Ontario College of Teachers v. Joly, 2013 ONOCT 54

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Joly, 2013 ONOCT 54

Date: 2013-04-11

IN THE MATTER OF the Ontario College of Teachers Act and Ontario Regulation 437/97

AND IN THE MATTER OF a discipline proceeding against Yves Joly, a member of the Ontario College of Teachers.

PANEL: Vicki Shannon, OCT, Chair Robert Gagné Louis Sloan, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Christine Lonsdale, McCarthy Tétrault LLP, for the Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

• and -

YVES JOLY (CERTIFICATE # 417765) Danielle Leon Foun Lin, Nelligan O’Brien Payne LLP, for Yves Joly

Paul Marshall, Emond Harnden LLP, Independent Legal Counsel

Heard: March 25, 2013

DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 25, 2013, at the Ontario College of Teachers (the “College”) at Toronto. A Notice of Hearing, dated April 14, 2011, was served on Yves Joly requesting his attendance before the College’s Discipline Committee on May 3, 2011, to set a date for a hearing. The hearing was subsequently set for March 25, 2013.

Mr. Joly was absent at this hearing, but was represented by his legal counsel.

ALLEGATIONS

The allegations against Yves Joly in the Notice of Hearing (Exhibit 1), dated April 14, 2011, are as follows:

IT IS ALLEGED that Yves Joly is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (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 supervise adequately a person who is under the professional supervision of the Member, contrary to Ontario Regulation 437/97, subsection 1(11);

c) he failed to comply with the Act or the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, or the regulations made under these Acts, contrary to Ontario Regulation 437/97, subsections 1(14) and 1(15);

d) he 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) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19);

f) he demonstrated a lack of knowledge, skill or judgment or disregard for the welfare of students of a nature or extent that demonstrates that the Member is unfit to continue to carry out his professional responsibilities or that a certificate held by the Member should be made subject to terms, conditions or limitations.

At the hearing on March 25, 2013, Counsel for the College withdrew the allegation of incompetence as outlined in (f) above. The Committee accepted the withdrawal of this allegation.

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (the “Agreement”) (Exhibit 3).

The Agreement provides as follows:

1. Yves Joly (the “Member”) is a member of the College (Exhibit 2). At all material times the Member was employed by the Conseil scolaire de district Centre-Sud-Ouest (the “Board”) as a teacher at [XXX] (the “School”) in Toronto.

2. During the 2008-2009 school year, the Member:

(a) was approximately 10 minutes late without cause on January 12, 2009;

(b) was five minutes late without cause on March 2, 2009, for an extracurricular activity in the gymnasium because he was finishing a supervisory shift and consequently failed to take steps to ensure that the students in the gymnasium had continuous supervision;

(c) used inappropriate vocabulary in front of students;

(d) failed to meet the deadlines for the submission of generic comments on the report cards;

(e) left his classroom for approximately one minute to get a drink, leaving his Grade [XXX] students unsupervised during the [XXX] class;

(f) accompanied groups of students back to their homeroom and left the premises before the bell rang, failing to adhere to his work schedule;

(g) failed to meet the deadlines for the submission of weekly planning, as set out in the improvement plan submitted on January 8, 2009; and

(h) did work of his own (preparing report cards) during a teaching period with students.

GUILTY PLEA

3. The Member admitted the accuracy of the statements made in paragraphs 1 to 3 above. He submitted a Guilty Plea and admitted that he was guilty of professional misconduct in that he contravened Ontario Regulation 437/97, subsections 1(5), 1(11), 1(14), 1(15), 1(18) and 1(19).

4. The Member further stated that:

(a) he fully understood the nature of the allegations of professional misconduct against him;

(b) he understood that, by signing this document, he was agreeing to the submission to the Discipline Committee of the evidence as set out in the Statement of Facts;

(c) he understood that, by pleading guilty to these allegations, he was waiving his right to require that the College prove the case against him and his right to have a hearing on the facts of the case;

(d) he understood that, depending on the penalty imposed by the Committee, the Committee’s decision and a summary of its Reasons for Decision, including the mention of his name, might be published in the College’s official publication;

(e) he understood that any agreement as to penalty between the College and the Member is not binding on the Committee; and

(f) he understood and acknowledged that he was executing this Agreement voluntarily, unequivocally and with the benefit of legal counsel.

5. The Member provided this Guilty Plea pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, c. E. 23, for the purpose of this proceeding under the College of Teachers Act, S.O. 1996, c. 12, and for no other purpose. The Member’s Guilty Plea does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

6. In light of the aforementioned uncontested facts and the Guilty Plea, the College and the Member submit that the Discipline Committee find that the Member’s actions constitute professional misconduct.

DECISION

Based on the supporting evidence, the Agreed Statement of Facts and Guilty Plea and the submissions made by counsel, the Committee recognizes that the facts presented support the allegations of professional misconduct and finds that the Member is guilty of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(11), 1(14), 1(15), 1(18) and 1(19), as indicated in the Notice of Hearing.

REASONS FOR DECISION

The Committee accepted the Member’s Agreed Statement of Facts and Guilty Plea, as set out in the Agreement.

The Member admitted the truth of the facts in paragraph 3 of the Agreement.

Specifically, the Member accepted the facts at issue in paragraph 3 and the elements set out in clauses a), b), e), f) and h) of the Joint Statement of Facts in the Agreement as reproduced above.

The Member did not contest using inappropriate vocabulary in front of students.

