DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Kenneth Chesley James Curtis, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Irene Cheung, OCT
Ravi Vethamany, OCT
BETWEEN: ) Eli Mogil,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,
) Law Clerk
-and- )
KENNETH CHESLEY JAMES CURTIS ) Kenneth Chesley James Curtis,
(CERTIFICATE # 519304) ) Self-represented
) Erica Richler,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: November 30 and December 1, 2015
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 30, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated July 29, 2014 was served on Kenneth Chesley James Curtis (the “Member”), requesting his presence on August 11, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 30, 2015. The proceedings continued on December 1, 2015.
The Member was not in attendance for the hearing and he did not have legal representation.
Counsel for the College submitted an Affidavit of Duane Crocker (Exhibit 2), sworn November 26, 2015, which outlines the College’s communications with the Member and the various attempts made by the College to serve the Member with the Notice of Hearing, the Disclosure Brief and any other relevant information or documentation relating to this matter. In light of this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure material, and that he was made aware of the time and the date of the hearing. The Committee therefore heard the matter in the absence of the Member.
OVERVIEW
The allegations in this matter arose as a result of the Member’s conduct during 2012 and 2013, and involve both allegations of professional misconduct and incompetence, as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1996 (the “Act”), respectively. At the time of the events in question, the Member was a [XXX] teacher who is alleged to have both failed to maintain safe conditions in his classroom and to have demonstrated an inability to carry out his teaching responsibilities effectively and in a manner that is compliant with his professional obligations.
Despite having received a variety of support from school administration, the Member’s teaching performance did not improve, and he repeatedly jeopardized the safety of students and staff. After having received two unsatisfactory Teaching Performance Appraisals (“TPA”) during the 2012-2013 academic year, the Member retired from the Avon Maitland District School Board (the “Board”) on June 1, 2013. At the time of the hearing of this matter, his Certificate of Qualification and Registration was suspended for non-payment of fees (see Exhibit 14).
The Committee’s task is to determine whether the facts alleged by the College have been proven, on a balance of probabilities, and if so, whether the Member’s conduct gives rise to a finding of professional misconduct or incompetence, or both. For the reasons that follow, the Committee finds the Member guilty of professional misconduct and to be incompetent.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) of the Act in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he failed to supervise adequately a student or students who were under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);
(c) he failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);
(d) 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
(e) he displayed a lack of knowledge, skill or judgement or disregard for the welfare of students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s Certificate should be made subject to terms, conditions or limitations.
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Kenneth Chesley James Curtis is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Board as a teacher at [XXX] School (the “School”) in [XXX], Ontario.
During the 2012-2013 academic year, the Member:
(a) did not adequately demonstrate commitment to the well-being and development of his students;
(b) did not adequately respond to learning exceptionalities and special needs of students in his instruction or assessment;
(c) did not adequately demonstrate dedication in his effort to teach and support student learning and achievement;
(d) did not establish a learning environment in his classes;
(e) did not identify success criteria that align with learning goals;
(f) did not share learning goals or criteria with students;
(g) did not ensure that students were able to articulate how they were being assessed;
(h) did not adequately teach students the concepts in an exam preparation assignment;
(i) did not adequately model conduct that is expected of students;
(j) did not adequately provide an environment for learning;
(k) did not connect all of his lesson plans to curriculum expectations;
(l) did not create lesson plans for his [XXX] and [XXX] classes;
(m) did not ensure that all students were informed of safety precautions and procedures in the [XXX];
(n) did not demonstrate adequate knowledge of a variety of effective teaching and assessment practices;
(o) did not provide evidence to support student grades in the [XXX];
(p) did not align his assessment strategies with learning goals;
(q) did not demonstrate a variety of effective classroom management strategies;
(r) did not develop clear and achievable classroom expectations with students or for students;
(s) did not communicate adequately with parents to help support his classroom management efforts;
(t) did not model the conduct he expects of his students and consistently enforce these expectations;
(u) did not differentiate his instruction so that all students are able to access the curriculum;
(v) did not provide evidence of student achievement in the [XXX];
(w) did not seek guidance and support from his colleagues to improve his teaching practice;
(x) did not apply shared instructional and assessment strategies in his practice;
(y) did not invite other professionals and community members into his class to share their knowledge and skills;
(z) did not develop community partnerships to enhance career knowledge and opportunities;
(aa) did not adequately complete his Improvement Plan.
