Ontario College of Teachers v Charette, 2012 ONOCT 8

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Charette, 2012 ONOCT 8

Date: 2012-01-17

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

AND IN THE MATTER OF a discipline proceeding against Pauline

Marie-Francine Charette, OCT, a member of the Ontario College of Teachers.

PANEL: Dean Favero, OCT, Chair

Gabrielle Blais

Darlene Mead, OCT

BETWEEN: )

) Colin Baxter and Calina Ritchie,

) Cavanagh, Williams, Conway, Baxter LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers )

– and – )

) Julie Skinner and Christine Poirier,

PAULINE CHARETTE ) Nelligan O’Brien Payne LLP,

(CERTIFICATE #285127) ) for Pauline Marie-Francine Charette

) Paul Marshall,

) Emond Harnden LLP,

) Independent Legal Counsel ) ) Heard: January 11 and 12

) and April 21, 2010

REASONS FOR DECISION, DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 11, 2010 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing, dated December 12, 2007, was served on Pauline Marie-Francine Charette, requesting her attendance before the Discipline Committee of the Ontario College of Teachers on December 19, 2007 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for January 11, 2010 and continued on January 12 and April 21, 2010.

Ms. Charette was in attendance.

ALLEGATIONS

The allegations against Pauline Marie-Francine Charette in the Notice of Hearing (Exhibit 1), dated September 12, 2007, are as follows:

IT WAS ALLEGED that Pauline Charette is guilty of professional misconduct and/or incompetence as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act (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 physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7);

c) 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, subsections 1(14) and (15);

d) 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);

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

f) she displayed in her professional responsibilities a lack of knowledge, skill or judgment or disregard for the welfare of a student of a nature or extent that demonstrates that the Member is unfit to continue to carry out her professional responsibilities or that a certificate held by the Member under this Act should be made subject to terms, conditions or limitations.

At the hearing on January 11, 2010, College Counsel advised the Committee that the College did not intend to pursue the allegation with respect to incompetence as set out in paragraph f).

MEMBER’S PLEA

Pauline Marie-Francine Charette denied the allegations in the Notice of Hearing.

OVERVIEW

1. Pauline Charette is a Member in good standing of the College.

2. At all material times, the Member was employed by the Conseil des écoles publiques de l’Est de l’Ontario (the “Board”) as an occasional teacher.

3. From January to May 2006, the Member was teaching at [XXX] in Ottawa.

4. From January to May 2006, [XXX] and [XXX] were [XXX]-year-old male students at [XXX].

5. From January to May 2006, [XXX], [XXX] and [XXX] were [XXX]-year-old male students at [XXX].

6. From January to May 2006, [XXX] was a [XXX]-year-old female student at [XXX].

7. From January to May 2006, the Member acted in an inappropriate and unprofessional manner and failed to maintain the standards of the profession, in that she:

a) on May 11, 2006, hit [XXX], a [XXX]-year-old student, in the face with a pile of test papers;

b) between January and March 2006, took a sandwich out of the mouth of [XXX], a [XXX]-year-old student, hit him in the face with the sandwich, scratching his face, and threw the sandwich against a wall in the classroom;

c) told [XXX], a [XXX]-year-old student, that without makeup, she would be hideous and covered with pimples;

d) told [XXX], [XXX] and [XXX], [XXX]-year-old male students, and [XXX] and [XXX], [XXX]-year-old male students, that they were stupid and had mental problems;

e) often described the students using such words as “stupid” or “asses.”

8. On June 20, 2006, the Member was dismissed from the Board following allegations of professional misconduct and inappropriate conduct towards students in her class between January and May 2006.

EVIDENCE

Evidence Submitted by the College:

The incidents leading to the allegations against the Member which are the subject of this hearing took place in the second semester of the 2005-2006 school year in a Grade [XXX] class. The Ontario College of Teachers submitted that the Member’s actions and her manner of speaking to the students constituted professional misconduct. The specific incidents include:

1. the incident with the test papers, on May 11, 2006;
2. the “sandwich” incident between January and March 2006;
3. the “makeup” incident between January and March 2006;
4. inappropriate comments to five students describing them as stupid or as having mental problems; and
5. describing students using terms such as “asses” and “stupid.”

A number of witnesses and supporting documents were produced during the hearing. College Counsel examined four witnesses: the Vice-Principal (Louise Lauzon) and three students ([XXX], [XXX] and [XXX]). The Committee also received reports of interviews conducted by the Vice-Principal with students who were in the class in question.

