Discipline Committee of the Ontario College of Teachers
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 Kirk Devon Johns, OCT, a member of the Ontario College of Teachers.
PANEL: John Tucker, Chair Louis Sloan, OCT Wes Vickers, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Shane D’Souza McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Law Clerk
-and-
KIRK DEVON JOHNS (CERTIFICATE #421227) Howard Goldblatt & Heather McConnell, Sack Goldblatt Mitchell LLP, for Kirk Devon Johns
Marc Spector, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: March 21, 2013, September 13, 2013, April 25, 2014
DECISION AND REASONS FOR DECISION
The present matter deals with the physical treatment of young students and raises issues regarding the type of actions that constitute physical abuse.
BACKGROUND
In September 2006, Kirk Devon Johns (the “Member”) was hired to teach [XXX] at [XXX] School (the “School”). During the 2006-2007 school year, the School administration received complaints that the Member had used physical force to move or direct two students in his care. The School’s governing board, the Toronto District School Board, reported the Member’s alleged behaviour to the Ontario College of Teachers (the “College”).
Following an investigation by the College, the matter was referred to a hearing before the Discipline Committee, and the Member received a Notice of Hearing outlining the specific allegations brought against him.
The matter was heard by a panel of the Discipline Committee (the “Committee”) on March 21, 2013, September 13, 2013 and April 25, 2014. The Member was in attendance throughout the hearing.
At the hearing, the task before the Committee was to determine whether the Member’s actions constituted physical abuse and therefore, professional misconduct.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated June 29, 2011 (Exhibit 1) are as follows:
IT IS ALLEGED that Kirk Devon Johns is guilty of professional misconduct as defined in subsection 30(2) 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 abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he 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, subsection 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); and
(e) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Kirk Devon Johns (the “Member”) is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”).
At all material times, Student A was a male [XXX] student and Student B was a male [XXX] student in the Member’s class.
On or about November 15, 2006, the Member used physical force to direct Student A and/or dragged Student A across the floor.
On or about January 30, 2007, the Member:
(a) used physical force to direct Student B toward a table and to sit in a chair;
(b) lifted Student B under his arms and pulled him backwards towards the table and/or chair.
MEMBER’S PLEA
The Member denied the allegations of professional misconduct set out in the Notice of Hearing.
EVIDENCE
Counsel for the College submitted the Registered Member Information of Kirk Devon Johns (Exhibit 2), which confirms that the Member was registered with the College during the period of the alleged events.
As outlined in the Notice of Hearing, the College alleged that the Member had used physical force with students on two occasions. The first incident was alleged to have occurred in November 2006 and involved a [XXX] student, Student A. The second incident was alleged to have occurred in January 2007 and involved a [XXX] student, Student B.
College Counsel called Glen Hester (“Mr. Hester”) to testify regarding the November 2006 incident as Mr. Hester was the principal at the School at the time of the events. Member’s Counsel objected to Mr. Hester testifying to the November 2006 allegation, arguing that the principal’s evidence would be based on hearsay from Student A’s mother and that his testimony would not be supported by direct evidence at the hearing. In response, College Counsel asserted that Mr. Hester’s hearsay testimony was admissible and explained that the College was unable to contact Student A’s mother to have her testify (Affidavit of Daniela De Bartolo, Exhibit 6).
The Committee considered the positions of both parties and ultimately declined to admit Mr. Hester’s evidence regarding the November 2006 incident.
Mr. Hester did, however, testify regarding the January 2007 incident, as did Maria Dos Santos Martino (“Ms. Martino”), an Educational Assistant in the Member’s classroom at the time of the events.
Testimony of Ms. Martino, Educational Assistant
Ms. Martino has been an Educational Assistant with the Toronto District School Board since 1998. During the 2006-2007 academic year, she was employed at the School, where she assisted the Member with his [XXX] class. Ms. Martino testified regarding her experience in the Member’s classroom and in particular, spoke to an incident involving the Member and Student B.
