Ontario College of Teachers v Gal, 2014 ONOCT 40

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Gal, 2014 ONOCT 40

Date: 2014-05-20

IN THE MATTER OF the Ontario College of Teachers Act, 1996 (the “Act”) and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Eleonora Gal, a member of the Ontario College of Teachers

PANEL: Robert Gagné, Chair Louis Sloan, OCT Marie-Louise Chartrand

BETWEEN: )

) Alyssa Brierley,

) Legal Counsel,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

• and - )

) Susan Luft,

ELEONORA GAL ) Ontario Secondary School Teachers’ (CERTIFICATE # 205648) ) Federation,

) for Eleonora Gal

) Paul Marshall,

) Emond Harnden LLP,

) Independent Legal Counsel

) Heard: May 20, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 20, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated June 13, 2013 was served on Eleonora Gal (the “Member”) requesting her presence on June 21, 2013 to set a date for a hearing and specifying the charges. The hearing was subsequently set for May 20, 2014.

The Member was in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated June 13, 2013 (Exhibit 1) are as follows:

IT IS ALLEGED that Eleonora Gal is guilty of professional misconduct as defined in subsection 30(2) of 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 released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

(c) she abused a student, or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(d) she abused a student, or students, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) she failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(f) 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);

(g) 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);

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

Counsel for the College and Counsel for the Member requested the withdrawal of allegation (b) of the Notice of Hearing, namely subsection 1(6) of Ontario Regulation 437/97. The Committee granted this request, and the allegation was subsequently withdrawn.

College Counsel tendered the Membership Information for Eleonora Gal (Exhibit 2), which indicates that the Member has held a Certificate of Qualification and Registration since 1993 and that she was registered with the College during the period of the alleged events.

MEMORANDUM OF AGREEMENT

Counsel for the College advised the Committee that an agreement had been reached between the parties and introduced a Memorandum of Agreement dated December 11, 2013 (the “MOA”) (Exhibit 3), which provides as follows:

Agreed Statement of Facts

The parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed and agree to the receipt of this document by the Discipline Committee.

1. At all material times, the Member was employed by the Peel District School Board (the “Board”) as a teacher at [XXX] School (the “School”).

2. Eleonora Gal is a member of the College in good standing.

3. The Board received complaints from students and staff concerning the Member’s conduct during the 2011-2012 school year.

4. During the 2011-2012 school year, the Member made a number of inappropriate comments to students and staff.

5. The Member’s comments included culturally inappropriate statements, such as asking a student if they had eaten at a Chinese restaurant after they said they had food poisoning.

6. The Member also demeaned students and their work. As an example, she called students’ work “trash” or “garbage.”

7. Furthermore, the Member made inappropriate remarks to, and about, her colleagues, including stating that other teachers were “idiots” and that what they had taught students was completely “wrong.”

8. The Member left an assigned duty of supervising a physical education class with only a teaching assistant present.

9. On January 19, 2012, the Member was assigned to home with pay and advised during this time, to have no contact with staff, parents or students within the school community. During her Board interview, the Member admitted she had spoken via the telephone and email to two staff members after being advised to have no contact with staff or students while assigned to home duties.

10. On June 20, 2012, the Board provided a Letter of Discipline to the Member.

11. On September 11, 2012, the Member submitted notice to the Board that she will retire effective September 30, 2012.

PLEA OF NO CONTEST

12. By this document, the Member admits, for the purpose of this proceeding only, the truth of the facts and the exhibits referred to in the Agreed Statement of Facts, above.

13. The Member agrees that she pleads no contest to the allegations of professional misconduct as alleged in the Notice of Hearing, issued on June 12, 2013.

14. The Member voluntarily enters into a plea of no contest, and understands that by doing so, she is waiving the right to require the College to prove the case against her and the right to a contested hearing.

15. The member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under the protection of the Evidence Act, R.S.O 1990, Chapter 12, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, Chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal, or administrative proceeding.

Joint Submission on Resolution

The Parties agree to resolve the matter as follows:

16. the Parties agree and undertake that upon ratification of this MOA, there shall be no further action taken, no appeal of any or all of the terms of this agreement, and no application for judicial review, providing the terms of this MOA are adhered to;

17. the Parties agree and understand that if any phrase or paragraph of this MOA is deemed null and void, the MOA shall be read as though the phrase or paragraph that was stricken from the MOA and the amended MOA shall remain in force and effect;

18. the Member agrees and understands that upon ratification of this MOA, the Discipline Committee shall find her guilty of professional misconduct and she shall receive a reprimand from the Committee;

19. the Member shall appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the College’s public Register. The reprimand shall be delivered at the offices of the College located at 101 Bloor Street West, Toronto, Ontario;

20. the Member agrees and undertakes to, within 120 calendar days of ratification of this MOA or prior to seeking or engaging in employment where a certificate of qualification and registration is required, whichever is later, successfully complete, at her own expense, two or more courses of instruction, pre-approved by the Registrar, totaling at least 40 hours in length, covering:

(a) classroom management; and,

(b) cultural sensitivity.