Accounts by Witnesses for the College:

In their testimony, the three students called by the College summarized their experiences and observations in the classroom. The Vice-Principal testified concerning the approach used to deal with this situation and the steps followed.

[XXX]: Based on his written statement the day after the incident of the test papers and the interview on May 17, 2006 (Exhibit 4, Tab 2), [XXX] described the incident involving the handing-out of the [XXX] test. The witness explained that he received the tests, took his copy and gave the other copies to the student sitting behind him. [XXX] also testified that the Member, who was angry, grabbed the tests and reminded him that he was not supposed to hand them out. He stated that she hit him on the side of the head and slammed the test papers down onto his desk. [XXX] was angry and stood up, insulted the Member and left the classroom.

[XXX] also testified concerning the sandwich incident, which involved the Member and [XXX] He said that the Member grabbed the sandwich out of [XXX]’s mouth and threw it against the wall.

Concerning the makeup incident, [XXX] stated that the Member made some comments to a student, but he had difficulty recollecting the particulars. In response to College Counsel’s questions, [XXX] also testified that the Member had addressed certain students using derogatory terms, but he could not be more specific.

In cross-examination, [XXX] admitted that he did not always respect authority, that he had occasionally been disrespectful to the Member and that he sometimes swore in the classroom. Concerning the incident of the test papers, [XXX] could not recall exactly what the Member had said. [XXX] accepted the suggestion by Counsel for the Member that the incident of the test papers might have been an accident and that the papers did not leave any marks on his head.

In re- examination, [XXX] confirmed that the author of the letter of complaint dated May 12, 2006 was his father. He testified that he was not aware of the letter.

[XXX]: [XXX]’s testimony began with the incident of the test papers. He testified that the Member had told the students not to hand out the tests, but [XXX], who was sitting in the first row, gave the tests to the student behind him ([XXX]) after receiving them. According to [XXX], the Member became angry, took the tests out of [XXX]’s hand and hit [XXX] when tossing the copies onto his desk. A few copies fell on the floor. [XXX] also explained where he was seated in the classroom, which enabled him to see what was happening. [XXX] continued his testimony, stating that [XXX] exclaimed, “What the fuck is your problem?”, that the Member replied, “Oh, you’re saying fuck again. Do you have problems in the head or something?” and that in response [XXX] stood up, insulted the Member and left the classroom.

Concerning the sandwich incident, [XXX] testified that it took place five or ten minutes before the end of class, while the students were doing group work. He explained that he took a sandwich out of his bag and after he had taken a few bites, the Member grabbed the sandwich out of his mouth, asked, “Do you have mental problems?” and threw the sandwich against the wall near the Member’s desk. Later in his testimony, [XXX] stated that when the Member grabbed the sandwich, she scratched his mouth with her fingernails. He added that this action was not serious and he believed it was an accident. [XXX] testified that after his sandwich was taken, he continued talking with his friends.

[XXX] also testified concerning the makeup incident. Although he could not remember the precise date of the incident, he could recall the particulars. [XXX] was sitting at her desk at the back of the classroom. She was putting on makeup. According to [XXX], the Member asked [XXX] to give her the makeup bag and when she refused, the Member told [XXX] that she was going to take it. The Member apparently added that [XXX] would “… look even more hideous” without her makeup bag. According to [XXX], [XXX] was shocked and angered by the Member’s actions.

In conclusion, [XXX] described, without giving particulars, incidents in which the Member had apparently addressed certain students in derogatory terms.

In cross-examination, [XXX] admitted that he did not always observe the rules of the classroom. He knew, for example, that he was not supposed to eat sandwiches during the [XXX] class. He also accepted the suggestion by Counsel for the Member that the Member had no intention of scratching him and that it was accidental.

Louise Lauzon: Ms. Lauzon began her testimony by describing her work experience and explaining her responsibilities during the 2005-2006 school year. She held the position of vice-principal. She was responsible for programming and discipline for students in Grades 7, 9 and 11. Ms. Lauzon carried out the investigation concerning the incidents in question. For the purposes of this case, she explained the procedure to be followed, that is:

1. The investigation begins with a complaint from a parent, student or teacher.
2. The persons concerned are asked to submit written statements.
3. When students are involved, they are taken to the office and separated. The aim is to have an objective initial statement which rules out any possibility of consultation among the students.
4. On their way to the office, the students are usually separated.
5. Students are supervised while they are writing out their statements.
6. The investigation usually includes a meeting with the teacher involved and his or her union representative to explain the complaint.