In 2012 and/or 2013, the Member failed to take adequate steps to ensure that his students complied with safety requirements and/or that his [XXX] classroom was maintained in safe condition.
On or about June 1, 2013, following two consecutive unsatisfactory performance appraisals, the Member retired from the Board.
MEMBER’S PLEA
As the Member was not present and did not have legal representation, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.
EVIDENCE OF THE COLLEGE
The College called one witness: Ms. Emma Bannerman (“Principal Bannerman”). The principal’s testimony was supported by extensive documentary evidence.
Principal Bannerman’s career in education began in 2000 and she has been employed by the Board since 2005. In September 2011, she became vice-principal at the School and, due to unforeseen circumstances, she took over the responsibilities of principal four days later. The principal testified that she had conducted approximately 20-25 TPAs as a vice-principal and principal prior to conducting the Member’s TPAs, and that she had sufficient experience to competently carry out the Member’s performance appraisals.
Principal Bannerman gave evidence about her knowledge of the Member’s alleged conduct and her efforts to work with him to improve his teaching practice. Shortly after she met the Member, a number of parents and students complained about his classroom management and the general safety conditions in his class. Principal Bannerman testified that she addressed these complaints by meeting with the Member and other School and Board administrators on numerous occasions to discuss the Member’s teaching performance. She also felt it necessary to check on the Member’s class nearly every day from the spring of 2012 until the winter of 2013 in order to ensure student safety, and she provided the Member with various strategies for improvement.
Despite the support that the principal provided to the Member, the Member’s teaching performance did not ultimately improve. Principal Bannerman provided detailed descriptions of the two TPAs that she had conducted, and she described the Improvement Plans that were developed for the Member following his unsatisfactory TPAs. As will be described in greater detail below, the principal: identified her concerns with the Member’s teaching practice shortly after they were brought to her attention; worked with the Member to set expectations; consistently monitored his teaching performance; and, provided him with support. Nevertheless, the Member completely lost control of his classroom, he demonstrated that he was unable to meet his professional obligations, and he jeopardized the safety of students and staff at the School in the process.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the Committee ought to find the Member guilty of professional misconduct and to be incompetent. His submissions dealt with both the Member’s safety violations and his teaching performance.
Submissions with respect to the Member’s safety violations
College Counsel submitted that the Committee was presented with sufficient evidence to find the Member guilty of professional misconduct, as alleged in the Notice of Hearing. After reviewing the key facts of the case and the chronology, College Counsel submitted that the Member clearly did not maintain a safe learning environment and he exposed his students and his colleagues to a risk of harm. College Counsel submitted that the Member’s safety violations were repeated and formed a troubling pattern of behaviour between the spring of 2012 and the winter of 2013.
Submissions with respect to the Member’s teaching performance
College Counsel submitted that the Committee was presented with sufficient evidence to find the Member to be incompetent, as defined in subsection 30(3) of the Act. According to College Counsel, the fact that the Member received two unsatisfactory TPAs does not lead to the conclusion that the Member is incompetent; rather, it is the content of these TPAs that demonstrates that the Member must be found to be an incompetent member.
College Counsel submitted that the content of the Member’s two unsatisfactory TPAs clearly demonstrates that the Member had failed to meet his professional obligations across all domains of his teaching practice. Among other issues, he completely lost control of his classroom, he did not demonstrate adequate classroom management skills or lesson planning, and he did not teach the curriculum to his students. College Counsel added that the Member had received ample support from School administration, but that he nevertheless showed no signs of improvement. Rather, his teaching performance deteriorated from his first unsatisfactory TPA to his second unsatisfactory TPA.
Finally, College Counsel submitted that Principal Bannerman was a fair and honest witness whose evidence was very credible. College Counsel urged the Committee to rely on her clear, cogent and convincing evidence when finding the Member guilty of professional misconduct and to be incompetent.
DECISION
Onus and Standard of Proof
The College bears the burden 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 or incompetence, or both.
