Our Experience

Donich Law is one of the few Firms to have litigated and defeated contested sexual abuse allegations before the Ontario College of Teaches Disciplinary Committee, including having defended teachers charged with sexual exploitation. We have experience defending teachers accused of a wide variety of professional misconduct ranging from making inappropriate comments to boundary issues with students. We regularly achieve positive results for our clients by utilizing litigation and risk management strategies. Allegations before the OCT can be difficult to defend due to the unilateral way in which the College operates. The Firm has experience throughout the process, from drafting legal submissions defending an initial complaint, to running contested discipline hearings.

In Canada, certain professions like teachers, nurses, and doctors are regulated by a regulatory body that oversees the practice of that profession within the province. Regulatory bodies are responsible for setting the appropriate standard of practice for the given profession. They ensure that those who practice the profession are qualified to do so and may prosecute a member who fails to uphold the standards of practice. Regulatory bodies derive their power from legislation which outlines, among other things, the applicable processes and procedures for prosecuting a member for professional misconduct as well as the penalties for misconduct.

In Ontario, teachers are regulated by the Ontario College of Teachers (OCT). The OCT derives its power, in part, from the Ontario College of Teachers Act. The OCT is responsible for regulating teaching throughout the province including investigating and prosecuting Members for professional misconduct. The OCT has wide powers to punish members who are found guilty of professional misconduct, including suspending their certificate of registration or in serious cases, revoking it altogether.

In 2021, the Firm successfully represented a teacher accused of having a sexual relationship with a former student in File No. 4*****2. The teacher was reported to the College by the parents of the student after they became aware of the relationship. It was alleged that the parties had met while the student was in the teacher’s class. Following the student’s graduation, the pair kept in touch, eventually getting into a romantic relationship. After planning and attending an international trip together the students’ parents reported the matter to the OCT. The student was unwilling to participate in the investigation process, however her parents provided evidence of the relationship to the College. The parents reported that during a heated argument between the parties, they had witnessed the teacher threaten the student with a metal object. After more than 18 months of litigation the Firm was able to prove that the relationship was never sexual in nature and that the former student was a consenting adult who could have a friendship with whomever she wished. Ultimately, the allegations of sexual misconduct were dismissed.

In 2020, the Firm represented a principal accused of seeking out a sexual relationship with a younger teacher in the File No. 4*****3. The complainant alleged that the principle had made inappropriate comments to her. She felt as though he was offering employment opportunities in exchange for sex and reported the matter to the College. The Firm litigated the matter for some time, challenging evidence provided by the complainant. The Firm resolved the matter without a finding of professional misconduct, avoiding a notation on the teacher’s online OCT profile.

Professional Regulation in Canada

Donich Law - Assault Punishments

In 2019, the Firm defended a teacher accused of engaging in an inappropriate romantic relationship with a student in his class in File No. 4*****1. The College received a complaint indicating that the teacher had a student stay overnight at his home on several occasions, and that the pair spent time together outside of school. The College alleged sexual misconduct and serious boundary violations, citing evidence that the accused teacher had emotionally manipulated the young student. The Firm presented evidence to show that the teacher had been undergoing treatment for serious mental health issues at the time, avoiding a finding of professional misconduct.

In addition to defending teachers accused of have sexually inappropriate relationships with students, the Firm also has experience defending individuals accused of physically assaulting students. When a student is physically assaulted in some way, there is the potential for criminal charges to be laid in addition to the College investigation. This is also true of sexual misconduct allegations. Donich Law has experience defending cases before both the College and the courts. We utilize litigation and risk management strategy to reduce the possibility of charges being laid and achieve a favourable outcome with the College.

In File No. 2*****4, the Firm represented a teacher accused of physically restraining a child in their chair. Such conduct is considered physical abuse of a student pursuant to the Ontario College of Teachers Act and is a criminal assault pursuant to the Criminal Code. The Firm appeared before the Investigations Committee to challenge evidence including witness testimony, ultimately avoiding criminal charges, and resolving the College case without a finding of professional misconduct.

Understanding Workplace Investigations

In recent years, the definition of sexual misconduct has broadened in some respects. While sexual misconduct obviously includes physical sexual conduct, it can also include statements made that are sexual in nature. In the past, certain sexual comments or jokes may not have risen to the level of sexual misconduct. In recent years however, people have become more aware of how inappropriate jokes or sexual discussions in the workplace can result in a hostile work environment for some members of the workforce. As a result, workplaces and regulatory bodies have begun to take this type of conduct more seriously.