Ms. Lauzon learned about the incident of the test papers when the Member reported the facts and requested disciplinary follow-up. Ms. Lauzon met with [XXX] the following morning just before lunchtime. The student explained that he had said, “Fuck you” to the Member because she had hit him in the face. Instead of reporting to the office as requested, he had hidden near the gymnasium because he was frustrated. [XXX] told Ms. Lauzon that he had discussed the incident with his father, that the latter was angry and was going to file a complaint. That afternoon, the school principal confirmed that [XXX]’s father had made a complaint. The principal and Ms. Lauzon met with the Member and her union representative. The Member was told that the principal was required to conduct an investigation in response to the father’s complaint and that she was suspended with pay for the duration of the investigation.

The investigation began on Friday, May 12, 2006 with the interview with [XXX], followed by interviews with [XXX] and [XXX] According to Ms. Lauzon, [XXX]’s statement to some extent guided the questioning of the students. The principal and vice-principal then visited the classroom to encourage the students concerned to testify concerning the incident. These students were given written questions. Certain students, such as [XXX], were sought out because their names had appeared in the initial testimony. Twelve students and two adults were met with individually (Exhibit 4). Ms. Lauzon reviewed all the written testimony to make sure it was clear and complete. The following week, at the request of the Board’s Manager of Human Resources, interviews were conducted with some of the respondents to obtain more specific information.

In cross-examination, Ms. Lauzon admitted that she had not asked the Member if there were any students who supported her version of the facts. A meeting with the Member and her union representative took place “much later.” Ms.Lauzon commented that the Member’s class was not especially difficult, but the Member had difficulties with the class. She acknowledged that she was not aware of certain incidents cited by Counsel for the Member, in particular that no student had reported the sandwich and makeup incidents at the time they occurred. When the Member informed the office that she had sent a student for detention, the other vice-principal was informed. Ms.Lauzon recalled that the Member had told her on several occasions about the difficulties she was having with the students in the class in question.

In conclusion, Ms.Lauzon confirmed that she had not contacted the police or the Children’s Aid Society concerning this incident.

In re-examination by College Counsel, Ms. Lauzon explained at length the various types of support she had given the Member. Some students received reprimands, detentions and calls home. Following a visit to the classroom, Ms. Lauzon had given the Member advice concerning her teaching of the [XXX] class and had met with some students to discuss their conduct. She had also had a debriefing with the Member who had been receptive to her comments.

Admissibility of a New Witness:

On the 3^rd day of the hearing, after the Member’s submission of evidence, College Counsel asked to produce a new witness ([XXX]) in reply. In support of his request he advanced legal arguments concerning the relevance of the testimony, especially [XXX]’s privileged angle of vision and the Committee’s discretionary power. The arguments advanced by Counsel for the Member included the contention that College Counsel could not divide his case without prejudice to the Member. The Committee reviewed the arguments submitted by both parties and decided to exercise its discretion, allowing [XXX]’s testimony. The Committee insisted, however, on restricting the testimony to the points raised by College Counsel. [XXX] could therefore clarify what he had observed during the two incidents related to the allegations, that is, the incident of the test papers and the sandwich incident.

[XXX]: [XXX] was present during the incident of the test papers. He testified that [XXX] stood up to collect the tests from [XXX]. According to him, the Member grabbed the tests out of [XXX]’s hand and hit [XXX] in the face. The latter got angry and said “fuck” twice. Earlier, [XXX] had also said “Jesus Christ” in class. [XXX] could not recall the sandwich incident precisely, except for the sound of the sandwich hitting the wall.

In cross-examination, he confirmed that it was possible that the Member had touched [XXX]’s face by accident.

Evidence Produced by Counsel for the Member:

Counsel for the Member called the following witnesses:

[XXX]: [XXX], a student in the Member’s class in 2006, testified that most of the students disliked the teacher and enjoyed causing problems for her. He described the disrespectful conduct of some of them. Concerning the incident of the tests, [XXX] did not think that the Member had hit [XXX]. If the test papers touched the student, [XXX] maintained that it was not intentional. The student confirmed that, because he was sitting in the middle of the classroom, he had a good view of what was happening. [XXX] also testified to the Member’s method of communicating with the students. He recalled that the Member had a direct vocabulary, but he did not believe she would have used explicit terms such as “ass,” “stupid” or “mental problems” with the students. He confirmed that he was not interviewed by the Vice-Principal following the incidents.