Ms. Martino gave testimony that she met the Member on the first day of school in September 2006. At the beginning of the school year, Ms. Martino had a pleasant working relationship with the Member, and she was glad that the [XXX] students had a male teacher as this was not usually the case. In October, however, her relationship with the Member began to change. Ms. Martino needed to help the Member quite a bit. The Member did not have lesson plans for the class, so Ms. Martino ended up being the one to prepare them. Ms. Martino found herself doing a lot of the work that the Member should have been doing.
Ms. Martino testified that there was no structure in the Member’s classroom in that children would come into the room freely, would do whatever they wanted and would not listen to their teacher. Ms. Martino’s frustration with the situation culminated in an incident where she raised her voice at the Member. On this occasion, Ms. Martino was in the Member’s classroom and found it to be very chaotic. Students were rolling around; others were crying, and the room was very loud. Ms. Martino had enough, so she stood up from her desk at the back of the room and yelled, “What is going on?”.
At the time of the incident, the Member did not say anything in response to Ms. Martino’s outburst: Later, however, he went to see the principal, Mr. Hester about the incident, and Ms. Martino was subsequently called to Mr. Hester’s office. Mr. Hester asked Ms. Martino if she was okay to work in the same classroom as the Member, and Ms. Martino responded that she would put the incident behind her. Ms. Martino then went to the Member and apologized for her outburst, and they decided to continue working together as if nothing had happened.
Ms. Martino stated that on one occasion during the school year, she spoke to Mr. Hester about the Member’s [XXX] class, telling him that there was no classroom management in the Member’s room. Ms. Martino indicated to the principal that she was getting tired because she had to do everything in the class and even had to bring work home, which was not her job. Ms. Martino stated she could not handle the situation anymore and that there was no structure for the students.
Ms. Martino testified that on January 30, 2007, she observed an incident in the Member’s class involving the Member and Student B. Ms. Martino spoke to this incident using a diagram of the Member’s classroom (Exhibits 3 and 5).
On the day of the incident, at around 9:30 a.m., the students were settling down as it was time for them to begin their work. Student B did not want to work and continued to play with trains near the classroom windows. The Member repeatedly told Student B to go to his table and do his work, but Student B refused to do so and kept saying “no”. The Member walked towards Student B, but Student B started running around a table in the middle of the room. The Member approached Student B and tried to coach him into going to his table, but Student B eventually made his way back to the activity area near the windows, where he had originally been playing with trains. When Student B plopped himself down near the windows, the Member went over to him and tried to lift him by putting both his arms under Student B’s armpits. The Member had shoulder problems and ended up dragging the student for about fifteen to twenty feet to the nearest chair. It was a struggle for the Member to bring Student B to the chair as the student kept on moving around.
Ms. Martino testified that she was watching all this from her desk, and at this point, she had had enough. Ms. Martino stood up and asked the Member, “What are you doing?” The Member replied that he was trying to get Student B to do his work, and Ms. Martino stated, “He’s not going to do it because he wants to play”.
The Member had brought Student B to the chair and had his hands on Student B’s shoulders to sit him down in the chair. Student B began sliding down the chair to go under the table. At this point, Ms. Martino told the Member, “Enough”, to which the Member replied, “Yeah, I think so”.
Ms. Martino went under the table to see if Student B was alright. Student B told her that he was not hurt, and when Student B came out from under the table, Ms. Martino checked if there were marks on his shoulders and belly, as these parts of his body had been exposed when he was being dragged backwards. There were no marks, so Ms. Martino allowed Student B to go play for a short time so that he could calm down. After a little while, Ms. Martino went over to Student B and got him to finish his work.
At the end of the day, at 3:15 p.m., Ms. Martino reported the incident to Kelly Francis (“Ms. Francis”), a [XXX] teacher at the School. Ms. Francis told Ms. Martino to speak to Mr. Hester, and Ms. Martino and Ms. Francis spoke to the principal about the matter the next morning. Mr. Hester asked Ms. Martino to record the events in writing, so Ms. Martino prepared a written summary of the incident (Exhibit 4) and provided it to Mr. Hester.
Ms. Martino testified that the Member was present in his classroom the morning after his incident with Student B. After lunch, however, Mr. Hester told Ms. Martino that there would be a new teacher for the afternoon class. After school that day, Mr. Hester requested that Student B be brought down to his office. Mr. Hester asked Student B if he was okay, and Student B replied that he was fine.
