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 Wanda Denise Maracle, OCT, a member of the Ontario College of Teachers.
PANEL: John Tucker, Chair Christine Bellini, OCT Irene Dembek, OCT
BETWEEN: ) David Leonard, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo, ) Law Clerk -and- ) WANDA DENISE MARACLE ) Velda Maracle, (CERTIFICATE # 248466) ) for Wanda Denise Maracle ) Marc Spector, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) Heard: July 29 and 30, 2013
DECISION AND REASONS FOR DECISION
This matter began before a panel of the Discipline Committee (the “Committee”) on July 29, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing, dated April 16, 2012 (Exhibit 1) was served on Wanda Denise Maracle (the “Member”), requesting her presence on April 30, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence July 29, 2013.
Wanda Denise Maracle was in attendance throughout the hearing.
THE ALLEGATIONS
IT IS ALLEGED that Wanda Denise Maracle is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (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 student 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)(c) 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).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Wanda Denise Maracle (the “Member”) is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Wabaseemoong Education Authority (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX] Ontario.
At all material times, the Student was an adult male student of the School.
During the 2010-2011 academic year, the Member:
(a) interrupted a class in session and asked students to assist her to move some boxes from one class to another;
(b) when advised by another teacher who was in charge of the class that it was in session, disregarded the other teacher’s comments;
(c) pointed directly at the Student and said, “No wonder why no one cares about you” and/or “Nobody loves you!”;
(d) said words to the effect that she was in fact [XXX] and that though some may think she is some [XXX] woman, she is full [XXX], so what she says matters and that she can talk to the Student that way because she has a right to.
MEMBER’S PLEA
The Member denied the allegations set out in the Notice of Hearing.
OVERVIEW
Wanda Denise Maracle is a member of the Ontario College of Teachers. At all material times, the Member was employed by the Wabaseemoong Education Authority (the “Board”) as a teacher at the [XXX] School (the “School”). It is alleged that the Member interrupted a class in session and made inappropriate, unprofessional comments directed at the Student in that classroom. The central issue for the Committee to consider is whether the Member committed these acts as alleged.
THE EVIDENCE: WITNESSES AND EXHIBITS
The College called three witnesses: Laurel Elizabeth Foshay, the Student and Julia Anna Mandamin. Laurel Elizabeth Foshay and the Student testified with respect to their own account of their interactions with the Member on the day of the alleged incident. Julia Anna Mandamin, who is the Director of Education at the Board, gave evidence regarding the actions taken by the Board, with respect to the Member, following the alleged incident.
The Member testified before the Committee on her own behalf.
Testimony of Laurel Elizabeth Foshay (“Ms. Foshay”)
Ms. Foshay testified that she taught at the School from February 2010 to June 2011. The School was comprised of approximately [XXX] students in classes from [XXX] through to Grade [XXX]. Ms. Foshay is qualified to teach in the intermediate/senior division and taught [XXX] as well as Social Studies classes at the School.
Ms. Foshay testified that the Student was in her first class when she began teaching at the School. Initially, the two “butted heads” but eventually developed a “good rapport” after they became better acquainted. Ms. Foshay stated that the Student requested to be enrolled in most of the credit courses that she taught and was very successful in her classes. She explained that, in the fall of 2010, the Student’s attendance and academic success declined following the [XXX] of his friend.
The witness and the Member were both staff members at the School. The staff was comprised of fifteen (15) to twenty (20) members, four of whom were high school teachers. The Member taught Junior Kindergarten at the School. Ms. Foshay stated that she did not have much interaction with the primary grade teachers as she spent most of her time with the high school faculty. The School did not have a staff room and therefore, there was little opportunity for the faculty to interact. Ms. Foshay acknowledged that she knew the Member. She stated that, to her knowledge, the Member was aware of who she was.
Ms. Foshay testified that her classroom changed every six (6) weeks. In January 2011, she was assigned to teach [XXX] in the “shop and storage room”. She described the physical layout of the classroom, which consisted of a truck “bay” for deliveries, an emergency exit door that led to the School parking lot and a main door that led to the School. The witness stated that, at various times of the day, her class was frequently interrupted by staff members entering and exiting the School through the emergency exit and main doors. In order to minimize the number of class disruptions, Ms. Foshay locked the main door while class was in session and requested that staff use the School’s front door instead of the emergency exit door. She stated that some teachers disrupted the class “all the time” and others tried to “respect the classroom time”.
The witness recounted the details of the incident between the Student and the Member. Ms. Foshay stated that on a day in January 2011, the Student attended her class but stated that he would not be doing work. She recalled a conversation with the Student at the beginning of the school day in which he expressed to her that he had contemplated [XXX] that morning, but chose to attend school to “get help”. Ms. Foshay stated that the Student asked if he could speak with her when they took a break. She recalled that the Student was also awaiting the arrival of a Crisis counsellor.
Ms. Foshay testified that the students were working on their assignments when the Member unlocked the main door and proceeded to enter the classroom with a group of Grade 6 or Grade 7 students. Ms. Foshay’s recollection was that the Member entered the classroom at approximately 11:00 a.m. Ms. Foshay recalled that she stood up from her desk, told the Member that she was teaching and requested that they return later. The witness stated that she tried to repeat her request when the Member continued into the classroom, however she “wasn’t being heard”. According to Ms. Foshay, the Member stated that she needed to pick up some supplies that had been delivered. Ms. Foshay reiterated to the Member that she was teaching the class. When she determined that her statement had been “ignored”, Ms. Foshay instructed the class to take a ten (10) minute break.
Upon taking the break, the Student began speaking to Ms. Foshay. At the same time, the Member, who was at the delivery bay, called to the Student using his name, and asked for his help with the supplies. Ms. Foshay testified that the Student “isn’t a big fan” of the Member’s and said “no” to her request. Ms. Foshay stated that it was apparent to her that the Member knew the Student.
The witness observed that, as the Student continued talking to her, the Member walked over to the Student, stood above him and asked for his help. According to Ms. Foshay, the Student said he “was busy and that other people could help her”. Ms. Foshay stated that the Student was not polite and was “rude and angry because he was being interrupted in a very clearly private conversation”. The witness testified that the Member then pointed at the Student and told him that “this is why no one cared about him, this is why no one loved him”. Ms. Foshay stated that the Member was “extremely angry” at the Student, “was right in his face with her finger” and used a very condescending and aggressive tone when making this comment.
Ms. Foshay recounted that following this comment, she told the Member, “you can’t speak to a student that way, that’s unprofessional, it’s uncalled for and I want you to leave the classroom”. The witness stated that the Member responded by saying something to the effect of “she was not another [XXX] teacher, just like me, I may think that she’s [XXX], but she’s [XXX] and that it is her right to talk to these students and it’s none of my business what she is saying to the students”.
Ms. Foshay testified that the exchange between the Member, the Student and herself was witnessed by her high school students and the Grade 6 students. During the exchange, the Member told the Student that it was “disgusting that he wouldn’t help” and asked him if he had any family members in the junior kindergarten class, to which the Student replied “no”. Ms. Foshay stated that following this exchange, the Member exited the classroom at approximately 11:30 a.m.
Following the incident, Ms. Foshay released her class early for lunch and stayed with the Student in the classroom until the Crisis counsellor arrived. The witness stated that while they waited, she assured the Student that the incident was unprofessional, that teachers “can’t say those things” and that what was said “was not true”.
Ms. Foshay testified that she reported the incident to the high school department head and the principal. She stated that she was asked to write a letter detailing her recollection of the event (Exhibit 4). Ms. Foshay further stated that the letter was prepared the night after it happened. The witness could not recall whether the incident occurred on January 12 or 13, 2011, but stated that she prepared the letter the date of the incident and handed it in the next day.
The witness acknowledged that the letter contained an error with respect to the Member’s surname, however she identified the Member as the woman who entered her classroom in January 2011.
Ms. Foshay was asked a series of questions based on the written response to the allegations provided by the Member (Exhibit 14). The witness disagreed with the Member’s assertion that she apologized for interrupting the class and offered to return when the class was over. The witness also disagreed with the Member’s statement that the Student used profanity toward her, made a comment about her being “a [XXX] woman” or that the Member said “no [XXX] for you today” when the Student declined to assist with the boxes. Ms. Foshay denied calling the Member [XXX]”, which translates to [XXX]“ woman”, as she does not speak [XXX].
During cross-examination, the witness confirmed that she was not providing the Student with counselling. Ms. Foshay stated that she would listen to what the Student had to say and advise the counselling department if he expressed thoughts of depression or [XXX]. The witness also confirmed that she had socialized with the Student since she stopped teaching at the School. When questioned about attending a dinner party in March 2011 with the Student, initially, the witness stated that she did not know of any dinner party. Subsequently, Ms. Foshay confirmed that she did, in fact, attend an Easter dinner party in 2011 and that the Student was transported to the party in her personal vehicle.
Ms. Foshay was asked a series of questions regarding her use of Facebook and whether the Student was a friend of hers on Facebook. Ms. Foshay clarified that she had two Facebook accounts: one personal account and one “public” account. She described the public account as an account approved of by the School administration used for posting assignments and communicating with students about school work. Ms. Foshay testified that she used this public account to contact the Student when the College investigator requested the Student’s contact information. The witness stated that she received a statement from the Student about the incident involving the Member, copied that message into an e-mail and forwarded it to the investigator. Ms. Foshay testified that she did this because the Student was not computer literate and she was not aware of whether the Student had an e-mail address except for the purpose of setting up his Facebook account.
Under re-examination, Ms. Foshay confirmed that she never communicated with the Student using her personal Facebook account. With respect to contacting the Student about providing a statement to the College investigator, Ms. Foshay stated that she initially asked her partner, a friend of the Student, to contact him. The witness then contacted him directly using her public Facebook account e-mail and requested that he send the investigator a statement. Ms. Foshay testified that the Student replied by stating that he did not “know how to e-mail”.
Testimony of the Student
The Student testified that he knew the Member prior to the incident as he met or talked to her “a couple of times outside the classroom”. He stated that these conversations would take place while he was waiting for class to start and would generally include discussion about the weather, how school and/or classes were going. The Student stated that the Member’s classroom was located two doors down from Ms. Foshay’s classroom. The witness estimated that he spoke to the Member approximately five to ten times per week prior to the incident. The Student recalled seeing the Member once at a holiday party at his friend’s house. He testified that did not speak to her on that occasion.
The Student gave his recollection of the events that transpired in January 2011, when the Member entered Ms. Foshay’s classroom. He testified that the Member entered the classroom with Grade 6 or 7 students while Ms. Foshay was teaching. The Student stated that Ms. Foshay said that the “class is going” and that the Member replied by stating she was there to pick up supplies. The Student explained that the Member then requested help and that some students helped and other students did not. He stated that he did not help with moving the boxes.
The Student testified that the Member tried “guilt tripping” him into helping by asking him if he was “related to any of the JK’s”. He stated that the Member was speaking to him directly though she did not refer to him by name. The Student replied to the Member’s inquiry by stating, “No, I don’t have any relatives in there”. He testified that the Member then stated, “This is why no one likes you and this is why they left you”. The Student recalled that the Member was standing right beside him when she made this comment.
The witness stated that he did not say anything to the Member, nor did he use any profanity toward her. The Student testified that Ms. Foshay stated that the Member’s comment “was completely uncalled for” to which the Member replied, “This is between us, so this doesn’t concern you”. The Student recalled that the Member left the classroom after this exchange.
The Student testified that the comment made him “feel really terrible”, “destroyed his confidence because he believed those words” and “made him [XXX]”. He stated that he was asked by one of the School’s officials to type out what happened on both Facebook and e-mail. The Student identified a copy of an e-mail dated Monday, October 24, 2011 (Exhibit 5) as the message that he sent to Ms. Foshay regarding the incident. Following review of Exhibit 5, the Student recalled that the Member said “this doesn’t concern people like you. This is a [XXX] affair”.
In cross-examination, the Student confirmed that he attended an Easter dinner party at his friend’s house, in which his friend drove him to the party. He stated that Ms. Foshay was a passenger in that vehicle.
The Student testified that he was not angry during the exchange between the Member, Ms. Foshay and himself. He confirmed that he did not use profanity toward the Member and felt hurt by the Member’s statement.
The Student stated that he was not [XXX] prior to the Member making the statement and had not attempted [XXX] several times before the incident. He confirmed that he was attending grief counselling prior to the incident. The Student testified that his emotional and psychological problems were not as severe before the incident.
The Student stated that the Member did not know him or anything about his family history. He further stated that he wrote the statement to the College investigator without any assistance.
Testimony of Julia Anna Mandamin (“Ms. Mandamin”)
Ms. Mandamin is the Director of Education of the Board. Ms. Mandamin testified that she was responsible for teacher contracts, employment issues and funding for the School. As a result of her position with the Board, Ms. Mandamin stated that she knew the Member as a teacher, but not on a personal basis. The witness testified that the Member was hired in October 2010 and that employment ceased with the Board in January 2011.
Ms. Mandamin received an incident report from the Vice-Principal on January 17, 2011, in the form of a verbal report and a written report from Ms. Foshay (Exhibit 4). Following the receipt of these reports, Ms. Mandamin immediately contacted Human Resources Development Canada (“HRDC”), Labour Canada and the College. Ms. Mandamin testified that she contacted HRDC in order to word the termination letter (Exhibit 7) in an appropriate way. The witness contacted the College in accordance with procedural requirements.
Ms. Mandamin testified that a Board meeting was convened on January 28, 2011. At that meeting, the Board accepted the recommendation to terminate the employment contract of the Member. The witness testified that she was the Board official who prepared and forwarded the complaint dated March 4, 2011 to the College (Exhibit 8). Ms. Mandamin stated that the background information in the report came from letters that were given to her. The background information referred to the Student and the [XXX] of his best friend in October 2010, a fact well known within the community. Ms. Mandamin clarified in her testimony that the [XXX] occurred in the first week of September 2010. While the written report indicated that the Student “tried to commit [XXX] on several occasions”, the witness clarified by stating “we were concerned for his safety… and the teachers were concerned enough to alert that we should probably have a counsellor with him”. The College responded to the complaint with a letter dated June 14, 2011 (Exhibit 9).
Ms. Mandamin stated that, in the interim period, the Member indicated in a legal letter that she was challenging the decision to terminate her employment. Subsequently, the Board gave further consideration to the matter and made a payment to the Member. In a letter from Ms. Mandamin dated July 18, 2011 to the College, the Board requested to withdraw the complaint against the Member (Exhibit 10). While Ms. Mandamin indicated that the withdrawal letter was sent to the College based on legal advice received, it was her personal opinion, that the matter was serious enough to have been reported to the College. The College responded stating that it would proceed with the complaint (Exhibit 11).
In cross-examination, the witness confirmed that the complaint filed was in the best interest of the Student, as he was harmed emotionally from the comment made by the Member. The witness reiterated that the withdrawal request was based on the legal advice that the Board received.
In re-examination, Ms. Mandamin confirmed that the School encouraged teachers to use Facebook to communicate lesson plans, assignments and homework. The witness had no information that Ms. Foshay had used Facebook to violate that School policy.
Testimony of the Member
The Member testified that on December 14, 2010, she entered a classroom to pick up equipment, that she was directed by the Principal to remove by noon. Four students, two Grade 5 and two Grade 6, accompanied the Member to the room. The Member was not aware, at that time, that this area was used for classroom purposes. The Member had worked at the School before in 1998 and 1999, at which time the area was used as an auto-shop.
When the Member entered the room, she had no idea that class was in session. Once completely inside the room, she saw Ms. Foshay and excused herself. The Member was told by Ms. Foshay that class was in session, to which she replied she would come back later. Ms. Foshay advised that she would let her students take a “smoke-break”, however the Member offered to return at lunch and Ms. Foshay re-iterated that she would let her students take a break. The Member directed her four students to “get those boxes over there, and then we can go and have our little [XXX]”.
The Member stated that, at the time, she did not know who the Student was, had never met him before and “could not identify him in a line up”. The Member asked the Student to help move some boxes. The Student replied, “no” and “kind of told me to fuck off”. The Member testified that one of the Grade 6 students made the comments in question to the Student, to which the College objected on the basis that the evidence was hearsay and therefore, should not be allowed.
Decision on Objection re: admissibility of hearsay evidence
College Counsel argued that the Member had an obligation to put the fact of another person making the alleged comments to Ms. Foshay and the Student during their testimony on the previous day. The Member’s representative made no submissions on the objection.
The Committee upheld the objection from College Counsel. The Committee finds that the line of questioning leading to the provision of hearsay evidence on this specific issue will not be allowed. The attribution of these comments to another individual is crucial to this case. Defence had an opportunity to introduce this issue during College witness cross-examination, but did not. Defence had an opportunity to call the witness in question to introduce this evidence, but the Committee has been advised that no such evidence will be called. Therefore, the objection is upheld.
The Member denied pointing at the Student and saying “no wonder why no one cares about you. Nobody loves you”. The Member testified that she did not know the Student prior to this day, did not refer to the Student by his first name, did not have any conversations with Ms. Foshay or the Student and did not know either one of them before coming to the School. The Member stated when she entered the classroom, Ms. Foshay was sitting at the desk and the Student was sitting beside her. The Member agreed that “it took approximately five minutes to go in and out of the classroom”. The Member further agreed that she did not speak to Ms. Foshay or the Student about this incident.
The Member testified that the incident was not “brought back to me until the Principal handed me my immediate letter of termination and he said that it had to do with the ‘incident’, but I wasn’t sure what he was talking about”.
The Member stated that she had told the Student “oh, no [XXX] for you today”, which was a vernacular used within the [XXX] that means “no hugs, no candies, no goodies for you”. The Member stated that all four of the students that accompanied her spoke [XXX] as their first language. The Member clarified that two of the students were fluent in [XXX] and she did not know about the other two students.
The Member stated that she had been teaching for seventeen years, seven of which were on separate [XXX]. The last [XXX] school that the Member worked in had twenty-seven [XXX] and she confirmed that [XXX] is a prevalent problem on [XXX]. The Member worked at a [XXX] which was part of the same [XXX] as [XXX] and testified that there was no real communication between the two [XXX]. The Member stated that she went into the [XXX] with “blank knowledge about anything that was going on”.
The Member testified that, in her opinion, the proper protocol with regard to filing a complaint to the principal was not followed in her case and this resulted in her pursuing a wrongful dismissal complaint against the Board. The Member described the negotiations that took place between her lawyer, the Board and the [XXX] and Council, which culminated in a resolution of the wrongful dismissal complaint. The Member stated that she was told that Ms. Mandamin was willing to “drop the letter, the false letter that she made up to the Ontario College of Teachers, if I did not go to the Canadian Human Rights Tribunal”.
The Member stated her heritage is [XXX] and speaks [XXX].
During cross-examination, the Member confirmed that she did not see Ms. Foshay or students going in and out of the classroom, but that she had seen other teachers going in and out of that area at the beginning and end of the day.
The Member was unable to produce a document authored by Ms. Mandamin where it was admitted that the complaint lodged with the College was false. When asked how she referred to the Student on the day of the incident, the Member replied using the Student’s first name, then stated, “I don’t know who he was”.
When questioned about her response to the College complaint, the Member agreed that she understood the allegations made against her, that she provided all of the factual information to her lawyer to respond to that complaint and that she provided all of the relevant information that she could remember at the time.
The Member was asked whether she suggested in testimony that she did not make the statement, that one of her Grade 6 student’s made the statement. The Member agreed that this was her defence. When the Member was asked where this information was found in her written response to the allegations (Exhibit 14), the Member replied, “At the very bottom of page 3 it says ‘at that point, another Grade 6 student made a sarcastic comment about (the Student) which prompted three other students to start laughing”. The Member then stated that she agreed she had made a statement but did not know how it went from “no [XXX] for you” to “no one likes you”.
In re-examination, the Member clarified that the [XXX] comment was made after the Student had said “Go do your own fucking work, I’m not helping you”.
THE EXHIBITS
In reaching its decision, the Committee considered the following exhibits:
Exhibit 1: Notice of Hearing dated April 16, 2012
Exhibit 2: Register Information of the Member
Exhibit 3: Register Information of Laurel Foshay
Exhibit 4: Typewritten letter dated January 13, 2011
Exhibit 5: Copy of e-mail dated Monday, October 24, 2011
Exhibit 6: E-mail dated October 24, 2011 from the Student
Exhibit 7: Letter dated January 28, 2011 to Wanda Maracle
Exhibit 8: Letter received March 17, 2011 to the Registrar
Exhibit 9: Letter dated June 14, 2011 from the Ontario College of Teachers
Exhibit 10: Letter dated July 18, 2011
Exhibit 11: Letter dated August 10, 2011
Exhibit 12: Letter dated February 9, 2011
Exhibit 13: Letter dated May 20, 2011
Exhibit 14: Letter from Taylor McCaffrey dated September 16, 2011
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel reminded the Committee that the burden is on the College to prove the allegations of professional misconduct. College Counsel reviewed the balance of probabilities standard by which the College must discharge this burden. It was submitted that the Committee’s task was divided into two phases: 1) the fact-finding phase and 2) the application phase.
College Counsel stated that, in the fact-finding phase, the Committee needs to review the evidence to make a determination on what events occurred in this case. It was College Counsel’s position that the date of the incident was not a significant factor for the Committee to consider, though he submitted that the preponderance of evidence was that the exchange between the parties occurred in January and not in December.
College Counsel submitted that there was no dispute between the parties that Ms. Foshay was teaching a class in the shop room when the Member entered that classroom, accompanied by some Grade 6 students to retrieve some boxes. The parties have opposing views on the events that transpire in a four to five minute timeframe thereafter. College Counsel submitted that the fact-finding phase entails determining whether the Committee accepts that the events unfolded as described by Ms. Foshay and the Student or by the Member.
College Counsel stated that, once the Committee determined what happened, the application phase requires that the Committee apply those facts to the Notice of Hearing and determine whether or not the allegations of professional misconduct have been proven.
College Counsel reviewed the evidence given by Ms. Foshay, the Student and the Member as it related to the incident. College Counsel submitted that the Committee would need to make assessments of credibility with respect to the three witnesses. In doing so, College Counsel stated that the Committee should question whether the evidence has “a ring of truth”, “Does it make sense?” and “Does the story hang together?” College Counsel asserted that the Member’s version of the events “doesn’t make sense”. College Counsel highlighted areas of the Member’s testimony, which he submitted were contradictory.
It was College Counsel’s position that the Committee should prefer the evidence of Ms. Foshay and the Student to that of the Member. College Counsel stated that if the Committee accepts the Member’s version of events, then a finding of not guilty should be made. However, if the Committee accepts the evidence of Ms. Foshay and the Student, then “there is evidence to make findings under each of the six heads of professional misconduct that are alleged”.
SUBMISSIONS OF THE MEMBER’S REPRESENTATIVE
The Member’s Representative (“Ms. V. Maracle”) reminded the Committee that the Member denied “straight out” the allegations, which included making the comments “No wonder nobody loves you, no wonder your family doesn’t love you”.
Ms. V. Maracle reiterated that the Student’s evidence was that the Member would not have known anything about his family history.
Ms. V. Maracle submitted that there were discrepancies in the Student’s written statement, which she asserted made it “obvious he was incapable of writing those full-formed, grammar-wise, structurally-wise and spelling-error-wise in two full sentences in his statement”. It was further submitted that “somebody also prompted him. There’s no way that he could even know what that [psychological damage] is. So somebody put those words into his head”.
Ms. V. Maracle stated that the Member’s reputation within her community was “shamed” by the allegations. She described the effect that the allegations had on the Member’s family within the community.
Ms. V. Maracle submitted that Ms. Mandamin’s request that the College withdraw the complaint against the Member demonstrated that “Ms. Mandamin’s first concerns clearly was not the Student”. Ms. V. Maracle concluded by stating that the reason provided by Ms. Mandamin for this request “doesn’t stand up for a person who is supposed to be a leader and education director”.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
In reply, College Counsel asked the Committee to be mindful of “what’s in evidence and what’s not in evidence because much of Ms. Maracle’s submissions to you related to matters that just weren’t in evidence”.
