Ontario College of Teachers v. Chiarot, 2015 ONOCT 11

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Chiarot, 2015 ONOCT 11

Date: 2015-11-25

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 Matthew John Chiarot, OCT, a member of the Ontario College of Teachers.

PANEL: John Tucker, Chair Christine Bellini, OCT Vicki Shannon, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Eli Mogil & Andrew Matheson, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Law Clerk

-and-

MATTHEW JOHN CHIAROT (CERTIFICATE # 286105) David Bloom & Philip Abbink, Cavalluzzo Shilton McIntyre Cornish LLP, for Matthew John Chiarot

Marc Spector & Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: March 19 & 20, 2013, May 6 & 7, 2013, August 28 & 29, 2013, January 28 & 29, 2014, March 4 & 5, 2014, August 27, 2014, and November 21, 2014

DECISION ON FINDING AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 19, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated June 29, 2011 (Exhibit 1), was served on Matthew John Chiarot (the “Member”), requesting his presence on July 19, 2011 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence on March 19, 2013. The proceedings continued on March 20, 2013, May 6 and 7, 2013, August 28 and 29, 2013 and January 28 and 29, 2014, March 4 and 5, 2014, August 27, 2014, and November 21, 2014.

The Member was in attendance throughout the hearing.

OVERVIEW

The allegations in this case arose as a result of the Member’s conduct during the 2006-2007 and 2007-2008 academic years. The Member’s alleged conduct falls into two general categories: 1) inappropriate comments, and 2) substandard teaching practices.

With respect to the first category, the Member allegedly made inappropriate comments in front of other students in his class about another student’s sexual identity, about the behaviour of the parent of another student, and about specific activities related to prom.

With respect to the second category, the Member allegedly did not meet the standards of the profession in his teaching practices. In particular, the College alleges that he made available a copy of an exam to his students before they had to take the exam; he provided an overly-detailed exam review to another class to enable them to meet the expected grade range; he kept exams locked in his car rather than in the school as required of him and failed to provide his students’ marks to the School administration upon request; and, he failed to accurately record student grades, as evidenced by the raised or lowered grades for an exam that he had previously marked.

The task for the Committee is to determine whether there is sufficient evidence to prove the allegations, and if so, whether the Member’s conduct should give rise to a finding of professional misconduct.

For the reasons outlined in detail below, the Committee has determined that the Member is guilty of professional misconduct.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated June 29, 2011, are as follows:

IT IS ALLEGED that Matthew John Chiarot is guilty of professional misconduct as defined in subsection 30(2) of the Act in that:

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

(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(d) he failed to supervise adequately a person(s) who is under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

(e) he failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);

(f) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

(g) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. At all material times, the Member was employed by the Hamilton-Wentworth Catholic District School Board (the “Board”) as a [XXX] school [XXX] teacher at [XXX] School (the “School”).

2. The courses [XXX] and [XXX] refer to Grade [XXX] and Grade [XXX] [XXX] [XXX]courses respectively.

3. During the 2006-2007 and 2007-2008 academic years, the Member:

(a) failed to accurately record the grades of students enrolled in his courses;

(b) made inappropriate comments to students in that the Member:

(i) called a student who performed morning announcements “gay”;

(ii) commented to his class about the activities that students would be engaging in at the prom, including drinking, watching pornography and having sex;

(iii) following parent/teacher interviews, commented to a student, in front of his class, “Your mom grilled me. She sure is animated”;

(c) failed to adequately supervise students by leaving students unattended and unsupervised in the classroom;

(d) particularly, during the 2006-2007 academic year, failed to deliver the curriculum to students enrolled in his [XXX] course, inter alia, by using an [XXX] level textbook;

(e) failed to use class time appropriately in that he:

(i) had his class watch a movie unrelated to the [XXX] curriculum;

(ii) talked on his cell phone during class;

(iii) had members of the [XXX] team visit the class for team meetings during class time;

(iv) cooked waffles and bacon in class;

(f) failed to provide timely and necessary feedback to students through the evaluation of [XXX], assignments and tests;

(g) in or about December 2007, failed to provide the School administration his student marks and/or long range planning as requested;

(h) removed from the School [XXX] student examinations;

(i) during the 2006-2007 academic year, left the classroom after announcing to the students in his class that the final examination was located on his desk;

(j) during the 2007-2008 academic year, provided an overly specific and detailed exam review to his [XXX] students.

4. The Member was suspended with pay by the Board from January 18, 2008 to April 4, 2008 inclusive.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

EVIDENCE OF THE COLLEGE

The College called 10 witnesses, including parents, students, and School Board administrators and staff.

Testimony of Mr. Mayers

Hermon Mayers (“Mr. Mayers”) first met the Member when they were both teaching at an Ontario Catholic [XXX] some years ago. When Mr. Mayers became the principal at the School during the 2007-2008 academic year, he once again came into contact with the Member, who was a [XXX] teacher at the time. At the hearing, Mr. Mayers testified to complaints that he received regarding the Member’s conduct and did so with the aid of notes, letters and grade reports related to these incidents (Exhibit 3).

Supervision Issues

Mr. Mayers testified to having concerns that the Member was not adequately supervising his students during the fall 2007 semester. In particular, Mr. Mayers learned that on October 10 and 11, 2007, the Member was not in the School building when he was expected to be present. When Mr. Mayers spoke to the Member about these two incidents, the Member indicated that he was doing business for the Board on October 10, 2007. The Member also told Mr. Mayers that he had been in the School on October 11, 2007, but that he did not hear the administration paging him to come to the office.

Later that month, Mr. Mayers was informed that a student had come to the office reporting that the Member had not shown up to his class fifteen minutes into the period. One of the School’s vice-principals, Frank Ciancone (“Mr. Ciancone”) went to make arrangements to have someone cover the Member’s class. By the time Mr. Ciancone arrived at the Member’s classroom, the Member was present.

Another vice-principal, Teresa Toth (“Ms. Toth”) also told Mr. Mayers that when she was watching the School’s video surveillance tape as part of an investigation into an incident unrelated to the Member, she happened to see the Member leave his class unattended for approximately five minutes.

Progress Reports

Mr. Mayers testified to the concerns related to the progress reports. The School sent progress reports home during the first quarter of the semester so that parents and students would know how students were progressing in their courses. In mid-October 2007, the principal received a voicemail message from a parent who was concerned about the mark her son had received in the Member’s grade [XXX] [XXX] [XXX] class. Her son had received 100% on his progress report, but this grade was followed by a negative comment. The parent, Ms. 3, also noted that the class average was 100%.

Mr. Mayers looked into the assessment query and found that when he examined the Member’s Mark Book, it appeared that the grade given to students was solely based on a [XXX] safety quiz. The principal found the situation to be concerning as it was not reasonable to expect that every student would achieve a grade of 100% and it was the only mark entered into the program two months into the course. The principal was concerned about the assessment and evaluation of the students in the Member’s class, and indicated to him that the Member had not followed appropriate assessment practices.

Mr. Mayers testified to subsequently meeting with the Member to discuss his progress reports. The Member explained that he had marked and handed back other assignments but that he had not yet had the opportunity to enter these marks into his Mark Book.

Timely Feedback

Mr. Mayers also spoke to concerns that he had regarding the amount, frequency and timeliness of the Member’s course assessments. He noted that only one assessment was recorded between the beginning of the academic year and the time when the progress reports were issued. Another concern was that the assessment that had been recorded was a safety quiz for which every student received 100%. Specifically, Mr. Mayers stated that “it is imperative that assignments be marked and given back to students in a reasonably short period of time, so those students and their parents can understand how they’re doing as the course progresses.”

Concerns about inappropriate materials used in class

Mr. Mayers also spoke to concerns raised by one of the Member’s [XXX] colleagues, Colleague A. Colleague A told the principal that she was in the [XXX] workroom during her lunch period when she saw the Member enter the room, leaving his grade [XXX] [XXX] [XXX] class unattended. The Member picked up some equipment for the [XXX] unit, and when Colleague A pointed out that this material was for the grade [XXX] students, the Member stated that this would keep his students “busy for a couple of weeks.”

This colleague also expressed concerns about the Member’s grade [XXX] [XXX] class. The teacher stated that she taught a second period class in the same classroom that the Member taught his [XXX] [XXX] class during first period. When she came into the room for her class, she would see cartoons drawn all over the board from the Member’s class. Colleague A told Mr. Mayers that her students once said that everyone knew the Member’s class was a “joke” and a “bird course.”

Parental Complaint

Mr. Mayers testified that in December 2007, he received a complaint from a parent, Ms. 4, regarding the Member’s teaching and conduct. Ms. 4’s son, Student No. 4, was in the Member’s grade [XXX] [XXX] [XXX] class. Student No. 4 had been previously identified as having a [XXX], and had an Individual Education Plan (an “IEP”). Ms. 4 felt that her son was not being assessed frequently enough. Specifically, she indicated that her son did not receive his graded [XXX] assignments as of December 11, 2007.

In addition, Ms. 4 was concerned that the Member had struck up conversations with students during a test, and had therefore distracted Student No. 4 while he was writing his test. When students asked the Member to stop having these conversations, the Member told them that they now knew how he felt when they interrupted him during class. Ms. 4 told Mr. Mayers that she had spoken to the Member on the phone and that he was not caring or professional during their conversation. After their phone call, the Member pulled Student No. 4 out of his class to tell him to stop lying to his mother as he was causing a lot of trouble for the Member.

Meeting with Member

Mr. Mayers testified that following this report from Ms. 4, he sent the Member a letter asking to meet with him on December 17, 2007 with a union representative present. The principal also requested that the Member submit long-range plans, lesson plans, copies of all assessments and all assessment records, samples of students’ workbooks, and Mark Book entries by the date of their meeting. A few days after Mr. Mayers wrote this letter, the Member approached him, wanting to know which parents had made complaints against him. Mr. Mayers informed the Member that he could not disclose the identities of the parents but that no conclusions had been drawn as to whether or not their allegations were true.

Mr. Mayers stated that the meeting scheduled for December 17, 2007 never took place as the Member called in sick on that date.

Exam Issues

Mr. Mayers testified that in January 2008, Colleague A reported that a student from her class had informed her that the Member had given his students all of the answers to the upcoming [XXX] exam. Mr. Mayers investigated the matter. He interviewed Student 1, who had disclosed the matter to Colleague A, and he also interviewed Student No. 2, a student from the Member’s grade [XXX] [XXX] class. Student No. 2 stated that during the 2006-2007 academic year, the Member would leave class for long periods of time without assigning students any work and that he used a different textbook than that used in the other grade [XXX] [XXX] [XXX] classes. According to Student No. 2, prior to the grade [XXX] [XXX] exam, the Member provided an extremely detailed exam review and, during another class, he left the entire exam on his desk and left the room so that students could look through it. Then, during the actual exam, the Member approached Student No. 2 and told her that she did not need to answer certain questions as the material had not been covered in class.

Mr. Mayers testified that he investigated Student No. 2’s claims by requesting copies of the Member’s January 2007 exams and marks. When he had the School’s head secretary, Julie Annecchini (“Ms. Annecchini”) acquire these exams, Ms. Annecchini reported that the Member had retrieved the January 2007 exams from his own vehicle. This was a concern for Mr. Mayers because teachers were not supposed to remove exams from the School, given that these documents belonged to the School.

After obtaining copies of the Member’s January 2007 exams, Mr. Mayers requested a copy of student notes of the Member’s exam review so that the two documents could be compared. Mr. Mayers also asked the head of the [XXX] department, Joanne Scarfone (“Ms. Scarfone”), to review the Member’s January 2007 exams to determine whether they had been marked appropriately. Ms. Scarfone complied with this request and reported back that the exam grades had been added together correctly. However, 23 out of 24 of the grades on the Member’s paper exams were different than the grades entered into Mark Book. In some cases, the grades were slightly different and, in others, the grades were extremely different from the actual grade on the exam.

Suspension

Mr. Mayers testified that the Board directed him to suspend the Member on January 18, 2008. During his suspension, the Member was sent a letter outlining concerns about his conduct and requesting that he submit long-term plans and intended assessment tools to Mr. Mayers by April 30, 2008. Mr. Mayers followed up on this request with an additional memo to the Member about his need to submit materials to the administration.

Cross-examination of Mr. Mayers

Supervision Issues

In cross-examination, Mr. Mayers acknowledged that there were certain areas in the School where the School’s PA system could not be heard.

Progress Reports

Under cross-examination, Mr. Mayers recognized that the Education Act and Board Policy did not require progress reports to be issued and that in the event that a teacher were to release progress reports, these documents did not need to include grades but could simply contain comments. Mr. Mayers reiterated his concern that the assessment and evaluation procedures were not being properly followed by the Member, and that this could negatively impact students who received insufficient or conflicting information on the progress report.

Concerns about inappropriate materials used in class

During cross-examination, Mr. Mayers explained that [XXX] classes were for students who had previously struggled at the [XXX] level. As such, using grade [XXX] materials for a grade [XXX] [XXX] class might not necessarily be inappropriate. Mr. Mayers admitted, however, that he had not investigated the issue by actually going to the Member’s class to ensure that the grade [XXX] [XXX] was being used properly in the grade [XXX] [XXX] [XXX] class.

Meeting with Member

Mr. Mayers stated in cross-examination that he did not schedule another meeting following the December 17, 2007 meeting that did not take place.

Exam Issues

Under cross-examination, Mr. Mayers conceded that a teacher at the School had reported in February 2013, that there had been some problems with the grades that had been sent by teachers through Mark Book. He also indicated that he was unsure whether there was a written School policy regarding the removal of exams from the School.

Suspension

During cross-examination, Mr. Mayers addressed the Member’s return to the classroom after his suspension. Mr. Mayers stated that he was asked by Board superintendent Ms. Amos to monitor the Member by going to his classroom and observing him. Mr. Mayers visited the Member’s class in June 2008 and did not observe any problems. The principal reported his findings to Ms. Amos.

Health and Safety Issues

Mr. Mayers also acknowledged, during cross-examination, that the Member was the School’s health and safety representative for the Ontario English Catholic Teachers Association (“OECTA”). In this role, the Member had urged the School administration to deal with a mould problem in the School. Mr. Mayers did not have any conflict with the Member in his role as the OECTA health and safety representative. Mr. Mayers stated, however, that he did not agree with the Member’s decision to remove a ceiling tile from his classroom and to get it tested for mould. Mr. Mayers felt that the Member should have consulted the School and the Board on the issue first.

Testimony of Ms. Amos

During the 2007-2008 academic year, Ms. Amos was the superintendent for the Board and was responsible for overseeing the School. At the hearing, she testified about the Board’s investigation into the Member’s conduct. Her testimony was supplemented with letters and notes from her interviews and meetings.

Progress Reports

Ms. Amos stated that in October 2007, Mr. Mayers asked for access to the Member’s Mark Book. When Ms. Amos looked into the matter, she discovered that the Member had only recorded one mark for his grade [XXX] [XXX] [XXX] students since the beginning of the academic year. This mark was based only on a safety quiz, for which all of the students had received a grade of 100%. Accordingly, the Member’s students all received a mark of 100% on their progress reports. Ms. Amos was concerned that by mid-October, the Member had only given his students one mark. While progress reports were not mandatory, there was an expectation that the schools under the Board’s direction would send out progress reports in the fall.

Parent Complaints

Ms. Amos testified that in late November 2007, she received a call from a parent who had concerns about the Member’s grade [XXX] [XXX] class. This parent complained that the end of the semester was approaching, and she still had no indication of where her child stood in the Member’s [XXX] course. She told the superintendent that the Member did not give his students assignments or tests and that he talked on his cell phone and conducted [XXX] team meetings during class time.

Ms. Amos stated that approximately one week later, she received another parent complaint about the Member’s grade [XXX] [XXX] class, this time from Ms. 4, the mother of Student No. 4. Ms. 4 told Ms. Amos that she was worried that her son, who had an IEP, was not being assessed frequently enough and that he did not receive adequate feedback from the Member. Ms. 4 stated that the Member allowed students to watch a movie unrelated to the [XXX] curriculum. Ms. 4 was also upset about time wasted in class. For instance, her son had worked on a project for three periods and was only told, when he submitted it, that his topic was not appropriate. Ms. Amos understood that an apology was later given and that the project was deemed appropriate. Ms. 4 was concerned that Student 4 lacked direction and support during those three periods.

In addition, Ms. 4 was upset that the Member had distracted her son by talking during a test. Ms. Amos said that Ms. 4 claimed that the Member justified his behaviour on this occasion by telling his students that he was just showing them how it felt for him when they talked during his lessons. Ms. 4 stated that she had spoken with the Member over the phone about her concerns and the Member had an unprofessional demeanour.

Exam Review

Ms. Amos testified that in January 2008, Mr. Mayers informed her that the Member had held up the actual grade [XXX] [XXX] exam in front of his class and read out exam questions instead of conducting a proper exam review. Mr. Mayers also told the superintendent that the Member had done something similar during the preceding academic year. For the January 2007 exam, he had put the exam on his desk and left the room in order to give his students the opportunity to look at the exam. Mr. Mayers informed Ms. Amos that he would investigate the matter.

Sometime later, Ms. Amos received a copy of the grade [XXX] [XXX] exam as well as one student’s notes from the Member’s exam review. Mr. Mayers gave Ms. Amos an update of his investigation, stating that he had interviewed students about the exam review allegations. Ms. Amos felt that these documents and the student interviews confirmed the allegation that the Member had provided his students with an overly-detailed exam review.

Mr. Mayers also indicated to Ms. Amos that he had previously asked the Member to submit his grades and long-range plans to the office by Christmas, but the Member never complied with this request.

Suspension

After receiving this information about the Member’s conduct, Ms. Amos assigned the Member to home duties from January 18 to April 4, 2008. Since the Member would be gone for the rest of the semester, the administration needed all of his assessments in order to calculate his students’ final grades. However, Mr. Mayers told Ms. Amos that the Member would not submit these grades.

Ms. Amos further testified that she received another complaint about the Member after his departure. Ms. 3’s daughter, Student No. 3, had been in the Member’s grade [XXX] [XXX] [XXX] class and Ms. 3 was concerned that her daughter was not being assessed frequently enough. Ms. 3 also complained that the Member spent class time talking on his cell phone, eating food and holding [XXX] team meetings. Ms. 3 further expressed concerns about the Member’s inadequate classroom supervision and the exam review that he had provided.