Pauline Charette: The Member began her testimony by summarizing her education, professional history and community involvement. She submitted her Basic Qualifications and Additional Qualifications in Visual Arts. Concerning her experience at [XXX], the Member explained that she had taught Visual Arts for three years, followed by a sick leave. The incidents occurred during her gradual reintegration when she had been assigned a [XXX] class. The Member submitted letters of reference which some of her former colleagues had written on her behalf.

The testimony continued with a description of the atmosphere in the classroom that is the subject of the incidents. The Member described some students as unpleasant, disrespectful, rude and hard to manage. She described some students’ influence over their peers. The Member described [XXX] as the group ringleader, always turning around to get the others’ attention. [XXX] was disrespectful and offensive to the Member, using such terms as “fuck,” “fuck you” and “Jesus Christ.” The Member continued with a description of [XXX]’s conduct. He was described as a student with little interest in the [XXX] class although he managed to complete some of his school work. The Member often had to remind him to sit up properly, take his feet off the blackboard ledge and listen. The Member described [XXX] as sweet and pleasant but with little interest in her [XXX] class. The Member explained that she attempted to isolate [XXX] by seating her at the back of the classroom where she would not be able to talk to other students and would do better academically.

The Member submitted a plan of the classroom. She said she had had to make several changes to students’ seating arrangements in order to cut down on discipline problems. She had placed [XXX] in front of her desk so she could remind him to look to the front when she was teaching. [XXX] and [XXX] had been seated at the very back of the classroom and [XXX] was in the middle.

In answer to a question from her lawyer, the Member described her relationship with the Vice-Principal as not being very good. She described the school-wide system that had been set up for disciplining students. According to the Member, the detention system did not work because the students did not report to the assigned room. When the Member had difficulty reaching parents to invite them to the parent/teacher night, she asked the Vice-Principal for advice. She said that instead of supporting what she was doing, the Vice-Principal criticized her teaching style. The Member then agreed to Ms. Lauzon’s observing her in her classroom. The visit took place and the result, according to the Member, was not positive.

The examination then focussed on the incidents which are the subject of the allegations. It was a test day. She handed out the test papers to the students sitting at the first desk in each row and asked them not to hand them out until she gave the signal. [XXX] apparently passed the tests on before receiving the instruction to do so. The Member explained that she asked [XXX] to give the tests back to her. The students in [XXX]’s row sent the tests back up to the front for [XXX] to give them back to her. When she was picking up the tests returned by the students behind [XXX], the Member dropped them on the floor. The Member maintained that [XXX] said “fuck you” when she bent down to pick them up. In answer to the question by her lawyer, the Member categorically denied hitting or touching a student. She did, however, testify that she placed the tests on [XXX]’s desk after telling him to leave the classroom and report to the principal’s office. When she attempted to confirm that [XXX] had in fact reported to the office, she was unable to reach the principal or either of the two vice-principals. Later on, she found out that [XXX] had not reported to the principal’s office.

Counsel for the Member asked the Member if she had ever said to [XXX]:

• “Do you have a mental problem?”
• “Are you sick in the head?”
• “Where is your mind?”

In reply, the Member denied asking the first two questions. She then explained that she said, “Honestly, [[XXX]], where is your mind? What were you thinking?”

Counsel for the Member then proceeded to the second allegation which is related to the sandwich incident. The allegation states that between January and March 2006, the Member took a sandwich out of the mouth of [XXX], a [XXX]-year-old student, hit him in the face with the sandwich, scratching his face, and threw the sandwich against a wall in the classroom. The Member explained that during a reading period, [XXX] was sitting at the back near the wall eating a sandwich. She asked [XXX] to put away his sandwich but he ignored her. Extending her arm, palm upwards, the Member asked the student several times to give her the sandwich. At that point, the Member estimates that her hand was approximately 2.5 feet away from the student’s face. Eventually, the student gave her the sandwich which she tossed lightly behind the computer, near her desk. At the end of the class, she gave the sandwich back to [XXX], who grabbed it and threw it in the garbage. She denied taking the sandwich out of the student’s mouth or touching him. She also denied saying to [XXX], “You are sick in the head.”

