Ontario College of Teachers v. DeSantis, 2014 ONOCT 34

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v DeSantis, 2014 ONOCT 34

Date: 2014-12-15

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

Elisabetta Teresa De Santis, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair Jean-Luc Bernard, OCT

Wes Vickers, OCT

BETWEEN: ) David Leonard,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Law Clerk

• and – )

ELISABETTA TERESA DE SANTIS ) Howard Goldblatt,

(CERTIFICATE #429783) ) Sack Goldblatt Mitchell LLP,

) for Elisabetta Teresa De Santis

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: December 9, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on December 9, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated May 3, 2013 was served on Elisabetta Teresa De Santis (the “Member”), requesting her presence on June 19, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for December 9, 2014.

The Member was in attendance for part of the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing, dated May 3, 2013 are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

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

(e) 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

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

STATEMENT OF UNCONTESTED FACTS

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:

1. Elisabetta Teresa De Santis was at all material times a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab A is a copy of the Ontario College of Teachers Registered Member Information regarding the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an [XXX] teacher.

3. On or around February 2, 2012, the Member was assigned to teach at [XXX] School in a Grade [XXX] class. This class was attended by an [XXX] year-old male student (“Student A”) identified as an [XXX] student through the [XXX] process. Student A suffers from a [XXX] and requires [XXX] in the classroom, in the form of a [XXX].

4. When Student A took out his [XXX] in class, the Member asked Student A why he needed to use the [XXX]. The Member approached Student A and loudly said words that Student A and other students considered derogatory because they highlighted Student A’s [XXX].

5. After class, five students from the Member’s classroom approached the school principal and reported the Member’s comments to Student A. Attached to Exhibit 2 at Tab B is a copy of the statement from a student who witnessed the February 2, 2012 incident.

6. If the Member were to testify she would state that she had not been informed about Student A’s identification as an [XXX] student nor had she been made aware that he required an [XXX].

PLEA OF NO CONTEST

7. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 6 above (the “Uncontested Facts”).

8. The Member hereby acknowledges that the Uncontested Facts referred to above constitute conduct which is professional misconduct and does not contest the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.2), 1(15), 1(18), and 1(19).

9. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

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

(d) she understands 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) she understands 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) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

10. In light of the Uncontested Facts and circumstances and the plea of no contest, 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, 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 the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2) 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member acknowledged that the Uncontested Facts referred to above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct against her. The Committee accepted the Member’s plea and the facts contained in the Statement of Uncontested Facts and Plea of No Contest.

On or about February 2, 2012, the Member was teaching a grade [XXX] class that was being attended by Student A who was identified as an [XXX] student. Student A suffers from a [XXX] and requires a [XXX] for classroom assistance.

The Member, when questioning Student A as to why he required a [XXX], used inappropriate language that Student A and other students in the class considered derogatory. Five students reported the incident to the principal and a written statement by one of the students expressed hope that the Member would never teach in the school again.

The Member’s statement that she was not informed about the [XXX] of Student A is irrelevant. Appropriate and professional language is mandatory when communicating with all students. [XXX] school students are impressionable and the Member’s language and behaviour could have a lasting negative impact on her students.

The Committee found the Member’s conduct to be disgraceful, dishonourable and unprofessional.

In light of the Member’s behaviour, the Committee finds that the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2) 1(15), 1(18) and 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct the Member to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario. The parties have not agreed on whether or not the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”) and submissions will be made on this issue.

2. direct the Registrar to impose the following terms, conditions or 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:

(a) the Member shall enrol in and successfully complete at her own expense, within 90 days of the Decision of the Discipline Committee, a course of instruction pre-approved by the Registrar on classroom management and sensitivity to students with [XXX];

(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

3. direct that there be publication of the findings and Order of the Committee in summary form in the official publication of the College, Professionally Speaking/pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on this issue.

ADDITIONAL SUBMISSIONS ON PENALTY

Submissions of College Counsel

Counsel for the College argued that the requested penalty falls within the proper range for this type of misconduct. Counsel for the College submitted that the Member’s name should be published in Professionally Speaking/pour parler profession. Counsel for the College argued that publication with name promotes and fosters transparency, acts as a specific deterrent to the Member, and serves as a general deterrent to the profession. It was further submitted by College Counsel that publication with the Member’s name will remind the Member to never engage in this type of behaviour again.

