant teacher appeals a finding of professional misconduct against him, and the resulting penalty, arising from his interactions with health unit staff and students at a school immunization clinic that was held on March 9, 2015.
Background:
[2] The appellant is a member of the Ontario College of Teachers. At the time of the events in question, he was a teacher at Waterford District High School in Waterford, Ontario.
[3] On March 9, 2015, there was an immunization clinic in the cafeteria of the school, operated by Ontario public health nurses under public health protection legislation, specifically the Immunization of School Pupils Act, R.S.O. 1990, c. I-1, which provides for both the parental duty to have children immunized and exceptions to that duty.
[4] The appellant had previously been cautioned about his behaviour in relation to the subject of vaccines, including a discipline letter sent two weeks before the clinic in question in which the school principal, Mr. Quistberg, instructed the appellant regarding how he should conduct himself.
[5] On March 9, 2015, the appellant attended at the clinic on three separate occasions.
[6] The appellant first attended at the clinic when the nurses were setting up, and left his class unattended for a short time in order to do so. He had no role in regard to the clinic, which was being run by health unit staff, and no business being in the cafeteria at that time. With respect to leaving his classroom unattended, he acknowledged at the discipline hearing that things can go awry quickly when a teacher is not present although he disputed that it was an issue with his grade 11 class.
[7] When the appellant attended at the clinic the first time, he asked the nurses for the product monographs for the vaccines being administered that day. He then read aloud sections of the monographs, and made some comments regarding different studies and statistics. He put his hands down on the desk in front of one of the nurses, Nurse Swick, and asked her whether she was telling students that one of the side effects of vaccines was death. Nurse Swick felt threatened, nervous and uncomfortable as a result.
[8] The appellant left his classroom a second time to go to visit the vice principal.
[9] He then went back to the clinic. At this time, there were a number of students in line to receive vaccinations. At the discipline hearing, there was some dispute between the parties as to the appellant’s conduct at this attendance, particularly whether the appellant shouted at the students about getting the vaccine, including telling them that one of the vaccine’s side effects was death. This has been raised as an issue on this appeal.
[10] The Discipline Committee did not find that the appellant had shouted but did find that the appellant spoke aggressively to the nurses and students at this second attendance at the clinic.
[11] The appellant admits, as well, that he spoke to one of the students in line and said, “I wouldn’t let them pump chemicals into my body without knowing what was in them.”
[12] After the attendance, Nurse Swick notified the school principal and told the principal that if the appellant continued to act in a similar manner they would have to close the clinic early because it was an unsafe environment for clinic staff and students.
[13] The third attendance by the appellant occurred during the lunch period, after the clinic had ended. There were students near enough to overhear the conversation. The appellant asked whether Nurse Swick had given him all of the product monographs and asked her why a certain ingredient was not listed in the monographs. The appellant proceeded to ask Nurse Swick if she was hiding something, and listed alleged side effects of the vaccines. As a result, the nurses asked to be escorted from the school.
[14] The order appealed from arises from an Ontario College of Teachers’ Investigatory Committee that directed that certain allegations of professional misconduct be referred to its Discipline Committee. This gave rise to a hearing before the Discipline Committee of the Ontario College of Teachers on February 21 and 22, 2017. The Committee heard from three witnesses during the hearing, specifically Nurse Swick and Mr. Quistberg were called by the College, and the appellant testified on his own behalf and did not call any further witnesses. However, the Discipline Committee did also receive statements from certain students, put forward by each of the parties.
[15] After the hearing, the Discipline Committee found that the appellant:
a. abused a student or students psychologically or emotionally;
b. failed to supervise adequately a student or students who are under the professional supervision of the member;
c. failed to comply with Education Act duties;
d. committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and,
e. engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(11), 1(15), 1(18), and 1(19).
[16] On penalty, the Discipline Committee ordered that the appellant receive a reprimand and a one month suspension, complete remedial coursework, and the appellant was prohibited from attending any health clinic conducted at a school where he is employed for a period of two years.
[17] The appellant appealed that order to this Court.
The Standard of Review/Issues on Appeal:
[18] The standard of review for this appeal is reasonableness: The Law Society of Upper Canada v. Abbott, 2017 ONCA 525, at para. 95; see also Kalin v. College of Teachers (Ontario) (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 at para. 7. This is a specialized professional disciplinary body, which is entitled to deference.
[19] Bearing in mind the standard of review, the issues on this appeal fall into these two categories:
Whether the Discipline Committee’s finding of the appellant’s professional misconduct was reasonable; and,
Whether the Discipline Committee’s penalty was reasonable.
Issue #1: Was the Discipline Committee’s finding of professional misconduct reasonable?
[20] Under this general issue, the appellant submits that there was a lack of evidence, and makes a number of specific challenges to the Discipline Committee decision, addressed as follows.
[21] First, the appellant submits that he did not “shout” at students, as Nurse Swick testified he did. He points out that there is no mention in her affidavit nor the written affidavits of the two students of his having shouted. As a result, he argues that the Discipline Committee decision appears to be based on Nurse Swick’s own opinion and not what actually happened that day.