The third allegation concerns [XXX], a [XXX]-year-old student to whom the Member allegedly said that without makeup the student would be hideous and covered with pimples. According to the Member, she asked the student to put away her makeup, saying, “At your age we are at our best… No-one needs makeup at this age. We are naturally beautiful at this age.” [XXX] [sic] put away her makeup and that was it.

In response to the last two allegations, the Member denied saying to a student or students that they were stupid, had mental problems or were “asses.” She said those are not terms she uses, but she may have said, “Stop fooling around!”

The Member produced her list of occasional teaching jobs (Exhibits 9 and 10) to show that she had taught for another school board almost every day since her dismissal. She also confirmed that she had not been charged with any criminal offence and that the Children’s Aid Society had not conducted an investigation into the incidents in question. The police and the Children’s Aid Society did not contact her after the incidents.

In cross-examination, College Counsel questioned the Member concerning the conduct of certain students and [XXX]’s field of vision from his desk. The Member agreed that [XXX] could have had a good view of the two incidents because of the location of his desk. She recalled that [XXX] was present during the test, but because she did not have the attendance sheets with her during the hearing, she could not confirm whether [XXX] was present during the sandwich incident.

In re-examination, the Member listed the problem students in the class, that is, nearly one-third of the group.

Richard Langlois: The Member’s final witness was Richard Langlois, a colleague with whom the Member worked on numerous projects. Mr. Langlois was aware of the difficulties the Member was experiencing with the [XXX] class because he taught a number of the same students. He testified that the school group had meetings to evaluate and review the strategies used with the students. He said that [XXX] tried to defy authority virtually on a daily basis and was gratuitously insulting. He had to be brought into line and intervention was necessary with him several times a week. The witness did not teach [XXX] and did not know [XXX]

Mr. Langlois described the Member as a colleague who was professional and really listened. She had expectations of the students and could raise her voice to make herself heard. He said she had real presence and personality, and always kept the class moving at a good pace. He never heard the Member using such language as “ass,” “stupid,” “mental problem” or “sick in the head.” Mr. Langlois wrote a letter of reference on the Member’s behalf (Exhibit 11). He explained that he wrote it with input from colleagues to support the Member. At least 12 colleagues signed the letter.

In cross-examination Mr. Langlois admitted that he was not in the classroom when the incidents occurred. The letter was written seven months after the incidents.

Plea by College Counsel:

College Counsel submitted a summary of the elements in support of the allegations. According to him, the testimony showed that the incidents had definitely occurred. Moreover, the situation in the classroom should never have deteriorated to such an extent. He referred to the fact that 14 students had signed concurring statements. In comparison, he noted that the Member had simply stated that the papers had fallen to the floor. According to College Counsel, if the students in question were more difficult than others, it was the Member’s responsibility to use different strategies as part of her classroom management. He questioned the suggestion of a conspiracy. College Counsel reminded the Committee that three of the 14 students in question had attended to testify. In his opinion, the Committee also had the option of considering the other testimony in Ms. Lauzon’s report (Exhibit 4). For the Committee’s information, he produced an excerpt from The Law of Evidence in Canada, 3^rd Edition, concerning hearsay evidence. He added that none of the statements refuted [XXX]’s and [XXX]’s testimony. In conclusion, because the testimony on the two sides was dissimilar, the Committee would have to assess the credibility of the various testimonies.

Plea of Counsel for the Member:

Counsel for the Member set a context based on facts and observations:

• The class in question included students whose conduct was inappropriate.

• An ordinary action by the Member could have appeared intentional, even if this was not the case.

• With the benefit of hindsight, these students agreed that it was possible that the actions could have been a matter of accidental circumstances.

Counsel for the Member argued that the incidents in question did not meet the required threshold for being considered professional misconduct. If the Member had touched a student it was accidental and did not constitute professional misconduct as described in Ontario Regulation 437/97. Counsel also emphasized the fact that Ms. Lauzon had chosen not to contact the Children’s Aid Society or the police following her investigation. She also asked the Committee to consider the Member’s career, the occasional teaching she continues to do and the fact that during the investigation at the school, the school authorities did not encourage students who had not seen or heard anything to testify to that effect.

Counsel for the Member said that [XXX]’s and [XXX]’s verbal testimony must be considered as evidence. She asked the Committee to give less weight to the investigation reports because they were not written under oath and there was no cross-examination. She argued concerning these two students’ testimony that [XXX] himself had not confirmed the allegations.

