Citation: Ontario College of Teachers v Gusita, 2013 ONOCT 27

Date:2013-02-28

AND IN THE MATTER OF discipline proceedings against

Nicolae Gusita, OCT, a member of the Ontario College of Teachers.

PANEL: Danny Anckle, Chair Alexander (Sandy) Bass, OCT

John Tucker

BETWEEN: )

) David Leonard,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,

) assisted by Bev Hodsdon,

) Law Clerk

and - )

) Nicolae Gusita,

NICOLAE GUSITA ) on his own behalf, in person

(CERTIFICATE #206378) )

) Erica Richler,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: February 28, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter was scheduled for a hearing before a panel of the Discipline Committee (the “Committee”) on February 28, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

Nicolae Gusita, (the “Member”) was in attendance.

THE ALLEGATIONS

The allegations against Nicolae Gusita in the Notice of Hearing, (Exhibit 1) dated March 21, 2011 are as follows:

IT IS ALLEGED that Nicolae Gusita is guilty of professional misconduct as defined in section 30(2) of the Act and/or is incompetent as defined in section 30(3) of the Act, in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(c) he displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of his students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

Nicolae Gusita (the “Member”) is a member of the Ontario College of Teachers.
At all material times, the Member was an employee of the Toronto District School Board (the “Board”) and was a Grade 9 and Grade 11 mathematics teacher at Harbord Collegiate Institute (the “School”), in Toronto, Ontario.
The Member’s performance as a teacher was assessed on three occasions during the 2002/2003 and the 2003/2004 academic years and Summative Reports dated January 20, 2003, June 18, 2003 and April 5, 2004, respectively were prepared.
On each occasion, the Member received an unsatisfactory or ‘Below Standard’ rating in each of the areas of assessment, namely his Commitment to Pupils and Pupil Learning, Professional Knowledge, Teaching Practice, Leadership and Community, and Ongoing Professional Learning. The Member, inter alia:

(a) had not developed individual plans of action or specific supports for his students who were struggling in math;

(b) failed to comply with the provincial curriculum policy regarding curriculum expectations for his Grades 9/10 and 11/12 math classes;

(d) failed to demonstrate his understanding of the need for a logical, progressive sequence to material being taught and of the appropriate amount of content being covered in a period;

(e) failed to track students’ progress or lack of progress;

(f) failed to develop support materials for his ESL students and failed to establish an appropriate teaching strategy to meet the needs of the ESL students in his class;

(g) failed to keep records of IEP students’ exceptionalities and learning needs;

(h) failed to apply student feedback to guide his instruction and failed to offer an explanation to his students when they answered a question incorrectly;

(i) failed to record homework, the 6 learning skills required for report cards, group work, take home assignments, projects and bonus marks, and/or notebook checks;

(j) failed to analyze student mark records to guide or adjust his instruction;

(k) failed to be sensitive to potential student embarrassment and breached student confidentiality by posting the names of students who had to re-do tests;

(l) failed to apply suggestions and observations of colleagues’ classrooms to provide appropriate structure and routine in her own;

(m) failed to establish an environment that maximized student learning;

(n) failed to engender respect, both between students and for their teacher;

(o) failed to share with his colleagues his curriculum materials, his resources or assessment activities and his instructional methodologies to improve student achievement;

(p) failed to take an active role as a member of the math department at staff meetings or in the planning of staff development activities;

(q) failed to participate, present or organize staff development sessions to enhance student achievement;

(r) failed to successfully address a majority of the steps and actions for improvement as identified in Improvement Plans.

Following his receipt of a third unsatisfactory performance rating, the Member was suspended with pay on April 5, 2004, pending the outcome of the Board’s decision regarding his employment.
On June 23, 2004, the Board Trustees passed a resolution terminating the Member’s employment, effective June 30, 2004.

At the hearing on February 28, 2013, College Counsel sought to withdraw the allegation of professional misconduct in paragraphs (a) and (b), namely that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5) and that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264 (1) (c) thereof or the Regulations made under the Act, contrary to Ontario Regulation 437/97, subsection 1(15). The Committee agrees that these allegations shall be withdrawn.

College Counsel 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

Nicolae Gusita (the “Member”) is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit 2 and found at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Toronto District School Board (the “Board”), and was a teacher of Mathematics at Harbord Collegiate Institute (the “School”), in Toronto, Ontario.
On three occasions during the 2002/2003 and 2003/2004 academic years, the Member’s performance was assessed and on each occasion was deemed to be unsatisfactory in the areas of Commitment to Pupils and Pupil Learning, Professional Knowledge, Teaching Practice, Leadership and Community, and Ongoing Professional Learning. Attached to Exhibit 2 and found at Tabs “B”, “C” and “D”, respectively are copies of Summative Report Forms dated January 20, 2003, June 18, 2003 and April 5, 2004, providing details of those deficiencies described by the authors of the reports in the areas where the Member’s performance was found to be in need of improvement.
The Member’s classroom management skills and his failure to differentiate curriculum expectations and teaching strategies to meet students’ needs included the Member’s inability or failure to:

(a) understand what is required to support the development of the “whole student”;

(b) develop support material and to establish an appropriate teaching strategy to meet the needs of the ESL students in his class;

(c) to keep records of IEP students’ exceptionalities and learning needs and to develop program modifications for Special Education Students;

(d) to clearly communicate tasks to his students and to provide them with meaningful feedback;

(e) to use assessment data and achievement trends to adjust his instruction;

(f) to comply with the Provincial curriculum policy regarding expectations for his Grades 9/10 and 11/12 math classes;

(g) to record homework, the 6 learning skills required for report cards, group work, take-home assignments, projects, bonus marks and notebook checks;

(h) to comply with the Vice-Principal’s direction and the requirements of the Provincial Program Planning and Assessment document regarding formulas to calculate term marks; and

(i) to successfully address a majority of the steps and actions for improvement as identified in the Improvement Plans formulated to provide him with assistance.