21. the Member agrees and undertakes to provide the Registrar with written confirmation of her successful completion of these courses, prepared by the course practitioners, within 30 calendar days of completion;

22. the Member agrees and understands that for the purpose of considering this matter, the Discipline Committee will be provided with this MOA and the Notice of Hearing, which will be marked as Exhibits and will constitute the evidence upon which the plea of no contest will be accepted, the finding of guilt will be made, and the penalty will be imposed;

23. the Member agrees and understands that upon ratification of this MOA, a notation shall be placed on the Public Register, maintained by the Registrar, in accordance with section 23 of the Ontario College of Teachers Act, 1996. This information will also be contained on the Certificate of Qualification and Registration, public register, and Statement of Professional Standing. There may be amendments made to these documents and the Public Register to reflect this agreement between the Parties, including amendments to the Member’s Status, Status History and Terms, Conditions and Limitations;

24. the Member agrees and understands that the College shall publish a summary of the complaint and its resolution as contained in this MOA. Such publication shall be made in the College’s official publication, Professionally Speaking/Pour parler profession, on the College web site, and in any other manner the Registrar deems appropriate. The Discipline Committee shall determine whether publication shall include the Member’s name;

25. the Member agrees and understands that upon ratification of this MOA, the College shall make the Decision and Reasons of the Discipline Committee available for review by the public in the College’s Margaret Wilson Library, on the College’s website and in any other forum the Registrar deems appropriate;

26. the Member agrees and understands that upon ratification of this MOA, the College may submit a copy of the Decision and Reasons of the Discipline Committee to Quicklaw and/or any other on-line legal database;

27. the Member agrees and understands that this MOA is the entire agreement between her and the College and that there have been no oral or written representations made by the College as an inducement or threat to enter into this MOA; and,

28. each party may sign a separate copy of this MOA which, when so signed and delivered, shall be an original copy even though not signed by the other parties. All such separately signed copies shall together constitute evidence of all parties’ consent to be bound by this agreement.

DECISION

Having examined the exhibits filed, and based on the Memorandum of Agreement, the plea of no contest, and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the Memorandum of Agreement. The Committee finds that Eleonora Gal committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(11), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member agreed to the truth and accuracy of the facts contained in the MOA. The Committee accepts the MOA as well as the Member’s plea of no contest and finds the Member guilty of professional misconduct.

The Committee finds the Member has failed to maintain the standards of the profession and to adequately supervise students in her care. Her inappropriate remarks constituted verbal, psychological and emotional abuse. The Member has failed to comply with her duties in the Education Act, and her conduct was disgraceful, dishonourable, unprofessional and unbecoming a member of the College. By her actions, the Member has breached Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(11), 1(15), 1(18) and 1(19).

The Board received complaints from students and staff concerning the Member’s conduct during the 2011-2012 school year. During that same year, the Member made a number of inappropriate comments to students and staff. The comments included culturally inappropriate and demeaning statements to students. Furthermore, the Member made inappropriate remarks to, and about, her colleagues regarding their professional abilities. The Member left an assigned duty of supervising a physical education class with a teaching assistant present. The Member was assigned to home with pay and was advised to have no contact with the school community. She defied the directive and later admitted to have had communication with school staff members via telephone and email. At the end of the 2011-2012 school year, the Board provided a letter of discipline to the Member. In September 2012, the Member submitted notice to the Board that she would retire at the end of the month.

Teachers hold positions of trust and authority. It is important for teachers to establish strong, professional relationships with their students and colleagues. It is not acceptable for a teacher to make culturally inappropriate comments that demean students’ ability and potential, which could also be interpreted as racist. It is deplorable for a teacher to embarrass and belittle students and to make comments about colleagues describing them with derogatory terms and criticizing their professional competence.

Students have been victimized by the Member’s lack of judgment and hurtful remarks. Parents entrust to teachers the care of their children, and in her inappropriate interaction with students, the Member has disillusioned and disappointed parents, the profession and the greater public.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that the Member’s name should be published in the College’s official magazine Professionally Speaking/Pour parler profession.

College Counsel stated that publication with name serves three main goals: general deterrence to the profession at large, specific deterrence to the Member and assurance of transparency and accountability in the work of the Committee.

College Counsel acknowledged that specific deterrence does not represent a great concern, given that the Member has retired from teaching. However, Counsel stated that publication with name is still necessary to address the need for general deterrence. Ontario teachers should know that if they engage in behaviour similar to that of the Member, they will have to face the consequences.

