DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Marilyn E. Hill, OCT, a member of the Ontario College of Teachers.
PANEL: Danny Anckle, Chair Irene Dembek, OCT
Vicki Shannon, OCT
BETWEEN: ) Caroline Zayid
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,
) Law Clerk
- and – )
MARILYN E. HILL ) Kate Hughes,
(CERTIFICATE #172158) ) Cavalluzzo Hayes Shilton
) McIntyre & Cornish LLP
) for Marilyn E. Hill
) Marc Spector
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 15, 2012
DECISION, REASONS FOR DECISION AND ORDERS
This matter commenced before a panel of the Discipline Committee (the “Committee”) on October 15, 2012 at the Ontario College of Teachers (“the College”) at Toronto.
A Notice of Hearing, dated March 22, 2011 was served on Marilyn E. Hill, requesting her presence on May 3, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 15, 2012.
Marilyn E. Hill was in attendance.
THE ALLEGATIONS
The allegations against Marilyn E. Hill in the Notice of Hearing, (Exhibit 1) dated March 22, 2011 are as follows:
IT IS ALLEGED that Marilyn E. Hill is guilty of professional misconduct as defined in subsection 30(2) the Act in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) she failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);
(f) she committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(g) she engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
At the hearing, Counsel for the College sought to withdraw the allegations of professional misconduct in paragraphs (b), (c), (d), (e), and (f) in the Notice of Hearing, namely that the Member breached Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(7.2), 1(15) and 1(18). The Committee agreed that these allegations should be withdrawn.
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts, and Plea of No Contest (Exhibit 2), which provides as follows:
STATEMENT OF UNCONTESTED FACTS
At all material times, the Member was a member of the Ontario College of Teachers. Attached to [Exhibit 2] and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
The Member was employed by the Toronto District School Board (the “Board”) at all material times hereto and was a teacher at an Elementary School (the “School”) in Toronto, Ontario. The Member is still employed by the Board and currently teaches at another Elementary School.
During the 2007-2008 academic year, Student A and Student B were [XXX] year old male autistic students in the [XXX].
On or about May 7, 2008, a [XXX] Assistant was working with Student A on a science experiment that required drawing a circle. The student was unable to focus and did not understand the concepts. The [XXX] Assistant did “hand over hand printing” with him to help him do the experiment. Student A did not want to sit and do this work; he got up and ran away from his desk. The Member stopped him and redirected him back to his chair by grabbing a hold of his arm. She told him to obey the [XXX] Assistant and finish his work.
Further, on or about May 7, 2008, Student B was demonstrating inappropriate behaviour and not able to concentrate on his work. The [XXX] Assistant spoke to Student B several times and told him to go to his seat, but he did not comply. The Member intervened in an attempt to assist the [XXX] Assistant. In doing so, the Member grabbed Student B by the arm and redirected him to his seat. The Member pushed down on his shoulders to direct him to sit.
Further, at a different time, Student B was in class with a [XXX] Assistant and the Member in circle time. Student B was disturbing the class by making funny faces and noises. The Member asked him to stop and “be quiet”. He continued laughing uncontrollably and making faces. The Member used two fingers to pull down on Student B’s lips to gesture a frown and told him to stop laughing as this was a serious matter.
If the Member was to give evidence, she would say that she was taught to use tactile techniques with autistic children as they often respond better to these physical cues than verbal cues. Her touching of the students in these incidents, she maintains, was a result of this teaching strategy which she had been taught for autistic students.
However, the Member recognizes and would now say that the physical contact with Student A and Student B, on or about May 7, 2008, was inappropriate touching of those students.
The Member was suspended without pay for a period of four (4) days for the events from May 2008 by the Board in March 2009.
The Member has been teaching at the current Elementary school from September 2008 to the present and has had no further difficulties.
PLEA OF NO CONTEST
By this document, the Member admitted, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 9 above (the “Uncontested Facts”).
The Member hereby acknowledged that the Uncontested Facts referred to in paragraphs 4, 5 and 6 above constituted conduct which is professional misconduct and plead no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5) and 1(19).