Cross-examination
During cross-examination, Ms. Martino acknowledged that she was a general Educational Assistant and indicated that she had no specific training as a designated early childhood educator. Any training Ms. Martino did have was acquired through watching the teachers she worked with, and she had no specialized training with respect to classroom management and difficult students.
Ms. Martino recognized that her report to the principal regarding the Member’s physical treatment of a student on January 30 was the first of that kind about the Member. She indicated that she had previously spoken to the principal about the Member because the Member’s students were “sad and unhappy”. As for how the Member had physically related to students, Ms. Martino indicated that the event in question was the first time she had been concerned.
Ms. Martino acknowledged that although the physical incident involving the Member and Student B occurred between 9:30 and 10:00 a.m., she did not speak to anyone about the incident until 3:15 p.m., six hours after the incident. Ms. Martino indicated that she first reported the matter to Ms. Francis and that she and the other teacher then reported it to Mr. Hester the following day. Ms. Martino stated that the incident had been different than anything else she had seen before, so she sought advice from a respected teacher first. When Member’s Counsel asked Ms. Martino why she had not gone directly to the principal at the earliest opportunity to ask for assistance, the witness responded that she did not know why she did not proceed in this fashion. Ms. Martino confirmed that the Member was removed from the class after she spoke to Mr. Hester.
Ms. Martino testified that she had previously had some problems with the Member regarding classroom management. Ms. Martino cited an incident in which the class was chaotic and the children were not listening. Ms. Martino testified that in front of students she yelled, “What is going on? Why are these children screaming and rolling around? Someone is going to get hurt”. Ms. Martino confirmed that the Member did not yell back at her during this incident, nor did he lose his temper with any of the children that day. Ms. Martino stated that following her outburst, she was spoken to by Mr. Hester. Ms. Martino and the Member agreed to put this incident behind them and had both tried to take control of the difficult class. However, in spite of their combined efforts, things did not improve.
Ms. Martino testified that Student B, the child who was involved in the January 2007 incident was a “needy child”. She described him as a student who was “extremely shy, doesn’t say very much, very angry”. Although Ms. Martino described Student B as an angry child, she also indicated that he could have an excellent day or a terrible day. Ms. Martino testified that prior to the January 2007 incident, Student B had been removed from the class a few times because of his conduct and concerns that he would act out against other children. The witness acknowledged that the student had been recognized as a potential danger to other children and to himself.
Ms. Martino agreed with Member’s Counsel that an example of this potential danger was Student B’s tendency to run around the class when he became upset. Although Ms. Martino did not think Student B would purposely harm other children, she acknowledged that he could physically interact with other students and be a threat to them when he was running around.
When asked by Member’s Counsel if the Member would have then considered Student B to have been a potential threat to himself or to other children during the January 2007 incident, Ms. Martino replied that this was possible. Ms. Martino also acknowledged that her earlier concerns about the Member’s classroom were related to his lack of control and that the Member’s treatment of Student B during this incident was an attempt to control the student.
When questioned as to whether the Member raised his voice at all during the incident, Ms. Martino responded that Student B was getting loud so the Member started to yell as well. Counsel for the Member asked Ms. Martino to review her written account of the incident (Exhibit 4) and identify where she noted a reference to the Member yelling. In reviewing her account, Ms. Martino recognized that she had only recorded that the student had yelled and did not indicate that the Member had raised his voice. The witness explained, however, that her account was just a summary.
With respect to the Member’s physical interactions with Student B during the January 2007 incident, Ms. Martino confirmed that the Member put his hands under the student’s armpits, partially lifted the child and dragged him from one point to another. She recognized, however, that at no time did the Member grab Student B, and Student B’s feet never came off the ground. Ms. Martino testified that the way that Member lifted the child by putting his arms under Student B’s armpits was the correct way to move a child. She agreed with the description that the student was resistant and that he kept pushing and kicking. Ms. Martino described Student B as a heavy child and explained that since the Member had suffered a shoulder injury, he was unable to lift Student B up. Ms. Martino agreed with Member’s Counsel that the Member had not used excessive force when moving Student B from one point of the classroom to another.