With respect to the sandwich incident, [XXX] testified that he did not think the Member’s action was serious and he thought it was an accident. Furthermore, he did not report the incident to the school authorities until Ms. Lauzon’s investigation. According to Counsel for the Member, no evidence had been produced confirming that the Member had hit [XXX] in the face with the sandwich. The act of confiscating and tossing a sandwich is not professional misconduct.

The makeup incident was never reported by [XXX], the student who was the supposed victim. Counsel for the Member argued that College Counsel had admitted that this former student had tried to avoid the summons.

In conclusion, Counsel for the Member argued that the Member:

• Denied that any physical contact took place.
• [Stated] that if any physical contact took place, it was an accident.
• [Stated] that such an accident was not professional misconduct because it lacked any elements of intention.

College Counsel’s Reply:

In reply, College Counsel argued that this was not an accident; these were intentional actions. Concerning the argument that the students’ conduct was inappropriate, he maintained that it was in fact the Member who had lost control of herself and the class. The actions committed constitute professional misconduct. On the issue of the discrepancy between testimony and evidence, he reminded the Committee that some years had elapsed between the statements and the hearing.

Advice of Independent Counsel:

Independent Counsel advised the Committee concerning its duty. The issue in dispute was “Was the Member guilty of professional misconduct, as defined in subsection 30(2) of the Act?” In his argument, College Counsel discussed allegations a), b), c), d) and e) in the Notice of Hearing. He did not submit any argument related to the allegation of incompetence as set out in paragraph f) of the Notice of Hearing. He discussed the task of assessing the evidence and the credibility of the witnesses.

With regard to credibility, the Committee must assess the following factors: the witnesses’ conduct, capacity to recall the events, personal and external consistency (among witnesses) and the witnesses’ interest in the issue in dispute. If the Committee does not accept testimony, it must explain the grounds for its decision. With regard to hearsay evidence, Independent Counsel reminded the members of the Committee that the College had its own rules for guiding a decision and the weight assigned to each testimony is significant. Instead, therefore, of referring only to the criminal jurisprudence produced by College Counsel, the Committee should rely on the statements in its own Rules of Procedure.

The burden of proof rests with the College. This proof must be clear, convincing, acceptable and in line with the severity of the allegations and the consequences for the Member.

DECISION

Having heard the testimony and examined the relevant admissible evidence, and the submissions made by counsel, the Committee found that Pauline Marie-Francine Charette was not guilty of professional misconduct as defined in subsection 30(2) of the Act, in that she did not abuse a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7).

REASONS FOR DECISION

The allegations against the Member are related to incidents with Grade [XXX] students in a [XXX] class in 2006, that is, that she:

• hit a student in the face with a pile of test papers;

• took a sandwich out of a student’s mouth and hit him in the face with the sandwich;

• made inappropriate comments concerning a student’s makeup;

• made inappropriate comments to five students, describing them as stupid or having mental problems; and

• often described the students using such words as “asses” or “stupid.”

The Member was teaching in a classroom of approximately 26 students. Various testimonies have described the class as being difficult to manage because of the inappropriate conduct of some students.

College Counsel argued that the Member’s actions constitute professional misconduct according to subsection 30(2) and the paragraphs referred to in the Notice of Hearing.

Counsel for the Member argued that the College had not proven, based on the balance of probabilities, that the alleged conduct took place in such a manner as to constitute professional misconduct.

In arriving at a decision, the Committee relied on the testimony of a number of witnesses, the relevant admissible evidence, the jurisprudence and supporting documentation, and the submissions made by counsel. The Committee reviewed Rule 13.02 of the Rules of Procedure of the Discipline Committee before determining the weight to assign to Exhibit 4, the Record of Pauline Marie-Francine Charette. The Committee considers that the testimony provided at the hearing had significant value. It also ruled that the reports of interviews with the students who did not testify would be considered, but they would have less weight, because they were not completed under oath and the authors did not testify in validation of their written statements. Moreover, they were not cross-examined.

The Committee found that the College had not proven the allegations of professional misconduct or incompetence for the following reasons:

Incident of the Test Papers:

Testimony:

The testimony concerned [XXX]’s actions, the Member’s response, any physical contact which took place, [XXX]’s response and follow-up by the teacher and the principal.

