Ontario College of Teachers v. Lalonde, 2014 ONOCT 55

Citation: Ontario College of Teachers v Lalonde, 2014 ONOCT 55

Date: 2014-02-27

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 Roger Lalonde, a member of the Ontario College of Teachers.

PANEL: Marie-Louise Chartrand, Chair Vicki Shannon, OCT Ruth Ann Penny, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Dina Awad, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Litigation Paraprofessional

– and –

ROGER LALONDE (CERTIFICATE #: 155717) Marie-Pierre T. Pilon, Nelligan O’Brien Payne LLP, for Roger Lalonde

Paul Marshall, Emond Harnden LLP, Independent Legal Counsel

Heard: February 27, 2014

REASONS FOR DECISION, DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 27, 2014 at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing dated May 9, 2012 was served on Roger Lalonde (the “Member”), requesting his attendance before the Discipline Committee of the Ontario College of Teachers on May 22, 2012 to set a date for a hearing. The hearing was subsequently set for February 27, 2014.

The Member was in attendance at this hearing.

ALLEGATIONS

The allegations against Roger Lalonde in the Notice of Hearing (Exhibit 1) dated May 9, 2012 are as follows:

IT IS ALLEGED that Roger Lalonde is guilty of professional misconduct and/or incompetence as defined in subsections 30(2) and 30(3) of the Act, in that:

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

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

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

At the hearing on February 27, 2014, College Counsel announced that the College intended to withdraw the allegation of incompetence set out in paragraph (c) above. The Committee accepted the withdrawal of this allegation.

AGREED STATEMENT OF UNCONTESTED FACTS

College Counsel advised the Committee that the College and the Member had reached an agreement on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (the “Agreement” – Exhibit 2), which provides as follows:

Roger Lalonde (the “Member”) is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix A is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Conseil scolaire de district catholique de l’Est (the “Board”) as a teacher at École secondaire catholique La Citadelle (the “School”) in Cornwall.
The Member was on medical leave of absence from November 12, 2002 until April 18, 2005. He returned to full-time teaching in September 2005.
During the time the Member was on medical leave, the Ministry of Education implemented a new curriculum and a new policy on the assessment of student achievement.
On December 6, 2005, the Member received his first unsatisfactory performance appraisal. The summative report of this appraisal is attached as Appendix B. The Principal of the school found the Member`s performance unsatisfactory and indicated a need for him to make improvements in his course planning, his knowledge of the program and his assessment of student achievement.
On March 30, 2006, the Member received a second unsatisfactory performance appraisal. The summative report of this second appraisal is attached as Appendix C.
In the months leading up to his third performance appraisal, the Member met several times with the Board’s Educational Services Consultant to become more familiar with the foundations of assessing student achievement.
The classroom observation that was to be a part of this third performance appraisal was scheduled for January 2010 but took place earlier than planned, that is, on November 25 and December 4, 2009, because the Principal was moving to a different school. Upon hearing that the Principal was leaving, the Member requested to have his appraisal carried out by another person. His request was denied.
On January 7, 2010, the Member received a third unsatisfactory performance appraisal. The summative report of this third appraisal is attached as Appendix D.
Following the third performance appraisal, the Board took the decision at a meeting held on January 26, 2010 to dismiss the Member.
The Member’s performance, as evaluated over the course of three written appraisals, showed the following breaches:

(a) Some of his assessments were not in the program and, in general, he lagged behind in meeting program expectations.

(b) He failed to submit monthly planning and to plan his instructional methods.

(d) He failed to demonstrate an adequate knowledge of the Ontario curriculum.

The Member disputed the Board’s decision to dismiss him by filing a grievance. While arbitration was under way, the Member decided to retire. The parties reached an agreement to resolve the grievance out of court.
Under the terms of this agreement, the Board changed the dismissal to unpaid leave, effective January 26, 2010. Following his retirement, the Member agreed that he would never request to return to the Board in any capacity whatsoever.
The Member has no intention of returning to teaching.

PLEA OF NO CONTEST

By this document, the Member pleads no contest to the accuracy of the facts and of the appendices referred to in paragraphs 1 to 14 above. The Member provides this plea of no contest to the allegation that, as indicated above, he committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(14) and 1(15).
The Member stated that:

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

(b) he understood that, by executing this document, he was consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

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

(d) he understood that an agreement between the College and himself with respect to the penalty does not bind the Discipline Committee; and

(e) he understood this agreement and was executing it voluntarily, unequivocally and with the benefit of legal counsel.

The Member provided this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of these proceedings under the Ontario College of Teachers Act 1996, S.O., c. 12, and for no other purpose. The Member’s plea of no contest does not constitute admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts referred to above and the Plea of No Contest, the College and the Member submit that the Discipline Committee should find that the Member’s actions constitute professional misconduct.

SUBMISSION OF COLLEGE COUNSEL

College Counsel submitted that the facts of this case support a finding of professional misconduct, and backed up her position by submitting three previous decisions of the Discipline Committee: the Stirling decision, the Joly decision and the Diallo decision.