Ms. Martino testified that after moving the child, the Member put Student B in a chair, but Student B then slid under the table. At this point, Ms. Martino intervened, telling the Member, “Enough is enough”. Ms. Martino stated that at the time, there was no way of controlling the student. The witness explained that in order to control Student B, an educator would have to start managing him when he arrived in the morning. This procedure was how the student had been managed since the beginning of the school year, including the difficult days, and with Ms. Martino’s help. Ms. Martino indicated that the Member was already aware of how Student B was.
After Student B slid under the table, the Member left Student B there, while Ms. Martino went under the table to check on the child. Ms. Martino stated that she checked for marks on Student B’s arms, belly and shoulders but indicated that the student presented no marks on his skin, even though it was just seconds after the incident. Ms. Martino confirmed that following her examination, Student B played with trains before going back to his table and doing the work the Member had wanted him to do.
At the end of cross-examination, Ms. Martino confirmed that she had never witnessed a teacher dragging a student before.
Re-examination
When asked by College Counsel whether the events of January 30, 2007 were exceptional in that it was the first time that Student B had run around, acted out or refused to comply with instructions, Ms. Martino replied that this was not the first time Student B had acted in this manner. Since this behaviour was usual for Student B , Ms. Martino did not feel that he was a threat to other children at the time of the incident.
Ms. Martino also spoke to her written account of the incident (Exhibit 4), stating that while she had not been given a time limit to write the summary, the document did not contain every single detail that she recalled of the event.
Testimony of Mr. Hester, Former Principal at the School
Mr. Hester is a member of the College and was able to verify that the document entitled Registered Member Information of Glen Hester accurately reflected his educational background and academic qualifications. Mr. Hester was the principal at the School during the 2006-2007 school year.
The Parties agreed that as the Member was prepared to accept the totality of the evidence provided by Ms. Martino, Exhibits 8-11 would be accepted subject to argument. Counsel for the College stated that this evidence was in lieu of testimony from Mr. Hester, and that Mr. Hester would provide context for each exhibit. Counsel for the College introduced each exhibit.
Exhibit 8 – Initial reporting of the incident by Ms. Martino
Ms. Martino indicated to Mr. Hester that the Member had taken Student B by the arms and dragged him across the room, while the student was refusing to leave an activity. The student’s shirt had come up to his neck, exposing his abdomen and chest. Ms. Martino said to Member that that was “enough", and Student B returned to play at the activity area. Mr. Hester asked if there was anything Student B had done to upset the Member, and Ms. Martino replied that the child had not done anything to upset the Member, apart from his refusal to go to the workstation.
Exhibit 9 – interview with Ms. Martino January 31
Ms. Martino told Mr. Hester that the incident had taken place on January 30, at 9:30 a.m. Present in the classroom were the Member, Ms. Martino and a number of children, and the children witnessed the incident. Ms. Martino reported to Mr. Hester that the Member took Student B under the arms and dragged him backwards to a table. Student B’s shirt came up to his neck while being pulled toward the table. Student B tried to “fight off” the Member and tried to wiggle out of the chair. Ms. Martino stated that she then said to the Member, “Enough is enough. Let him go”. The Member looked at Ms. Martino and said, “Yeah, maybe I shouldn't force him”.
Exhibit 10 – interview with Student B
The interview took place in the principal’s office on January 31, at 4:00 p.m., and Ms. Martino was present during the meeting.
Mr. Hester asked Student B how he thought things were going at school, and the student replied that things were “good”. When questioned as to whether anything special had happened the day before, Student B responded “no”. When questioned as to whether the Member had become angry with him the day before, Student B also responded “no”. Mr. Hester asked the student if everything was fine and good, and Student B replied that it was.
In testimony, Mr. Hester stated that he did not ask Student B specific questions regarding the allegations made by Ms. Martino as he did not want to give the student ideas about what had happened. Mr. Hester indicated that while Student B did not speak further about the incident, the investigation into the incident continued as Mr. Hester had information about the serious incident from Ms. Martino and the student was a [XXX] -year-old boy being asked about an incident that had occurred the day before.