In 2022, the Firm represented a principal accused of making inappropriate jokes and swearing in the presence of the female vice principal in File No. 4*****8. The complainant vice principle alleged that the accused principal had made the workplace a hostile environment by making inappropriate comments including referring to another staff member by a rude name and swearing in front of her. It was further alleged that the impugned principal used the word “bitch”. Due to the gendered connotation of the word “bitch”, the College alleged sexual harassment, despite the word not being directed at anyone. The Firm litigated the matter for more than two years before ultimately resolving the matter without the member’s certificate of registration being affected. The College took a harsh stance on the file despite the comments not being directed at the complainant or anyone else.

In 2020, the Firm represented a teacher working for the York Region District School Board in File No. 4*****4. The teacher was alleged to have sent Instagram messages, and left emoji reactions on a former student’s Instagram stories. Some of the comments could be perceived as sexual in nature. The former student was uncomfortable with the contact despite no longer attending the school and reported it to the College. A lengthy investigation ensued including forensic analysis of computer data by the Firm. The Firm successfully argued that the communications did not fall within the jurisdiction of the College for several reasons. The matter was resolved with the Investigations Committee without a finding of professional misconduct.

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Frequently Asked Questions

What will Happen if I am Reported to the OCT?

When an allegation of professional misconduct is made against a teacher, it typically comes from another teacher or staff member, or from a student and/or their family. Often, when an allegation is brought forward, the school board will launch an investigation of their own into the matter, sometimes before reporting it to the College. Once the allegation makes it to the College, the College’s Investigation Committee will screen it to determine whether the complaint is valid and should be investigated further. If they are of the opinion that an investigation should occur, the member will be notified, and an investigator will be appointed to the file. Unless the complaint is clearly vexatious, the Committee will likely investigate.

The investigator will then begin their investigation which will include collecting all relevant evidence. If the school board did an independent investigation, the results of that investigation will often be used by the College as evidence. The investigator may also interview witnesses including the accused teacher and the complainant or alleged victim. Once the investigation is complete, the Investigation Committee will review the file and decide to issue a penalty or refer the matter to the Discipline Committee or Fitness Committee for further review.

What is an Interim Suspension?

When a teacher is accused of certain misconduct, the College may make an interim order directing the Registrar to suspend or impose terms on the teacher’s certificate of registration pending the outcome of the investigation. Interim suspensions may be ordered where there is concern that the teacher poses a risk to students. Once a file is received, the Investigation Committee will review it and determine whether it should be referred to the Adjudicative Body of Chairs for review. Interim suspensions are more common in cases involving sexual misconduct, certain personal boundary violations, and physical or psychological abuse.

The Ontario College of Teachers Act stipulates that the Adjudicative Body of Chairs have the authority to make the order where they are of the opinion that the teacher’s conduct exposes or is likely to expose a student to injury or harm of any kind. Prior to making the order, the Adjudicative Body of Chairs will send a notice to the teacher letting them know an interim suspension is being considered.

The teacher has the right to provide written submissions to the Adjudicative Body of Chairs and must be given at least 14 days to do so. It is possible, in some cases, for the Adjudicative Body of Chairs to suspend the teacher before the teacher has been given a chance to provide submissions if they are of the opinion that a delay would risk harm to a student. Essentially, in serious cases, the Adjudicative Body of Chairs can order an interim suspension unilaterally without input from the impugned teacher. An interim suspension will remain in effect until the matter has resolved, or the College orders otherwise.

What Happens at a Discipline Hearing?

A discipline hearing is a formal court process with the OCT to determine whether the accused teacher is guilty of professional misconduct. The Committee will listen to evidence about the case before making a decision. In some cases, a discipline hearing is necessary, but not always.

Once the file is referred to the Committee, they will review the file and determine their position on penalty. Penalties can range from an oral caution or admonishment to the revocation of the teacher’s license. The teacher will be presented with the potential penalty and then may either accept it, negotiate for a lower penalty, or schedule a discipline hearing. Where the teacher wishes to accept the penalty, legal counsel can negotiate the facts to be admitted with counsel for the Committee. The lawyers can draft what is known as an Agreed Statement of Facts, which will outline the alleged incident that the teacher is accepting responsibility for.

If the teacher does not agree to the initial proposed penalty, they may negotiate through counsel for a lower penalty. The Discipline Committee will then determine whether or not they will agree to a lower penalty. Where the parties cannot come to an agreement about penalty, or about the facts of the case, a discipline hearing is necessary.