In examining the students’ testimony, the Committee noted that some in-person testimony did not concur with the testimony submitted in writing during the interviews with the Vice-Principal in 2006. Specifically, the Committee noted significant differences concerning the intention of the action committed with the test papers (intentional or accidental). In his statement [XXX] wrote, “She grabbed the papers out of [XXX]’s hands, said to me, ‘I told you not to pass them on!’ and then hit me in the face with the pile of papers and threw them onto my desk.” In his statement, [XXX] wrote, “She grabbed the papers out of [XXX]’s hand and hit [XXX] in the face with them and she was angry. After that she threw the papers onto [XXX]’s desk.”

In the in-person testimony, [XXX] stated that the Member grabbed the test papers out of a student’s hand ([XXX]) and hit [XXX] in the face. [XXX] and [XXX] suggested that it was not a serious incident, that it might have been accidental and that the papers did not leave any marks on [XXX]’s head. Another witness, [XXX], stated that he did not think that the Member had touched [XXX] but that, if it happened, “it wasn’t on purpose.”

In her testimony the Member said that she had placed the tests on [XXX]’s desk and categorically denied hitting or touching a student.

Having examined the testimony and the documentation submitted in evidence, the Committee found that physical contact likely did take place between the Member and [XXX], as suggested by most of the witnesses. It was not convinced, however, that this action was intentional, representing physical abuse as defined in subsection 1(7) of Regulation 437/97.

Sandwich Incident:

The Committee considered the written and in-person testimony.

The in-person testimony of [XXX], [XXX] and [XXX] did not concur with the testimony submitted in writing during the interviews with the Vice-Principal.

In his statement, [XXX] wrote, “She came and grabbed the sandwich out of my mouth. She scratched my mouth with her fingernails, and then she hit me with the sandwich near my right eye and said, ‘Do you have a mental problem?’” During his in-person testimony, however, he said, “It is nothing serious. I’m actually pretty sure it was somewhat accidental.”

In his written report, [XXX] testified that the Member grabbed the sandwich forcefully out of [XXX]’s mouth and hit him on the head, saying, “You’re sick in the head.” In his in-person testimony, he said, “She grabbed it from his mouth, while he was eating it, and threw it at the wall.”

In his written testimony, [XXX] did not refer to this incident. In his in-person testimony, [XXX] could not recall the sandwich incident, except for the sound of the sandwich hitting the wall.

The Member testified that when [XXX] gave her the sandwich, she tossed it lightly behind the computer, near her desk. She categorically denied taking the sandwich out of a student’s mouth or touching a student.

The Committee took into account that [XXX] admitted knowing that eating a sandwich in the classroom violated the school’s code of conduct. It is therefore not surprising that the Member responded to the offence. The Committee agrees that the Member took the sandwich away from [XXX] The students and the Member were not in agreement, however, concerning the way the incident took place, except that the sandwich was thrown. The incident was not reported to the principal when it occurred. It was referred to in some students’ written testimony.

In the Committee’s estimation, if the incident warranted reporting, especially if [XXX] had been slapped, it would have been reported that same day. [XXX]’s, [XXX]’s and [XXX]’s in-person testimony does not provide enough evidence to find that the Member slapped [XXX] or acted unprofessionally.

Makeup Incident:

The Committee considered the written and in-person testimony. It also considered that the student involved in this incident had never reported it to the principal. The Vice-Principal asked for her testimony when the incident was referred to in other students’ statements. Moreover, the student in question, [XXX], avoided the summons to attend at the hearing. Exhibit 3 lists the attempts made by the College to reach [XXX]

The Committee therefore had to rely on [XXX]’s written statement, dated May 12, 2006. It was brief: “Yes, I was looking at myself in the mirror and the teacher sees (sic) me and told me to put it away and said that if she sees me doing it again she would take away my makeup and then [I’d] be more hideous than I am now with pimples on my face.” (Exhibit 4)

[XXX], [XXX], [XXX], [XXX] and [XXX] also referred to this incident. [XXX], [XXX] and [XXX] completed written statements only, whereas [XXX] and [XXX] completed written statements and testified.

[XXX], [XXX] and [XXX] did not attend at the hearing. [XXX] wrote that the Member said that “… without makeup ([XXX]’s) face would be hideous and covered with pimples.” [XXX] wrote that the Member said, “I’m going to take your makeup away and you’ll be more hideous with pimples on your face. She was laughing.” [XXX] wrote that the Member said, “Put your makeup away now, or else I’ll take it and you will be more hideous than you already is (sic) with pimples on your face.”