In the Stirling case, the implicated teacher had received several unsatisfactory appraisals. At the hearing, the College requested that the allegation of incompetence be withdrawn and introduced an agreement in which the Member pleaded guilty to the allegations of professional misconduct. The Joly decision is another example of a legal precedent in which the College asked the panel to withdraw the allegation of incompetence and in which the teacher acknowledged that he was guilty of professional misconduct. As for the Diallo decision, this Member received three unsatisfactory appraisals and there was an agreement related to professional misconduct. In each of the three cases, the panel found that the facts of the matter demonstrated professional misconduct.

According to College Counsel, these previous decisions and the facts of this present case affirm the agreement of the parties and allow the Committee to find the Member guilty of professional misconduct.

SUBMISSION OF MEMBER’S COUNSEL

Member’s Counsel affirmed that the Member was guilty of professional conduct and submitted that the Committee accept the Agreed Statement of Uncontested Facts and Plea of No Contest.

DECISION

Having examined the Exhibits filed, and based on the Agreed Statement of Facts, the Plea of No Contest and the submission made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Roger Lalonde committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(14) and 1(15), as stated in the Notice of Hearing.

REASONS FOR DECISION

The Member did not dispute the accuracy of the facts referred to in paragraphs 1 to 14 of the Agreed Statement of Facts. He pleaded no contest to the allegation of professional misconduct, and specifically to breaches of Ontario Regulation 437/97, subsections 1(5), 1(14) and 1(15). The Committee accepted the agreement between the parties and the Member’s plea.

The Member’s performance as a teacher at École secondaire catholique La Citadelle in Cornwall was appraised three times during the 2005-2006 and 2009-2010 school years. On each appraisal, his performance was deemed unsatisfactory in the following areas: course planning, knowledge of the program and his assessment of student achievement.

The Committee therefore finds the Member guilty of professional misconduct.

JOINT RECOMMANDATION ON PENALTY

Counsel for the College and Counsel for the Member introduced a Joint Recommendation on Penalty (Exhibit 3), specifying the following:

The Ontario College of Teachers and the Member jointly stated that the penalty which should be imposed by the Discipline Committee is as follows:

(a) The Registrar is directed to impose the following conditions or limitations on the Member’s Certificate of Qualification and Registration and to ensure that these facts are recorded on the Public Register:

(i) Prior to accepting a teaching position that requires a Certificate of Qualification and Registration, the Member shall complete, at his own expense, a course of instruction equivalent in length to an Additional Qualification course, pre-approved by the Registrar. This course shall focus on lesson planning, classroom management, student assessment and record-keeping.

(ii) Within 30 days of the end of the course outlined above, the Member shall provide to the Registrar written proof that he has successfully completed this course.

(iii) Before resuming teaching, the Member must advise the Registrar of the date of his return to teaching, the name of his employer and the nature of his employment, at least 10 days prior to commencing such employment.

(iv) Following his resumption of teaching, the Member shall take all reasonable steps to ensure that his employer conducts two performance appraisals of him within 24 months from the start of his employment.

The Discipline Committee requires that a summary of its Decision, Reasons and Orders appear in Professionally Speaking/Pour parler profession in the regular course of publication of this magazine. The parties did not agree on whether or not the Member’s name should be included. Submissions will therefore be made to the Discipline Committee on this issue.
Through this document, the Member acknowledges his understanding that an agreement between the College and himself with respect to the penalty does not bind the Discipline Committee.

SUBMISSIONS ON PUBLICATION

Counsel for the College and Counsel for the Member each made submissions to the Committee on the issue of whether or not the Member’s name would be published.

Submission of College Counsel

Counsel began her submission with a presentation of the Joint Recommendation on Penalty, which indicates that the parties did not agree on whether or not the Member’s name would be published. She submitted that the Member’s name should appear in the official publication of the College, calling to mind the public nature of the proceedings, the principles of transparency and the public interest. She submitted that publication of the Member’s name would demonstrate the severity of his inappropriate conduct while also maintaining that it would have a remedial effect and serve as a deterrent. According to College Counsel, the penalty imposed by the Committee is supposed to be a deterrent to the Member and other members of the profession. Publication of the Member’s name would help to achieve this goal. She maintained that publication of his name is especially important because the parties have not asked the Committee to impose a reprimand.

Returning to the decisions presented in her submission on professional misconduct, College Counsel noted that, in each of the Stirling, Joly and Diallo cases, the panel ordered publication of the name of the implicated teacher and that, in Joly, the parties reached an agreement on the issue of publication.

In concluding her submission, College Counsel reiterated that it is both reasonable and appropriate for the Committee to publish the Member’s name in the official magazine, Professionally Speaking/Pour parler profession, and that, according to section 30(5), the Committee has the discretion to direct that its findings and orders appear in the College’s official publication with or without naming the Member.

Submission of Member’s Counsel

Counsel for the Member maintained that publication of the Member’s name in the official magazine, Professionally Speaking/Pour parler profession, is not necessary in light of the special circumstances of this case.