Despite the preparation of Improvement Plans, attached to Exhibit 2 and found at Tab “E”, and the provision of ongoing assistance from School administration, the Member continued to struggle with his teaching practices.
The Member’s employment with the Board was terminated effective June 18, 2004.

PLEA OF NO CONTEST

By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 6 (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 3 and 4 and specifically the details set out in Exhibit 2, Tabs “B”, “C” and “D” constitute conduct which is evidence of his incompetence, and pleads no contest to the allegation of incompetence against him.
By this document, the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that any agreement between him and College Counsel with respect to the penalty proposed in this document does not bind the Discipline Committee;

(e) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and without the advice of legal counsel.

The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the 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 him 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 incompetence in that he displayed a lack of knowledge, skill or judgment that demonstrates that his Certificate should be made subject to terms, conditions or limitations.

SUBMISSIONS ON FINDING-COLLEGE COUNSEL

College Counsel submitted that the Member had received three “Unsatisfactory” evaluations in his Teacher Performance Appraisal (“TPA”) (Exhibit 2, Tabs B, C and D). As a result of these unsatisfactory evaluations, the Member’s employment with the Board was terminated effective June 18, 2004. College Counsel submitted that the College was withdrawing the allegations of professional misconduct set out in paragraphs (a) and (b) in the Notice of Hearing. Counsel stated that the facts support incompetence to the extent that the Member’s Certificate should be subject to terms, conditions and limitations and do not demonstrate that the Member is unfit to carry out his responsibilities.

DECISION

Having considered the evidence and onus and standard of proof, and the submissions made by College Counsel, the Committee finds the Member to be incompetent in that he displayed a lack of knowledge, skill or judgment and a disregard for the welfare of his students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations.

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 6 above (the “uncontested facts”) of the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2). He acknowledged that the uncontested facts referred to in paragraphs 3 and 4 above and specifically the details set out in Tabs B, C and D constitute conduct which is evidence of his incompetence, and pleaded no contest to the allegation.

The Committee accepted the Member’s plea of no contest and accepts that the facts in the Statement of Uncontested Facts and Plea of No Contest amount to incompetence as pleaded to by the Member.

The Member’s performance was assessed on three occasions during the 2002-2003 and 2003-2004 academic years. On each occasion, the Member’s performance was deemed to be “unsatisfactory” in the areas of Commitment to Pupils and Pupil Learning, Professional Knowledge, Teaching Practice, Leadership and Community, and Ongoing Professional Learning. The Committee finds that the Member failed in his interactions and dealings with students with special needs and with integrating the needs of Individual Education Plan (“IEP”) students into the curriculum.

JOINT SUBMISSIONS ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), College Counsel and the Member jointly submitted that the appropriate penalty to be ordered by the Discipline Committee in this matter would be to impose terms, conditions and limitations on the Member’s Certificate of Registration requiring the successful completion of either an Additional Qualification course in special education or a course that addresses the deficiencies outlined in paragraph 4 of the Statement of Uncontested Facts and Plea of No Contest.

College Counsel further submitted that the focus of the penalty was on rehabilitation of the Member and that the College was not seeking a suspension, reprimand or publication. Counsel stated that the question for the Committee is whether the proposed terms, conditions and limitations address the concerns raised in the three “unsatisfactory” evaluations in his TPA. Counsel submitted that the Committee could take comfort from the fact that the Member would be fully competent following the completion of the jointly submitted coursework.

The Member submitted that since 2005, he has been employed as an occasional teacher for the Toronto Catholic District School Board. The Member stated that he has held both long term and short term occasional assignments without incident.

PENALTY DECISION

The Committee makes the following order as to penalty:

The Registrar is directed to impose the following terms, conditions, and limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled:

(i) the Member shall enroll and successfully complete by August 31, 2013, at his own expense, either of the following courses which shall be pre-approved by the Registrar:

A. an Additional Qualification course in Special Education, or

B. a course that addresses the deficiencies outlined in Paragraph 4 of the Statement of Uncontested Facts and Plea of No Contest document made as Exhibit #2 at the hearing of this matter;

(ii) within thirty (30) days of his completion of the course referred to in paragraph 1 (i)(A) or (B) above, the Member shall provide evidence to the Registrar in writing, of his successful completion of same.

REASONS FOR PENALTY DECISION

The Committee agreed that the jointly submitted penalty is appropriate and will address the issues raised in the “unsatisfactory” evaluations of the Member’s TPA. The Committee is

confident that the public interest has been safeguarded via this process and is satisfied that the penalty serves and protects the public interest.

Date: February 28, 2013

Danny Anckle

Chair, Discipline Panel

Alexander (Sandy) Bass OCT

Member, Discipline Panel