January 2007 Exam Marks

Ms. Amos stated that later in January 2008, she learned that [XXX] department head, Ms. Scarfone, had reviewed the Member’s January 2007 exams and discovered that the marks on the exam hardcopies were different from the marks entered into Mark Book. Ms. Amos testified that she had not been aware of any computer glitches associated with Mark Book.

Board Decision

In March 2008, the Board held a meeting with the Member and allowed him to respond to the allegations against him. Shortly after this meeting, in April 2008, the Board issued a letter to the Member stating that it had concluded its investigation into his conduct and had determined that the Member had engaged in several acts of misconduct. As such, the Board instituted supervisory measures of a non-disciplinary nature upon the Member’s return to work on April 7, 2008.

Ms. Amos testified that Mr. Mayers updated her on the Member’s progress two months after the Member returned to the School. Mr. Mayers indicated that he had visited the Member’s classroom unannounced and had observed improvements in course delivery, course planning and assessment.

Cross-examination of Ms. Amos

Progress Reports

During cross-examination, Ms. Amos admitted that she was uncertain whether it was acceptable for progress reports issued at the School to contain only comments without any grades. She confirmed that Mr. Mayers never gave the Member a letter of expectation or imposed any disciplinary measures on him for his progress reports.

Parent Complaints

In cross-examination, Ms. Amos acknowledged that one way to resolve the issues raised by the parents was for the principal to meet with the Member and the parents to discuss the situation. Mr. Mayers, however, had arranged no such meetings. Moreover, Mr. Mayers had not interviewed Ms. 4’s son as part of his investigation.

Board Decision

Under cross-examination, Ms. Amos acknowledged that although the Board’s letter to the Member referred to the Member’s use of a textbook that was unsuitable for his [XXX] [XXX] class, it was the department head’s responsibility to review the textbooks used for different grades and levels.

Ms. Amos further indicated that she was aware of the health and safety concerns at the School, which were related to the building’s mould problem and boiler system.

Testimony of Ms. Annecchini

During the 2007-2008 academic year, Ms. Annecchini was the head secretary at the School. She testified to her brief involvement in the School administration’s investigation into the Member’s conduct.

Ms. Annecchini testified that in January 2008, Vice-Principal Toth, asked her to retrieve the Member’s January 2007 exams. Ms. Annecchini spoke to the head of the [XXX] department, Ms. Scarfone, about this request but Ms. Scarfone reported that she was unable to find the exams.

Ms. Annecchini received a message from Mr. Mayers asking her to also retrieve the Member’s exams for the first and second semesters of the 2005-2006 academic year. When Ms. Annecchini asked the Member for the requested exams, the Member stated that he did not know where the January 2007 exams were, but said that he would bring her the 2005-2006 exams. After receiving the 2005-2006 exams, Ms. Annecchini once again reminded the Member that the administration wanted copies of his January 2007 exams. At this point, the Member stated that someone probably moved these exams but he then indicated that he would retrieve them. Ms. Annecchini accompanied the Member as he went to retrieve the January 2007 exams. She saw the Member go out to his car in the parking lot and return with the requested exams. Ms. Annecchini described this incident to the School administration and was asked by Mr. Mayers to write a statement about what she had witnessed.

Testimony of Student No. 1

During the 2007-2008 academic year, Student No. 1 was a grade [XXX] student at the School. She testified about her knowledge of the Member’s January 2008 [XXX] exam review.

Student No. 1 was in Colleague A’s [XXX] class during her grade [XXX] year. In the period leading up to January exams, Student No. 1 heard from friends that there was a very detailed review for the grade [XXX] [XXX] [XXX] exam being passed around among students.

Student No. 1 testified that one of her friends, Student No. 10, told her that she had actually seen the exam. The following day in her [XXX] class, Colleague A conducted an exam review by having her students discuss and brainstorm topics that they should study for the exam. During this discussion, some students expressed that it was unfair that the Member’s class received a detailed review and all they were doing was brainstorming.

Student No. 1 received a copy of the Member’s exam review from Student No. 10. The exam review listed the different sections that would make up the exam, such as multiple choice and short answer questions, and noted the specific concepts that would be covered in each section. Student No. 1 found the exam review to be overly-detailed as her teachers would typically speak to broad concepts rather than specific questions in their reviews.

The next day in [XXX] class, students brought up the topic of the exam review again and Student No. 1, as well as some of her other classmates, informed Colleague A that an overly-detailed exam review was being passed around. Student No. 1 provided a copy of the exam review to Colleague A.

Student No. 1 testified that the School principal and vice-principals interviewed her as part of their investigation of the overly-detailed exam review. Her friend, Student No. 2, was also present during this meeting and was asked questions about her knowledge of the review. Student No. 1 subsequently wrote a statement about her knowledge of the exam review, in which she asserted that it was unfair that certain students were given a more detailed review while other students had to study hard for the exam.

Relationship with Colleague A

Student No. 1 also spoke to her relationship with her [XXX] teacher, Colleague A. She testified that she had a good relationship with her and that she joined the teacher’s extracurricular club, which raised money for charities. Student No. 1 remains in contact with Colleague A.

Perceptions of the Member’s Class

Student No. 1 did not remember any students calling the Member’s [XXX] class a joke or a bird course during Colleague A’s class, but she did testify to hearing these kinds of comments outside of class.

Cross-examination of Student No. 1

In cross-examination, Student No. 1 admitted that even with a very detailed exam review, she would have had to study for the [XXX] exam. She also acknowledged that since the Member’s exam review was not confidential and was passed between students from different classes, the Member’s class did not really have an unfair advantage. However, Student No. 1 still felt that such a detailed review defeated the whole purpose of learning.

Testimony of Student No. 2

During the 2006-2007 academic year, Student No. 2 was in the Member’s grade [XXX] [XXX] class. She testified about the Member’s teaching and his classroom conduct and was referred to a document that she had prepared in the year following the events in question. She had been asked by Mr. Mayers to make a statement about her experience in the Member’s class.

Inappropriate Comments

Student No. 2 stated that the Member had discussions with students about their personal lives during class. The Member also used inappropriate language and made comments about other staff at the School. On one occasion, the Member was speaking to a grade [XXX] student who had failed grade [XXX] [XXX] and had to take the course again. They were talking about why the student had failed and, during this conversation, the Member referred to the teacher who had previously taught grade [XXX] [XXX] as a “bitch”.

Supervision Issues

Student No. 2 gave testimony regarding the Member’s supervision of his students. She stated that the Member would show up to class 10 to 30 minutes after the morning announcements had ended, which left students sitting around and waiting for him with nothing to do. Sometimes, the Member left his classroom for long periods of time to go to the cafeteria or to his car without assigning any work to his students.

The Member was also the School’s [XXX] coach, and members of the team would often drop by his classroom during [XXX] to have [XXX]-related meetings. Student No. 2 observed that the Member was very friendly with these students and felt that these students were his favourites.

Teaching Practice and Assessment

Student No. 2 further testified that her class was using a textbook for [XXX] level classes even though it was an [XXX] course. This discovery concerned Student No. 2 as the final exam for the course would be based on the textbook used by other [XXX] classes.

Student No. 2 recognized, however, that the Member did not often use the [XXX] textbook over the course of the semester, nor did he give his students notes very often. The Member’s teaching method normally consisted of giving his students handouts to work on.

Exam Review

As exams approached, Student No. 2 became worried because the Member had not handed back much graded work and she was unsure of how she was doing in the course or how she would fare on the exam. The Member, however, provided the class with an extremely detailed exam review. While other teachers would speak to broad topics and themes during their exam reviews, the Member revealed the exact definitions, issues and sections that would appear on the exam. This review was more detailed than the reviews conducted in other grade [XXX] [XXX] classes, so Student No. 2’s classmates ended up sharing the review with other students.

Student No. 2 also testified that, on another occasion, the Member held up a document in front of the class and told his students that it was the grade [XXX] [XXX] exam. He told them not to be too nervous about it and then proceeded to state that he would be putting the exam on his desk and leaving the room. After the Member had left, students looked at the exam and wrote down what they saw.

Student No. 2 testified that during the actual exam, she came across a question relating to terms that she had never seen before during her semester of grade [XXX] [XXX]. She told the Member that she did not remember covering these terms in class. According to Student No. 2, the Member then took a pen, crossed out the question and told her not to worry about it since they had not covered the material in class. At first, Student No. 2 believed that the Member was making an exception for her, but when all of the students got their exams back, they realized that certain questions had been taken off all of their exams.

Student No. 2 testified that she did not report her concerns about the Member’s [XXX] class while she was in grade [XXX]. Since it was her first year of [XXX] and as she was still figuring out what classroom practices were normal, she did not feel comfortable raising the issue at the time.

In the spring of grade [XXX], Student No. 2 was called to the principal’s office and was interviewed by Mr. Mayers about her experience in the Member’s grade [XXX] [XXX] class. She was also asked to prepare a written statement of her observations. In her statement, Student No. 2 spoke to the Member’s detailed exam review, his habit of leaving the classroom for periods of time, his decision to use an [XXX] textbook, and his decision to cross off questions from an exam. Student No. 2, however, did not describe the Member’s inappropriate comments or the [XXX] meetings that took place in the Member’s class.

Cross-examination of Student No. 2

During cross-examination, Student No. 2 indicated that many students gathered around the exam on the Member’s desk, and that one of her classmates, Student No. 9, read the questions aloud to the rest of the class. Student 2 agreed that she had not provided this detail in her written statement. She also acknowledged that there were terms on the exam that took her by surprise, despite her claim that she had received a very detailed exam review and that the Member had purposely left a copy of the exam on his desk during one class. Finally, she acknowledged that although she had alluded to the overly-detailed exam review in her written statement, she did not mention anything about the Member leaving the exam on his desk for students to consult.

Testimony of Ms. 3

Ms. 3 is Student No. 3’s mother. At the hearing, she testified about what she had learned of the Member’s class through her daughter and about an interaction that she had with the Member during parent-teacher interviews.

During the 2007-2008 academic year, Student No. 3 was in the Member’s grade [XXX] [XXX] class. In October 2007, Ms. 3 received her daughter’s progress report and saw that Student No. 3 and the rest of her class had received a mark of 100% for [XXX]. This mark appeared to be based only on one quiz.

Ms. 3 testified to learning from her daughter that the Member did not assign projects or take-home assignments. When students submitted their work, the Member would take a long time to mark and return the graded assignments.

In November 2007, Ms. 3 and her husband went to the School for a parent-teacher interview. They arrived 10 to 15 minutes early and, although the Member was not with any other parent in his classroom, he did not begin the interview early. Instead, the Member made the parents wait an additional 15 to 20 minutes from the time that their interview was scheduled to begin. Ms. 3 testified that the interview took quite a while as she had many concerns about the amount of work and the assessment that was being done in the Member’s class. Ms. 3 testified that the Member came across as arrogant in their meeting and that he did not respond adequately to her concerns.

When Ms. 3 returned home from the interview, she told her daughter that she had a feeling that the Member would be talking about their interview at school. The next day, Student No. 3 came home from school and told her mother that the Member had spoken about their interview in front of the whole class. The Member had called Ms. 3 feisty and animated, stating that she had given him a hard time. He had also asked Student No. 3 about her mother’s age and occupation in the presence of the other students.

Reporting

Ms. 3 testified that she did not raise her concerns with the School administration while her daughter was still in the Member’s [XXX] class because she did not want to negatively affect her daughter’s grades in the Member’s [XXX] class. Towards the end of the semester, in January 2008, Ms. 3 decided to finally speak up. She spoke with both Mr. Mayers and Ms. Amos and also produced written statements for the School administration and the Board.

Cross-Examination of Ms. 3

In cross-examination, Ms. 3 added that the Member had told Student No. 3 that her mom had “grilled” him. She also recognized that Student No. 3’s [XXX] grade went up after she wrote the exam and that she received a satisfactory final grade for the course.

Testimony of Student No. 3

During the first semester of the 2007-2008 academic year, Student No. 3 was in the Member’s grade [XXX] [XXX] class. Student No. 3 testified about the Member’s teaching and his classroom conduct.

Assessment and Feedback

Student No. 3 testified that she did not receive much feedback in the Member’s class, since he did not hand back many graded assignments and tests. A quarter of the way through the semester, the students received their progress reports, which indicated that they had all received a mark of 100% for [XXX]. This mark was based on one [XXX] safety quiz. Student No. 3 did not recall the Member telling the class to disregard the marks on the progress reports and to only focus on the comments.

Student No. 3 testified that, later in the year, she received her midterm report card. By this point, she had completed several assignments in the Member’s class, but these assignments had not been handed back to her, so it was unclear how the Member had calculated her midterm grade.

Inappropriate Conduct and Comments

Student No. 3 testified that the Member did not always conduct himself appropriately in the classroom. She stated that the Member was disorganized and unprofessional. On many occasions, he had what seemed to be personal conversations on his cell phone during class time. The Member showed favouritism towards students considered to be jocks, and since he was the coach of the School’s [XXX] team, students from his team would drop by his classroom for [XXX] meetings or just to say “hi” to the Member. The Member would also eat during class and sometimes sent students to the cafeteria to buy him food or coffee.

Student No. 3 testified to a particular incident that occurred while the class was listening to the morning announcements over the School’s PA system. While a student was making an announcement, the Member made a derogatory comment about the student’s tone of voice and about the student’s sexual orientation.

Student No. 3 stated that on another occasion, grade [XXX] and [XXX] students stopped by the Member’s classroom and discussed prom with him. During this conversation, the Member commented that students would be drinking, having sex and watching pornography during prom.

Student No. 3 further testified that, the day after parent-teacher interviews, the Member singled out Student No. 3’s mother, Ms. 3, stating that she was animated, talked a lot and gave him a hard time. The Member’s comments embarrassed Student No. 3.

Exam Review

Student No. 3 testified that she was not in class on the day that the Member conducted the exam review.

Cross-examination of Student No. 3

Assessment and Feedback

During cross-examination, Student No. 3 recognized that after she and her mother had asked for a detailed mark breakdown from Mark Book, the Member complied with this request. However, Student No. 3 maintained that the breakdown provided by the Member still did not account for all of the assignments that she had completed prior to the midterm report cards.

Inappropriate Conduct and Comments

During cross-examination, Student No. 3 stated that her mother was not animated but outspoken. She acknowledged that it would not be surprising to hear that her mother had asked the Member a lot of questions or had given him a hard time.

Exam Review

In cross-examination, Student No. 3 said that she had heard from her classmates that the review was very detailed and that it was being passed around among students. Student No. 3 stated that while she never spoke to her mother about the exam review, it is possible that her friends did as they would sometimes express their concerns about the Member’s class to Ms. 3.

Testimony of Ms. 4

During the 2007-2008 academic year, Ms. 4’s son, Student No. 4, was in the Member’s grade [XXX] [XXX] [XXX] class. Ms. 4 testified that her son experienced difficulties in this class and that she was concerned about the Member’s teaching and conduct.

Ms. 4 gave testimony that her son had an IEP in [XXX]. This plan indicated that Student No. 4 had [XXX] and was entitled to certain accommodations, such as preferential seating, visual-based instruction and extra time to complete tests.

Assessment Issues

Ms. 4 testified that she was concerned that her son’s class was not being evaluated frequently enough. She spoke with parents whose children were in different grade [XXX] [XXX] [XXX] classes, and it seemed that students with other [XXX] teachers were being assessed more frequently.

When Ms. 4 received Student No. 4’s midterm report card, it appeared that he was failing the course, but his grade was only based on a couple of [XXX] and one unit test. Ms. 4 and her husband went to meet the Member for a parent-teacher interview, and the Member reassured them that their son would have plenty of opportunities to improve his grades. However, three weeks after this interview, Ms. 4 still had not received any indication that Student No. 4 had completed any other assessments, which would have helped him to improve his [XXX] grades.

Ms. 4 testified that at one point during the semester, the Member’s class was assigned an in-class project. Student No. 4 chose a topic from the assignment handout provided by the Member and spent three classes working on his project. When he submitted his assignment, however, the Member told Student No. 4 that the topic he had chosen was not appropriate for the project. Ms. 4 was confused by the Member’s response to her son as she expected that the Member would have been overseeing and helping his students during the three periods he gave them to work on the assignment and would have therefore noticed her son’s topic choice sooner.

Inappropriate Conduct

Ms. 4 testified that her son told her about the Member’s inappropriate conduct in the classroom. She learned that the Member wasted class time and that he sometimes let his students watch movies that were unrelated to [XXX].

Ms. 4 stated that her son wrote an [XXX] test at some point during the semester. After Student No. 4 finished the test, he called his mother and told her that he thought that he had done alright but that he had been really distracted by the Member, who had been having conversations with students during the test.

Reporting Concerns

Ms. 4 testified that she spoke with the Member over the phone about her concerns, but she got the impression that the Member did not want to deal with her. Ms. 4 did not feel like they were working together to improve the situation for Student No. 4.

Ms. 4 reported her concerns to the head of the [XXX] department, Ms. Scarfone, and asked her about Colleague A’s [XXX] class. Ms. 4 learned, during this discussion, that Colleague A’s students were given more assessments than the students in the Member’s class. Ms. Scarfone urged Ms. 4 to write down her concerns, which she did. Ms. 4 also raised her concerns with Mr. Mayers and Ms. Amos.

Cross-examination of Ms. 4

Assessment Issues

During cross-examination, Ms. 4 recognized that Student No. 4 had been present at the parent-teacher interview and that the Member had gone through her son’s notebook to show her how Student No. 4’s incomplete class notes were related to the questions that he had gotten wrong on his unit test. Ms. 4 stated, however, that Student No. 4 had difficulty taking notes and that his other teachers were accommodating and would often give him a copy of their notes as a study aid.

Inappropriate Conduct

In cross-examination, Ms. 4 acknowledged that the [XXX] test was an open-book test and that her son could have asked to write the test in another room without distractions, since he was entitled to accommodations.

Testimony of Student No. 4

During the 2007-2008 academic year, Student No. 4 was in the Member’s grade [XXX] [XXX] [XXX] class. Student No. 4 testified about the Member’s teaching, assessments, and classroom conduct.

Student No. 4 stated that in [XXX], he had an IEP, which allowed him to have extra time for assignments, in-class work and note-taking. Student No. 4 was in the [XXX] stream of the Ontario curriculum, and wished to stay in that stream.

[XXX] Test

Student No. 4 testified that while students were writing an [XXX] test in [XXX] class, the Member struck up conversations with students that were completely unrelated to the test material. Student No. 4 was not given enough time to finish the test, though his IEP indicated that he should have been given extra time. After the test, Student No. 4 spoke to his mother over the phone about the test. Later that day, the Member pulled Student No. 4 out of his fifth period class and confronted him. The Member told him that he had lied to his mother about the test incident.

In-class Project

Student No. 4 testified about a [XXX] project that the Member had assigned during the semester. The Member gave his students three hours of class time to work on this assignment and provided them with a list of topics. Student No. 4 picked a topic from the list and completed the assignment, but when he brought his project to the Member, the Member told him that he had not chosen an appropriate topic and gave him a zero. Towards the end of the semester, however, Ms. Scarfone re-marked the project and counted it towards his grade.

Exam Review

Student No. 4 testified that the Member did not provide a proper exam review, choosing instead to write questions from the actual exam on the board.

Student No. 4 testified that after he had completed his grade [XXX] [XXX] course, he was interviewed by Mr. Mayers regarding the Member’s class.

Cross-examination of Student No. 4

[XXX] Test

During cross-examination, Student No. 4 acknowledged that he had never asked the Member to re-write the [XXX] test because he did not think that the Member would have allowed him to do so. Student No. 4 testified that he also never asked to write the [XXX] test in another room despite being entitled to this accommodation. Student No. 4 explained that he did not make this request because he was embarrassed by his IEP. Student No. 4 further acknowledged that it was possible that the Member took him out of class after giving him the results of his [XXX] test and told him, “Don’t worry, we’ll find a way to work it out.”

Student No. 4 agreed that he was eventually given more time to write his [XXX] test. Sometime after Christmas, the Member took an absence from school and Ms. Scarfone helped look after the Member’s class for the remainder of the first semester. Student No. 4 spoke to Ms. Scarfone about the issues that he had experienced with his [XXX] test, and she allowed him to re-write the test.

Student No. 4 recalled, during cross-examination, that the Member had explained to him and his parents that he had not done well on a prior test because his class notes were incomplete. Student No. 4 stated that he was not given enough time during class to take down notes from the blackboard. However, Student No. 4 conceded that he did not ask the Member to help him complete his notes.

Exam Review

During cross-examination, Student No. 4 recognized that he received a higher mark in [XXX] than he did for his [XXX] and [XXX] courses. Although Student No. 4 testified to being content with his grade [XXX] [XXX] teacher, his grade [XXX] [XXX] mark was actually higher than his grade [XXX] [XXX] mark.

Testimony of Ms. Scarfone

During the 2007-2008 academic year, Ms. Scarfone was the head of the [XXX] department at the School. She testified about her involvement with the School administration’s investigation into the Member’s conduct and about her experience working with the Member’s students.

Ms. Scarfone stated that in January 2008, Ms. Annecchini, the School’s head secretary asked her to retrieve the Member’s exams from the previous academic year. The exams were not stored in their usual location. Ms. Scarfone eventually found the exams at the Member’s workspace, although a couple of exams were missing. Ms. Scarfone then gave the exams to Ms. Annecchini.

Ms. Scarfone testified that the School administration later asked her to check the Member’s exams from the previous year to make sure that they were marked correctly. Ms. Scarfone found that there were no issues with how the Member had calculated the exam grades. The School administration then gave Ms. Scarfone the Member’s Mark Book passcode so that she could access his account to ensure that the marks were correctly entered into the system. Ms. Scarfone discovered that the marks recorded on the exam hardcopies were different from the marks that the Member had recorded in Mark Book. She informed the School administration about these discrepancies and noted, during her testimony, that she was unaware of any technological glitches with Mark Book.

Ms. Scarfone testified that in January 2008, the Member was assigned to home duties. As a result, she helped the Member’s students to complete any work that they needed to before the end of the semester. Some students needed to complete readings and [XXX], and there were quite a few assignments on the Member’s workspace that were graded but still needed to be handed back to the students.

Cross-examination of Ms. Scarfone

During cross-examination, Ms. Scarfone indicated that she did not recall interacting with or allowing Student No. 4 to retake one of his tests. Ms. Scarfone stated that she and the other [XXX] teachers were asked by Mr. Mayers to change the grade [XXX] [XXX] exam after the Member’s departure. Ms. Scarfone ended up marking the exams written by the Member’s students and did not find anything troubling with their results.

Ms. Scarfone noted, in cross-examination, that while she was responsible for ensuring that the other teachers in her department were aware of the required curriculum for the different grades and levels, she was not responsible for enforcing the teaching of the appropriate curriculum.

EVIDENCE OF THE MEMBER

Counsel for the Member called five witnesses, who were former [XXX] students of the Member, to testify about their experiences in his class. The Member also testified on his own behalf.

Testimony of Student No. 5

During the 2007-2008 academic year, Student No. 5 was in the Member’s grade [XXX] [XXX] [XXX] class, and Student No. 3 and Student No. 4 were her classmates. At the hearing, Student No. 5 testified about the Member’s teaching and classroom conduct.

Teaching and Assessment

Student No. 5 testified that the Member would teach his students through lectures and assigned homework. His teaching methods were similar to those employed by her other teachers, and Student No. 5 found the Member’s teaching method to be effective.

Student No. 5 spoke to the number of evaluations conducted by the Member over the course of the semester, stating that the number of tests and assignments in her [XXX] class was similar to that of her other [XXX] courses. Student No. 5 could not recall an instance in which she had to wait long to get an assignment back from the Member.

Student No. 5 stated that during tests in the Member’s class, students sat far apart from each other, and the room was completely silent. If students completed their exams early, they were expected to sit quietly without disturbing the other students until the test period was over.

Exam Review

Student No. 5 testified that the Member gave his grade [XXX] [XXX] class a standard exam review. He gave his students an oral review and had the class discuss the topics that they needed to study. Student No. 5 did not think that there was anything unusual about the Member’s exam review and felt that the Member had properly prepared her for the exam.

Classroom Conduct

Student No. 5 testified that she had no concerns about the Member’s supervision of his class as she did not recall him leaving the classroom or talking on his cell phone during class. Student No. 5 stated that students ate food in [XXX] class, but that this occurred in other classes as well. The Member sometimes had food in the classroom, such as muffins and chocolate milk.

Student No. 5 stated that there was only one instance where food was actually prepared in the classroom, but this period was a special celebration at the end of the semester. The students made pancakes and watched a movie on this occasion.

Student No. 5 testified that there was one instance in which Student No. 4, Student No. 6 and some other male students in her class were making inappropriate comments about what would happen at prom that year. The Member did not participate in this conversation and told the boys to end this discussion.

Student No. 5 indicated that the Member was the School’s [XXX] coach, so students from the team would sometimes come by during [XXX] class to drop off forms. If these students came in while the Member was teaching, the Member turned them away and told them not to come back until his [XXX] class was busy with seatwork. When these students dropped by, they would only stay for approximately 20 seconds before leaving. Student No. 5 had never witnessed any [XXX] team meetings taking place during [XXX] class.

Student No. 5 recalled one class where the students joked about parent-teacher interviews. During this discussion, the Member pointed to Student No. 3 and mentioned that her mother was pretty lively or animated. Student No. 5 testified that she did not find anything concerning about this discussion.

Student No. 5 stated that the School administration, the Board and the College never interviewed her about the Member’s class. She learned about the Member’s disciplinary proceedings from her father, who used to work with the Member at another [XXX].

Cross-examination of Student No. 5

Exam Review

During cross-examination, Student No. 5 acknowledged that she had written dozens of exams during [XXX] and that she does not have a specific recollection of each one.

Classroom Conduct

During cross-examination, Student No. 5 stated that she recalled the Member’s comment about Student No. 3’s mother six years after the fact because she could tell that the remark upset Student No. 3.

Testimony of Student No. 6

During the 2007-2008 academic year, Student No. 6 was in the Member’s grade [XXX] [XXX] [XXX] class, where Student No. 3 and Student No. 4 were his classmates. Student No. 6 testified about the Member’s teaching and classroom conduct.

Teaching and Assessment

Student No. 6 testified that he found the Member to be an average teacher whose teaching strategies were similar to those used in his other classes. The Member would put notes on the blackboard or on overheads, and while Student No. 6 did not learn concepts well by simply writing them down, all of his other teachers used the same methods.

Student No. 6 stated that the Member was professional and organized. He returned assignments approximately one week after they had been submitted, and he did not make miscalculations with his marking. The Member evaluated his students and gave them feedback as frequently as Student No. 6’s other teachers. He gave his students an assignment for each chapter or major section of their textbooks. When his students wrote a quiz or a test, they were not allowed to talk, even if they finished early. Student No. 6 testified that he felt prepared when he wrote his [XXX] tests.

Student No. 6 found the Member to be a very involved teacher. If students had questions, the Member answered their questions and helped them if they were struggling with the material.

Exam Review

Student No. 6 testified that the review the Member conducted for the grade [XXX] [XXX] exam was similar to the exam review conducted in his other [XXX] classes. The Member took his students through the different chapters in the [XXX] textbook and identified the areas that they should focus on. The Member emphasized that the students needed to study for the exam, since the class was talkative and many students had neglected to complete their homework and assignments.

Supervision

Student No. 6 stated that he had no concerns about the Member’s supervision of his class. The Member sometimes retrieved materials from a [XXX] adjoining his classroom, but this would only take a minute or two. Student No. 6 indicated that all of the [XXX] teachers at the School habitually went into the [XXX] to gather materials.

Classroom Conduct

Student No. 6 testified that during one class, he and his classmates were talking about where they were going to drink and party after prom. The Member overheard this conversation and told them to end the conversation.

Student No. 6 stated that food and drinks were not allowed in the Member’s classroom, though some students would try to sneak in food. Student No. 6 did not remember the Member ever having food in class. He did, however, recall one class in which the students were not cooperating and were neglecting to work on their assignments. To motivate the students, the Member told them that if they worked through the material in the textbook before the exam, they could have a special class during which they would bring food and watch a movie to celebrate the end of the semester. The students, however, brought an inappropriate movie for this class celebration and the Member did not want the students to watch it. Student No. 6 could not recall if the students watched the whole movie or not.

Student No. 6 testified that the Member’s [XXX] class took place during first period, which meant that students would listen to morning announcements in the Member’s classroom. There were sometimes announcements directing students from the School’s [XXX] team to find the Member in his classroom after school to submit money for tournaments. On one occasion, there was a morning announcement asking students to find the Member in his classroom during first period to submit money for a trip. After the announcements had ended, some students from the team came to the Member’s class to drop off payment for an upcoming trip, and this process only took a few minutes.

Student No. 6 could not recall the Member ever talking on his cell phone or expressing views about gender identity or sexual orientation in class.

Student No. 6 confirmed that he was never interviewed by the School administration, the Board or the College regarding the Member’s class.

Cross-examination of Student No. 6

Exam Review

During cross-examination, Student No. 6 admitted that he did not have a specific recollection of the Member’s exam review, though he recalled the Member telling the class that he did not want them to fail. Student No. 6 also acknowledged that there was some tension between his [XXX] class and another [XXX] class. The students from the other class felt that the Member’s class had an unfair advantage because they had received an in-depth exam review, whereas the student-teacher who taught the other class had failed to conduct a review.

Supervision

During cross-examination, Student No. 6 admitted that he was often late for the Member’s grade

[XXX] [XXX] class and could not be sure that the Member never arrived late for class.

Testimony of Student No. 7

During the 2006-2007 academic year, Student No. 7 was in the Member’s grade [XXX] [XXX] [XXX] class. She testified about the Member’s teaching and classroom conduct.

Student No. 7 stated that the Member was just as prepared for his lessons as her other teachers. The Member provided his students with notes, assigned readings from textbooks, put diagrams on the blackboard, and gave verbal explanations of concepts.

Student No. 7 testified that the Member provided feedback to students as frequently as her other teachers. He assigned homework on a daily basis and gave his students two major assignments, a unit test, and quizzes for each unit in the course. The Member handed back tests, quizzes and assignments a few weeks after they had been submitted. Student No. 7 had no major concerns with the textbook or the materials that the Member used for his [XXX] course.

Student No. 7 stated that the Member’s exam review did not differ greatly from the reviews conducted in her other classes. The student did not recall the Member ever putting the [XXX] exam on his desk and leaving the room so that students could look at the exam.

Food was not allowed in the Member’s class and Student No. 7 was not aware of anyone ever sneaking in food. According to Student No. 7, the Member did not use inappropriate language in the classroom, nor did he talk about his colleagues in front of his students.

Student No. 7 indicated that she was never interviewed by the School administration, the Board, or the College regarding the Member’s class.

Testimony of Student No. 8

During the 2007-2008 academic year, Student No. 8 was in the Member’s grade [XXX] [XXX} [XXX] class. At the hearing, Student No. 8 testified about the Member’s teaching and classroom conduct.

Teaching and Assessment

Student No. 8 stated that the Member was a very clear, coherent, professional, and organized teacher. He used effective methods to teach his students, which included PowerPoint presentations, references to books, experiments, movie programs, blackboard diagrams, and verbal explanations.

Student No. 8 testified that the number of evaluations conducted by the Member was consistent with the number of tests and assignments that he received from his other teachers. The Member handed back assignments, tests and quizzes in a timely fashion – usually within a couple of weeks of receiving the assignments. During tests and quizzes, the Member’s classroom was quiet and students who were finished early were expected to remain quiet and to respect other students who were still writing the quiz or the test.

Student No. 8 felt that the Member had adequately prepared him for the exam at the end of the semester. The Member had given an exam review that was not any more detailed than the reviews conducted by his other teachers. Student No. 8 had no recollection of other students asking his classmates for their exam review notes.

Classroom Conduct

Student No. 8 testified about an incident during which a student from the School’s [XXX] was making an announcement over the PA system. On this occasion, Student No. 8 was in the Member’s [XXX] class, and his desk was positioned directly in front of the Member’s desk. During the announcement, the Member leaned over to Student No. 8 and asked him if the student speaking over the PA system was gay. Student No. 8 stated that he was not offended by this discussion.

Student No. 8 described another instance where students, including Student No. 6, were having a discussion about prom. While the morning announcements were still in progress, some students were saying that there was going to be drinking, drugs and sex at prom. The Member asked the students to be quiet, and the discussion subsequently came to an end.

Student No. 8 stated that he had no concerns about the Member’s classroom supervision. The Member did not leave his students unattended or talk on his cell phone during class. If the Member needed to step out of his classroom for a brief period of time, he would have another teacher keep an eye on his students.

While food was generally not allowed in the Member’s classroom, Student No. 8 did recall one class where they made bacon and eggs as an illustration of [XXX] change.

As the Member was the School’s [XXX] coach, students from the team sometimes came by his [XXX] class after morning announcements to pick up permission slips for [XXX] games. On these occasions, the Member assigned seatwork to his students to keep them occupied while he dealt with the permission slips.

Student No. 8 stated that he was never interviewed by the School administration, the Board, or the College regarding the Member’s class.

Cross-examination of Student No. 8

Classroom Conduct

During cross-examination, Student No. 8 admitted that the students from the [XXX] team would sometimes drop by for brief social interactions with the Member. He also stated, in cross-examination, that he played [XXX] as well as other sports during [XXX] and that he was friends with the Member’s son, as they had sometimes played on the same sports teams.

Testimony of Student No. 9

During the 2006-2007 academic year, Student No. 9 was in the Member’s grade [XXX] [XXX] [XXX] class. At the hearing, he testified about the Member’s teaching and classroom conduct.

Teaching and Assessment

Student No. 9 testified that the Member was professional, punctual, and prepared for his lessons. The Member’s teaching methods included assigning work from the textbook, giving verbal explanations, and showing video clips. The Member typically assigned his students homework every day, asking them to read passages from the textbook and to answer questions.

Student No. 9 could not recall how long it took for the Member to return assignments, tests, or quizzes, but he did not believe that there was anything abnormal about the Member’s turnaround time for returning graded work.

Near the end of the semester, the Member provided his students with an exam review, speaking to the different units that would be covered on the exam. Student No. 9 did not find this review to be more detailed than the reviews that he had received from his other teachers. Student No. 9 stated that the Member never left a copy of the exam on his desk and left the room so that students could look at it.

Classroom Conduct

Student No. 9 found that the Member was respectful and did not use inappropriate or degrading language in class. The Member had a great relationship with students and was approachable. Student No. 9 did not recall ever hearing the Member discuss the personal lives of his students or colleagues.

Student No. 9 did not recall the Member arriving late for [XXX] class or being visited by members of his [XXX] team. The Member only left his classroom when he got paged or called, and even in these instances, he would ask the teacher across the hall to supervise his students.

Testimony of the Member

The Member completed his Ontario teacher training in 1998 (see Exhibit 2) and has been teaching [XXX] at the School since 2003. During his testimony, the Member spoke about his teaching practices, his classroom conduct and his interactions with School administration during the 2006-2007 and 2007-2008 academic years.

Performance Appraisals

The Member testified that his two most recent performance appraisals took place in 2006 (see Exhibit 8) and 2012. He was successful in both of these appraisals.

Health and Safety Concerns

The Member stated that during the 2007-2008 academic year, he was the Health and Safety representative at the School. When the Member received reports that staff members were experiencing medical issues that could be attributed to mould at the School, he investigated the issue by removing a tile and getting it tested in a lab. The Member found that the School administration was indifferent to the problem and denied that there was mould in the building. In particular, Ms. Toth, who was also the administrator responsible for Health and Safety, was adamant that there was no mould and expressed this view during a staff meeting. The Board eventually had to hire several companies to handle the mould situation at the School.

2006-2007 Teaching Resources

The Member testified about his teaching resources during the 2006-2007 academic year. At the time, one of the classes that the Member taught was grade [XXX] [XXX] [XXX], and the textbook he used for this course was listed as being approved for grade [XXX] [XXX] and [XXX] classes on an educational publisher’s brochure (see Exhibit 9). The textbook was also approved for [XXX] classes at the School. The Member further testified that the textbook issue was discussed during [XXX] department meetings. He prepared lesson plans based on the textbook he used, and the School administration could have reviewed these lessons plans if necessary. The School administration should have also been aware of the textbooks being used at the School. Before 2008, nobody raised any concerns about the textbooks that the Member was using.

January 2007 Exam

The Member explained that, prior to the 2006-2007 academic year, he provided his students with general subject reviews before the final exam. During a general subject review, the Member would take his class though the questions from the textbook and would review the work that students had completed over the semester.

However, during the 2006-2007 academic year, the principal at the time, Mr. Lou Friscolanti, issued exam review guidelines for teachers to follow (see Exhibit 10). This is when the Member began conducting more formal exam reviews. He started using old exams and unit tests during his reviews and spoke to the broad themes and terms that would be covered on the exam. The Member also provided his students with an exam breakdown, listing the different exam sections and the marks allotted for each section. This was the Member’s general practice, though he could not recall the specifics of his January 2007 exam review.

The Member denied ever having told Student No. 2 that she did not have to answer certain questions on her grade [XXX] [XXX] exam in January 2007. The Member also stated that he never knowingly modified the marks of his 2007 exams when he entered them into Mark Book and attributed any discrepancies to a computer glitch. He noted that in 2013, the School’s vice-principal indicated that there had been a technological glitch with Mark Book, which resulted in an entire class receiving incorrect marks.

Colleague A’s Allegations

During the 2007-2008 academic year, the Member taught grade [XXX] [XXX] [XXX] as well as a grade [XXX] [XXX] course. During that year, the Member learned that his [XXX] colleague, Colleague A, had complained to the School administration that he had left his classroom unattended and took grade [XXX] materials from the workroom adjoining his classroom for his grade [XXX] [XXX] class. Colleague A had never raised her concerns with the Member and she had failed to provide him with written notice that she was making a negative report about him, despite having a legal obligation to do so.

The Member testified that he only went to the workroom adjoining his classroom to retrieve materials, and he also explained that his [XXX] course catered to a wide range of students with varying abilities. There were students who operated at the grade [XXX] level as well as students whose academic capabilities were just slightly lower than the standard grade [XXX] level. Given that there was no formal curriculum for this course, the Member decided to use grade [XXX] materials to teach his students. The Member denied Colleague A’s claim that he drew cartoons on the board during his [XXX] class.

2007-2008 Progress Reports

The Member stated that although progress reports were not mandatory at the School, he did issue progress reports for his grade [XXX] [XXX] [XXX] students in the fall of 2007. These reports were intended to provide a snapshot of how students were doing in the course through general comments and did not need to include actual grades. When the Member prepared his progress report in Mark Book, he stated that he entered a grade of 100% as a placeholder so that the system would allow to him generate a report. When the progress report was handed out to his students, the Member told them to disregard the mark and to focus on the comments.

Student No. 4

The Member testified that one of his grade [XXX] [XXX] [XXX] students was Student No. 4. As Student No. 4 had an IEP and a [XXX], the Member accommodated him by moving his desk to the front of the class so that he would be less easily distracted. Student No. 4 also had the option of writing his tests in another room, but he declined to take advantage of this accommodation. The Member did not say anything about Student No. 4’s decision as he did not want to push the issue. The Member was unable to give Student No. 4 more time to write tests in his classroom since there was another class that would take place immediately after the Member’s [XXX] class.

The Member felt that Student No. 4 should have taken courses in the [XXX] stream and the student’s [XXX] and [XXX] teachers shared this view. The Member felt that Student No. 4’s mother, Ms. 4, wanted him to be in the [XXX] stream as she wanted him to be able to attend university.

The Member met Ms. 4 during parent-teacher interviews in November 2007. At the time, Student No. 4 was not passing the course and Ms. 4 expressed her concerns about this situation. The Member went through Student No. 4’s notebook and compared it to a [XXX] test that he had written to show Ms. 4 that the questions that her son had gotten wrong were linked to portions of his class notes or homework that were incomplete. The Member told Ms. 4 that he would assist Student No. 4 during lunch or after school if he required assistance.

The Member also testified about the issue of the [XXX] assignment. He stated that Student No. 4 submitted an [XXX] assignment on a topic that was not on the approved topic list, which had been provided to the class. As Student No. 4 had failed to comply with the assignment guidelines, the Member gave him a grade of zero.

The Member stated that Student No. 4 also wrote an [XXX] test for [XXX] class. Student No. 4 did not ask for accommodations during this test, and he did poorly. When the Member spoke to Student No. 4 about his test results, the student began to cry. The Member told him not to worry and that they would find some way to work this out.

January 2008 Exam

The Member testified that his review for the January 2008 grade [XXX] [XXX] exam was no different than the previous exam reviews that he had conducted. He was not aware of any controversy surrounding his exam reviews while he was at the School, as the administration and his department head never said anything about them. The School administration had not issued any guidelines about exam reviews since his last principal, Mr. Friscolanti, had provided directives during the 2006-2007 academic year.

The Member was asked for copies of his old exams by the School’s head secretary. As there was no policy at the School about the storage of exams from previous years, the Member either kept his exams in the cupboard in the technology wing, in his workspace or in the teacher planning room. Unfortunately, none of these spaces could be locked, and there was no secure area in the School where the Member could store the exams such that students could not access them. At some point during the 2007-2008 academic year, the Member noticed that someone had gone through his workspace without permission. Therefore, the Member moved the exams to his car so that they would be secure.

2007-2008 Assessment and Feedback

The Member testified that he took approximately one or two weeks to return quizzes and unit tests and a few weeks to return [XXX] assignments to his students. His Mark Book showed that 11 items went into the calculation of his grade [XXX] students’ midterm grades and that 32 items made up their final grades.

Classroom Supervision

The Member testified that he did not leave his students unattended for an extended period of time. He could not recall any incident where he was 15 minutes late for a class, and he was never disciplined by the School administration for not being in his classroom when he was supposed to be.

The Member sometimes left his class for a brief moment to retrieve materials from a workroom, but this workroom was connected to his classroom. The Member testified that he asked the teacher in the adjoining classroom to supervise his students when he left the class for an extended period of time. This was a common practice in his department. During the Member’s brief absences, his students always had seatwork to do.

With regard to the allegation that he was not in the building during his preparation period on October 10 and 11, 2007, the Member testified that Mr. Mayers had no problem with teachers stepping out for coffee during their planning periods. Furthermore, the Member stated that he was in the building on October 11, 2007, but had not heard the office page him as there was no PA system in the planning room where he was working.

Classroom Conduct

The Member also testified about his conduct in the classroom. As the Member was the coach of the School’s [XXX] team, [XXX] players would sometimes go to the Member’s classroom to pick up early dismissal slips so that they could be excused from class for [XXX] games. This was the standard practice for all sports teams at the School. When students from the team came in to get their slips from the Member, the Member would assign his students seatwork. The Member denied ever holding team meetings during class time.

The Member testified that he met Ms. 3, Student No. 3’s mother, during a parent-teacher interview in November 2007. The Member stated that there were specific meeting times for parents, and that he organized the schedule so that he would have time in between interviews to prepare himself to meet the next parent. During their interview, Ms. 3 was exceptionally energetic and voiced many concerns. The Member tried to address her concerns, but the parent was aggressive. The next day in class, a student asked the Member how the interviews went and whether anyone stood out to him. The Member indicated that Student No. 3’s mother stood out, stating, “She really grilled me. She was quite animated.” The Member did not intend for this comment to be derisive or disrespectful; however, in hindsight, the Member recognized that he could have chosen different words, especially given Student No. 3’s testimony that his comments embarrassed her. The Member acknowledged that he should not have discussed parent-teacher interviews with his class.

The Member also testified about a special “Pancake Tuesday” [XXX]class during which his students celebrated the beginning of Lent and the end of the [XXX] unit. This activity gave the Member an opportunity to teach [XXX] to his class while he and his students were preparing the food. The Member also allowed his students to watch a movie that day. He had made reference to the particular movie during a previous class as part of an analogy for [XXX], and his students expressed an interest in watching the film.

The Member also testified about the incident in which he commented on the sexual orientation of a student. During morning announcements over the PA system, a student spoke in a particular style that the Member “associated with … a gay person,” so the Member leaned over to Student No. 8 and asked him if the student making the announcement was gay. Student No. 8 was sitting directly in front of the Member and Student No. 3 was sitting behind Student No. 8. The Member claimed to have asked this question because he had heard from a colleague that the principal had removed a student from [XXX] simply because he or she was gay. The Member stated that he did not ask this question with the intention of demeaning the student. The Member, however, acknowledged that he should not have asked the question and that a student’s sexual orientation was a personal matter.

The Member also testified about the prom incident. According to the Member, there was an announcement that future School dances might be cancelled, which prompted him to wonder aloud what had happened at prom the previous night to cause the administration to take this kind of action. Student No. 4 and Student No. 6 told the Member that students were drinking, watching pornography and having sex at prom. The Member then stopped the conversation after hearing these comments. The Member acknowledged that it was a mistake for him to even initiate such a discussion.

The Member further testified that while it was not his practice to use his cell phone during class, there was one occasion where he picked up a call on his cell because it was a family emergency.

The Member denied ever having referred to another teacher as a “bitch” when speaking to a student in his class.

Suspension

The Member testified that Mr. Mayers had asked to meet with him on December 17, 2007. The principal also requested that he hand in his lesson plans as well as copies of his assignments. The Member was not at school on December 17, so he went to Mr. Mayers’ office with the requested materials on December 18, 2007. Mr. Mayers, however, was unable to meet with him on December 18 and never rescheduled the meeting. Accordingly, the Member never submitted the requested documents to Mr. Mayers.

On January 18, 2008, the Member was assigned to home duties, though he was not given an explanation for this decision. Before leaving, the Member had marked all of his assignments and tests for the semester and had manually recorded the marks in his hardcopy mark log.

The Member then returned to the School on April 6, 2008. After his return, Mr. Mayers dropped by his classroom occasionally to observe his teaching performance. The Member provided his lesson plans to the School administration, and at the end of the academic year, the Board did not express any concerns regarding his performance.

The Member testified that, looking back, he has learned that even innocuous comments made without malice can be offensive to some students. He stated that the proceedings against him have been embarrassing to his family and his colleagues. In the Member’s view, it was unfair that the proceedings have been ongoing for as long as they have, given that he has had to worry about this matter for nearly eight years.

Cross-examination of the Member

During cross-examination, the Member did not recall speaking to Ms. 4 before he talked to Student No. 4 about his test and he denied having accused Student No. 4 of lying to his mother.

SUBMISSIONS OF COLLEGE COUNSEL

Counsel for the College divided the various allegations against the Member into two general categories and proceeded to address each allegation in turn. The two general categories of allegations are as follows:

1. allegations pertaining to inappropriate comments that amount to professional misconduct; and

2. allegations regarding the Member’s teaching practices.

College Counsel submitted that the comments made by the Member were not “one-off” occurrences; they were repeated instances of inappropriate comments of a serious nature that should give rise to a finding of professional misconduct. With regard to the Member’s teaching practices, the College similarly submitted that the Member’s unprofessional teaching practices ought to give rise to a finding of professional misconduct.

1) Allegations pertaining to inappropriate comments

Allegation 3(b)(i) – The “gay” comment

According to College Counsel, there is no dispute that the Member commented about a student’s sexual orientation following the student’s morning announcement over the School’s loudspeaker. There is, however, a dispute over what was said and how it was said.

The College submitted that Student No. 3’s evidence on this issue should be accepted. Student No. 3, who was extensively cross-examined on this point, testified that when the student made his announcement over the loudspeaker, the Member made an offensive comment in front of the class about the student’s “gay” manner of speaking. College Counsel stated that the Member publicly ridiculed a student by making homophobic comments about him.

The College further submitted that the Member’s evidence that he innocently inquired about the student’s sexual orientation should not be accepted. It was implausible that the Member would ask a student in his class about the sexual orientation of the grade [XXX] student with whom neither of them were familiar. College Counsel submitted that the Committee should not accept the Member’s evidence that he had inquired about the student’s sexual orientation because of a prior incident in which the principal had allegedly removed a student from [XXX] due to the student’s sexual orientation. The College submitted that the Member’s explanation should not be accepted because no evidence was adduced, nor was Mr. Mayers asked about the incident in his testimony. College Counsel submitted that Student No. 3’s evidence that the Member had made inappropriate comments about another student’s sexual orientation ought to be preferred over the Member’s evidence.

The College further submitted that if the Committee were to accept that the Member made the “gay” comment, it should lead to a finding of professional misconduct. The College referred to a Hamilton-Wentworth Catholic District School Board Policy Manual and to Pastoral Guidelines to indicate that the Member’s comments breached the standards of the profession and amounted to professional misconduct.

College Counsel also referred the Committee to Ontario College of Teachers v. Maracle, 2014 LNONCTD 20 (“Maracle”), Ontario College of Teachers v. Brazil, 2009 LNONCTD 20 (“Brazil”), and Ontario College of Teachers v. Geekie, 2010 LNONCTD 9 (“Geekie”), in support of its position that when a Member makes inappropriate or belittling comments in front of a class, or uses derogatory labels for a student including calling a student “gay”, a finding of professional misconduct is appropriate.

Allegation 3(b)(ii) – The Prom comments

The College submitted that the Member made inappropriate comments about prom in 2007-2008 and that these comments should lead to a finding of professional misconduct. According to College Counsel, the Committee should accept Student No. 3’s evidence that senior students entered the classroom and had a discussion with the Member about prom, and that the Member commented that there would be drinking, sex, and watching pornography at prom. The dispute with respect to this allegation concerns what was said by whom, and whether a finding of professional misconduct should be made if the Committee accepts that the comments were made by the Member.

The College submitted that although there was extensive evidence relating to prom that was put forward by both the College’s and the Member’s witnesses, the Committee actually heard about two different events (as opposed to two different versions of the same event). In particular, Student No. 3’s evidence differed from the defence witnesses’ evidence in three significant ways. First, Student No. 3 testified that there were senior students in the classroom when the Member made his comments about prom; Student No. 8, however, was emphatic that there were no older students in the classroom during the event that he recalled. Second, unlike other student witnesses, Student No. 3 never testified that the Member’s comments were triggered by a morning announcement to the effect that prom might be cancelled because of an incident that occurred at a School dance the night before. Third, unlike other student witnesses, Student No. 3 testified that she could clearly hear that the prom comments were said by the Member to other senior students, and not vice versa.

The College submitted that these distinctions suggest that Student No. 3 was remembering a different event from that described by the other student witnesses. It should not come as a surprise that prom conversations occurred in the classroom on multiple occasions, as prom is a significant event in the life of [XXX] students. Moreover, if the Member were simply putting a stop to an ordinary conversation about prom and not making inappropriate comments about prom himself, it would be implausible for the Member to recall such a non-event with the level of detail described by the Member.

College Counsel submitted that the prom comments were another example in a series of inappropriate conduct that should give rise to a finding of professional misconduct. The College refuted the Member’s argument that the prom comments did not amount to professional misconduct because they were accurate. According to the College, the accuracy of the prom comments is irrelevant and this “accuracy defence” reflects the type of concerning, cavalier attitude displayed by the Member. Regardless of whether it is accurate to suggest that drinking, sex, and watching pornography occur at prom, if a teacher makes these types of comments to his students, it should give rise to a finding of professional misconduct.

Allegation 3(b)(iii) – “Your mom grilled me. She sure is animated.”

According to College Counsel, it is undisputed that the Member made the following comment about Student No. 3’s mother in front of the class, not long after parent-teacher interviews: “Your mom grilled me. She sure is animated.” The College submitted that this comment should give rise to a finding of professional misconduct.

Student No. 3 testified that the Member embarrassed her in front of her class when he publicly commented about her mother. Even defence witness Student No. 5, who was not friends with Student No. 3, testified that she recalled the Member making these comments six years after the incident, which suggests that it was a memorable event. Although the Member has now indicated that he is sorry for making these comments, the College submitted that he had ample opportunity to apologize earlier, and that apologizing during a hearing process is not genuine. The College further submitted that this was yet another example of the Member making inappropriate comments in class, and that this cannot be seen as an isolated incident.

In the College’s view, such a comment is inappropriate and constitutes professional misconduct. The purpose of parent-teacher interviews is to provide an opportunity for a parent to learn about their children’s progress in an open environment. It is a breach of the standards of the profession, and it is unprofessional for a teacher to share personal views of a parent with the entire class. The College relied on Ontario College of Teachers v. Bordonali, 2010 LNONCTD 14 (“Bordonali”) for the proposition that embarrassing a student in front of the class can give rise to a finding of professional misconduct.

The College also took issue with the Member’s submission that the comment was not offensive or inappropriate but, rather, that it was simply an accurate statement. In the College’s view, a distinction must be drawn between comments of this nature that are made in public and those made in private. The Member made these comments in public and embarrassed one of his students. The College submitted that the Member’s claim that this comment was accurate and therefore not inappropriate serves as yet another example of the Member’s insensitivity and cavalier attitude.

2) Allegations regarding the Member’s teaching practices

Allegation 3(a) – The “Mark Book” Allegations

The College submitted that the Member’s failure to accurately record his students’ grades in Mark Book, the program used by teachers to enter student grades, should lead to a finding of professional misconduct. Two separate incidents related to inaccurate grades reported in Mark Book were discussed in this context: first, that the Member gave all students a grade of 100% on their progress reports; and second, that the grades entered into Mark Book were not identical to those written on the exams.

College Counsel submitted that in most cases, the students’ grades recorded in Mark Book were higher than those marked on the exam sheet. However, some students’ grades were significantly lower as well. The Member’s defence for this grade discrepancy was that it was caused by a software glitch and was unintentional. The Member testified that he had heard about some Mark Book glitches in 2013. The College submitted that the “software glitch” defence was not substantiated, and that the Member would have had to provide more proof than simply stating that he had heard about some problems with Mark Book in 2013. The Member led no credible evidence to explain the grade discrepancy.

The College also took issue with the Member’s suggestion that it was acceptable to tinker with students’ grades if, for example, they were on the cusp of failing a course. In College Counsel’s view, this argument was a red herring. The Member is not arguing that he tinkered with students’ grades and that this was acceptable; he is arguing that there was a computer error that led to the grade discrepancies.

The College further submitted that granting students different marks than those earned is a serious breach of a teacher’s obligations, which should give rise to a finding of professional misconduct. The College relied on Ontario College of Teachers v. Roque, 2005 LNONCTD 33 (“Roque”) and Ontario College of Teachers v. Pickard, 2007 LNONCTD 25 (“Pickard”) for the proposition that students should not receive grades that were unearned.

Allegation 3(g) – The Member failed to provide administration with marks and kept exams in his car

The evidence is uncontested that the Member kept student exams in his car. According to the Member, he was concerned that the teacher planning room, which he shared with others and where his exams were normally stored, was not secure. The Member believed that someone had gone through his materials. The College submitted that there was no corroborating evidence to support the Member’s assertion that someone had rifled through his storage unit and that he was worried about his materials. Moreover, the College submitted that the only credible reason for the Member to keep the exams in his car was that he knew that his conduct was being reviewed by the administration and he wanted to hide the exams. By removing the exams from the School and putting them in his car, the College submitted that the Member breached the standards of the profession and acted unprofessionally.

Allegation 3(i) – The Member left the classroom after announcing to the students in his class that the final examination was located on his desk in 2006-2007

The College explained that there are two diametrically opposed pieces of evidence regarding the allegation that the Member left an exam out for his students to review leading up to the exam in January 2007. On the one hand, Student No. 2 testified that the Member left the exam out for the class to review and that Student No. 9 read the exam out to the class. On the other hand, Student No. 9 testified that the exam was not left out for the class to review prior to the exam and that he did not read the exam out to the class.

College Counsel submitted that Student No. 2’s evidence was more credible than that of Student No. 9. In 2008, one year after the event in question, Student No. 2 wrote a statement about the incident whereas Student No. 9 only testified in 2013, six years after the event in question. Student No. 2’s testimony in 2013 was also consistent with the statement she produced in 2008. Her evidence, according to the College, is therefore more reliable than that of Student No. 9.

Student No. 2 also had no motivation to fabricate her evidence, whereas the College submitted that Student No. 9 had reason to fabricate his. Student No. 2 had no reason to write her statement in 2008 if its contents were not true, and she had no reason to attend the hearing in 2013, once she was already in university, to perpetuate a fiction. Student No. 9, however, had reason to fabricate his evidence. He was a struggling student who had to improve his grades and, as he acknowledged in re-examination, it would reflect poorly on him if his parents thought he was a cheater, even though this incident occurred many years ago. The College submitted that the Committee ought to accept the evidence of Student No. 2.

The College submitted that if the Committee were to accept the evidence of Student No. 2, the Member’s conduct would clearly amount to professional misconduct. The College relied on the decisions in Roque and Pickard where the members were found guilty of professional misconduct in that they provided their students with improper assistance during exams.

Allegation 3(j) – The Member provided an overly-detailed exam review in 2007-2008

The College submitted that there was clear and cogent documentary and oral evidence indicating that the Member’s exam review was overly-detailed. He set out the questions and the answers in the review, which was so troubling to the administration that they changed the test. Several witnesses, including Student No. 1 and Student No. 2, prepared contemporaneous notes recording their concerns about the exam review. Although Student No. 3 was not present during the review class, she was aware that the exam review was a topic of conversation and that students from other classes were asking for copies of the review.

College Counsel submitted that the Member had a motivation for providing an overly-detailed exam review: he had not adequately prepared his students for the exam and the Member needed his students to boost their marks so that they would fall within the expected grade range. Student No. 8, a defence witness, indicated in cross-examination that the Member said that he did not want anyone to fail to his class. Similarly, Student No. 6, who was also a defence witness, testified that the Member was “putting the pedal to the metal” and did not want his students to fail. Several students testified that word got around to students outside of the Member’s class that he had provided an overly-detailed review and that they began asking for copies of the review. The College submitted that this would not have been the case unless the Member had provided an overly-detailed exam review.

Finally, the College submitted that, in providing an overly-detailed exam review, the Member breached the standards of the profession. College Counsel further noted that this was part of a pattern of conduct for the Member: he left an exam out for his class to see prior to their writing of the exam; he provided an overly-detailed exam review to compensate for not having adequately prepared his class; he increased the grades of a majority of his students to not draw attention to their unusually low grades; and, he hid his students exams in his car. All of these events, according to the College, should give rise to a clear finding of professional misconduct.

SUBMISSIONS OF MEMBER’S COUNSEL

Counsel for the Member submitted that the College has not proven that the Member is guilty of professional misconduct. Member’s Counsel also reminded the Committee that the College bears the burden of proof. Where there is uncertainty as to whether a particular fact has been proven on a balance of probabilities, the disposition must be resolved in favour of the Member.

Perfection is not the standard of conduct required of teachers

Member’s Counsel submitted that the standard of conduct required of a teacher is not one of perfection and that not every incident of poor judgment constitutes professional misconduct. Member’s Counsel relied on the decisions in Ontario College of Teachers v. Teliatnik, 2000 LNONCTD 24 (“Teliatnik”), Ontario College of Teachers v. Uhlig, 1999 LNONCTD 21 (“Uhlig”), Ontario College of Teachers v. Caswill, 1999 LNONCTD 4 (“Caswill”), and Ontario College of Teachers v. Fabel, 2010 LNONCTD 19 (“Fabel”) for the proposition that lapses of judgment or isolated instances of inappropriate comments or behaviour do not necessarily amount to professional misconduct.

The College implicitly withdrew or abandoned several allegations

Before addressing the specific allegations against the Member, Counsel for the Member indicated to the Committee that the College had implicitly withdrawn or abandoned certain allegations by not including any reference to them in their written or oral submissions. Member’s Counsel also expressed significant frustration with the lack of notice provided by the College regarding certain abandoned allegations and indicated that this has caused Member’s Counsel to needlessly expend both time and resources.

Member’s Counsel submitted that the allegations brought by the College, as set out in its written and oral submissions, only corresponded to the allegations set out in the Notice of Hearing to a limited extent. In particular, allegations 3(c), 3(d), 3(e), and 3(f) were not addressed in the College’s written or oral submissions. These omissions, according to Member’s Counsel, imply that the College has withdrawn or abandoned those particular allegations. Member’s Counsel further submitted that by implicitly withdrawing or abandoning these allegations, the College is abandoning any reliance on certain aspects of the evidence which came out as a result of those particular allegations.

According to Member’s Counsel, there were parts of the evidence that were prejudicial to the Member, which would not have emerged or would have been deemed irrelevant if the now-abandoned allegations had not been included in the Notice of Hearing. Student No. 2, for instance, testified that the Member:

1. failed to deliver the curriculum by using an [XXX] textbook;

2. left his class unattended;

3. was not delivering the program;

4. had meetings with the [XXX] team in his class;

5. talked about students’ personal lives; and

6. called a teacher a bitch and allowed students to play with a tampon.

Member’s Counsel submitted that none of this evidence is still being relied on by the College, and it was only heard because the College was initially intent on pursuing all of the allegations listed in the Notice of Hearing. According to Member’s Counsel, the College’s late abandonment of allegations signals that it determined that those allegations were without legal merit and implies that the evidence was not sufficient to support a finding of professional misconduct with respect to those allegations.

In sum, Member’s Counsel submitted that the Committee should be concerned about the late withdrawal or abandonment of allegations and should draw appropriate inferences regarding the merit of those allegations and regarding the weight of the testimony that was proffered in respect of those allegations.

Hearsay issues

Member’s Counsel submitted that there was significant hearsay on substantial issues, which the Committee ought to consider when rendering its decision. Although hearsay evidence is admissible in hearings before the Discipline Committee, it should be weighed cautiously. Member’s Counsel provided two examples where hearsay evidence was problematic.

First, with respect to the overly-detailed exam review, the person who prepared the exam review notes tendered into evidence (see Exhibit 3 at Tab 26) did not testify, and it is unknown who prepared these notes or in which class the notes were prepared. Although College Counsel could have called any of the more than twenty students in the class to testify about the exam review, they chose to only call Student No. 3, who was not present on the day of the exam review, and Student No. 4, whose recollection about this issue was lacking.

Second, with respect to the document pertaining to the Member’s exam marks (see Exhibit 3 at Tab 22), Member’s Counsel submitted that this evidence was not properly proven because neither Mr. Mayers nor Ms. Scarfone was the author of this document.

Member’s Counsel further submitted that much of Mr. Mayers’ testimony was in the nature of hearsay. Although Member’s Counsel acknowledged that hearsay evidence is inevitable when one conducts an investigation, Mr. Mayers’ investigation was troubling due to his lack of diligence and effort to confirm the allegations that were brought by two students who would have had direct knowledge of the events in question (Student No. 2 and Student No. 3). It was problematic that Mr. Mayers did not interview more students during his investigation, and it is also noteworthy that no one corroborated Student No. 3’s version of events, despite the fact that there were at least twenty other students in the class.

The College improperly relied on documents not tendered as evidence

Member’s Counsel submitted that he was shocked to have received written submissions and a book of authorities that contained documents relating to standards of the profession which were not part of the evidence in the case. With regard to the “gay” comment allegation, Member’s Counsel submitted that there could be no doubt that the College is relying on the Hamilton-Wentworth Catholic District School Board Policy on Equity and Inclusive Education (the “Board Policy”) and the Pastoral Guidelines to Assist Students of Same-Sex Orientation (the “Pastoral Guidelines”) to help establish the standards of the profession. These documents were not tendered as evidence and Member’s Counsel was deprived of the opportunity to address these documents in evidence.

According to Member’s Counsel, it would amount to an error of jurisdiction for the Committee to accept these documents. Member’s Counsel submitted that it is fundamental and clear that in a professional discipline hearing where there is to be reliance on documents in support of an argument about standards of a profession, those documents must be tendered as part of the evidence.

Adverse inferences

Member’s Counsel submitted that an adverse inference should be drawn from Ms. Toth and Mr. Ciancone’s failure to testify. According to Member’s Counsel, Ms. Toth and Mr. Ciancone, who were each members of the School administration that disciplined the Member, would have had knowledge of the facts as a result of their roles at the School, their interactions with the Member, and their involvement with the investigation.

Member’s Counsel submitted that an adverse inference could be drawn where a party fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist a particular party. Member’s Counsel relied on Lurtz v. Duchesne, [2003] O.J. No. 1541 (“Lurtz”) for the proposition that, in a disciplinary case where the College fails to call a material witness, the Committee should draw an adverse inference that the evidence of those witnesses would be damaging to the College’s case, or at least not helpful.

Similarly, Member’s Counsel submitted that an adverse inference should be drawn from Colleague A’s failure to testify. Colleague A complained about the Member to the School administration, assisted with the investigation, and was involved with a number of student witnesses. It is reasonable to assume that Colleague A would have been willing to assist the College.

Credibility

Credibility is an issue in this case, according to Member’s Counsel. Member’s Counsel submitted that there are established and recognized guidelines for assessing credibility and provided an excerpt from McWilliams’ Canadian Criminal Evidence to assist in this regard. Member’s Counsel noted that credibility issues arose with several of the College’s witnesses.

Lack of Credibility of Student No. 3 and Ms. 3

Member’s Counsel took the position that Student No. 3 and her mother lacked credibility and that their evidence suffered from “a serpent of bias.” According to Member’s Counsel, Ms. 3’s evidence was marred and marked by a penchant for characterizing the Member in the most unfavourable light possible. Ms. 3 also resisted the characterization of her manner of speaking as being “animated,” but agreed that she was “lively.” According to Member’s Counsel, this is a distinction without difference, and the fact that Ms. 3 vigorously resisted the initial characterization should lead the Committee to be skeptical about her evidence and intent.

Ms. 3’s evidence was also inconsistent with that of her daughter. For instance, Ms. 3’s notes record an allegation that the Member read directly from the final exam; however, Student No. 3 denied giving her that information and speculated that she might have been absent on the day of the exam review. Ms. 3 also felt comfortable leveling criticism that the Member had not sent Mark Book information home; however, Ms. 3 ultimately agreed that the Member did provide a document that broke down her daughter’s grades, and Student No. 3 testified that a detailed print-out from Mark Book was sent home after it was requested. Ms. 3’s tendency to overstate and exaggerate was problematic, according to Member’s Counsel, and called into question her credibility.

Member’s Counsel further submitted that Student No. 3’s testimony was not credible and was marred and marked by bias and exaggeration. For instance, although these allegations have since been abandoned, Student No. 3 made many submissions about the Member’s late grading and untimely feedback. Given that they were abandoned, Member’s Counsel submits that these allegations were either inaccurate or exaggerated. Student No. 3 had also testified that Ms. Scarfone took over the Member’s class towards the end of the semester and had to teach the final units to the class, in addition to grading a number of assignments and handing them back to the students. The Member, however, testified that it would be completely impossible to teach these units in the time that Ms. Scarfone was with his class, and Ms. Scarfone testified that she only taught the last day of classes and did not teach the final units, as Student No. 3 had testified.

With regard to the documents outlining Ms. 3’s complaints pertaining to the Member’s progress reports and mid-term reports (see Exhibit 3 at Tab 20), Ms. 3 indicated that she had prepared these documents with the assistance of her daughter; however, Student No. 3 denied having seen these documents until College Counsel provided her with a copy of them. According to Member’s Counsel, it would be impossible for Ms. 3 to have prepared this document without the information coming from Student No. 3. Student No. 3’s testimony that she had never seen these documents before was, therefore, not plausible and further called into question her credibility.

Finally, with regard to the “gay” comment and the prom comments, Student No. 3’s evidence suffered from a lack of corroboration. There were at least 23 other students in her class, none of whom corroborated her version of events. Member’s Counsel submitted that the Committee ought to draw the conclusion that Student No. 3 was prone to bias and exaggeration and that her evidence should accordingly be given less weight.

Lack of Credibility of Mr. Mayers

Mr. Mayers’ credibility was also called into question as he was unable to recall certain events and appeared to avoid answering questions. Under cross-examination, for example, Mr. Mayers could not recall whether he took any steps after December 17, 2007 to try to re-schedule his meeting with the Member that the Member was unable to attend. Similarly, when questioned about his student interviews in January 2008, Mr. Mayers could not recall if he interviewed anyone, whom he interviewed, or why he did not interview anyone. Member’s Counsel submitted that it was unlikely that Mr. Mayers would forget these significant pieces of information and called on the Committee to question whether Mr. Mayers’ failure to recall this information was genuine or not.

Lack of Credibility of Student No. 2

Member’s Counsel questioned Student No. 2’s credibility and submitted that her evidence was not sufficiently reliable to lead to a finding of professional misconduct. In particular, Member’s Counsel drew attention to the fact that when Student No. 2 testified in 2013, she had significantly more concerns with the Member’s behaviour than she had recorded in her 2008 handwritten statement (see Exhibit 3 at Tab 16). Member’s Counsel suggested that it was suspect that Student No. 2 had more concerns in 2013, years after the fact, than she had initially recorded in 2008. According to Member’s Counsel, Student No. 2’s evolving story should lead the Committee to question her credibility.

Moreover, Student No. 2 testified that the Member approached her during an exam and told her that she did not have to answer a question, and even scratched out the question with a pen. Student No. 2 stated, in cross-examination, that it would be clear to anyone who viewed her exam that a question had been crossed out. Ms. Scarfone, however, who had reviewed the exams, indicated that there was nothing unusual on Student No. 2’s exam and that no questions had been crossed out.

In addition, Member’s Counsel submitted that Student No. 2’s evidence was inconsistent with that of Student No. 9. With regard to the incident where the Member allegedly left an exam on his desk for his students to review, Student No. 2 testified in her examination-in-chief that “everybody read it.” In cross-examination, however, her story changed to indicate that only Student No. 9 read the exam and that he read it aloud to the class. Student No. 9 denied having read the exam.

Member’s Counsel further submitted that Student No. 2’s unexplained delay in coming forward with her story demonstrates her lack of credibility. Member’s Counsel relied on R v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 and R v. Trudel, 2004 CanLII 9054 (ON CA), [2004] O.J. No. 248 for the proposition that, where a witness has “selectively disclosed” their story, a cautious approach to their evidence is necessary and independent confirmation should be sought.

According to Member’s Counsel, all of these features of Student No. 2’s evidence give rise to substantial issues regarding her credibility that ought to be seriously considered by the Committee. Not only did her story emerge a year after the events in question and evolve over time, but it was also inconsistent with the testimony of other witnesses. This demonstrated Student No. 2’s “carelessness with the truth,” according to Member’s Counsel, and her lack of credibility.

Corroboration

Member’s Counsel submitted that where a witness gives inconsistent versions of certain events, it is appropriate to look for corroborating evidence. Member’s Counsel further submitted that it was appropriate for the Committee to take into account the lack of corroboration when making findings of fact. Although there is no legal requirement for corroboration, when incidents occur “in plain view” and there is no corroboration, this should be taken into consideration, according to Member’s Counsel.

Member’s Counsel submitted that, in this case, there was an important absence of corroboration. Many of the events would have taken place in a classroom full of students; however, nobody was able to corroborate the version of events described by Student No. 2. It would have been unusual for a teacher to leave a copy of an exam on his desk for his students to review; nevertheless, Student No. 2 was the only witness who indicated that this occurred.

Similarly, Ms. Scarfone did not corroborate Student No. 2’s claim that the Member had scratched out a question on her exam. College Counsel also failed to tender the examination document itself, which could have been used to corroborate Student No. 2’s claims.

In addition, the evidence of Student No. 3 with regard to the “gay” comment and the prom comments was not corroborated by any of the defence witnesses. College Counsel did not even ask Student No. 4, who was in the class with Student No. 3, about these alleged incidents. Member’s Counsel submitted that the Committee ought to be skeptical about the evidence that has not been corroborated.