Stressing that the Member was on medical leave of absence for three years, Counsel pointed out that the Ministry of Education brought in significant changes to the curriculum during his absence from the education sector. When the Member returned to the classroom in 2005, there were new policies concerning teacher performance appraisals. Member’s Counsel maintained that the Member tried to improve his performance and succeeded in doing so. She asked the Committee to review Appendix C (attached to the agreement) and stated that this document makes reference to “observable progress” on the part of the Member. She reminded the Committee that the Member has retired and has no intention of returning to teaching. In light of these circumstances, she maintained that publishing the Member’s identity was not necessary.

According to Counsel for the Member, there is no presumption in favour of publication of the name because, according to the Act, the Committee may publish a Member’s name as the result of a finding of professional misconduct but nothing states that it is required to do so.

Member’s Counsel maintained that the conduct in question is related to difficulties experienced by the Member in meeting professional expectations and to the inappropriate purchase of materials, and that student safety was not compromised. She stated that the College’s mandate to protect students and the public interest was already fulfilled because the Member has undertaken not to return to the teaching profession.

In support of her position, Member’s Counsel submitted the Doucette decision to the Committee, a case in which a panel of the Discipline Committee was satisfied that publication without the name of the implicated teacher constituted an appropriate penalty. Given that Doucette involved the abuse of students, Counsel for the Member maintained that the Member’s conduct was considerably less grave than that of Doucette, and that the Committee should publish its Decision, Reasons and Orders without naming the Member.

Member’s Counsel, in response to the claims made by the College, submitted that the Stirling, Joly and Diallo decisions were not relevant legal precedents. In the Stirling case, students felt unsafe and, unlike the Member, who has already retired, Mr. Stirling continued his work in the classroom. In the same vein, the panel to which the Joly case was referred determined that Mr. Joly’s actions were disgraceful and dishonourable, that he used inappropriate vocabulary and that he committed reprehensible acts. In Diallo, the teacher abused the students and the case was linked to inappropriate discipline.

According to Counsel for the Member, these elements distinguish Stirling, Joly and Diallo from the Member’s case. She concluded that publishing the Member’s name had no merit and that doing so would risk tainting a career that was already over.

SUR-REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel responded to the representations made by Member’s Counsel. According to College Counsel, Doucette is different from the case before the panel. Mr. Doucette was involved in several isolated incidents while Mr. Lalonde’s difficulties extended over several years. In addition, the panel ordered that Mr. Doucette be reprimanded, concluding that this would serve as a deterrent.

Returning to the Stirling, Joly and Diallo decisions, College Counsel stressed that each of these three cases was linked to conduct that occurred over a period of time that was shorter than that of the difficulties experienced by the Member.

PENALTY AND ORDERS

The Committee accepts the joint recommendation on penalty and makes the following order:

(a) The Registrar is directed to impose the following conditions or limitations on the Member’s Certificate of Qualification and to ensure that these facts are recorded on the Public Register:

(ii) Within 30 days of the end of the course outlined above, the Member shall provide to the Registrar written proof that he has successfully completed this course.

(b) The Reasons for Decision, Decision and Orders of the Discipline Committee will appear in summary form, without the Member’s name, in Professionally Speaking/Pour parler profession in the regular course of the publication of this magazine.

REASONS FOR PENALTY DECISION

The Committee accepts the Joint Recommendation on Penalty. The fact that the two parties successfully reached an agreement should indicate that an appropriate balance of interests has been achieved. The Committee is of the opinion that the penalty is appropriate because it meets a number of expectations related to professional responsibility.

Despite the fact that the Member received training and support, it is clear that he was unsuccessful in putting this knowledge into practice. The Committee therefore concluded that a course equivalent in length to an Additional Qualification course focusing on lesson planning, classroom management, student assessment and record-keeping could meet the requirements for employment and for improving his teaching practices.

The public interest is served by having the Member undergo at least two other performance appraisals carried out by a new employer; this also clarifies the expectations of the College with respect to upholding the standards of practice of the teaching profession.

The Order constitutes a rehabilitative measure for the Member if he wishes to return to teaching, and allows him to carry out his professional responsibilities.

With respect to publication of the Member’s name, the Committee finds that it is not necessary to disclose his identity in the official publication of the College given the mitigating factors of the case. Protection of the public is ensured by the imposition of conditions related to the Member’s Certificate of Qualification and Registration. The publication of a summary of the Reasons for Decision, Decision and Orders of the Discipline Committee serves as a deterrent in that members of the profession are required to apply the Act and Regulations in their professional capacity. Moreover, the Committee received no evidence showing that student safety was compromised.

The holding of a public hearing has made it possible to expose actions or behaviours related to professional misconduct. The penalties provide adequate protection of the public and act as a sufficient deterrent to other members of the profession. Publication of the Member’s name will add nothing to this protection or deterrence.

In conclusion, the Committee is satisfied that the penalty imposed is appropriate.

February 27, 2014

Marie-Louise Chartrand Chair, Discipline Panel

______________________________,

Vicki Shannon, OCT Member, Discipline Panel

Ruth Ann Penny, OCT Member, Discipline Panel