The Committee considered [XXX]’s and [XXX]’s written statements and testimony. In his written statement, [XXX] makes no reference to the makeup incident but during his in-person testimony, in answer to a question from College Counsel, [XXX] testified that he was not actually looking at [XXX] at the time of the incident. He vaguely recalled Ms. Charette saying, “You shouldn’t use makeup; it’s no use,” adding “or something, to [sic] that sort.” In his written testimony, [XXX] makes no reference to the makeup incident. In answer to questions from College Counsel during the hearing, [XXX] testified that the Member said, “I’m going to take it [the makeup] away from you and you will look even more hideous.” He added that he could not recall what [XXX] said, but she “looked shocked and quite angry.”

The Member also testified on this matter. She said she told [XXX] to put away her makeup, saying, “At your age we are at our best… No-one needs makeup at this age. We are naturally beautiful at this age.”

All of the parties confirmed that the incident had taken place even though it was not reported. Because [XXX]’s statement was brief and she refused to testify, it was difficult to obtain clarification concerning the incident. Moreover, the Committee could not give significant weight to the other students’ testimony because it was not provided in support of [XXX]’s testimony.

Having reviewed the testimony and written statements, the Committee agrees that there is insufficient evidence to find that the Member’s actions constitute professional misconduct.

Inappropriate Comments:

The final two incidents in the Notice of Hearing (items d) and e)) concern inappropriate comments allegedly made by the Member to students. These include terms such as “stupid,” “mental problems” and “ass.” In the Overview in the Notice of Hearing, the students involved are [XXX], [XXX], [XXX], [XXX] and [XXX] Students [XXX], [XXX] and [XXX] completed written statements, whereas [XXX] and [XXX] completed written statements and testified. In their written statements, [XXX], [XXX] and [XXX] refer to incidents of inappropriate comments. [XXX] and [XXX] were identified as the targets of some comments, but [XXX] did not complain of being singled out for comments in his own written statement. [XXX] identified four students—[XXX], [XXX], [XXX], [XXX]—and himself as being targets of the Member’s inappropriate comments. In each of these cases, the students do not provide particulars concerning the incidents. [XXX]’s and [XXX]’s written testimony is vague and provides very broad descriptions of incidents.

In response to questions from College Counsel, [XXX] explained that the Member had called some students “stupid.” He stated that the Member said, “Do you have mental problems?” adding “Something like that.” Contradicting what he had just said, this witness said instead that it was [XXX] who had talked to him about it and he had no recollection of hearing the Member call a student “stupid.” [XXX] testified that the Member asked, “Do you have a mental problem?” and that he could not remember if anything else had been said.

The Member’s witnesses, [XXX] and Richard Langlois, stated that the Member did not use the terms referred to in the Notice of Hearing (items d) and e)).

The Member denied making offensive comments about some students. In some cases, she clarified the use of a term. For instance, she may have said to [XXX] “Mais ou [sic] est ta tête?” as a translation of the term, “Where is your mind? What are you thinking?”

The Committee does not find professional misconduct based on the limited information submitted. Having examined the testimony and written statements, the Committee agrees that there is insufficient evidence to find that the Member’s actions constitute professional misconduct.

Additional Comment:

The Committee questioned some of the principal’s decisions. A school’s professional and legal obligations when physical, emotional or verbal abuse of a student is suspected are clear and precise. Ms. Lauzon confirmed, however, that she did not contact the police or the Children’s Aid Society about this incident. The Committee agrees with Counsel for the Member’s argument that Ms. Lauzon probably did not contact the authorities because she did not believe that the Member had physically or emotionally abused students.

The Committee has the same question concerning the parent’s duty. In his letter of complaint (Exhibit 4, Tab 2), [XXX]’s father referred to “from emotionable (sic) abuse to much more serious acts.”

The Member confirmed that she was not contacted by the police or the Children’s Aid Society concerning the incident of the test papers. This fact leaves the Committee with the impression that there was no follow-up either by the school or by the parent.

Conclusion:

Having examined the evidence and the testimony, the Committee finds that the Member is not guilty of professional misconduct as defined in subsection 30(2) of the Act, in that she did not abuse a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7).

Date: January 17, 2012

Dean Favero, OCT

Chair, Discipline Panel

Gabrielle Blais

Member, Discipline Panel

Darlene Mead, OCT

Member, Discipline Panel