Exhibit 11 – letter to the Member dated March 20, 2007
According to the letter, the investigation had substantiated that the Member physically dragged a student across the room and that the Member had used inappropriate physical discipline to attempt to force a student to sit in a chair. As result of the behaviour, the Member was suspended for ten days without pay, moved to another school for the remainder of the academic year, placed into a vacancy at another school for the following year and was required to attend professional development training on effective classroom anger management strategies.
Member’s Counsel submitted that the principal’s letter to the Member (Exhibit 11) was "not evidence of anything". Counsel for the Member stated that while the letter may refer to the November 2006 allegation, the Committee has no direct evidence in this regard.
In response to the statements of Member’s Counsel, College Counsel indicated that although the Committee did make a decision barring Mr. Hester from testifying to the first allegation occurring in November 2006, the College intended to argue that the November allegation played a role in the discussion of Ms. Martino’s report of the January 2007 incident. College counsel indicated that Mr. Hester recognized a pattern on the part of the Member and that the Committee should rely on this pattern just as Mr. Hester had relied on it.
Cross-examination
During cross-examination by Member’s Counsel, Mr. Hester indicated that he interviewed Ms. Martino regarding the January 2007 incident (Exhibit 9) before interviewing Student B about the matter (Exhibit 10).
Although Mr. Hester had previously stated in his testimony that he had not asked Student B about specific allegations as he did not want to influence the student’s responses, Member’s Counsel asserted that asking Student B whether the Member got angry was indeed a suggestion. The witness replied to this assertion, stating he had asked this question to see whether it would elicit a response from Student B. When there was no response, Mr. Hester stopped questioning.
When Member’s Counsel stated that Mr. Hester had therefore tried to trigger a response, the witness indicated that he simply wanted to give the student an opportunity to respond.
When questioned about his letter to the Member (Exhibit 11), Mr. Hester confirmed that he wrote the letter under the direction and advice of Mr. Ian Allison, a school board superintendent.
SUBMISSIONS ON FINDING
Submissions of College Counsel
Counsel for the College stated that the present case relates to incidents of physical abuse occurring in November 2006 and January 2007. College Counsel stated that the Member has conceded to the evidence presented by the College, and as such, credibility is not an issue in this case.
Counsel for the College conceded that, given the Committee’s prior ruling to bar Mr. Hester from testifying to the November 2006 incident, the College has not called direct evidence to prove this allegation. College Counsel indicated, however, that the College did not intend to withdraw this allegation
With regard to the January 2007 incident, College Counsel submitted that this allegation was supported by direct evidence from Ms. Martino. As the Member did not testify, Counsel for the College stated that the Member has not contradicted the evidence of Ms. Martino. Counsel argued that, if anything, the Member has accepted her evidence.
Counsel for the College spoke to Ms. Martino’s credibility as a witness, stating Ms. Martino is an Educational Assistant, has worked with many teachers and is dedicated and respected. The Member has conceded that Ms. Martino did not fabricate her story, and there was no suggestion that she "had an axe to grind". College Counsel stated that the witness has provided the Committee with her recollection in 2013 about events that occurred in January 2007. Counsel for the College stated that it was an important factor that while her recollection was not perfect, she had the assistance of her own written summary of the incident (Exhibit 4) as well as Mr. Hester’s interview notes (Exhibit 9).
Counsel for the College summarized Ms. Martino’s evidence. The witness testified that on the morning of January 30, while other students were doing art, the Member had asked Student B to go to the art table, but the child did not comply with this instruction. The Member walked over to Student B, and following a verbal exchange, dragged the student from the activity area to the table. The witness recalled the Member sliding his arms under Student B’s armpits and dragging the student backwards for fifteen to twenty feet to get him to the table. Student B struggled, and his shirt came up, exposing his abdomen. The Member forced the student to the chair exerting pressure on his shoulders as the child struggled and slid under the table. College Counsel noted that Ms. Martino was not passive at the time as she had asked the Member to stop, saying "enough is enough". While Ms. Martino did not find any injuries on Student B, College Counsel argued that it is telling that Ms. Martino was compelled to check whether the student had been hurt.
