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 Ellen Irene Rice, OCT, a member of the Ontario College of Teachers.
PANEL: Irene Dembek, OCT, Chair
Mel Greif
Louis Sloan, OCT
BETWEEN: ) Larissa Moscu,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,
) Law Clerk
-and- )
) William Markle, Q.C.,
) Markle Reid Munoz LLP,
ELLEN IRENE RICE ) for Ellen Irene Rice
(CERTIFICATE # 171677) )
) Marc Spector,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: February 27 & March 11, 2014
DECISION ON FINDING AND REASONS FOR DECISION
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 17, 2010 (Exhibit 1) was served on Ellen Irene Rice (the "Member"), requesting her presence on May 31, 2010 to set a date for hearing, and specifying the charges. The hearing was subsequently set for and commenced on February 27, 2014. The proceedings continued and concluded on March 11, 2014.
Ellen Irene Rice was in attendance throughout the hearing.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated May 17, 2010 are as follows:
IT IS ALLEGED that Ellen Irene Rice 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 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:
Ellen Irene Rice (the "Member") is a member of the Ontario College of Teachers.
The Member was employed by the Dufferin-Peel Catholic District School Board (the "Board") and at all material times was an elementary teacher at[XXX] School (the "School"), in Brampton, Ontario.
On or about January 15, 2009, in the presence of other students, the Member told one of her female Grade [XXX] students at the School who had misplaced a work sheet and/or failed to hand in a homework assignment that she:
(a) felt violent towards the student and wanted to shoot her; and/or
(b) felt like shooting the student, or wanted to shoot, or words to a similar effect.
MEMBER'S PLEA
The Member denied the allegations set out in the Notice of Hearing.
OVERVIEW
It is alleged that the Member, on or about January 15, 2009, in the presence of other students, told one of her female Grade [XXX] students who had misplaced a work sheet and/or failed to hand in a homework assignment that she:
(a) felt violent towards the student and wanted to shoot her; and/or
(b) felt like shooting the student, or wanted to shoot, or words to a similar effect.
The central issue for the Committee to consider was whether the Member committed these acts as alleged and if so, whether such comments amount to professional misconduct.
THE EVIDENCE
Evidence of the College
The College called three witnesses: Student No. 1 - the student to whom the Member's alleged remarks were directed -, Student No. 2 and Franka Lowe, the principal of the School at the time of the alleged incident.
Testimony of Student No. 1
Student No. 1 is currently [XXX] -years old and testified to events that happened in her classroom when she was in Grade [XXX] and [XXX] -years old. She described herself as quiet, shy with good marks. In cross-examination by Member's counsel, Student No. 1 further indicated that she was energetic, played with things on her desk, could be distracted and distracting and admitted to being very disorganized and her desk was extremely messy. She also admitted to having bad work habits, often leaving her agenda at home and frequently lost and misplaced assignments.
On or about January 15, 2009, Student No. 1 admitted to her teacher, the Member, that she did not have her homework done, and she asked the Member for a new copy of the assignment sheet, so she could complete the work that had been assigned. Efforts to make Student No. 1 more accountable had been ongoing. At this time, the Member made efforts to provide Student No. 1 with another copy of the assignment. While at her desk searching for a copy of the assignment, Student No. 1 heard the Member say words to the effect of "I want to shoot you". Student No. 1 could not recall if the Member's back was to her at the time. According to Student No. 1, the Member spoke loudly enough to be heard and in an angry and frustrated tone. Student No. 1 testified that she felt scared, intimidated and upset. The Member had never spoken to her in this manner before. In Student No. 1's mind, the Member's statement was "not a joke". Student No. 1 testified to feeling nervous and scared, to this day, about the comments the Member made to her.
Student No. 1 stated that she did not tell her sister or parents about the incident in the classroom. Under cross-examination Student No. 1 confirmed that she did not share any information about the incident with any of her classmates because she was not close with any other classmates.
On the following Monday, January 19, 2009, Student No. 1 was called to the principal's office, where she was asked to explain what had happened the day before in the Member's classroom and to prepare a written account of the incident. In this written account (Exhibit 3), the witness indicated the following: "I misplaced an instruction sheet and Mrs. Rice got angry. She found another one but she said something along the lines of "I want to shoot you." It got me very intimidated. She also said she felt violent with me."
Student No. 1 testified that two days later, on January 21, 2009, and in the presence of her mother, she was interviewed by the police and a Witness Statement was prepared (Exhibit 4). In this statement, Student No. 1 explained to the police that the Member "felt violent with me and wanted to shoot me". When questioned if these were the exact words used, Student No. 1 stated to the police officer, "and then she said she wanted to get a gun and shoot me". Under cross-examination, Student No.1 stated that she knew the teacher was not really going to get a gun and shoot her but that she was still frightened.
Testimony of Student No. 2
Student No. 2 was [XXX] -years old at the time of his testimony. At the time of the alleged incident, Student No. 2 was a classmate of Student No. 1, and they shared the same desk grouping.
Student No. 2 stated that on the day in question, he heard the Member say to Student No. 1, once and loudly, "I am feeling very violent, I feel like shooting you". He indicated that the Member first made this statement out loud and then mumbled the phrase two or three times when walking away. Student No. 2 stated that the Member was using her normal teaching voice, and her tone of voice indicated frustration. It did not sound like she was making a joke. He stated that they "were all surprised this came from a teacher".
Student No. 2 also testified that he was interviewed by the principal after the incident and had prepared a written statement upon her request. In this statement (Exhibit 5), Student No. 2 wrote that Student No. 1 had forgotten her homework at home, "so Mrs. Rice yelled at her very loud, 'I am feeling very violent, I feel like shooting you'. She said it two or three times so everyone could hear. It was very rude and ridiculous". At the end of his statement, Student No. 2 indicated the following: "Quote – I feel very violent and I feel like shooting you".
Student No. 2 also confirmed that he had given a statement to the police. In this statement (Exhibit 6), Student No. 2 added the terminology "threatened" when describing the Member and affirmed that he had not spoken to any other students regarding the matter.
Under cross-examination by Member's counsel, Student No. 2 confirmed what he had heard the Member say, stating, "I remember clearly what had happened because you don't hear that every day from a teacher".
Testimony of Franka Lowe, Principal of the School
Franka Lowe ("Ms. Lowe") was an experienced principal of the School. She was alerted to the incident by way of a phone call from a concerned parent of another student in Student No. 1's class. The parent was informed by her daughter of the alleged comments made by the Member. Neither the parent nor her daughter gave testimony at the hearing.
Ms. Lowe consulted and took direction from her superintendent and the employee relations department on how to proceed. As directed, Ms. Lowe interviewed all of the students who may have been witnesses to the incident and made contemporaneous notes of the interviews (Exhibit 7).
She was subsequently instructed to report the incident to the police, who later attended the School and investigated the alleged incident further. Subsequent to their investigation, the police laid a criminal charge against the Member. Later, the charge was dropped.
In cross-examination by Member's counsel, Ms. Lowe acknowledged that the first time she had interviewed Student No. 1, the student had not mentioned the "I feel like shooting you" comment. The principal confirmed that it was only after other students had mentioned this remark that she called Student No. 1 back to ask her about this incident.
Evidence of the Member
The Member testified on her own behalf at the hearing.
Testimony of the Member
The Member testified that at the time of the alleged incident, she was a teacher at the School. The Member was experienced in various grades and multiple schools. The Member was also experienced in special education teaching situations and had taught in the elementary and secondary levels.
She described the set-up of her classroom, indicating that Student No. 1 sat somewhere in the middle of the room, close to the front. Her desk was about ten feet from the Member's desk. The students sat in groups, and Student No.1 sat with a number of her classmates, including Student No. 2. The student whose parent had made the complaint, however, did not sit in Student No. 1's desk grouping. Instead, she sat a couple of feet behind Student No. 1, closer to the back of the classroom.
The Member testified that Student No.1 was energetic, bright, pleasant to talk to and capable when she did her work. The teacher and the student had a good relationship. At the same time, Student No. 1 was also messy and disorganized. She did not study and often did not complete her work, so the Member would keep the student in at recess about once a week so she could finish her assignments. To inform Student No. 1's parents of this issue, the Member wrote notes in the student's agenda for the parents to sign and also made calls to their home. The Member stated that her intent was to help Student No.1 realize her greater potential. Improvement, however, was sporadic.
Speaking to the alleged incident of January 14 or 15, 2009, the Member testified that right before recess, she was collecting assignments, and Student No.1 told her that she had lost her sheet. As the Member went to get another sheet and was walking over to her desk, about five feet away from the student, she stated, "I could shoot you" as she was frustrated. Student No. 1 did not say anything in response. The Member described her statement as being similar to a student-type comment of, "My parents are going to kill me!"
In cross-examination by College counsel, the Member acknowledged that her comment, "I could shoot you" had a violent connotation. However, the witness denied saying that she felt violent or that she had made any mention of a gun. The Member indicated that she spoke quite loudly but denied that she was speaking louder than usual during the incident or that she had been yelling at or threatening Student No. 1.
The Member stated that she was initially charged with making threats but that this charge was withdrawn in June 2007. She stated that in retrospect, she should not have made the shooting comment and would not make this statement again, recognizing that her words may have intimidated Student No. 1.
SUBMISSIONS OF COLLEGE COUNSEL
Counsel for the College submitted that all three College witnesses were credible in their testimonies. Each witness testified in a candid, frank and forthright manner that the Member had made comments about feeling violent towards Student No.1 and wanting to shoot her. Student No.1 stated that these remarks, which were not said in jest, frightened and intimidated her. Student No. 1 did not report the incident to her family or classmates, and the School principal learned of the incident from another student's parent. Although she was [XXX] -years old during the incident, Student No. 1 was consistent in her testimony.
Counsel for the College asserted that Student No. 2 corroborated the evidence presented by Student No.1. He delivered his testimony candidly and maintained that he had a clear recollection of the events during cross-examination. Student No. 2 confirmed that he did not hear humour in the Member's voice when she made her shooting comments. College counsel stated that while Ms. Lowe was not present during the incident, she took instruction on how to proceed, interviewed the students and made contemporaneous notes.
Counsel for the College stated that small discrepancies about the Member's exact positioning in the classroom when she made these comments should not detract from the witnesses' testimonies. It was clear that the witnesses were not coached or rehearsed, and the students did not have any reason to exaggerate.
College counsel stated that comments with a violent connotation were antithetical to a student's need to feel safe. The Member's remarks were inappropriate and unprofessional, and the Committee should find her guilty of professional misconduct.
SUBMISSIONS OF MEMBER'S COUNSEL
Counsel for the Member asserted that the ambiguous language used in paragraphs 3(a) and (b) of the Notice of Hearing suggests uncertainty around the nature of the Member's comments. Member's counsel stated that the stories of the student witnesses changed significantly in the days following the incident, and the students could have discussed the matter with one another. Counsel stated that since Student No.1 and Student No. 2 were [XXX] -years old at the time of the incident, it was not their credibility that was in issue so much as their reliability.
Member's counsel outlined Student No. 1's varying statements, highlighting that she originally told Ms. Lowe that the Member indicated feeling violent but that nothing else happened (Exhibit 7, Tab 3). By contrast, in her statement to the police on January 21 (Exhibit 4), Student No. 1 reported the Member stating that she wanted to get a gun and shoot her.
With respect to Student No. 2, counsel for the Member stated that the student initially told Ms. Lowe that the teacher "yelled out something about feeling violent" (Exhibit 7, Tab 3). Later, however, his account involved shooting and reference to a gun. In his eventual statement to the police (Exhibit 6), Student No. 2 reported that the Member had "threatened" Student No. 1 and had repeated her comment three times.
Member's counsel submitted that in light of these varying accounts and the fact that the Member has no prior history of unprofessional conduct, the Committee should conclude that the Member's remarks did not include references to violent feelings or guns. Member's counsel argued that the teacher's flippant and unfortunate comment does not warrant a finding of professional misconduct, noting that Student No. 1 did not report the matter to her sister or parents.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
In response to the suggestion of Member's counsel that Student No. 1 did not tell her family about the Member's comments because the remarks did not have an impact on her, counsel for the College stated that it could have been just the opposite. Student No.1 testified to being intimidated by the Member, and this could have been her reason for not speaking about the incident.
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 (the "McDougall decision"). 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 counsel for the College and counsel for the Member, the Committee does not find that the facts support a finding of professional misconduct.
The Committee does not find the College has proven the allegations of professional misconduct with respect to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19). The particulars addressed in the allegations do not support a finding of professional misconduct. Accordingly, these allegations are dismissed.
REASONS FOR DECISION
This matter is indicative of the difficulty of being a professional teacher. Teaching is a public act continually under scrutiny. It is subject to assessments of approval or disapproval by many observers.
It is incumbent upon those who judge a teacher's proficiency and appropriate behaviour in a classroom to always take into account the stresses under which a teacher works on a daily basis. In the Committee itself, there was a well-rounded and professionally based dialogue about what a teacher must be able to do in their classroom and more importantly, the leeway that may be granted a teacher in the performance of their reasonable duties. The Member's case lent itself to an internal debate about appropriate teaching practices and most important, use of language in the classroom.
The Member admitted to the use of inappropriate language in the classroom. In this regard, there are factors that must be considered in assessing the appropriate use of language. Most important to consider, was the degree of intentionality. Did the Member intend to use harmful language in the classroom? There was no evidence that it was the intention of the Member to be harmful in any way.
The language used was inadvertent but most important, subject to varying interpretation by others. Even though Student No. 1 noted the unfortunate use of language and was surprised by it, her reaction to what initially appeared to be an intemperate comment, given the nature of our times, was such that she did not raise it with her parents that night.
The use of the word "shoot" evokes, in most cases, a fearful reaction, and this is to be expected. But there is always the issue of context. The Member was, according to the evidence, under stress because of her self-admitted failure to motivate Student No. 1 in spite of her sustained and focused efforts to positively support the student's performance in class.
In making its decision in finding that there was no misconduct, the Committee opted to apply a reasonable standard of assessment of the teacher's performance. This standard allows for gaps and missteps in how teachers may react in difficult situations. This allowance is only natural and falls within what may be construed to be in the best interests of the public trust. There is the expectation that teachers will perform to the best of their abilities in a kind and judicious manner. They will strive to be as excellent as they possibly can be. If every misstep or inadvertent use of language led to a finding of professional misconduct, it would lead to the creation of an impossible teaching landscape.
It is useful to discuss reasonable use of language in maintaining classroom discipline. Some leeway must be assigned to use of speech. There ought to be some acceptable boundaries. In this case, no reasonable boundary was breached.
The Committee did very carefully assess College counsel's evidence, cross-examination and closing submissions whereby there was full disclosure of the language used by the Member, which included references to feeling violent and shooting the Student. Admittedly, this was intemperate language. The Member did not agree to the accusation of using the terms "feeling violent", "getting a gun" and "shooting". The Committee took into account the variability and inconsistencies of much of the evidence that was provided. The Committee applied a responsible standard of consideration to all the evidence and to the context in which the language was used.
In conclusion, having considered the context and the circumstances in which the Member's admitted comment to Student No. 1 was made, the Committee determined that this did not amount to professional misconduct.
Date: April 1, 2014
Irene Dembek, OCT
Chair, Discipline Panel
______________________________ Mel Greif
Member, Discipline Panel