Counsel for the College stated that an external review of the College’s investigation and hearings processes led to a recommendation that hearing outcomes always be published with the name of the member in question. The exceptions to this policy are instances where the member has not been found guilty or a court has ordered a publication ban of the member’s name. Counsel reminded the Committee that these two exceptions do not apply to the present case. College Counsel also highlighted that the Ministry of Education is attempting to pass legislation that would make publication with name mandatory in all instances of Discipline Committee guilty findings.

Counsel for the College presented a number of Discipline Committee decisions to support the College’s position that the Member’s name should be published. Certain cases demonstrated that the Discipline Committee has previously ordered publication with name in instances where a member has made inappropriate and culturally insensitive comments. Other cases indicated that the Discipline Committee ordered publication with name for acts on the lower end of the misconduct spectrum.

Counsel for the College concluded that publication of the Member’s name is warranted in this matter. Counsel stated that such a measure aligns with College policy, past Committee decisions and proposed legislative changes.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication of the Member’s name in the College’s official magazine, Professionally Speaking/Pour parler profession, was neither necessary nor appropriate in the circumstances.

Member’s Counsel stated that although College Counsel relied on proposed changes to legislation to make the case for publication with name, the current legal landscape gives the Committee the discretion to publish a matter with or without a member’s name.

Counsel for the Member asserted that publication with name would be of no value as the goals of deterrence, transparency and protection of the public interest have already been addressed by other elements of the resolution.

In support of this position, Member’s Counsel presented the Committee with previous Discipline Committee decisions. In a number of these decisions, the Discipline Committee determined that publication with name was not necessary to meet the goals of specific and general deterrence. The Discipline Committee stated in these decisions that publication of the facts and issues of the case without the name of the member in question could act as a general deterrent to the profession, while an oral reprimand could address the need for specific deterrence. Member’s Counsel also presented cases where the Discipline Committee ordered publication without name on the basis that publication with name would be unduly punitive to the member, given the circumstances and nature of the misconduct.

Counsel for the Member stated that publication of the Member’s name would indeed be unduly punitive, given the Member’s cooperation with the College, her retirement from teaching in 2012 and the fact that her retirement signals little risk of repetition. The Member’s misconduct was on the lower end of the scale, and as such, a reprimand would act as an appropriate specific deterrent. Furthermore, the finding of professional misconduct and the notation of the reprimand will remain on the College’s public register for three years, and this measure will serve the functions of transparency, openness and general deterrence.

Counsel for the Member also commented on the cases presented by the College, stating that they were not all relevant precedents as the conduct in some of these matters were different from the behaviour engaged in by the Member.

Reply Submissions of College Counsel

Counsel for the College recognized that recommendations resulting from an external review of the College’s processes is not law. However, Counsel stated that absent any clear guidelines in current legislation regarding publication, the Committee should look to the most recent policy directions. College Counsel stressed that most of the decisions presented by Member’s Counsel were made prior to the 2012 policy recommendation resulting from the external review.

RESOLUTION

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the College`s public register.

2. 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 and limitations to be recorded on the College’s public register until such time as they are fulfilled:

(a) Within 120 calendar days of ratification of this MOA or prior to seeking or engaging in employment where a Certificate of Qualification and Registration is required, whichever is later, the Member is to successfully complete, at her own expense, two or more courses of instruction, pre-approved by the Registrar, totaling at least 40 hours in length, covering:

(i) classroom management; and

(ii) cultural sensitivity.

(b) The Member is to provide the Registrar with written confirmation of her successful completion of these courses, prepared by the course practitioners, within 30 calendar days of completion.

3. The findings and orders of the Committee shall be published in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR RESOLUTION

The Committee carefully considered and accepted the Joint Submission on Resolution.

The Committee considered that the Member, although presently retired, could return to the classroom at any time. By requiring the Member to successfully complete courses in classroom management and cultural sensitivity, the Committee supports the intent of the MOA. The reprimand and the imposition of terms, conditions and limitations on the Member’s certificate is an appropriate resolution for conduct of this nature.

The Committee determined that arguments for non-publication were not sufficiently compelling to outweigh the need for openness and transparency of the discipline process.

Publication of the findings and order, with the Member’s name, responds to the need for transparency and accountability and serves the public interest, as well as informing the profession of the consequences of unethical behaviour. Publication, with the Member’s name, acts as a specific deterrent to the Member as well as a general deterrent to the profession as it sends a message to members that behaviour of this nature will result in publication with name in the College’s official magazine.

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

Date: May 20, 2014

Robert Gagné

Chair, Discipline Panel

Louis Sloan, OCT

Member, Discipline Panel

Marie-Louise Chartrand

Member, Discipline Panel