Allegation 3(a) – The “Mark Book” Allegation

Member’s Counsel submitted that the evidence regarding allegation 3(a) is insufficient to support a finding of professional misconduct. Member’s Counsel was particularly troubled by the fact that Tab 22 of Exhibit 3 (which is a key chart demonstrating the discrepancies between the grades that the Member recorded in Mark Book and those recorded on his students’ exams) was prepared by Mr. Ciancone, whom the College did not call as a witness. Member’s Counsel further submitted that it was problematic that the College did not tender into evidence the hardcopies of the exams themselves. Without these documents, there was no direct evidence of actual grades recorded by the Member on his students’ exams.

Aside from the evidentiary insufficiencies, Member’s Counsel submitted that the discrepancies between the grades on the exams and those recorded on Mark Book were not significant and did not reveal any sort of pattern. The overall deviation between the grades was only 1.5% and there were some student marks that increased, others that decreased, and some that remained the same on both the exam sheet and on Mark Book. If the Member wanted to alter his students’ grades, there would have been far more effective ways for him to do this.

Member’s Counsel noted that the Member had testified that there were reports at the School about glitches with Mark Book. None of the evidence led by the College contradicted these reports. Indeed, Mr. Mayers had testified that there were reports of difficulties with Mark Book in February 2013. Member’s Counsel ultimately submitted that the evidence before the Committee was insufficient to draw the conclusion that the Member’s conduct in relation to allegation 3(a) amounts to professional misconduct.

Member’s Counsel also addressed the College’s theory that the Member had increased his students’ grades so that they would fall within an acceptable range, because he had not adequately taught the course material. According to Member’s Counsel, this is the grossest form of speculation and should not be accepted by the Committee. The grade discrepancies did not reveal a significant pattern that would support this theory and the evidence was insufficient to support a finding of professional misconduct.

Allegation 3(b)(i) – The “gay” comment

Member’s Counsel submitted that the evidence regarding allegation 3(b)(i) is insufficient to support a finding of professional misconduct. Although the Member acknowledged that he used the term “gay” when speaking to a student in his classroom about another student in the School, this was an isolated incident without any malicious intent, according to Member’s Counsel. Member’s Counsel stated that the Member made this comment as there had been an issue with respect to a different student being removed from the [XXX] because of sexual orientation. The Member acknowledged that the comment was inappropriate, and he claims to have learned from it.

Moreover, Member’s Counsel submitted that the evidence only establishes that two students heard the comment: Student No. 8, to whom he had made the comment, and Student No. 3, who was sitting directly behind Student No. 8. The comment was not made publicly in front of the entire class, and there is no evidence that Student No. 3’s version of events regarding this incident was corroborated by other witnesses.

Member’s Counsel also addressed the College’s submission that it was disingenuous and too easy for the Member to apologize for his comments during these proceedings, claiming that he had learned from his mistake. According to Counsel for the Member, this type of cynicism is completely inconsistent with the notion of rehabilitation espoused by the College. In the view of Member’s Counsel, it is appropriate for the Committee to take into account the fact that the Member has learned from his mistake.

Member’s Counsel also urged the Committee to not rely on the Board Policy and the Pastoral Guidelines, which Member’s Counsel insisted were improperly submitted by the College. According to Member’s Counsel, these documents were put in by the College to establish or support an argument about standards of conduct. Standards of conduct, must always be the subject of evidence. Member’s Counsel relied on Re Redall and College of Nurses of Ontario, [1983] O.J. No. 3100 at para. 13, and Katsoulakos v. Assn. of Professional Engineers of Ontario, 2014 ONSC 5440 at para. 33, for the propositions that the Committee can only rely on evidence that is on the record, and that the issue of standards of conduct should have been dealt with at the evidentiary stage and not during closing submissions.

Counsel for the Member raised an additional legal issue that relates to what College Counsel described as a contemporaneous note, recorded by Student No. 3. According to Member’s Counsel, the College used that statement to support Student No. 3’s version of events with regard to the “gay” comment and to lend support to her oral testimony. Member’s Counsel submitted that this statement was being used as a “prior consistent statement,” which is a legal construct. Prior consistent statements are only to be used in a narrow range of circumstances, which do not apply in this case. Accordingly, Member’s Counsel submitted that it would be improper for the Committee to rely on Student No. 3’s statement.

Member’s Counsel further submitted that Student No. 3’s statement was actually not consistent with her oral testimony, and that, since there was a prior inconsistent statement, the statement actually impairs the testimony of Student No. 3.

Finally, with regard to the “gay” comment, Member’s Counsel submitted that the College has not provided any authority which clearly states that a single incident of an inappropriate verbal comment regarding sexual orientation constitutes the basis for a finding of professional misconduct. Member’s Counsel further submitted that the Member had not intended to mock anyone with his comments, that there was no evidence that the comments were part of an ongoing history of homophobia on the part of the Member, and that the Member learned his lesson from this incident. Accordingly, Member’s Counsel submitted that the “gay” comment should not give rise to a finding of professional misconduct.

Allegation 3(b)(ii) – The Prom comments

Member’s Counsel submitted that the evidence regarding allegation 3(b)(ii) is not sufficiently clear, cogent and convincing to support a finding of professional misconduct. Member’s Counsel took the position that the Member behaved entirely appropriately in this situation and promptly put a stop to a discussion among students about prom; he did not make any inappropriate comments himself.

According to Member’s Counsel, the Member and four students testified about the prom comments and indicated that the comments were made by students and not by the Member. Only one witness, Student No. 3, testified that the inappropriate comments were made by the Member. Member’s Counsel further submitted that College Counsel could have asked Student No. 4 about the incident, and that he would have been reasonably likely to have information about the incident, but that the choice was made not to ask him about it. Member’s Counsel therefore submitted that, of the five witnesses who might have corroborated Student No. 3’s version of events, not a single one did. Student No. 5, Student No. 6, Student No. 8, and the Member all testified that students were making inappropriate comments and that the Member told them to stop.

Member’s Counsel also addressed the College’s “two events” theory. According to College Counsel, there were two separate discussions about prom: one where the Member put a stop to an inappropriate student discussion about prom and one where the Member participated in the inappropriate prom discussion (that Student No. 3 testified about). Member’s Counsel submitted that the “two events” theory was not put to any of the witnesses, and that the Member should have been given the opportunity to address the theory. Accordingly, it was not appropriate to suggest a different theory in argument if there has not been an evidentiary basis that previously established the theory. Member’s Counsel urged the Committee not to accept the “two events” theory as it was inappropriate to do so.

Member’s Counsel also rebutted the College’s submission that it would not be surprising to find that the Member said the prom comments because it was consistent with his other inappropriate comments (the “gay” comment and the “your mom grilled me” comment). According to Member’s Counsel, to insinuate that the Member said the prom comments because he had also made other inappropriate comments is not an appropriate form of argumentation or legal reasoning. Member’s Counsel urged the Committee not to accept College’s submission in that regard.

Ultimately, Member’s Counsel submitted that the consistent evidence of four witnesses who testified that students made the inappropriate comments about prom, and not the Member, should be preferred over the uncorroborated evidence of a single witness (Student No. 3) that the Member made the inappropriate comments.

Member’s Counsel submitted, in the alternative, that if the Committee preferred the evidence of Student No. 3, it should still find that this was an isolated incident that was not sufficiently serious to give rise to a finding of professional misconduct.

Allegation 3(b)(iii) – “Your mom grilled me. She sure is animated.”

Member’s Counsel submitted that allegation 3(b)(iii) does not amount to professional misconduct. Member’s Counsel took the position that the comment is not offensive or inappropriate; being animated is a neutral description and it was an accurate description of Ms. 3. The Member acknowledged that he may have singled out Student No. 3 and that his comments about her mother, while inoffensive, may have embarrassed her. The Member testified that he wanted to apologize to Student No. 3 after the issue of embarrassing her was raised in March 2008, but he was told to refrain from contacting any students who were involved in these proceedings.

Member’s Counsel further submitted that other students in the class did not find these comments to be offensive. Student No. 5 testified that the only reason she remembered the event at all was because it had upset Student No. 3. Student No. 5, however, did not find the comments offensive. Student No. 6 and Student No. 8 were also asked about this incident, but they both testified that they did not recall the Member making any inappropriate comments about Student No. 3’s mother. Member’s Counsel submitted that the fact that these two students could not recall the incident suggested that it was a non-event to which two particularly sensitive people (Student No. 3 and Ms. 3) took exception.

According to Member’s Counsel, this allegation should not result in a finding of professional misconduct. Not every situation where a student is embarrassed necessitates a finding of professional misconduct. Member’s Counsel further submitted that the Committee ought not to rely on Bordonali, which College Counsel presented to support the proposition that embarrassing a student can amount to professional misconduct. Member’s Counsel submitted that Bordonali was distinguishable from the Member’s case because, unlike Mr. Bordonali, the Member did not intentionally embarrass any student nor did he laugh at students or repeatedly make inappropriate verbal statements to students.

Member’s Counsel ultimately submitted that Student No. 3 and her mother were unreasonably biased against the Member and were prepared to draw the most negative conclusions about any of his conduct. Counsel for the Member further submitted that Ms. Annecchini’s testimony that the Member “ridiculed” Ms. 3 in front of Student No. 3’s class is an exaggeration. According to Member’s Counsel, allegation 3(b)(iii) should not result in a finding of professional misconduct.

Allegation 3(g) – The Member failed to provide the School administration his student marks and/or long range planning as requested

Member’s Counsel submitted that there was some confusion related to allegation 3(g) because it was incorrectly labeled in College Counsel’s written submissions. For the sake of clarity, Member’s Counsel referred the Committee back to the Notice of Hearing, where allegation 3(g) relates to the Member’s failure to provide his marks and long range planning to the School administration, and allegation 3(h) relates to the Member having removed exams from the School.

Member’s Counsel submitted that there was insufficient evidence to prove allegation 3(g) on a balance of probabilities. Member’s Counsel took the position that the Member actually did comply with Mr. Mayers’ request for documentation and information (see Exhibit 3 at Tab 11). Although the Member was not at school on the day of the scheduled December 17, 2007 meeting, which is when he was supposed to provide the requested documentation and information to Mr. Mayers, the Member was at school the following day. Mr. Mayers, however, did not reschedule the meeting. Member’s Counsel submitted that the meeting was never rescheduled because the Member had provided Mr. Mayers with the requested documentation on December 18, 2007, and he also had the student notebooks with him at the time.

According to Member’s Counsel, the College has not established that Mr. Mayers was dissatisfied with the documentation that the Member gave him and it has not established that there was any ongoing attempt on the part of the Member to thwart Mr. Mayers’ attempts to get the information that he requested. Member’s Counsel added that Mr. Mayers’ evidence in relation to allegation 3(g) was very imprecise and cannot form the basis for a finding of professional misconduct. This was particularly true given the Member’s uncontradicted evidence that he was prepared to comply with the request for information and documentation on December 18, 2007 – the day after the scheduled meeting.

Allegation 3(h) – the Member removed student examinations from the School

Member’s Counsel submitted that the evidence in relation to allegation 3(h) was insufficient to support a finding of professional misconduct. The Member does not dispute that he had secured some of his students’ exams in his vehicle. The Member, however, understood that he was supposed to keep the exams secure and he kept them secure; there was no suggestion that he did otherwise. Member’s Counsel submitted that when the Member was specifically asked to produce the exams, he produced them. According to Member’s Counsel, Mr. Mayers’ suggestion that it was concerning that the Member removed exams from the School because they were Board property is not supported by any evidence that the exams were ever exposed to either loss or deterioration.

Member’s Counsel further submitted that there was no School policy that clearly outlined what teachers were permitted to do with their students’ exams or how exams were supposed to be stored. Member’s Counsel reminded the Committee of Ms. Annecchini’s testimony where she indicated that, although exams are usually kept in a certain area, many teachers forget to put them there or keep them in their own workspaces.

According to Member’s Counsel, there was no evidence of any details of the School policy which Mr. Mayers thought might exist. There was also no evidence that the Member failed to produce the exams promptly when asked. Moreover, there was no evidence that the exams were not secure in the Member’s car or that any information contained in the exams was disclosed inappropriately. In summary, there was no evidence of any rule, let alone any evidence that a rule was breached. As a result, Member’s Counsel submitted that there was insufficient evidence to support a finding of professional misconduct.

Allegation 3(i) – The Member left the classroom after announcing to the students in his class that the final examination was located on his desk in 2006-2007

Member’s Counsel submitted that the evidence in relation to allegation 3(i) was not sufficiently credible and reliable to support a finding of professional misconduct. In particular, Member’s Counsel took the position that the evidence of Student No. 2, the only witness for the College with regard to this allegation, was insufficient, inconsistent, and uncorroborated.

The Member was alleged to have announced to his class that he had left a copy of the exam on his desk and was leaving the room. Student No. 2, however, never mentioned any announcement during her testimony. Two other witnesses testified about this allegation. Student No. 7 had no recollection of this incident having occurred and noted that it would have been a memorable event, had it taken place. Student No. 9 denied the version of events put forward by Student No. 2, who had testified that Student No. 9 read the exam aloud to the class once the Member left the classroom.

Member’s Counsel further indicated that Student No. 2’s testimony was internally inconsistent. Despite alleging that the Member permitted students to see the actual exam ahead of time, Student No. 2’s evidence was that when she wrote the exam, she was surprised to find a question that she knew nothing about. Member’s Counsel submitted that it defies logic for her to have been surprised about an exam question if she had already been explicitly told what was on the exam and was permitted to view the exam.

In addition, Member’s Counsel submitted that Student No. 2’s testimony evolved from 2008, when she drafted her written statement (see Exhibit 4), to 2013, when she testified before the Committee. Member’s Counsel submitted that the student’s evolving story and the fact that her story became more detailed over time should raise concerns for the Committee with regard to her credibility. For example, Member’s Counsel noted that Student No. 2’s written statement did not mention that the Member announced to the class that he was leaving the exam on the desk when he left the room. Student No. 2’s written statement also did not mention that Student No. 9 read the exam aloud to the class. It was problematic, according to Member’s Counsel, that Student No. 2’s evidence became more detailed over time, when one would expect that one’s memory of an event would fade over time.

Member’s Counsel also submitted that the College’s attack of Student No. 9’s credibility was misconceived. According to Member’s Counsel, Student No. 9 was compelled to appear before the Committee and he could have simply stated that he had no recollection of the events, if this were the case. He had no reason to lie under oath, and it is extremely unlikely that an adult would commit perjury about an incident which occurred when he was in grade [XXX], for which he had very little personal responsibility. If the Member had allowed his class to see the exam before the exam date, it is hard to understand why Student No. 9 would be concerned that he would get in trouble for reading the exam aloud. Student No. 9 had no reason to lie to try to cover up such an event.

It was the position of Member’s Counsel that Student No. 9’s version of events should be favoured over that of Student No. 2, whose story changed over time and whose evidence was not sufficiently clear, cogent and convincing for the Committee to accept her version of events. Member’s Counsel added that the College bears the burden of proving this allegation and urged the Committee to find that the College did not meet its burden of proof on a balance of probabilities.

Allegation 3(j) – The Member provided an overly-detailed exam review in 2007-2008

Member’s Counsel submitted that the evidence in relation to allegation 3(j) was particularly poor and did not support a finding of professional misconduct. Member’s Counsel reminded the Committee that it received no evidence from any student who was in the Member’s class in fall 2007, aside from Student No. 4, whose evidence was vague. Member’s Counsel further submitted that the Board did not conclude that the exam review amounted to professional misconduct (see Exhibit 3 at Tab 24).

Moreover, although the Committee was presented with notes (see Exhibit 3 at Tab 26) purportedly taken by a student who was in the Member’s class at the time of the review, Member’s Counsel indicated that there is no evidence that establishes who was the author of these notes. Student No. 1 testified about this issue, but could not tell the Committee who prepared the notes. According to Member’s Counsel, the handwritten notes of an unidentified student who did not testify, received through a third party, are not sufficiently clear, cogent and convincing to form the basis of a finding of professional misconduct.

Member’s Counsel further submitted that the Committee received no evidence from any [XXX] teacher, department head, Board administrator, or anyone knowledgeable in the area as to what an appropriate exam review should contain. Accordingly, Member’s Counsel submitted that there was insufficient evidence to prove allegation 3(j).

Member’s Counsel took the position that the exam review was not so detailed that a student would be able to perform well on the exam based solely on the review. Although topics may have been given for the exam questions, students would still have been required to study those topics in order to correctly answer the exam questions. The Member did not provide students with specific questions and answers, but merely indicated topics that they had to study. Member’s Counsel submitted that there is a range of detail that would be acceptable on an exam review and that the Committee ought to be extremely hesitant to draw the conclusion that this exam review was so overly-detailed that it gave rise to a finding of professional misconduct.

College Counsel suggested that the Member provided an overly-detailed exam review to his students because he had not adequately prepared them. Member’s Counsel responded that the Member’s class was given a different exam from the original prepared by the Member and they performed exactly as one would have expected them to perform. The students’ performance on the new exam suggests that they were adequately prepared by the Member.

Member’s Counsel reiterated that the evidence regarding the detailed exam review was insufficient. Student No. 1’s evidence constituted double-hearsay. She was not in the Member’s class and she received the handwritten exam review notes from a friend who did not testify and who did not produce the notes herself.

Student No. 3 speculated that she might have been away on the day of the exam review and denied having provided her mother with any information to the effect that the Member read directly from the final exam while students frantically wrote down what he said.

Student No. 4’s evidence was vague. He was unable to take complete notes during the review period and got them from a friend in his class. These notes, however, were not produced into evidence and Student No. 4 was not asked about the handwritten notes found at Tab 26 of Exhibit 3.

Student No. 5 testified that the exam review was not out of the ordinary. She had taken notes of the review, but no longer had them.

Student No. 6 did not recall the exam review clearly, but said that there was nothing remarkable about it. He explained that students from other classes were upset that they had received no exam review at all, but that they were not upset with the content of the Member’s review.

Student No. 8 testified that the exam review was fairly consistent with that of other teachers.