College Counsel also made submissions on whether or not the fact of the reprimand should be recorded on the Register. College Counsel stated that the recording of the fact of the reprimand on the Register was warranted and appropriate as it forms part of the specific and general deterrence component of the penalty. College Counsel further submitted that the Committee has the authority to record the fact of the reprimand under Rule 30(5) of the Ontario College of Teachers Act and Section 25 and 26 of the Bylaws of the Ontario College of Teachers – December 5-6, 2013.

Submissions of Member’s Counsel

Counsel for the Member submitted that the Member’s name should not be published in Professionally Speaking/pour parler profession and the fact of the reprimand should not be recorded on the Register.

Counsel for the Member submitted that the Member was a day-to-day [XXX] teacher, with 14 to 15 years of experience and had no prior attendances before a Discipline Committee of the College. It was submitted that the Member’s ability to work could be adversely affected if the Member’s name were published and if the fact of the reprimand were to be recorded on the Register.

Counsel for the Member urged the Committee to exercise its discretion when deciding whether or not to publish with name and to record the fact of the reprimand on the Register, as it would affect the Member’s employability in the future.

Counsel for the Member submitted that publication without the Member’s name would still achieve the objectives of general deterrence without bringing unnecessary attention to the Member.

Reply Submissions of College Counsel

In reply, College Counsel submitted that there was no evidence before the Committee that publication with name and the recording the fact of the reprimand on the Register would make it difficult for the member to find employment. College Counsel further stated that the Member’s misconduct should not be hidden from potential employers or members of the public.

It was further stated by College Counsel that publication with name is clearly a deterrent. If it did not serve as a deterrent, arguments regarding publication with name would never arise.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member shall appear before the Committee, within 60 days of the date of the hearing (December 9, 2014), to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

2. The Registrar is directed to impose the following terms, conditions or 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:

(a) the Member shall enrol in and successfully complete at her own expense, within 90 days of the Decision of the Discipline Committee, a course of instruction pre-approved by the Registrar on classroom management and sensitivity to students with [XXX];

(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) the course provider has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

3. There shall be publication of the findings and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/pour parler profession.

REASONS FOR PENALTY DECISION

The Committee considered and accepted the Joint Submission on Penalty. The Committee agreed that a reprimand and a course on classroom management and sensitivity to students with [XXX] was the appropriate penalty for conduct of this nature.

On the consent of the parties, the Committee agreed to amend the original oral penalty decision within which the Member was to be reprimanded immediately following the hearing of this matter. The Committee’s penalty decision above reflects the agreed upon amendment allowing the Member to receive her reprimand within 60 days of the date of the hearing.

The reprimand of the Member by her peers in respect of her inappropriate conduct serves to emphasize the necessity to maintain appropriate professional standards. It will further remind the Member to uphold the standards of the profession and to not engage in conduct unbecoming a member. The fact that the reprimand will be recorded on the Register also serves as a specific deterrent to the Member.

The Committee recognizes that its authority to direct that the fact of the reprimand be recorded on the Register is discretionary. As in all other cases that the Committee is aware of, the Committee has determined that it is warranted to direct that the fact of the reprimand be recorded on the Register. Not a single case has been brought to the Committee’s attention where a panel of the Discipline Committee has not ordered that the fact of the reprimand be included on the Register. The decision to not record the fact of the reprimand on the Register should be made only in the most exceptional cases. While the Committee recognizes that it has discretion in this regard, it can imagine very few situations where the fact of the reprimand should not be recorded on the Register. Where the conduct that the member engaged in warrants a reprimand, the Committee is of the opinion that it will generally also be warranted to record the fact of the reprimand on the Register.

The recording of the fact of the reprimand on the Register is important. It serves as a deterrent to the Member, the profession and the public at large. Penalty decisions made by Disciplinary Committees should be transparent and should not be withheld from the profession or the general public.

The Committee further finds that the recording of the fact of a reprimand on the Register serves to inform the public that the College has appropriately disciplined members of the profession who conduct themselves in an unprofessional manner.

Members of the profession must be aware of expectations regarding professional behaviour and the consequences of engaging in unprofessional conduct. The Member’s behaviour indicated a lack of understanding of student sensitivities and appropriate classroom management. The course in classroom management and sensitivity to students with [XXX] will clarify for, and reinforce for the Member the need to maintain appropriate professional conduct. The course will assist in the process of remediation and rehabilitation of the Member.

Publication of the findings and order of the Committee, in summary, with the name of the Member, in Professionally Speaking/pour parler profession provides both a specific deterrent to the Member and a general deterrent to the profession, and also serves the public interest.

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

Date: December 15, 2014

Robert Gagné

Chair, Discipline Panel

______________________________ Jean-Luc Bernard, OCT

Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel