Ontario College of Teachers v. Riccardi, 2014 ONOCT 88

DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Riccardi, 2014 ONOCT 88 Date: 2014-03-18

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 Theresa Liana Riccardi, OCT, a member of the Ontario College of Teachers.

PANEL: John Tucker, Chair

Stefanie Achkewich, OCT

Irene Dembek, OCT

BETWEEN: )

) Shane D’Souza,

ONTARIO COLLEGE OF TEACHERS ) McCarthy Tétrault LLP,

) for Ontario College of Teachers,

) assisted by Bev Hodsdon,

-and- ) Law Clerk

) Jerry Raso,

THERESA LIANA RICCARDI ) Ontario English Catholic Teachers’

(CERTIFICATE #256783) ) Association,

) for Theresa Liana Riccardi

) Marc Spector, Oct. 10 & 11, 2013

) Julie Maciura, Oct. 30, 2013

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: October 10, 11 & 30, 2013

DECISION ON FINDING AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 10, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing, dated October 14, 2011, was served on Theresa Liana Riccardi (the “Member”), requesting her presence on November 10, 2011 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence on October 10, 2013. The proceedings continued on October 11, 2013 and concluded on October 30, 2013.

The Member was in attendance.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated October 14, 2011 (Exhibit 1) are as follows:

IT IS ALLEGED that Theresa Liana Riccardi is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) 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 failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) she failed to supervise adequately a person or persons under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

(d) she failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under those Acts, 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);

(f) she displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of her students of a nature or extent that demonstrates that the Member is either unfit to carry out her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Theresa Liana Riccardi (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the York Catholic District School Board (the “Board”) and taught [XXX] at the Grade [XXX] level at [XXX] School (the “School”), in Newmarket, Ontario.

3. During the 2009/2010 academic year, the Member:

(a) permitted students to disrupt her class;

(b) failed to report student misconduct that was potentially harmful to her and to her students;

(c) failed to control students during a field trip.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing (Exhibit 1).

OVERVIEW

This case is about classroom management, the Member’s alleged repeated inability to manage and control students, and the Member’s inability to appropriately report numerous incidents to the school administration.

The Member was employed by the York District School Board (the “Board”) and taught [XXX] at the grade [XXX] levels at [XXX] School (the “School”) in Newmarket, Ontario. It is alleged that during the 2009-2010 academic year, the Member permitted students to disrupt her class, failed to report student misconduct that was potentially harmful to her and to her students, and failed to control students during a field trip.

The central issues for the Committee to consider are whether the Member committed these acts as alleged, whether such acts amount to professional misconduct and whether the Member displayed a lack of knowledge, skill or judgment or disregard for the welfare of her students.

THE EVIDENCE: WITNESSES AND EXHIBITS

To demonstrate that the Member was a member of the College at the time of the allegations, counsel for the College submitted a document entitled Member Information (Exhibit 2). This document indicates that the Member has been a certified teacher since 1987, that she was issued a Certificate of Qualification and Registration in 1997 and that she is currently a member in good standing.

The College called four witnesses: [XXX], Joe Hum, John Heinrich and [XXX]. [XXX] (“Student 1”) was a student in the Member’s grade [XXX] [XXX] class in the school year 2009-2010. He gave evidence regarding the events that occurred during that class in that school year. Joe Hum (“Mr. Hum”) was vice-principal at the School at the time of the allegations. He testified to his interaction with the Member and his investigation of incidents in the Member’s classroom. John Heinrich (“Mr. Heinrich”) was the principal at the School. He testified to meeting with the Member to discuss incidents that took place in the Member’s classroom and during a field trip. [XXX] (“Student 2”) was a student at the School in the Member’s grade [XXX] [XXX] class. She testified to disruption in the class and student misbehaviour during the field trip.

The Member testified before the Committee on her own behalf.

Testimony of [XXX] (“Student 1”)

Student 1 testified that the Member’s classroom was a disruptive learning environment, which was not dealt with by the Member. The impact by the end of the semester was that he had not retained the content and, subsequently, his class wrote a different exam than the other grade [XXX] [XXX] classes. The witness described the Member’s classroom environment as noisy in that there were “students yelling across the classroom” and to others in the hall, while students came in and out of class.

Student 1 further testified to an interruptive intrusion in the classroom by 3 or 4 students who were not part of the class (the “Intruder Incident”). He testified that the Member asked these students to leave and threatened to call the office but did not. During the exchange, some students swore. Eventually, the students became bored and left.

In another incident, Student 1 testified that several students inflated a condom, waved it in class and then deflated the condom and threw it around (the “Condom Incident”). Student 1 testified that the Member was aware and told them to stop throwing it, but did not send anyone out of class or to the principal’s office. This incident lasted five minutes, and everyone in class was aware of the interruption.

Testimony of Joe Hum (“Mr. Hum”)

Mr. Hum was Vice-Principal at the School at the time of the alleged events. With respect to the Intruder Incident, Mr. Hum testified that he first heard of the November 20, 2009 incident in the Member’s class on the following Monday, November 23, 2009. Mr. Hum testified to the seriousness of this incident saying it was not something that would have been left until Monday as it would have involved the Principal. The witness became aware of the incident as a result of an early morning email from the Member asking for the assistance of a Behaviour Services staff member. Behaviour Services staff intervene when students act inappropriately and give advice to teachers. The witness testified that all staff have a responsibility to assist administration in discipline such that discipline is progressive. This responsibility involves the completion of a Conduct Report, which is expected to be provided to the administration as soon as possible, within the day of the event. This expectation was known to all staff members, and copies of the report were readily available. Mr. Hum testified that he requested more details from the Member with regards to student names and activities to properly prepare the resource person (Exhibit 4). On November 23, Mr. Hum requested a Conduct Report from the Member (Exhibit 5), which he expected to receive within the next day. He did not receive a Conduct Report about the Intruder Incident until December 17, 2009 (Exhibit 6).

Mr. Hum, in his testimony, also referenced a second incident, the “Stink Bomb Incident”. On December 10, 2009, a number of students set off a stink bomb in the Member’s classroom. The witness became involved in the investigation of the incident, which should have resulted in a Conduct Report as it involved issues of discipline and student safety. No such Conduct Report was submitted by the Member. As a result of the investigation, five students were suspended.

Cross-examination

Mr. Hum agreed that a teacher must exercise professional judgment when dealing with incidents in a classroom environment. He agreed that the Grade [XXX] [XXX] class was a mixed-ability class that presented challenges as it was a high-content course.

Mr. Hum confirmed that the Member had informed school administration regarding the Stink Bomb Incident.

Testimony of John Heinrich (“Mr. Heinrich”)

Mr. Heinrich is the Principal of the School. He testified that he had one occasion to discuss issues with the Member on December 14, 2009. There were a number of issues discussed, including the Intruder Incident and an incident involving a poster with sexual images (the “Inappropriate Imagery Incident”). In his opinion, these two incidents were of a nature which impinged on student and teacher safety. The witness testified that the Member failed to follow protocols as part of the process of reporting student conduct and indicated that in some instances, the Member was not reporting at all. Mr. Heinrich testified that a Conduct Report is the template used by the Board to inform the Vice-Principal and Principal of concerns, following the progressive discipline policy and is used for tracking student behaviour. The Conduct Report is generally completed at the time of the event or at least on the day of the event as this information must be timely and relevant, ensuring that student safety issues are dealt with quickly and not allowed to linger. This expectation of timely completion was well known within the teacher community of the School. Mr. Heinrich testified that Conduct Reports are available in both paper and electronic form. When shown emails from the Member to Mr. Hum dated November 23, 2009 (Exhibits 3 and 5), the principal confirmed that neither of these were Conduct Reports. In Exhibit 5, the Member indicated that she had talked to the parents and stated “I haven’t resorted to a Conduct Report yet because their issues seem ongoing”. In his testimony, Mr. Heinrich stated “this was not our expectation because more information (Conduct Report) is better so that we can intervene”. Mr. Heinrich further testified that he directed the Member to complete a Conduct Report with regard to the Intruder Incident, both orally and in an email on December 16, 2009 (Exhibit 10).

With reference to an email that he sent to two superintendents at the Board on December 15, 2009 (Exhibit 9), Mr. Heinrich testified to his knowledge of a field trip incident on December 2, 2009 (the “Field Trip Incident”). The Member was the supervising teacher on one of the school buses. According to the December 15 email, the Member was aware that a number of her students stole [XXX] from the [XXX] they had visited. However, the Member stated that she was unaware that her students had said inappropriate things to members of the public or that they were throwing things on the bus. Mr. Heinrich testified that “Conduct Reports for the trip were never filed”.

The School conducted an investigation regarding the release of a “stink bomb”. This investigation was based on information that was not received from the Member, as no Conduct Report was filed by her.

Mr. Heinrich testified that the Member’s Teacher Performance Appraisal (“TPA”), of which the Member was aware, was scheduled for the 2009-2010 year (Exhibit 11). Mr. Heinrich indicated that a TPA concludes with a report summarizing the Member’s performance, using four indicators. These sources of information include meeting with the teacher and observation in class.

There were two classes that Mr. Heinrich observed. He noted that student misbehaviour and disruption were uncontrolled, and there was a lack of response to the Member’s attempts to control behaviour. Mr. Heinrich testified that although teachers should be responded to in a respectful manner, the students were “so obviously engaging in inappropriate behaviour, it was disconcerting. The nature of discussions or disruptions was not in keeping with the lesson itself… She (the Member) appears oblivious to the chaos around her”.

During the second TPA, Mr. Heinrich testified that the chaotic environment noted in the first TPA continued. Mr. Heinrich witnessed an example of group work and subsequent presentation in the Member’s class on the [XXX]. Mr. Heinrich testified that in the work produced by one group of students “there was no relation between the assignment and the work produced but that it does point to other things going on”. In the presentation about [XXX] (the Inappropriate Imagery Incident), students pointed to a poster with images of a sexual nature. Mr. Heinrich explained that the students “ wanted me to see it and to see what the teacher’s reaction would be. Her reaction was nothing.” Mr. Heinrich testified that the nature of the document should have resulted in a Conduct Report to the Principal. However, this was not done. Mr. Heinrich testified that it was his role in a TPA observation not to intervene. When asked what happened to the poster, he testified that the students gave it to him after he requested it.

Exhibits 14, 15 and 16 are emails from Mr. Heinrich to superintendents, which include emails from parents and students detailing issues in the Member’s class. Mr. Heinrich indicated that he was asked by superintendents to keep them apprised of any parental concerns because the superintendents were becoming concerned with the School’s response to classroom issues. When asked, Mr. Heinrich confirmed that the content of the emails from parents (Exhibits 8 and 13) was consistent with what he had observed during the Member’s TPA. These letters referenced incidents occurring in the Member’s classroom which should have resulted in Conduct Reports. None were submitted to the Principal.

Cross-examination

Mr. Heinrich testified that following classroom observation, the Member’s sense of management differed from his and that this was a significant issue to him. With regard to the poster issue, the witness observed the Member moving from group to group and not communicating, just observing. The witness stated that the Member should have spoken to the issue. Mr. Heinrich agreed that other classroom management concerns were based on letters from parents.

Testimony of [XXX] (“Student 2”)

Student 2 was a student in the Member’s grade [XXX] [XXX] 2009-2010 class. She testified to the Member’s disruptive classroom environment and the lack of authority the Member had in the classroom.

With regard to the Intruder Incident, she confirmed the testimony of Student 1 in that it lasted 5 to 10 minutes, and culminated with the Member being confronted by a student who cornered her, made negative comments about her teaching style and personality and threatened her should she report the incident or call for help. Student 2 testified that everyone in the class was in “shock”. The incident ended when another student told the intruders to leave.

Student 2 testified about the Field Trip Incident, which involved the same students from the Intruder Incident and during which more inappropriate behaviour occurred. The students were leaning out a bus window and yelling at passersby and [XXX]-goers. The incident ended when the bus driver stopped the bus and directed the students to stop. Student 2 further testified that students threw at least five toffee squares at the Member during this incident and stated that at least one of them made contact. The Member did not react.

Testimony of the Member

In 2009, the Member was teaching [XXX] Education to grades [XXX], [XXX] and [XXX]. The Member gave an overview of her teaching and classroom management strategies.

When questioned about the Stink Bomb Incident, the Member testified that upon leaving the class around third period, two students were pointing to a desk and there was a smell. A plastic bottle from which an odour emanated was discovered. Upon the Member calling the office, the secretary said she would inform the administration. The Member met with the Vice-Principal to discuss the matter.

When questioned about the Condom Incident, the Member testified that students were working in small groups. She observed something going on and told the students to get back to work, which they did. The Member did not report the situation because it corrected itself.

When questioned about the Intruder Incident, the Member testified to authoring Exhibit 7, the Student Conduct Report. The Member was approached by the intruding student who seemed anxious, demanding his marks. The Member assured the student he was passing, but his behaviour escalated. The Member diagnosed him as having a “psychotic episode”. She testified that she went to the P.A., but was blocked by the student. All the students in the class were shocked. The intruding student threw everything off her desk, threatened the Member and then left the classroom. The Member further testified that after the class, she filled out a Conduct Report, but after reflection, she left the Conduct Report on her desk. She testified that she called the student’s father, who agreed he would speak to the student. As a result, the Member held on to the Conduct Report in order to accommodate the student and maintain a relationship with him.

The Member spoke to Exhibit 3, identifying it as her email to Mr. Hum, requesting a visit from a Behaviour Services staff to her period 4 class. This email indicated that the Member did not feel safe due to the behaviour of particular students and provided examples such as the student’s “proximity to me, inappropriate comments, blocking the P.A. system, etc.” The Member identified Exhibits 4 and 5 as the emails between herself and Mr. Hum concerning student behaviour in her classroom. Following the emails, a Conduct Report was requested. However, the Member did not think it was necessary to file a Conduct Report when student behaviour improved. Exhibit 6 is an email dated November 23, 2009 in which Mr. Hum requests a Conduct Report. Exhibit 7 is the submitted Conduct Report received by the Principal on December 17, 2009. When asked why it took three weeks to deliver the Conduct Report, the Member testified that she believed in “character education, not character assassination...the situation did not require a Conduct Report”.

When questioned about the behaviour of her students on the bus during the Field Trip Incident, the Member testified that she wasn’t sure if she was the sole supervisor on the bus. On this occasion, students stuck their head and hands out of the window and she told them to close the window. The bus driver then told the students that he would stop the bus if they did not close the window. The Member testified that she could not recall if candy was thrown at her. She stated there was no need to provide a Conduct Report for these incidents.

With regard to general classroom management as observed by Mr. Heinrich during her TPA, the Member testified that she organized a structured debate for period 1 with volunteers. She was very proud of herself and her students calling their work “outstanding”. Period 3 had similar small group activities planned. The Member recognized Exhibit 12 as a student presentation poster on a [XXX]. The Member testified that the Principal snatched the poster from the group of students and showed it to her at the end of class. She had not noticed the sexual images on the poster during the class.

Cross-examination

The Member confirmed that the “Intruder Incident” resulted in unusual and highly inappropriate behaviour, which hijacked the classroom experience. The Member testified that this appeared to be a “psychotic episode”. The Member agreed that she had no medical training but had volunteer experience and was able to diffuse the situation. The Member testified that she did not mention the term “psychotic episode” in the Conduct Report as it was her perception of what had happened. The Member confirmed that she withheld the Conduct Report for a month despite multiple requests for it. With regard to the Field Trip Incident, the Member confirmed that student behaviour on the bus was non-compliant and disruptive. However, a Conduct Report was not completed by the Member as she dealt with the matter at the time.

THE EXHIBITS

In reaching its decision, the Committee considered the following exhibits:

EXHIBIT 1 Notice of Hearing between Ontario College of Teachers and Theresa Liana Riccardi

EXHIBIT 2 Member Information for Theresa Liana Riccardi

EXHIBIT 3 E-mail from Theresa Riccardi to Joseph Hum sent at 8:05 a.m.

EXHIBIT 4 E-mail from Joseph Hum to Theresa Riccardi sent at 8:16 a.m.

EXHIBIT 5 E-mail from Theresa Riccardi to Joseph Hum sent at 12:21 p.m.

EXHIBIT 6 E-mail from Joseph Hum to Theresa Riccardi sent at 1:25 p.m.

EXHIBIT 7 Student Conduct Report received on December 17, 2009

EXHIBIT 8 Letter dated April 13, 2010 from [XXX]

EXHIBIT 9 E-mail from John Heinrich to Michael Nasello and Lynda Coulter dated December 15, 2009 at 12:19 p.m.

EXHIBIT 10 E-mail from John Heinrich to Theresa Riccardi dated December 16, 2009 at 5:53 p.m.

EXHIBIT 11 Summative Report Form regarding Theresa Riccardi dated January 15, 2010 – Redacted Form

EXHIBIT 12 Chart in Redacted Form

EXHIBIT 13 Letter to Mr. Heinrich from [XXX] dated January 19, 2010

EXHIBIT 14 E-mail from John Heinrich to Nasello and Coulter dated January 20, 2010 at 11:02 a.m.

EXHIBIT 15 E-mail from Michael Nasello and [XXX] to Lynda Coulter dated April 7, 2010 at 4:05 p.m.

EXHIBIT 16 5 page document dated April 11, 2010

SUBMISSIONS OF COLLEGE COUNSEL

The College must prove its case on a balance of probabilities. It must provide clear, convincing and cogent evidence. College counsel submitted that the College has met its onus in this regard.

College counsel submitted that this case is about classroom management. Between 2009 and 2010, the Member repeatedly failed to ensure the adequate supervision of the students under her care, to report incidents to administration and to keep records of incidents and behaviour. As a result, the incidents were not investigated. It is the College’s position that the evidence demonstrates acts and omissions that should be found to be unprofessional.

Counsel for the College submitted that there are not many facts in dispute in this case. There are five witnesses: two students, two administrators and the Member. Where there is dispute, counsel submitted the Committee should look to evidence corroborated by other evidence and witnesses.

Counsel for the College submitted that there is little disagreement about the professional duties of a teacher when faced with egregious conduct of students. The Member agreed that a positive learning environment should be fostered and that such an environment can be disrupted by loud, chaotic behaviour. College counsel submitted that the Committee was provided with ample evidence of such disruptive behaviour. College counsel further submitted that the Member agreed that classroom safety is important and neither the teacher nor the students should feel threatened. Students should not enter a teacher’s personal space or use threatening language toward the teacher. Again, there was ample evidence of this behaviour occurring and as provided by the Member. Counsel submitted that the Member acknowledged that students should treat each other and teachers with respect and that this means that students do not comment on a teacher’s character or physical appearance. The teacher should not condone contrary behaviours, and such conduct requires a response. College counsel further submitted that the Member agreed that such a response should be timely as early intervention is important. However, there is evidence provided by the Member that a timely response did not occur. Counsel submitted that, again, the Member agreed that reporting allows for visibility of conduct so it can be tracked, as it is important to tell if the behaviour is isolated or recurring. Lastly, College counsel submitted that the Member acknowledged that timely reporting allows for fruitful investigation of student conduct. The matrix of standards that the Member has accepted was not followed by the Member in this case.

College counsel submitted that the Member was a [XXX] teacher instructing multiple sections of students of varying backgrounds. Counsel submitted that according to Mr. Heinrich’s evidence, the student composition was no different than like-ability courses for other teachers. College counsel further submitted that two students described a negative learning environment in the Member’s classroom and that such conduct did not occur in other classes with other teachers. This evidence was corroborated by Mr. Heinrich, who observed the Member in her classroom as part of the Member’s TPA. The Member acknowledged that Mr. Heinrich had complete visibility to the students in the classroom. Counsel for the College submitted that the TPA (Exhibit 11) helps to corroborate the evidence of these two students, submitting that this was a negative and unsafe learning environment where both the students and the teacher felt threatened. During the Intruder Incident, the Member acknowledged that she felt intimidated and that the students were “frozen”.

College counsel submitted that Mr. Heinrich described the Member’s classroom as chaotic, and while the Member has given conflicting evidence stating that her class was “so quiet you could hear a pin drop,” there is evidence from parents (Exhibits 8, 13, 14, 15, and 16) that says differently. Counsel for the College submitted that the Committee’s Rules of Procedure permit the Committee to rely on content of the letters from parents even though they are hearsay, as they are in keeping with the evidence.

Counsel for the College then described the specific incidents of this case. First is the Intruder Incident of November 20, 2009. Three students “stormed” into the classroom and a student went to the back of the room, cornered the Member and demanded to see his grades. The Member was unsuccessful in diffusing the situation when the student intruded her class. The student threatened the Member not to complete a Conduct Report. The Member felt unsafe and was prevented from reaching the PA system. The student also threw objects off her desk. Counsel submitted this incident required a Conduct Report, which, as Mr. Hum and Mr. Heinrich had testified, was not an onerous task.

The Member started to fill out the Conduct Report on the day of the intrusion and therefore recognized the severity of the incident, yet the report was not provided to the administration until December 17, 2009. Mr. Hum did not recall being informed of this incident on November 20, 2009. He testified that such an incident would require that he act immediately. The Member said that the incident was discussed with the Special Education teacher. However, this teacher was not called to witness before the Committee. On the Monday after the incident, only a general email was sent to Mr. Hum. The Member acknowledged that this was not a Conduct Report and Mr. Hum demonstrated in his response email to the Member (Exhibit 4) that he had no idea what the incident was about. The Member only provided a general summary of several incidents on several different occasions (Exhibit 5) with no dates or specific details. The Conduct Report for the Intruder Incident was not given to the administration until December 17, 2009. It is the College’s position that it does not matter when the Member wrote the report because even if she wrote it immediately after the incident, she withheld the report from the administration for a month despite multiple requests for it. According to Mr. Heinrich, this is unprofessional behaviour that caused a delay in the investigation of the matter. The Member said the student appeared to be having a “psychotic episode” but this is not mentioned in any emails.

The next was the Field Trip Incident. The Member said she was vigilant and facing the students, yet Student 2 testified that the students were making fun of passersby. The Member did ask the students to stop, but she failed to act when students continued the conduct. Ultimately, the bus driver had to intervene. The Member acknowledged that this behaviour was distracting and disruptive, but no Conduct Reports were made. There was no report to the administration. Student 2 testified that the students threw at least five toffees at the Member. Counsel for the College asserted that this evidence is unchallenged. The Member felt this was an adolescent attempt to offer her a toffee. It is the College’s position that this was not professional.

The third incident was the Condom Incident. Student 1 testified that a condom was filled with air and tossed around for five minutes. The Member asked the students to stop, but the behaviour only stopped when the condom fell on the ground. The Member’s memory of how the incident came to an end differs from Student 1’s. However, the College submitted that regardless of how the events ended, the Member did not approach the inappropriate behaviour in a professional way.

The fourth incident was the Stink Bomb incident. According to both Student 2and the Member, the incident was reported to the office immediately. However, a Conduct Report was not filled out. The Member acknowledged that she knew administration would expect a report, yet she chose her own way to deal with the incident based on her training.

The fifth incident was the Inappropriate Imagery Incident. Mr. Heinrich described the class as chaotic, loud and disruptive during his TPA observation. With regard to the poster, there were numerous references made, many of a sexual nature, that were unrelated to the project. Indeed, they were highly offensive images given the topic at hand. Mr. Heinrich stated that he recognized the gravity of the situation and intervened by collecting the poster at the end of the class. According to the Member, the poster was “snatched” after the presentation. Regardless, the poster was contrary to what was being taught in class.

Counsel for the College submitted that all this evidence shows repeated offences by students, and while the Member recognized these as classroom management issues, she failed to take appropriate steps, specifically to make Conduct Reports. The Member claimed to have called parents to inform them of these behaviours, but there was no supporting evidence of these calls.

The Member acknowledged knowing about the mechanism of the Conduct Reports and she acknowledged having classroom management issues, yet she chose to nurture the students on her own.

College counsel took the Committee through the Notice of Hearing to detail how the conduct of the Member fit under the allegations of professional misconduct and incompetence:

a) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5) in that she failed or delayed to complete Conduct Reports despite repeated requests for them by the administration.

b) The Member failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10) in that she withheld the Conduct Report for a month or she only completed it a month later. There is no evidence of parent conversations.

c) There is ample evidence that she failed to adequately supervise persons under her care, contrary to Ontario Regulation 437/97, subsection 1(11).

d) The Member failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15) as she admitted to completing a Conduct Report and hiding it for a month. Further, she did not report any inappropriate comments by students to the administration.

e) The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18) as the Member had full knowledge of the Conduct Report mechanism, but failed to follow the policy.

f) The Member is incompetent as she failed to act, and the fact that she is content to justify her failure is telling.

SUBMISSIONS OF COUNSEL FOR THE MEMBER

Counsel for the Member submitted that the allegations of professional misconduct relate to that of classroom management—more particularly being a failure to provide adequate classroom management and a failure to report incidents within the classroom. He indicated that there were no allegations of physical or mental abuse of students, but were acts of omission rather than commission. The Member did not have a callous disregard for her students; she was a dedicated, sincere teacher with 26 years of experience.

Counsel for the Member submitted that the Vice-Principal in his testimony agreed that teachers need to use professional judgment as it is impractical to report everything to administration. Counsel submitted that there was no failure to act – the Member did act.

With reference to the Stink Bomb Incident, the Member did immediately report the incident to the office. Further, the Member called the parents of the students in question. The Member provided the attendance list to administration as requested; there was no request for a Conduct Report. Counsel for the Member submitted that there was no evidence led by the College to the contrary.

With reference to the Intruder Incident, the Member attempted to buzz the office, and then instructed a student to call the office via the P.A. system. On the next school day, the Member requested help from the Behaviour Services staff to deal with this issue. Exhibits 5 and 7 indicate that the Member was in contact with parents regarding this incident. Counsel for the Member submitted that there was no evidence led by the College to the contrary.

Counsel for the Member submitted that while there was a 24-day delay in the provision of the Conduct Report, the Member was acting in the interest of the student, who was troubled. The Member had been working with him and felt that as long as he was improving, she wanted to give him a chance and maintain a developing relationship.

Member’s counsel submitted that with regard to the Condom Incident, the Member asked the students to stop and the incident ended. Counsel stated that there was nothing egregious with respect to the Condom Incident.

With respect to the Inappropriate Imagery Incident, counsel for the Member submitted that the Member did not see the poster. On this occasion, her teaching style included debate, questions and discussions, and she strived to maintain a good learning environment for her students.

In summary, counsel for the Member concluded that the Member was a sincere, dedicated teacher who did not abuse students and provided administrative notification when required.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

With respect to the Intruder Incident, counsel for the College submitted that no Conduct Report was submitted for 24 days because the Member felt that as long as the student was improving she wanted to give him a chance, but by her own evidence, he was getting worse (Exhibit 5).

Counsel for the College responded to the assertion of Member’s counsel that this case is about omissions rather than commissions, stating that being required to act and failing to do so is just as serious as behaving inappropriately. In the College’s view, the Member’s judgment is at odds with and contrary to the standards that she acknowledged in cross-examination.

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, convincing and cogent evidence.

Decision

Having considered the evidence, onus and standard of proof, and the submissions made by College counsel and counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Theresa Liana Riccardi committed acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(10), 1(11), 1(15) and 1(18)- dishonourable and unprofessional.

The Committee also finds the Member to be incompetent in that she displayed a lack of knowledge, skill or judgment and a disregard for the welfare of her students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations.

REASONS FOR DECISION

The Committee thoroughly reviewed testimony and exhibits provided by both College counsel and Member’s counsel and considered the closing submissions from both parties.

The Committee found all witnesses to be generally credible in providing clear evidence of the various events occurring in the Member’s classroom environment. The Committee also found that the witnesses provided convincing evidence as to the Member’s lack of ability to supervise students. The Member’s own testimony regarding the performance of her duties has shed light on her failure to adequately manage a classroom.

In total, five incidents were presented to the Committee during testimony. Both parties agreed with the basic narrative of the “incidents” as portrayed by witnesses and in the closing submission of counsel for the College.

Based on the clear, cogent and convincing evidence, the Committee found that the evidence provided by the Member and the other witnesses supported the allegations as found in the decision of this matter.

In her testimony, the Member confirmed that she was aware of the school parameters for progressive discipline, was aware of a school Conduct Report and its value in aiding in timely investigation and maintaining security in the classroom, and confirmed that at times her supervision resulted in a disruptive, inappropriate and an unsafe environment.

The Member disagreed with the College position that she handled the situations incorrectly.

Counsel for the Member submitted during closing submissions that there were no allegations of physical or mental abuse of students but that the allegations related to acts of omission as opposed to acts of commission.

In the closing submission of the College, counsel submitted that where a teacher is required to act and fails to do so, the matter is just as serious as a case involving inappropriate behaviour. The Member’s judgment was at odds with, and contrary to, the professional standards that she acknowledged in cross-examination.

The Committee concurred with this position of College counsel. While Member’s counsel asserted that the Member did act, the Committee has determined that she acted inappropriately and insufficiently. By failing to submit Conduct Reports in a timely fashion, the Member did not keep records as required by her professional duties and failed to maintain the standards of the profession, contrary to subsections 1(10) and 1(11)of Ontario Regulation 437/97(the “Regulation”). Her decision to begin a Conduct Report and withhold it for a month was a violation of subsection 1(15) of the Regulation, and her inability to manage her classroom and students during the five incidents demonstrate a failure to adequately supervise students under her supervision, in contravention of subsection 1(11) of the Regulation. All in all, her acts of omission, which were dishonourable and unprofessional, constitute a breach of subsection 1(18) of the Regulation.

The Committee therefore finds the Member guilty of professional misconduct and, given the recurring nature of her conduct, has determined that she is incompetent, in that she displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of her students of a nature or extent that demonstrates that the Member is either unfit to carry out her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

PENALTY

The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.

Date: March 18, 2014

John Tucker

Chair, Discipline Panel

______________________________ Stefanie Achkewich, OCT

Member, Discipline Panel

Irene Dembek, OCT

Member, Discipline Panel