College Counsel concluded by stating that, the submissions made by the Member’s representative regarding the Student’s fluency in English, were “bordering on offensive comments”.
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, as set out in F.H. v. McDougall, 2008 SCC 53 (“McDougall”). The standard of proof applied by the Committee, in accordance with the McDougall decision, is a balance of probabilities. As in all cases, the Committee looks for clear, cogent and convincing evidence.
Decision
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel and the Representative for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Wanda Denise Maracle committed acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(15), 1(18)-unprofessional and 1(19).
The Committee finds that the College has not proven the allegations of professional misconduct with respect to Ontario Regulation 437/97, subsections 1(5), 1(7) and 1(7.2) and accordingly those allegations are dismissed.
REASONS FOR DECISION
All three witnesses who were present in the classroom concurred that the Member did interrupt the teacher and the students during class time and a verbal exchange resulted. The Committee accepts the testimony and finds that the class interruption and verbal exchange occurred. The Member did not set a professional example in front of students and Ms. Foshay by disrupting a class in progress and further engaging in a verbal altercation with both students and the teacher. This incident was serious and reported to the School administration.
Members of the teaching profession are expected to be professional especially in a classroom setting with students present. According to the Education Act, members are expected to conduct themselves as role models both in and outside of the classroom. The Member committed acts that were unprofessional and conduct unbecoming a member as she did not act as an appropriate role model in front of students.
The Committee lacked clear, cogent and convincing evidence to make a finding of professional misconduct on subsections 1(5), 1(7) and 1(7.2). Specifically, the Committee did not find that the Member failed to maintain the standards of the profession, abused a student verbally, and abused a student psychologically or emotionally.
In her oral testimony, Ms. Foshay stated that the Student had come to her that morning and said he was [XXX] and that he had requested to speak with her privately during a class break. Ms. Foshay stated that at 11:00 a.m., the Member entered her room and ignored her comment that she was teaching a class at that time. The Member continued into the classroom and proceeded to have her students move boxes at the back of the classroom. Ms. Foshay dismissed her class for a break and proceeded to speak to the Student alone. Ms. Foshay stated that the Member called the Student by his name and asked that he help move supplies. The Student replied that “he was busy”, “there were other people that could help her” and “he was rude and angry because he was being interrupted in a very clearly private conversation”. The Member pointed at the Student and told him that “this is why no one cared about him, this is why no one loved him”. Ms. Foshay interjected by telling the Member that she could not speak to a student that way as it was “unprofessional, uncalled for and I want you to leave the classroom”. The Member replied that she was “not another [XXX] teacher”, “she’s [XXX]” and “that it is her right to talk to these students and that it was none of my [Ms. Foshay’s] business what she is saying to these students”. The Member told the Student that it was disgusting that he would not help and asked him if he had any family members in the JK class. To which he replied, “no”. The Member exited the classroom at 11:30 a.m.
Ms. Foshay’s written statement was inconsistent with her oral evidence provided at the hearing. In her written statement dated January 13, 2011 (Exhibit 4), Ms. Foshay’s account did not include that the Member called the Student by his name when requesting assistance. She did not describe the Member as “extremely angry” at the Student, “was right in his face with her finger” or “really aggressively saying those things”.
In her oral testimony, Ms. Foshay described the exchange as “rather loud” and “all three of us were pretty angry”. However, in her written statement, Ms. Foshay described the Member as “demanding” the Student to help and did not write that the Student’s response to the Member was rude or angry. Further, Ms. Foshay wrote that she was the one, not the Student, who told the Member that the Student did not have to help if he did not want to which is inconsistent with her own oral evidence.
Similarly, the Student’s written statement was inconsistent with his oral testimony provided at the hearing. The Student testified at the hearing that he had met and talked to the Member “a couple of times” but later stated that the frequency of their exchanges was “like five maybe ten times a week”. The Student testified that he was in a private conversation with Ms. Foshay at the time that the Member made the comment. However, in his written statements (Exhibits 5 and 6), the Student stated that he was sitting with three friends and Ms. Foshay when the Member “asked for more help”. The Student stated that Ms. Foshay was “completely shocked” and told the Member that “was completely uncalled for”. The Member responded “this is between us so it doesn’t concern you”. According to the Student, the Member then left the classroom. When shown his written statement (Exhibit 5), the Student agreed that he recalled the Member saying “this doesn’t concern people like you. This is a [XXX] affair” to Ms. Foshay.