Ultimately, Member’s Counsel submitted that the preponderance of the evidence indicated that the exam review was not notable or dissimilar from exam reviews given by other teachers. The Member’s exam review was not overly-detailed. According to Member’s Counsel, allegation 3(j) has not been proven on a balance of probabilities and the evidence in this regard should not give rise to a finding of professional misconduct.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel replied to some of the general themes that were raised by Member’s Counsel, and addressed specific allegations. With respect to the standard of proof to be applied by the Committee, College Counsel reiterated that the standard is proof on a balance of probabilities. When the Committee has to determine whether the facts underlying an allegation have occurred or not, the task for the Committee is to decide whether it is more likely than not that the fact occurred. College Counsel submitted the Committee does not need to be convinced beyond a reasonable doubt that a certain event occurred; even if the Committee has some doubt with regard to a particular event, it can still make a finding that the event occurred. Once the Committee finds that a fact occurred, the next stage of the analysis is to determine whether or not the facts give rise to a finding of professional misconduct.

Adverse Inferences

College Counsel replied to Counsel for the Member’s assertion that the Committee ought to draw an adverse inference because College’s Counsel did not call Ms. Toth, Mr. Ciancone, or Colleague A to testify. According to College Counsel, unless a witness is “uniquely in the power of the College” (like a College employee) an adverse inference cannot be drawn. Given that College Counsel has no power over school employees, such as a vice-principal, an adverse inference cannot be drawn if they do not attend proceedings.

College Counsel also submitted that Ms. Toth, Mr. Ciancone, and Colleague A were not called as witnesses because they had nothing to add to the College’s case. They were not first-hand observers of the key events in this case. For instance, because Ms. Toth, Mr. Ciancone, and Colleague A were not in the Member’s classroom at the time of the events, they would have offered little assistance with regard to the “gay” comment, the prom comment, or the exam review incidents. College Counsel added that the testimonies of Mr. Mayers and Ms. Amos were useful because they provided context to the Committee, but that it was unnecessary to elicit background information from any other witnesses.

Deflection Tactics in Member’s Submissions

College Counsel submitted, in reply, that the Committee ought to be wary of the “deflection tactics” used during Counsel for the Member’s submissions. College Counsel indicated that the mould issues were completely irrelevant to this case. According to College Counsel, the relevant allegations were witnessed by students in the classrooms who testified about the events in question. College Counsel took the position that the backstory regarding the mould incident had no bearing on what the student witnesses had to say about the relevant incidents in this case.

College Counsel also elaborated on his response to the Member’s position that an adverse inference ought to be drawn as a result of Colleague A’s failure to testify. According to College Counsel, Colleague A was not a “player” in this case. The insinuation from Member’s Counsel that she was an occasional teacher who wanted the Member’s job was completely speculative and inappropriate. It also served as a “smokescreen” that would be of little assistance to the Committee.

College Counsel replied to Counsel for the Member’s submission that Mr. Mayers’ investigation was insufficient or flawed. As a result of the complaints received during the fall 2007 semester, Mr. Mayers interviewed students and reported his findings to the Board. College Counsel submitted that, even if the Committee were to find that Mr. Mayers’ conducted a sloppy investigation, that would have no bearing on the evidence of the student witnesses who testified about the important events in this case. All of the student witnesses, including defence witnesses, told the Committee what they saw and how they felt as a result of the Member’s conduct. College Counsel urged the Committee to focus primarily on the evidence of the students who witnessed the Member’s conduct.

Credibility of Student No. 3 and Ms. 3

College Counsel replied to the submissions of Member’s Counsel that Student No. 3 and Ms. 3’s evidence was biased, uncorroborated, and lacked credibility. According to College Counsel, these two witnesses were credible and were not biased; they came to testify about what they observed, what was said to them, and how they felt as a result of the Member’s conduct. With respect to the suggestion of Member’s Counsel that Student No. 3 must have been out to get the Member because she was the only student who testified about the “gay” comment, the prom comment, and the “grilling” comment, College Counsel reminded the Committee that the Member generally accepted that he made the “gay” and the “grilling” comments. College Counsel therefore submitted that it was unfair to characterize Student No. 3 as being completely biased, when the Member himself agreed with two of the three allegations regarding his inappropriate comments.

Allegation 3(a) – The “Mark Book” Allegation

College Counsel made four comments in reply to the submissions of Member’s Counsel regarding the Mark Book allegation. First, in response to the suggestion that the discrepancies related to Mark Book might be due to a software malfunction, College Counsel submitted that the only evidence of this malfunction was that some people had heard about these software issues six years after the incident in question. There was no evidence of any Mark Book malfunctions before the 2013 academic year. Accordingly, the Committee should not accept the software malfunction defence.

Second, College Counsel noted that paragraph 102 of the Member’s written submissions, which explains that teachers can make slight adjustments to student grades, is irrelevant and misleading. Member’s Counsel indicated that teachers are permitted to adjust student grades to some extent (i.e. it is acceptable to bump a 47% to a 50% to allow a failing student to pass a course). According to College Counsel, the Member’s only evidence regarding the Mark Book allegation was that he did not know that the grade discrepancy occurred and that it may have been the result of a software malfunction. The Member never suggested that he had changed his students’ grades because he was allowed to do so. It was therefore inappropriate for Member’s Counsel to suggest this during his submissions.

Third, College Counsel reminded the Committee of Ms. Scarfone’s testimony that the grades recorded in Mark Book did not match the grades on the exams themselves. This evidence contradicted the submission of Member’s Counsel that the chart at Tab 22 of Exhibit 3 did not demonstrate purposeful misgrading that amounted to professional misconduct.

Fourth, College Counsel replied to the submission of Member’s Counsel that the College’s evidence regarding the Mark Book allegation was weak because the exams themselves had not been tendered as evidence. According to College Counsel, Ms. Scarfone’s testimony about what she saw on the exam booklets was sufficient. The Member could have requested the physical copies of the exams if he wished to rebut the College’s evidence, but he made no such request.

Allegation 3(b)(i) – The “gay” comment

With regard to the “gay” comment allegation, College Counsel replied to several aspects of the Member’s submissions. College Counsel submitted that it is irrelevant whether or not the Member had a history of homophobic tendencies. The fact that the Member said the “gay” comment should give rise to a finding of professional misconduct, even if the Committee accepts the Member’s submission that it was a singular event.

College Counsel also urged the Committee not to be dissuaded by the fact that the Member may have learned from this incident. While that may be relevant at the penalty phase, it should not affect the Committee’s determination of whether the Member’s comments amount to professional misconduct.

College Counsel submitted that the Committee should be wary of the Member’s defence that he only made the “gay” comment because he was worried that a student had previously been removed from [XXX] as a result of his sexual orientation. According to College Counsel, the Member never provided this explanation during the Board investigation and he did not mention it during his examination-in-chief. The issue was only identified during cross-examination and College Counsel suggested that this should cause the Committee to question the merit of this defence.

Prior Consistent/Inconsistent Statements

College Counsel submitted that Member’s Counsel has put the Committee in a difficult position. Member’s Counsel has urged the Committee not to rely on Tab 20 of Exhibit 3 (the secretary’s note of her phone call with Ms. 3), although it had been entered into evidence on consent months earlier. College Counsel took issue with the fact that Member’s Counsel urged the Committee to disregard this document because of the laws surrounding prior consistent statements, while also telling the Committee that extensive cross-examination had occurred about this document, and that it was actually a prior inconsistent statement. According to College Counsel, this document should not be relied on for the truth of its contents but rather to demonstrate that what Student No. 3 heard the Member say was serious enough for her to tell her mother, and that her mother felt that that it was serious enough to call the School. College Counsel submitted that it would be appropriate for the Committee to rely on this document for that purpose.

Allegation 3(b)(ii) – The Prom comments

College Counsel replied to the submission of Member’s Counsel that the College’s “two events” theory was inappropriate. According to College Counsel, this is not a new theory that inappropriately emerged during closing submissions; it is simply the logical outcome of the evidence. College Counsel submitted that the Committee does not need to find that the evidence of Students No. 5, 6 and 8 were untrue. Rather, College Counsel invited the Committee to find that both episodes happened: one where the Member put a stop to inappropriate student conversations about prom, and another where the Member made inappropriate comments about prom in front of students.

Allegation 3(b)(iii) – “Your mom grilled me. She sure is animated.”

College Counsel replied to the submission of Member’s Counsel that the “your mom grilled me” comment should not give rise to a finding of professional misconduct because Student No. 3 and her mother were overly sensitive and took exception to an objectively innocuous comment. College Counsel replied that characterizing Student No. 3 and her mother as being overly sensitive tells a story from the defence’s perspective; the Committee should not be so quick to make this characterization. The fact that Student No. 5 was not offended by these comments is unsurprising and irrelevant: her mother was not the subject of the comments. College Counsel submitted that the Member would not have apologized for making these comments if they were, in fact, innocuous. College Counsel further submitted that the Member’s “accuracy defence” (i.e. calling a parent animated in front of a class does not amount to professional misconduct because the parent was actually animated) was inappropriate.

Allegations 3(g) and 3(h) – Timely delivery of documentation/information to School administration

College Counsel urged the Committee not to accept the submission of Member’s Counsel that the Member provided the requested documentation and information to School administration in a timely manner. According to College Counsel, the Member did not provide the materials requested of him to School administration when he was asked. Ms. Annecchini testified that the Member did not submit his students’ exams when asked (see Exhibit 3 at Tab 17). The submissions of Member’s Counsel in this regard were therefore inaccurate.

Allegation 3(i) – The Member left the classroom after announcing to the students in his class that the final examination was located on his desk in 2006-2007

College Counsel replied to the submissions of Member’s Counsel that the “evolving story” of Student No. 2 impaired her credibility and should lead the Committee to dismiss her version of events regarding the exam being left out by the Member for his students to review. According to College Counsel, Student No. 2’s evidence was not internally inconsistent, as Member’s Counsel had submitted. Student No. 2 explained her observations in greater detail during her oral testimony, but her evidence was consistent with her written statement. College Counsel was of the view that she merely expanded on her written statement during her testimony. Student No. 2 consistently stated that the Member provided an overly-detailed exam review, that he left the exam out for his class to review, and that the exam was read aloud to the class by another student.

College Counsel further submitted that Student No. 2 had no reason to come before the Committee to lie, seven years after the exam incident. Student No. 9, on the other hand, had a reason to cover up the fact that he read the exam aloud to the class. As he admitted during cross-examination, he was worried about his reputation. According to College Counsel, the fact that Student No. 9 is still concerned about the effect that this exam incident might have on his reputation demonstrates that he had a reason for not being completely forthright when describing his version of events. College Counsel urged the Committee to accept Student No. 2’s version of events over that of Student No. 9.

College Counsel further submitted that the Committee should not accept the Member’s argument that Student No. 2’s delayed reporting of the exam incident impaired her credibility. It is not uncommon for reports of professional misconduct to emerge sometime after the events in question. People do not always come forward with complaints right away. According to College Counsel, there was nothing unusual about the timing of Student No. 2’s report. When she was asked for information one year after the incident, she provided it.

DECISION

Onus and Standard of Proof

The College bears the onus of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities. The allegations must be supported by clear, cogent and convincing evidence in order for the Committee to make a finding of professional misconduct.

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 finds that the facts of this case support a finding of professional misconduct. In particular, the Committee finds that Matthew John Chiarot committed the acts alleged in allegations 3(a), 3(b)(i), and 3(b)(iii) of the Notice of Hearing, and that this conduct gives rise to a finding of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(10), 1(15), 1(18) and 1(19).

While the Committee finds that the Member committed the act alleged in allegations 3(e)(i)-(iv) and 3(h) of the Notice of Hearing, this conduct does not amount to professional misconduct. Furthermore, the Committee does not find that the Member committed the acts alleged in allegations 3(b)(ii), 3(c), 3(d), 3(f), 3(g), 3(i), and 3(j), and the Committee does not find that the Member’s conduct contravened subsection 1(11) of Ontario Regulation 437/97.

REASONS FOR DECISION

In arriving at its decision, the Committee carefully considered the evidence presented by both parties, the submissions of Counsel for the College and Counsel for the Member, as well as all relevant jurisprudence.

In the reasons that follow, the Committee addresses each of the incidents contained in the Notice of Hearing. The Committee applied a two-step process in making its decision. First, the Committee determined whether there was sufficient evidence to prove the allegations contained in the Notice of Hearing, on a balance of probabilities. Second, if the Committee found that the allegations were proven, the Committee then determined whether the facts gave rise to a finding of professional misconduct. The Committee applied this two-step process to each of the incidents referred to in the Notice of Hearing.

Legal issues raised by Member’s Counsel

Before turning to an analysis of each allegation, the Committee made rulings on several of the legal issues raised by Member’s Counsel in his submissions.

i) Abandonment

Member’s Counsel asserted to the Committee in his submissions that the College had implicitly withdrawn or abandoned allegations 3(c), 3(d), 3(e) and 3(f) because it had not addressed these matters in its submissions. The Committee notes that these allegations were not formally withdrawn by the College. Evidence related to each of these allegations was called by College Counsel and was therefore before the Committee for its consideration. The Committee further notes that there was no legal authority or precedent submitted upon which it could reasonably rely in order to ascertain whether the argument related to abandonment could be sustained. It is unfortunate that College Counsel chose not to address these issues in submissions. The Committee, however, cannot find that a failure to do so was tantamount to abandonment.

ii) Hearsay

The Committee also notes the submissions of Member’s Counsel with respect to hearsay and has taken this into consideration in its analysis on findings made with respect to the allegations below, where relevant.

iii) Improper reliance on documents not in evidence

Member’s Counsel submitted that the College improperly relied on documents not in evidence, including the Board Policy and Pastoral Guidelines. The Committee does not believe that it is necessary to rely on these documents to make a finding of misconduct related to the “gay” comment. The Committee finds it reasonable to conclude, based on a notorious standard, that it was inappropriate to make a comment about a student’s sexuality, particularly in front of other students.

Allegations of Misconduct

Allegation 3(a) – The “Mark Book” Allegation

The Committee finds that there was sufficient evidence to prove that the Member failed to accurately record the grades of students enrolled in his courses and that this gives rise to a finding of professional misconduct. Two separate incidents related to inaccurate grades reported in Mark Book were discussed in this context: grades entered into Mark Book were not identical to those written on the exams, and the Member gave all students a grade of 100% on their progress reports. Both incidents are addressed below.

i) Inputting different grades into Mark Book than recorded on the exams

The Committee finds that there was sufficient evidence to prove that the Member input grades into Mark Book, which did not correspond to grades on his students’ exams. The Committee finds that this action gives rise to a finding of professional misconduct.

The Committee was persuaded by the testimony of Mr. Mayers, who indicated that, upon investigating this matter, he found a difference between the grades on student exams and the grades entered in Mark Book. This testimony was supported by Ms. Scarfone, who also noticed these discrepancies. The Committee reviewed Ms. Scarfone’s testimony that there were no technical issues with Mark Book and that no one else in the department raised any concerns about the functionality of Mark Book at that time. While both Mr. Mayers and the Member acknowledged potential technical issues with respect to Mark Book that occurred much later in 2013, the Committee did not believe that technical issues were responsible for the difference in grades that occurred in 2008, five years prior.

The Committee finds the evidence of the Member to be less credible than that of Ms. Scarfone and Mr. Mayers. The Member was in care and control of the exams and was responsible for inputting the grades into Mark Book. The Member’s suggestion that technical issues may have been responsible for the difference in grades was implausible.

Moreover, the Committee rejects the Member’s suggestion that there might be situations where it is acceptable to tinker with students’ grades if, for example, a student is on the cusp of failing a course and the grade change is minor. The Committee agrees with College Counsel that this submission was a red herring. The Member was not arguing that he tinkered with student grades and that this was acceptable; he argued that the grade discrepancy on Mark Book may have been caused by a computer error. The Member did not adduce any evidence to prove that it was acceptable to tinker with grades in any circumstances, and he did not provide sufficient evidence to prove that the grade discrepancy on Mark Book was the result of a software malfunction.

Therefore the Committee finds that it is more likely than not that the Member inappropriately exaggerated students’ grades on Mark Book.

ii) Student progress reports indicating 100% progress

The Committee finds that there was sufficient evidence to prove that the Member entered grades in student progress reports of 100%; however, the Committee does not find that this incident gives rise to a finding of professional misconduct.

The Committee heard evidence from both Mr. Mayers and the Member, that students received progress reports indicating they stood at 100% in the Member’s course. The Member further testified that when he issued the progress reports to students, he printed them off and then noticed the grade of 100%. He indicated to students that they should ignore the grades as they had been entered as a “placeholder” and instead focus on the comments that he had provided. The College did not tender any evidence to contradict the Member’s evidence in this regard.

The Committee does not find that this conduct, on its own, rises to the level of professional misconduct, as no clear standard or expectation of behaviour was provided to the Committee. Along with an absence of a clear written policy, there was also no evidence provided indicating that an existing unwritten standard was so notorious that it would be considered common knowledge in the profession. Although the Members’ action may have been an inappropriate way to communicate student progress, without evidence that the Member breached a rule, policy, or expected standard of behaviour notorious to the profession, the Committee does not find that this conduct alone gives rise to a finding of professional misconduct. The Committee, however, finds that allegation 3(a), as a whole, gives rise to a finding of professional misconduct.

Allegation 3(b) – Inappropriate comments to students

The Committee finds that there was sufficient evidence to prove that the Member made inappropriate comments to students, which gives rise to a finding of professional misconduct. Two incidents were relied upon by the Committee to make this finding: the “gay” comment and the comment that “Your mom grilled me. She sure is animated.” The Committee does not find that the Member said the Prom comments, as alleged by the College. Each comment will be discussed below.

Allegation 3(b)(i) – The “gay” comment

Student No. 3, Student No. 8, and the Member all testified that the Member made a comment about a student’s tone of voice, and asked why he sounded like that and “is he gay?” By the Member’s own admission, he asked if the student was gay and acknowledged that it was not appropriate for him to have done so. The Committee finds that there was sufficient evidence to prove that the Member made the comment.

The Committee further finds that this comment gives rise to a finding of professional misconduct. The Committee does not accept that the intent of the comment was innocent and made in any form of genuine concern for the student. The Committee agrees with College Counsel that it is implausible that the Member would have innocently asked a student in his class about the sexual orientation of a grade student that neither of them knew.