Counsel for the College asserted that Ms. Martino’s version of the events is consistent with her notes and summary of the incident, and her account has remained consistent with the passage of time. College Counsel reiterated that there is no dispute that the Member slid his arms under the child and moved the struggling student fifteen to twenty feet. Counsel stated that such action and physical exertion on a student constitutes physical abuse and is therefore professional misconduct.
College Counsel submitted that, based on Ms. Martino’s unchallenged evidence, the Committee should find the Member guilty of professional misconduct for having engaged in physical abuse and for having breached regulations.
Submissions of Member’s Counsel
Counsel for the Member expressed concern regarding the College’s characterization of physical abuse. Member’s Counsel reminded the Committee that the allegations in the Notice of Hearing do not refer to physical abuse, but rather physical force, which are two different things.
Although Counsel for the Member did not dispute that the Member physically moved Student B as per the evidence of Ms. Martino, Counsel argued that the Member had acted appropriately, given the circumstances of real and imminent concern for student safety. The Member used no more force than necessary.
Member’s Counsel submitted that Ms. Martino, as an Educational Assistant, has no training with regard to special education. As such, even if Ms. Martino did not view the Member’s interaction with Student B to be appropriate, Counsel argued that the Committee should not second guess imminent safety concerns to be professional misconduct as opposed to prudent activity, seven years after the alleged incident.
With regard to the November 2006 incident, Counsel for the Member argued that there is no evidence to establish this allegation. Member’s Counsel stated that the College cannot attempt to use the 2006 incident to colour the Committee’s view of the 2007 incident. Counsel for the Member stated that the College should have withdrawn the November 2006 allegation, but it did not, hoping to impact the considerations of the Committee.
With regard to the January 2007 incident, Member’s Counsel stated that the Member accepted the evidence of Ms. Martino, indicating that there is no dispute as to where Student B was moved in the classroom. Counsel for the Member noted, however, that the witness did not testify to the Member using force to push Student B’s shoulders to have him sit in the chair. The student went under the table not because he was pushed but because he slid down the chair himself.
Counsel for the Member stated that in cross-examination, Ms. Martino admitted that this 2007 incident was the first time she had any concerns about the Member’s physical treatment of students. She stated that he had put his hands under the armpits of Student B and moved the student to a chair. Ms. Martino had indicated that the student was difficult, had to be removed from class at times, and there was worry that he was a danger to himself and other students. The child was disruptive and had physical interactions with other students. Ms. Martino further confirmed that the Member had tried to control Student B in the situation.
Member’s Counsel reminded the Committee that there was no mention in Ms. Martino’s summary notes that the Member yelled during the incident. Further, when asked if the Member had used excessive force, the witness had replied that he had not. Member’s Counsel questioned how the Member’s actions could constitute physical abuse when there were no marks at all on Student B’s body when Ms. Martino examined him immediately following the incident.
Counsel for the Member disagreed with some of the content found in the College’s documentary evidence. Member’s Counsel spoke to the summary of Ms. Martino’s initial report to Mr. Hester about the January 2007 incident (Exhibit 8), stating that the second paragraph of the document was not an accurate reflection of the incident. Counsel also argued that many of the bullet points in Mr. Hester’s notes from his interview with Ms. Martino (Exhibit 9) differed from Ms. Martino’s testimony at the hearing. As for Mr. Hester’s notes from his interview with Student B (Exhibit 10), Member’s Counsel stated that the document demonstrates that from the child’s perspective, everything was fine. Even when Mr. Hester asked Student B whether the Member got angry with him, Student B replied that he had not.
Counsel for the Member acknowledged that Ms. Martino’s summary of the 2007 incident (Exhibit 4) did not differ significantly from her testimony at the hearing. However, Counsel stated that the statement does not reflect the danger or safety concerns. Physical force was used in real apprehension of danger and was not disproportionate. The force used was not pursued beyond appropriateness, and the Member proceeded in a proper way, given that the child was a known threat to himself and others. There was a prospect of student harm if the Member did not intervene.
Counsel for the Member submitted that, seven years after the incident, the Member should not be disciplined for professional misconduct and asked the Committee to dismiss the two allegations against the Member.