The Member did not contest the fact that he failed to meet the deadlines for the submission of generic comments on the report cards and for the submission of weekly planning as set out in the improvement plan submitted on January 8, 2009.

The Committee found that the Member’s professional conduct was inappropriate when he did work of his own during a teaching period.

The Joint Statement of Facts sets out facts constituting professional misconduct which the Member did not contest. These elements are all serious breaches of his responsibility as a teacher in terms of ensuring students’ supervision and safety. The Member failed to comply with the explicit standards for the teaching profession.

JOINT SUBMISSION ON PENALTY

The Ontario College of Teachers and the Member jointly submitted in the Joint Submission on Penalty (Exhibit 4) that the appropriate penalty to be imposed by the Committee would be that the Committee:

1. direct the Member to appear before the Discipline Committee within six months of the date of the hearing on this matter, that the Committee administer a verbal reprimand and that this fact be recorded on the public register;

2. direct the Registrar to impose the following conditions and limitations on the Member’s Certificate of Qualification:

(a) that within one year of the date of this order, the Member must, at his own expense, enrol in a course equivalent in length to an Additional Qualification course. This course should focus on lesson planning, classroom management, student assessment and evaluation and record-keeping, and should be approved in advance by the Registrar;

(b) that within 30 days of completion of the course, the Member must provide the Registrar directly with proof of successful completion of the course.

3. direct that the decision and order be published in summary form in the next regular issue of Pour parler profession/Professionally Speaking.

4. The parties failed to reach agreement as to the matter of the publication of the Member’s name.

SUBMISSIONS AS TO PUBLICATION

Notwithstanding the consensus on the elements referred to, the parties failed to reach agreement as to the matter of the publication of the Member’s name. Submissions on this issue were made to the Committee:

1. Counsel for the Member submitted that the Member agreed to publication of the findings of this hearing and of the order, but asked that his name not be included. She argued that publication in summary form without the Member’s name would have the effect of informing the members of the teaching profession and the general public. She added that, in relation to the incidents for which the College might possibly penalize the conduct of one of its members, the incidents in this matter could be considered less serious.

2. Counsel for the College urged the Committee to publish the Member’s name, arguing that because this hearing is open to the public, and the findings will be available to the public and the members of the teaching profession, the Member’s name should be included in the summary to demonstrate transparency and openness. Counsel added that, if the order were to carry the weight necessary to impress on the Member the seriousness of the Committee’s decision, it would need to fulfil two functions: to serve as a specific deterrent for the Member (the reprimand and publication of the Member’s name in Pour parler profession/Professionally Speaking) and to have a remedial effect (the Additional Qualification course), and that a reprimand alone was not enough to impress on the Member the seriousness of this conduct, which the Committee deemed inappropriate.

PENALTY AND ORDER

The Committee accepted the Joint Submission on Penalty and made the following order as to penalty:

1. The Discipline Committee directs that the Member appear before the Committee within six months of the date of the hearing of this matter, that the Committee administer a verbal reprimand and that this fact be recorded on the public register.

2. The Discipline Committee directs the Registrar to impose the following conditions and limitations on the Member’s Certificate of Qualification:

(i) that within one year of the date of this order, the Member must, at his own expense, enrol in a course equivalent in length to an Additional Qualification course. This course should focus on lesson planning, classroom management, student assessment and evaluation and record-keeping, and should be approved in advance by the Registrar;

(ii) that within 30 days of completion of the course, the Member must provide the Registrar directly with proof of successful completion of the course.

3. The Discipline Committee directs that the decision and order be published in summary form in the next regular issue of Pour parler profession/Professionally Speaking, including the Member’s name as it appears on the public register.

REASONS FOR DECISION AND ORDER

The Committee accepted the Joint Submission on Penalty for the following reasons:

The Committee considered the fact that the penalty is intended to protect the public interest, uphold the standards of the teaching profession and promote public confidence in the teaching profession.

The Member engaged repeatedly in inappropriate conduct, in a variety of situations.

His conduct demonstrated a lack of professionalism and a lack of commitment to his students.

The reprimand administered by the Committee to the Member and the fact that it will be recorded on the public register will serve as a general deterrent, that is, it is intended to dissuade members of the teaching profession from behaving in a similar manner. It will also serve as a specific deterrent for the Member and is designed to impress on him the gravity of his actions, which are inconsistent with his obligations as a member of the teaching profession.

In the Committee’s estimation, the course on lesson planning, classroom management, student assessment and evaluation and record-keeping will assist the Member in understanding the nature of the conduct that resulted in the professional misconduct, and will ensure that such conduct is not repeated in future.

The Committee considered the arguments of counsel for the Member against publishing the Member’s name in Pour parler profession/Professionally Speaking. It accepts the statement in the Agreement to the effect that the Member engaged repeatedly in inappropriate conduct, in a variety of situations, and considers that this conduct warrants the publication of his name. It therefore directs that the Committee’s findings and order be published in summary form in Pour parler profession/Professionally Speaking, including the Member’s name. This order will serve as a specific deterrent for the Member and as a general deterrent for the members of the teaching profession as a whole. Such publication will also demonstrate to the public that the College does not condone such behaviour and that it is the College’s duty to curb all misconduct of this kind.

The Committee finds that the penalty is appropriate in the circumstances and that it serves and protects the public interest.

April 11, 2013

Vicki Shannon, OCT Chair, Discipline Panel

Robert Gagné, Member, Discipline Panel

Louis Sloan, OCT Member, Discipline Panel