The Committee does not accept the submission of Member’s Counsel that this was an isolated incident without any malicious intent. This was not the only incident in which the Member made an inappropriate comment in front of students that could have humiliated a student; the Member admitted that he also made the “your mom grilled me” comment in front of his class, which was inappropriate and embarrassing to a student. Moreover, the Committee finds that it was totally inappropriate for the Member to ask a student about the sexual orientation of another student, and highly unprofessional for a teacher to engage a student in that type of conversation. The question breached student confidentiality and displayed a lack of sensitivity to issues regarding sexual orientation. It is irrelevant whether one student or twenty students heard the comment; teachers are not to make remarks that could be perceived to be homophobic.

Allegation 3(b)(ii) – The Prom comments

The Committee finds that there was not sufficient evidence to prove that the Member made the prom comments. Evidence heard by the Committee was inconsistent, as only one student testified that the comments were made by the Member. Several student witnesses and the Member testified that, while there was a discussion about prom in the Member’s classroom, it involved students, and not the Member, and that the Member attempted to stop the discussion.

The Committee does not accept the College’s “two events” theory that there were two prom discussions – one in which the Member made the inappropriate comments and one in which the Member put a stop to inappropriate comments made by students. The Committee notes that the College bears the burden of proof and finds that it has not adduced sufficiently clear, cogent and convincing evidence to support its “two events” theory. While it may be possible that Student No. 3 recalled a different event than the Member and the other students who testified about this issue, the Committee finds it equally possible that there were simply minor inconsistencies between the evidence of the various witnesses due to the passage of time and fading memories. Furthermore, the Committee agrees with Member’s Counsel that the “two events” theory was not put to any of the witnesses and that the Member should have been given the opportunity to address this theory.

Therefore, the Committee does not find that the evidence supports that the Member made the comments alleged in allegation 3(b)(ii).

Allegation 3(b)(iii) – “Your mom grilled me. She sure is animated.”

Student No. 3, Student No. 5, and the Member testified that the Member made the comment. By the Member’s own admission, it was not appropriate for him to have said this. The Committee finds that there was sufficient evidence to prove that the Member made the comment. The Committee further finds that making this comment gives rise to a finding of professional misconduct.

It was inappropriate for the Member to publicly comment about a student’s parent in front of other students. The Member’s comments clearly upset the student, even many years later. The Committee does not accept the submission of Member’s Counsel that Student No. 3 and her mother were overly sensitive, and that in any event, the comment was true and inoffensive. Even the Member acknowledged that the comments may have embarrassed Student No. 3. The Committee finds that, even if the Member did not intend to embarrass Student No. 3, he did embarrass the student. The Member singled out a student, in front of the class, by commenting about her mother; he ought to have known that this may have embarrassed the student and that it was inappropriate. Even if the nature of the comment were inoffensive, which the Committee does not accept, the manner in which the comment was delivered was inappropriate and embarrassing to the student.

Such comments are not in keeping with the responsibilities of the teacher, which are to promote an environment that fosters care, respect, and the emotional well-being of students. The Member should not have singled out the mother of a student in front of her peers and should not have made a joke regarding the mother’s behaviour. The student was humiliated by the Member’s conduct and other students recognized this. It is inappropriate for a teacher to create a situation that allows students to laugh at another student or their family.

The Committee relied on Bordonali for the proposition that embarrassing a student can amount to professional misconduct. While Member’s Counsel submitted that Bordonali is distinguishable from the Member’s case because, unlike the Member, Mr. Bordonali intentionally embarrassed a student, laughed at students, and repeatedly made inappropriate verbal statements to students, the Committee disagrees. To be sure, no two cases are exactly alike; however, Bordonali is sufficiently similar to the Member’s case and can be relied on for the general proposition that embarrassing a student can amount to professional misconduct. Intentionally or not, the Member embarrassed a student, he ought to have known better, and on more than one occasion, he made inappropriate verbal statements to students.

With respect to the submission of Member’s Counsel that not every incident of poor judgment constitutes professional misconduct, the Committee generally agrees with this principle but finds that the Member’s conduct cannot be properly characterized as an isolated lapse of judgment. Through his conduct, the Member has demonstrated repeated lapses of judgment which have contributed to a pattern of insensitive behaviour towards students.

Allegation 3(c) – supervision issues

The Committee heard conflicting evidence with regard to the Member’s supervision of his students. Most of the evidence, from a variety of students, coupled with the lack of any discipline from the School, supports the Member’s testimony that he only left the classroom for “brief periods of time.” Therefore, the Committee finds that there was insufficient evidence to prove that the Member failed to adequately supervise students.

The Committee heard evidence from Student No. 2 and Student No. 9 that the Member often arrived late for class. Student No. 9 testified that the Member would leave the class to go to the cafeteria or to his car. A third student testified that the Member would sometimes go into a [XXX] [XXX] for no more than a minute or two. The Committee also received evidence about the Member arriving to class 15 minutes late on October 22, 2007 (see Exhibit 3 at Tab 4) and that school video cameras recorded the Member leaving the classroom for five minutes on another occasion.

By the Member’s own admission, he had left his classroom, although he indicated that this was for “brief periods of time.” He testified that if he left his class, he had another teacher cover his classroom. The Member could not remember a specific incident when he left for 15 minutes. The Member testified that he was never disciplined for leaving students unattended.

The Committee did not place any weight on the testimony of Mr. Mayers about the Member being out of the school building on October 10, 2007 and being unavailable to answer a page on October 11, 2007. These incidents occurred while the Member was assigned to preparation time and the Member was not responsible for supervising students during this time.

No submissions were made by College Counsel on this supervision issue; however, the Committee does not accept the argument made by Member’s Counsel that this allegation was implicitly withdrawn, as evidence was put before the Committee for its consideration.

While the Committee believes that the Member may have been absent from the classroom at times, it is not satisfied that the Member did not have someone cover his class while he was absent, as there was insufficient evidence to reach that conclusion. Therefore, the Committee does not find that the Member failed to adequately supervise his students.

Allegation 3(d) – failing to deliver the curriculum by using an [XXX] level textbook

The Committee finds that there was insufficient evidence to prove that the Member failed to deliver the curriculum by using an [XXX] level textbook for the [XXX] course. The evidence did not demonstrate clearly which textbook was used by the Member, nor did it indicate whether the textbook was inappropriate for the course level. Counsel for the College introduced very little evidence to support this allegation, with the exception of testimony from Mr. Mayers, who indicated that he heard from Student No. 2 that the Member used a different book. When Student No. 2 testified about this issue, the student acknowledged that the Member rarely referred to the textbook in any event, as he typically taught the class by providing his students with handouts instead of using a textbook.

Member’s Counsel presented the Committee with a photocopy of a publisher’s listing, with a picture and description of the textbook which the Member was alleged to have used. It was not clear to the Committee whether this was an accurate listing to the referenced text, whether the textbook had been approved by the administration, or whether it was appropriate for use for that particular course.

As there was insufficient evidence before the Committee that the Member failed to deliver the curriculum through the use of an inappropriate textbook for [XXX], the Committee does not make a finding of professional misconduct with respect to this allegation.

Allegation 3(e) – failing to use class time appropriately

The Committee finds that the evidence presented in relation to allegation 3(e) proves the occurrence of each of the particulars described below, but that these particular events do not amount to professional misconduct. The Committee considered the four particulars outlined by the College in making this allegation: i) that the Member had his class watch a movie unrelated to the [XXX] curriculum; ii) that the Member spoke on his cell phone during class; iii) that the Member had members of the [XXX] team visit his class; and iv) that the Member cooked waffles and bacon in class. Each particular will be discussed below.

Allegation 3(e)(i) – failed to use class time appropriately by showing a movie unrelated to the curriculum

Student No. 5, Ms. 4 and the Member testified that the Member showed a movie to students during class time; this fact is not in dispute. Considering the lack of any evidence as to why this use of class time was inappropriate, and given the circumstances, the Committee does not make a finding of professional misconduct with regard to this allegation.

Allegation 3(e)(ii) – failed to use class time appropriately by speaking on a cell phone during class

Student No. 3 testified that the Member used his cell phone in class and Ms. 3, who likely would have learned this information from her child, provided similar testimony. Two other students (Student No. 5 and Student No. 6) testified that they did not recall the Member using his phone in class, and Student No. 8 testified that the Member did not use his phone in class. The Member indicated that he did answer his cell phone on one occasion during a family emergency. The Committee finds that there was insufficient evidence to demonstrate that the Member spoke on his cell phone regularly during class time so as to constitute professional misconduct. Using one’s cell phone one time during a family emergency does not constitute professional misconduct.

Allegation 3(e)(iii) – failed to use class time appropriately by having members of the [XXX] team visit the class for team meetings during class time

Student No. 2 and Ms. 3 testified that the Member would have [XXX] students drop by his class. Student No. 5 indicated that, when members of the [XXX] team would drop by, they would not stay for more than 20 seconds. While the evidence supports the fact that students on the [XXX] team did come to the Member’s class during class time, there was no evidence provided indicating that it impacted student learning. Therefore, the Committee concludes that this conduct does not rise to the level of professional misconduct.

Allegation 3(e)(iv) – failed to use class time appropriately by cooking waffles and bacon in class

Student No. 8 and Student No. 5 both testified that the Member cooked in class, and indicated that it was part of a lesson on [XXX]. One student remembered making pancakes, while another student testified that the Member made bacon and eggs. The Member himself testified about making pancakes as part of a reward for completing a [XXX] unit. However, without any further evidence or submissions provided by College Counsel to demonstrate why this was an inappropriate practice, the Committee does not make a finding of professional misconduct in this regard.

Allegation 3(f) – failed to provide timely and necessary feedback to students

The Committee is concerned with the allegations surrounding the lack of feedback provided by the Member to students, as noted by the information entered into Mark Book and the testimony of some of the witnesses; however, the Committee finds that there was insufficient evidence to prove that the Member failed to provide timely and necessary feedback to students.

The Committee heard inconsistent evidence as to the amount and timeliness of feedback provided by the Member to students. Mr. Mayers and Ms. Amos indicated that they received complaints from four different parents about this issue, and Student No. 2 and Student No. 4 testified that there was not enough assessment provided to them by the Member. A third student, Student No. 3, indicated that she was worried that she did not receive a great deal of graded work back from the Member. Student No. 6 and Student No. 7 both testified that they received as much feedback from the Member as from other teachers. The Member testified that he took approximately one or two weeks to hand back quizzes and unit tests and a few weeks to return [XXX] assignments to his students.

Much of the evidence from students and parents focused on whether they believed that the feedback provided by the Member was timely or sufficient. This evidence was largely based on the subjective opinions of the witnesses and lacked the specific, objective details such as dates when feedback was provided, which the Committee could have used to determine whether the Member had failed to meet any requirements. No evidence was provided as to the specific assessment requirements of the Member, based on Board or School expectations.

While the Committee heard testimony from Mr. Mayers that only one assessment was recorded between the beginning of the academic year and the time when progress reports were issued by the Member, this evidence was insufficient to make a finding that the Member failed to provide timely and necessary feedback to students. Although the Committee has some concerns that students were not provided with as much feedback as they might have been, progress reports were sent out in October, which was still very early in the academic year. Mr. Mayers’ evidence does not give a complete enough picture of the academic year to allow the Committee to make a finding against the Member with respect to the timeliness and sufficiency of the feedback that he provided to students. Accordingly, the Committee does not find that there is sufficient evidence to give rise to a finding of professional misconduct in relation to this allegation.

Allegation 3(g) – The Member failed to provide the School administration his student marks or long range planning as requested

The Committee finds that there was not sufficient evidence to prove that the Member failed to provide the School administration his student marks or long range planning as requested.

Mr. Mayers testified that he asked the Member, by a letter dated December 12, 2007, to meet with him on December 17, 2007 and to provide his long range, short range and unit plans for two [XXX] classes, as well as lesson plans to date and for the duration of the semester, and Mark Book entries for the semester up to December 14, 2007. The Member did not attend the meeting as he called in absent and did not provide this information at that time. Mr. Mayers testified that he did not reschedule the meeting with the Member. The Member acknowledged in his testimony that he did not attend the meeting on December 17, 2007 because he was absent, but indicated that he brought all of the requested material the next day to give it to Mr. Mayers. On December 18, 2007, Mr. Mayers did not meet with the Member, and the Member was not directed to leave the materials with the office. The Committee does not find that the Member’s conduct in relation to this allegation rises to the level of professional misconduct, given the circumstances surrounding this incident.

Allegation 3(h) – the Member removed student examinations from the school

The Committee finds that the Member removed student examinations from the school; however, the Committee does not find that this behaviour gives rise to a finding of professional misconduct. Testimony from both Mr. Mayers and Ms. Annecchini, as well as the Member’s own testimony, indicates that the Member kept exams in his car. Therefore, the Committee finds this fact to be uncontested. However, in the absence of a clear standard indicating that such behaviour is inappropriate, the Committee does not make a finding of professional misconduct.

Allegation 3(i) – The Member left the classroom after announcing to the students in his class that the final examination was located on his desk in 2006-2007

The Committee heard conflicting evidence with regard to this allegation and must gauge the witnesses’ testimony in order to determine whether the College has adduced sufficient evidence to prove this allegation. Student No. 2 was the only witness who testified that the exam was left on the Member’s desk. Student No. 9 testified that there was no exam left on the Member’s desk. College Counsel submitted that Student No. 2’s evidence was more credible and urged the Committee to prefer the evidence of Student No. 2 over that of Student No. 9. According to College Counsel, Student No. 2 prepared a written statement about this incident in 2008 – only one year after the event in question – whereas Student No. 9 testified about this incident in 2013, which is six years after the event in question. In addition, College Counsel submitted that Student No. 2’s testimony was consistent with the written statement that she produced in 2008.

Member’s Counsel, however, submitted that Student No. 2’s evidence was not credible because it kept changing over time. According to Member’s Counsel, Student No. 2’s testimony evolved from 2008, when she drafted her written statement, to 2013 when she testified before the Committee. Member’s Counsel noted that Student No. 2’s evolving story became more detailed over time. For instance, Student No. 2’s written statement did not mention that the Member announced to the class that he was leaving the exam on the desk when he left the classroom. It also did not mention that Student No. 9 read the exam aloud to the class. Nonetheless, Student No. 2 testified to this effect. The Committee is troubled by the evolution of Student No. 2’s testimony because memories generally fade over time, yet Student No. 2’s version of events became more detailed as time progressed.

In addition, the Committee is concerned with the internal consistency of Student No. 2’s evidence. Despite the student’s claim that the Member had left a copy of the exam on his desk in the class, Student No. 2 acknowledged, during cross-examination, that there were questions on the exam that took her by surprise. If the student had been allowed to view a copy of the exam in advance, it is unlikely that she would have been surprised by questions during the exam. The Committee finds that the evidence of Student No. 2 was not sufficiently clear, cogent and convincing to accept the student’s version of events.

The Committee notes that the College bears the burden of proof, on a balance of probabilities, and finds that the College has not met its burden in this regard. Although it is possible that Student No. 2’s version of events occurred, it is not more likely than not to have occurred. Accordingly, the Committee finds that there was insufficient evidence to prove that the Member left the classroom after announcing to the students that the final examination was on his desk, and it makes no finding of professional misconduct against the Member in relation to this allegation.

Allegation 3(j) – The Member provided an overly-detailed exam review in 2007-2008

The Committee finds that there was insufficient evidence to prove that the Member provided an overly-specific and detailed exam review to his students.

The Committee did hear testimony from several witnesses about this allegation; however, the evidence presented was inconsistent. Student No. 1 testified that the Member gave an extremely detailed exam review in his [XXX] class, while Student No. 7 indicated that the Member gave the same kind of exam review as other teachers. Another student testified that the Member gave a detailed exam review in her [XXX] class.

Member’s Counsel raised hearsay concerns with respect to the notes that were written based on the Member’s exam review, as the student who testified obtained the notes from another student who was not personally present for the exam review. The Committee recognizes that the exam review notes entered into evidence at Tab 26 of Exhibit 3 are hearsay; the author of the notes is unknown and did not testify at this hearing. Nonetheless, since hearsay evidence is admissible in College discipline proceedings, the Committee admits the exam review notes but gives them limited weight. The Committee has considered the exam review notes for the purpose of comparing them to the actual content of the exam.

Having compared the exam review notes to the actual exam administered by the Member (see Exhibit 3 at Tab 26), the Committee finds that, while the exam review notes were similar to the exam ultimately administered to students, it was not overly-specific or detailed when compared to the 14-page exam. For example, the exam review notes indicate that Part A of the exam contains multiple choice questions, and that the first question pertains to “[XXX] factors”. While the first question of the actual exam is a multiple choice question dealing with the above-mentioned topic, this information alone would not allow a student to correctly respond to the first exam question, without having learned the difference between abiotic and biotic factors.

Similarly, the exam review notes indicate that Part B of the exam is a “matching” exercise, with “[XXX], [XXX], [XXX], [XXX]”. While this portion of the exam is indeed a matching exercise that required students to correctly match the statements in one column with the correct term in a second column, simply knowing the format of the questions and the general topics would not enable a student to correctly answer the questions without having learned the substance of the material.

The Committee agrees with Member’s Counsel that the Member did not provide students with specific questions and answers, but merely told them what topics to study. Even Student No. 1, who was a witness for the College, acknowledged during cross-examination that she would have still needed to study for the exam, despite the detailed exam review that the Member provided. While the Committee has some concerns with the level of detail of the Member’s exam review, it recognizes that there is a range of detail that would be acceptable for an exam review. The Member’s review may have been towards the higher end of the acceptable range, but there was insufficient evidence to prove that his exam review was so detailed that it gave his students an unfair advantage on their exam.

Given that there was insufficient evidence to prove that the Member provided an overly-detailed exam review, the Committee does not make a finding of professional misconduct with respect to this allegation.

Conclusion

Ultimately, the Committee concludes that the facts of this case support a finding of professional misconduct. While the College has not met its burden of proof with respect to all of the allegations contained in the Notice of Hearing, sufficient evidence was adduced to prove that the Member committed acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(10), 1(15), 1(18) and 1(19).

PENALTY

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

Date: November 25, 2015

John Tucker Chair, Discipline Panel

Christine Bellini, OCT Member, Discipline Panel

Vicki Shannon, OCT Member, Discipline Panel