The Committee finds further inconsistencies between the written statements and oral evidence of Ms. Foshay and the Student. The Student did not give oral or written testimony that he was [XXX] on the morning of the incident and that he had requested a private meeting with Ms. Foshay during break. The Student stated that he had never been [XXX] prior to the incident. Instead, the Student stated the Member’s statement “this is why no one likes you and this is why they left you” made him [XXX]. By contrast, Ms. Foshay testified that the Student said he was [XXX] that morning and had requested a private meeting with her during a classroom break.
The Committee also finds a contradiction in the evidence provided regarding the Member’s knowledge of the Student’s past and the impact the Member’s statement had on his well-being. According to Ms. Foshay, the Member said “nobody loves you”. The Student testified that the Member stated “this is why no one likes you and this is why they left you”. In his written statement, the Student wrote that the Member stated “this is why your family doesn’t love you or your friends”. The Member stated she said to the Student “no [XXX] for you today”. In her written statement, Ms. Foshay inferred that the Member was “painfully aware of his [the Student’s] family history” and therefore knew the full impact that her statement would have on the Student. The Student testified that the Member did not have any knowledge of his family history but stated that he experienced emotional and psychological trauma by her statement. The Member denied any knowledge of the Student’s past and testified that the incident was not brought to her attention until she was terminated.
The Committee finds there is no clear evidence of what was said during the exchange between the Member, Ms. Foshay and the Student with respect to the alleged statement “no wonder why no one cares about you” and/or “nobody loves you”. In the absence of clear, cogent and convincing evidence on this point, the Committee finds no verbal abuse of the Student occurred.
The Committee finds that there is ample evidence that the Member did not have knowledge of the Student’s past. The Member, the Student and the Director of Education, Ms. Mandamin, all concurred that the Member was not given information about the Student’s family history. This is in direct contradiction to Ms. Foshay’s inference that the Member made her statement knowing the Student’s past and the impact it would have on him. The Committee was given inconsistent and insufficient evidence regarding whether the Student was [XXX] prior to this incident or if it made him [XXX]. Therefore, the Committee did not find that the Student was abused psychologically or emotionally.
The Committee finds further inconsistencies in the evidence regarding the Member’s alleged comment “she was in fact [XXX] and that though some may think she is some [XXX] woman, she is full [XXX], so what she says matters and that she can talk to the Student that way because she has a right to”.
Ms. Foshay testified that the Member stated that she was “not another [XXX] teacher”, “she’s [XXX]” and “that it is her right to talk to these students and that it was none of my [Ms. Foshay’s] business what she is saying to these students”. In the Student’s oral testimony, he initially said that the Member stated “this is between us so this doesn’t concern you” however his written statement said that the Member stated “this doesn’t concern people like you, this is a [XXX] affair”. In a letter to the College (Exhibit 14), former Counsel for the Member wrote that Ms. Foshay made a comment to the effect of “well you are [XXX] just like me” and used the phrase [XXX]“’, which we are advised roughly translates into [XXX] woman’. Ms. V. Maracle advises us that this comment “is the epitome of insults to an [XXX] woman”. In her oral testimony, Ms. Foshay denied making this comment. The Committee finds that the evidence provided with respect to the alleged comment was inconsistent, unclear and insufficient.
In review, the Committee did not find the evidence presented by Ms. Mandamin to be helpful in rendering this decision. Testimony from this witness primarily related to employment termination procedural issues. Ms. Mandamin was not present during the verbal altercation.
The Committee finds the oral testimony and written statements of Ms. Foshay, the Student and the Member to be inconsistent and contradictory regarding the events preceding the exchange and the content of the exchange. Therefore, the Committee did not make a finding of professional misconduct with regard to subsections 1(5), 1(7) and 1(7.2).
Date: January 28, 2014
John Tucker
Chair, Discipline Panel
Christine Bellini, OCT
Member, Discipline Panel
Irene Dembek, OCT
Member, Discipline Panel