Reply Submissions of College Counsel
Counsel reminded the Committee that this case was about physical abuse as shown in the Notice of Hearing on page one. This case did relate to abuse, of that there was no question.
Counsel asked the Committee to examine the transcript regarding Ms. Martino saying a child was at risk to see if the comment was specific to the incident or was a generality. He reminded the Committee to be skeptical of a suggestion that the right thing to do where children are at risk is to drag a student to a table with other children – to take a danger to other children. He submitted that a force proportionate to the danger is an attack on a student. He questioned did Ms. Martino accept that a student was posing a danger to others?
Counsel submitted that while the Member has Special Education training and Ms. Martino did not, this case is not about Special Education rules, this is about [XXX] year olds.
As to allegation # 1, the College is not withdrawing. Counsel submitted that they are not obliged to remove this allegation as evidence exists – although it had been ruled otherwise by the Committee. He stated that allegation # 1 proves a pattern that existed. Although Ms. Martino said the incident was the first time she had concerns, it was not the first time for Mr. Hester and that was the point.
Counsel for the College clarified his position with regard to Exhibits 4, 8, 9, and 10, stating that the testimony evidence was consistent with the Exhibits.
He concluded by stating that an experienced Educational Assistant would have recognized if students were in danger, and if so she would not have complained.
DECISION
Onus and Standard of Proof
The College bears the onus of proving the allegations in accordance with the standard of proof, with which the Committee is familiar, set out in F.H. v. McDougall, 2008 SCC 53. The standard of proof applied by the Committee in accordance with the McDougall decision was a balance of probabilities. As in all cases, the Committee looks for clear, convincing and cogent evidence.
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 does not find that the facts support a finding of professional misconduct.
The Committee does not find the College has proven the allegations of professional misconduct with respect to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(15), 1(18) and 1(19). The particulars addressed in the allegations do not support a finding of professional misconduct. Accordingly, these allegations are dismissed.
REASONS FOR DECISION
The Committee carefully considered the allegations, the College’s evidence and the submissions made by Counsel. The Committee did not find the Member guilty of any of the allegations set forth in the Notice of Hearing.
With respect to particular 4 of the Notice, the Committee did not receive direct evidence regarding the allegation that the Member used physical force to direct or drag Student A on November 15, 2006. The College has not proven its case in this regard.
As for particular 5 of the Notice, which alleges that the Member used physical force to direct and drag Student B on January 30, 2007, the Committee finds that the Member did use force, but given the circumstances, not in such a way which would warrant a finding of professional misconduct.
The Committee found that it was possible that the Member was concerned about student safety as Student B was a potential threat to himself or other students. The evidence confirmed that the type of behaviour that was exhibited by Student B was a risk to Student B and to other students in the classroom. Furthermore, Student B previously had issues and had been withdrawn from the classroom environment.
The Committee finds that the Member did not use excessive force during this incident. Ms. Martino testified that the manner in which the Member moved the student was appropriate and did not demonstrate any excessive force. She further acknowledged that the Member had shoulder problems, and therefore, he could not pick the student up completely when he attempted to move him to a chair. When Student B was examined immediately after the incident, there were no marks on his body. The student then went to play and later finished the work that the Member had wanted him to finish. There was no immediate damage. Student B appeared to reintegrate into the school day, and the next day, when interviewed, the child expressed no concern regarding the incident.
It seemed that the Ms. Martino was uncertain about the inappropriateness of the event. There was a six-hour period between the incident and Ms. Martino’s first report. Even then, she went to another teacher, not the principal. Ms. Francis, who never witnessed the incident, was the one to tell Ms. Martino to talk to Mr. Hester. Ms. Martino agreed that during the incident on January 30, 2007, the Member was trying to manage Student B.
In conclusion, having considered the context and the circumstances in which the events of January 30, 2007 transpired, the Committee determined that the Member’s actions did not amount to professional misconduct.
Date: May 9, 2014
John Tucker Chair, Discipline Panel
Louis Sloan, OCT Member, Discipline Panel
Wes Vickers, OCT Member, Discipline Panel