[22] However, the Discipline Committee did not find that the appellant shouted. They found as follows:
The Committee finds that the Member spoke aggressively to the nurses and students during his second visit to the cafeteria. This finding is consistent with Ms. Swick’s overall evidence that the Member was adamant and antagonistic in his interactions with the nurses. It is also consistent with Mr. Quistberg’s evidence that the member does not realize how emotionally charged he gets when speaking and the Member’s admission that his loud voice may perceived by others as shouting. The manner in which he relayed his information was construed by the students and nurses as intimidating. The Committee finds that the Member’s communication was aggressive and that his conduct reasonably alarmed the nurses and some of the students.
[23] The finding, as set out in the last sentence of the above quote, is well supported by the evidence.
[24] As well, there was evidence about the appellant’s interaction with a particular student, mentioned above. In short, the appellant engaged the student in a discussion about side effects and scared that student.
[25] The appellant also essentially challenges the Discipline Committee’s findings of credibility, which they made and explained in their reasons for decision. They had heard from those witnesses, who were cross examined. The Discipline Committee was in the best position to make those findings, which are entitled to deference.
[26] We conclude that the appellant has not demonstrated that the Discipline Committee’s findings of misconduct were unreasonable, based on these challenges to the findings of fact as raised on this appeal.
[27] Second, the appellant challenges his alleged history of abusing students, which was referred to by the Discipline Committee. The appellant argues that none of the past incidents constituted abuse.
[28] However, none of the earlier instances formed part of the allegations in the Notice of Hearing and the Discipline Committee expressly made no findings of misconduct in relation to them.
[29] Third, the appellant made submissions about informed consent and how he claimed that consent was dealt with for the students, essentially re-arguing this issue, raised by him at the hearing. He challenges the procedures used to obtain consent both in this case and generally, and submits that his actions were justified because he was protecting the right of students to give informed consent to the vaccinations.
[30] However, this position was considered and rejected by the Discipline Committee at the hearing and the appellant has not identified any error that would render the Discipline Committee decision unreasonable. Among other things, the Discipline Committee noted the following:
…decisions about consent and medical treatment, including vaccinations are to be made by parents and students with information provided by health practitioners. The Member is not a health practitioner; he is a teacher. His professional duties do not include providing students with his opinions about the merits of vaccines, nor interfering with student vaccinations at the school health clinic.
[31] Fourth, the appellant argues that the College’s allegation that he failed to comply with the Education Act, specifically “the duty of a teacher and a temporary teacher…to inculcate by precept and example… the highest regard for truth, justice, loyalty, love of country, humanity, sobriety, industry, frugality, purity, temperance and all other virtues”, is false. The appellant submits that this duty is something he strives for, which is why he tried to inform the principal of the laws of consent on a number of occasions, and why he interacted with the nurses at the clinic due to his concern that they were not following Ontario medical laws. He also argued that the College had failed to provide teachers with clear direction as to how teachers ought to address situations where medical or Charter rights were not being respected, in his view.
[32] However, the Discipline Committee reasonably found that the appellant was aggressive and intimidating, not honouring the principle of respect, as set out in the College’s Ethical Standards for the Teaching Profession, and had failed to exercise proper professional judgment in his interaction with the clinic staff and students on that day. This finding was well supported by the evidence and squarely within the Discipline Committee expertise. It is deserving of deference.
[33] The appellant also raised today, for the first time, an argument with respect to the remaining charge, not mentioned in the Notice of Appeal, specifically with respect to supervision. However, we find, based on oral submissions by both sides, that the Discipline Committee decision in that regard was reasonable as well.
Issue #2: Was the Discipline Committee’s penalty reasonable?
[34] The appellant asks this court to reconsider the Discipline Committee’s penalty but made no specific submissions about grounds for doing so. He also asks for some relief that is outside the scope of this appeal. This appeal addresses only the penalty imposed by the Discipline Committee.
[35] Determining an appropriate penalty is within the expertise of the Discipline Committee and deserving of substantial deference.
[36] The Committee made no error in principle; it determined that the penalty would satisfy the principles of specific and general deterrence, rehabilitation and protection of the public.
[37] Where the Discipline Committee has applied the relevant penalty principles to the facts, as occurred here, a variation in the penalty or sentence should only be made where the penalty imposed at first instance is clearly unreasonable.
[38] The appellant has not demonstrated that the penalty was unreasonable.
[39] The appeal is therefore dismissed.
MATHESON J. ENDORSEMENT:
[40] For reasons given orally, this appeal is dismissed with costs to the Ontario College of Teachers, fixed at $5,000.00 all inclusive.
___________________________ Matheson J.
I agree
Glustein J.
I agree
Diamond J.
Date of Reasons for Judgment: February 7, 2018
Date of Release: February 9, 2018
CITATION: Sullivan v. Ontario College of Teachers, 2018 ONSC 942
DIVISIONAL COURT FILE NO.: DC-17-854 (Hamilton)
DATE: 2018-02-09
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MATHESON, GLUSTEIN and DIAMOND JJ.
BETWEEN:
Timothy Cyril Sullivan Appellant
– and –
Ontario College of Teachers Respondent
ORAL REASONS FOR JUDGMENT
Matheson J.
Date of Reasons for Judgment: February 7, 2018
Date of Release: February 9, 2018