The Member stated that she:
(a) understood fully the nature of the allegations against her;
(b) understood that by signing this document she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) understood that by pleading no contest to the allegations, she has waived the right to require the College to prove the case against her and the right to have a hearing;
(d) understood that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to her name, may be published in the official publication of the College;
(e) understood that any agreement between her counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) understood and acknowledged that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provided this plea of no contest pursuant to Rule 3.02 of the Rules of Civil Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION Having considered the evidence and onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Marilyn E. Hill committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 (the “uncontested facts”) of the Statement of Uncontested Facts, and Plea of No Contest, and Joint Submission on Penalty (Exhibit 2). She acknowledged that the uncontested facts referred to in paragraphs 4 to 6 above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct.
The Committee accepted the Member’s plea of no contest and the facts in the Statement of Uncontested Facts, and Plea of No Contest. The Committee finds that on or about May 7, 2008, the Member engaged in inappropriate physical contact with students in that she: grabbed Student A by the arm; grabbed Student B by the arm and pushed down on his shoulders to direct him to sit and; used two fingers to pull down on Student B’s lips to gesture a frown.
By engaging in these activities, the Member committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97 subsections 1(5) and 1(19).
JOINT SUBMISSIONS ON PENALTY
The Ontario College of Teachers and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be a reprimand delivered by the Committee to the Member immediately following these proceedings.
At the time of this hearing, the Member had completed a course in classroom management and attended counselling for anger management. Both the course and the counselling were acceptable to the Registrar. Had the Member not completed this course or attended counselling for anger management, Counsel for the College and Counsel for the Member indicated that the Joint Submission on Penalty would have included a term, condition or limitation on the Member’s certificate that the Member would enrol in and successfully complete same.
SUBMISSIONS RE: PUBLICATION
At the outset of the hearing, Counsel for the College advised the Committee that the parties had not agreed on whether or not the Member’s name should be included and submissions were be made on that issue.
Counsel for the College submitted that the Committee should consider specific and general deterrence, rehabilitation, public protection and the public interest. Counsel acknowledged that while this matter was at, “The less severe end of the spectrum”, publication with the Member’s name was still appropriate. Counsel for the College submitted two previous decisions for the Committee’s consideration.
Counsel for the Member submitted that the Member had an unblemished career for 31 years and that given her lengthy history as a kind and compassionate teacher, it would be unnecessary to damage her reputation on the eve of her retirement. Further, Counsel for the Member stated that this was the type of case which made publication of name unnecessary and inappropriate. Finally, Counsel stated that by not contesting the facts, the Member did not put the College to the onus of proving its case.
PENALTY
The Committee makes the following order as to penalty:
(a) directs the Member to appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
(b) directs that there be publication of the findings and order of the Committee in summary form, without the name of the Member, in the official publication of the College Professionally Speaking/Pour Parler Profession.
REASONS FOR PENALTY DECISION
The reprimand of the Member by her peers in respect of her inappropriate conduct serves to reinforce the necessity to maintain appropriate physical contact with students. The reprimand, subsequent posting on the Register and publication of the findings and order of the Committee, in summary, serves as a specific deterrent to the Member and a general deterrent to the profession. It sends a clear message that appropriate behaviour is expected from members of the College.
The Committee acknowledges that the Member has successfully completed a course in classroom management and attended anger management counselling. Had the Member not undertaken these rehabilitative measures, the Committee would have required such conditions be placed on the Member’s Certificate. The Committee determined that these courses would assist the Member to understand the acceptable limits of student-teacher interaction.
With respect to the issue of publication of the Member’s name, the Committee considered the submissions of both counsel. The Committee concluded that publication of the findings and order of the Committee, in summary, without the name of the Member in Professionally Speaking/Pour parler profession was appropriate in these circumstances. The Member has acknowledged that the behaviour was inappropriate and has taken steps of her own accord to remediate through a course in classroom management and anger management counselling. The Member has 31 years of teaching experience and plans to retire shortly, therefore, publication of her name would not act as a specific deterrent. The Committee recognizes that following the incidents, the Member successfully returned to the classroom and no further incidents have been reported as evident by her most recent Summative Report located in the Package of Documents with Respect to Penalty (Exhibit 4).
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: November 1, 2012
Danny Anckle
Chair, Discipline Panel
______________________________ Irene Dembek, OCT
Member, Discipline Panel
Vicki Shannon, OCT
Member, Discipline Panel