A discipline hearing is essentially a trial, similar to in criminal court. It is a formal process where evidence will be presented to the Committee. Witnesses may be called to testify. Both the College and the Member will have an opportunity at the hearing to present evidence and/or call witnesses to make their case. At the end of the hearing, the Committee will determine whether the teacher is guilty as alleged, and if so, what the appropriate penalty will be.

What Potential Penalties do Teachers Face for Misconduct?

When a matter is before the Investigation Committee (prior to being referred to discipline), and the Committee has concerns with the teacher’s practice, they have several options. They may choose to provide advice to the teacher on how to avoid a similar situation in the future, they may caution or admonish the teacher, they may require the teacher to complete a remedial education program, or they may refer the matter to the Discipline Committee or the Fitness to Practice Committee.

Once a matter is referred to the Discipline Committee, they will determine if the member is guilty of misconduct, and if so, the appropriate penalty. The Committee has several options in terms of penalty, depending on the nature and severity of the misconduct. The Committee may revoke the member’s certificate, prohibiting them from practicing indefinitely or for a fixed period of time. Revocation is reserved for the most serious cases. The Committee may also decide to suspend the member’s certificate for up for two years, or place other limitations on the member’s certificate. Additionally, the Committee may fine the member up to $5,000, require the member to be cautioned or admonished, order the member to pay costs to the College, or order the member to reimburse the College for the cost of the complainant’s counselling where the professional misconduct involved sexual abuse.

Can I Appeal the Discipline Committee’s Decision?

Yes. Once the Discipline Committee has issued their decision in a case, both the College and the accused teacher have the right to appeal. This appeal is known as a judicial review and involves having the Committee’s decision reviewed by a judge in court. Judicial reviews are carried out in Divisional Court. The presiding Divisional Court judge will review the file and then determine whether the decision of the Committee was fair, reasonable, and lawful. If the court is of the opinion that the decision was not fair, reasonable, or lawful, they can either overturn the decision and substitute it with a decision of their own, or they can send the case back down to the Discipline Committee to be reheard. If the court is of the opinion that the Discipline Committee’s decision was fair, reasonable, and lawful, they will affirm the decision, and the Committee’s decision will stand.

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Recent Cases

Ontario College of Teachers v. Fox, 2021 ONOCT 34

In the case of Ontario College of Teachers v. Fox, the impugned teacher was alleged to have committed various forms of professional misconduct including physically, psychologically, and emotionally abusing students, engaged in conduct unbecoming a member, and committing acts considered disgraceful, dishonourable, or unprofessional. Specifically, the member was accused of grabbing students on a number of occasions, placing one first grade student on his lap, squeezing a child’s shoulders and hands, and pulling a student’s arm behind their back.

The member denied the allegations but did not otherwise participate in the hearing process. A number of students were called before the committee to testify about their experiences with the member and provided evidence of being physically assaulted. The Committee found the member guilty of the allegations in his absence. His license was subsequently revoked, and a reprimand issued. The Committee noted the serious nature of the allegations when issuing their decision to revoke the member’s license to practice. The member was also ordered to pay costs in the amount of $10,000 to the OCT. The Committee noted that the member was uncooperative with the process and refused to participate in the discipline hearing.

Ontario College of Teachers v. Will, 2021 ONOCT 1

In the case of Ontario College of Teachers v. Will, the member was accused of swearing and making sexually inappropriate comments in front of and to students. It was further alleged that the teacher had shown videos to his students that depicted themes of violence and sexuality. Due to the sexual nature of the comments made, the Committee was of the opinion that they amounted to verbal abuse and were considered sexual misconduct. The member participated in the investigation process as well as the process with the Discipline Committee and ultimately pled guilty to the allegations.

Counsel for the member and counsel for the OCT reached an agreement on penalty, known as a joint position on penalty. The Committee can only reject a joint position on penalty in rare cases where the penalty being proposed would bring the administration of justice into disrepute. The Committee accepted the joint position, and the member was suspended from teaching for two months, issued a reprimand, and ordered to complete a course on classroom communication and boundaries. In their decision on penalty, the Committee discussed the aggravating and mitigating factors in the case, noting the repeated nature of the conduct as an aggravating factor. Mitigating factors included the member’s guilty plea, the fact that he ultimately took responsibility for his actions and the fact that he had never been before the Discipline Committee in the past.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.