Decision
Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), and 1(18). Furthermore, the Committee finds that the facts support a finding of incompetence, as defined in subsection 30(3) of the Act.
REASONS FOR DECISION
The Committee has carefully reviewed the submission of College Counsel and all of the evidence presented. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Committee first considers the Member’s safety violations and then considers the Member’s teaching performance, and makes factual findings with regard to both of these issues. The Committee then determines whether or not these factual findings give rise to a finding of professional misconduct (with respect to the Member’s safety violations) or to a finding of incompetence (with respect to the Member’s teaching performance).
The Member’s safety violations
The Committee finds that the Member repeatedly failed to ensure the safety of his students and his colleagues between the spring of 2012 and the winter of 2013. The Committee accepts the following clear, cogent and convincing evidence of Principal Bannerman in this regard.
Principal Bannerman first became aware of the Member’s safety violations in or around March 2012 following student and parent complaints about the Member’s class (see Exhibit 3 at pages 1 and 29). She observed several safety-related concerns in the Member’s classroom, as early as March 2012. She noted that the Member had a cavalier attitude towards student safety. Among other issues, in a Formal Notice of Discipline from the Board dated April 3, 2012, Principal Bannerman:
“[…] observed students working in a [XXX] with a connected battery beside a student on the [XXX] seat. The student was not wearing safety glasses, the battery was sparking, and 3 students were standing outside the [XXX] window without safety glasses and holding a fire extinguisher” (see Exhibit 4).
In addition, the Member allowed students to observe others who were [XXX], without requiring the observers to wear safety equipment, and he failed to take attendance and did not account for the whereabouts of his students (including an incident where one student was asleep in a [XXX] without the Member’s knowledge).
The Committee finds that the Member exposed his students to a risk of harm and that he did not take his responsibility to ensure the safety of students and staff seriously enough. As Principal Bannerman testified, the Board had clear Safety Guidelines, but the Member did not familiarize himself with these in a timely manner (see Exhibit 4). The Member was aware that these guidelines existed, but he did not read them until he was compelled by School administration to do so in April 2012 (see Exhibit 3 at page 32).
The Committee finds that there were an inordinate number of serious safety issues in the Member’s classroom between the spring of 2012 and the winter of 2013, which required the continuous and frequent attention of School administration in order to ensure the safety of the Member’s students and colleagues. The Committee accepts Principal Bannerman’s evidence that, beginning in the spring of 2012, she visited the Member’s classroom on a nearly daily basis because of the safety concerns in the Member’s class.
The Committee further accepts that, as of September 2012, several safety inspections were conducted at the Member’s [XXX] classroom, including audits conducted by the Ministry of Labour, by the Board, and by independent auditors (see Exhibit 3 at pages 5 and 6). The results of these inspections were all shared with the Member. Among other things, the Member was told that he needed to inspect the hoists in the [XXX] on a daily basis, which he had not been doing at the time. The Member was also told that he had to lock out the [XXX] until they were properly guarded.
The Committee finds that the Member’s safety violations continued into the fall of 2012. Towards the end of September 2012, students told Principal Bannerman about a fire in the [XXX] (the “Fire Incident”), which the Member had failed to report (see Exhibit 3 at pages 7, 40 and 44-49). Essentially, some students had cleaned up an oil spill using paper towels, while other students were using a torch for a different project in the vicinity. The torch ignited the oil and students put it out using a fire extinguisher.
The Committee shares Principal Bannerman’s concerns regarding this incident. The Member should have reported this serious incident to School administration and he should have taught students safe practices for handling oil spills to prevent this sort of incident from ever occurring. The Fire Incident is even more concerning given that a similar incident had occurred at a school in Ottawa, leading to the death of a student (see Exhibit 3 at page 41). The Board ultimately suspended the Member for three days without pay as a result of this incident (see Exhibit 4).
By October 2012, additional safety concerns had surfaced at the Member’s [XXX]. First, the Member allowed students in his class to use an eye wash station as a drinking fountain. Not only was this a misuse of an important piece of safety equipment, but it led to water spills which presented slipping hazards in the School’s [XXX] (see Exhibit 3 at page 48). Second, before leaving the School to serve his three-day suspension for the Board, the Member was asked if there were any safety issues in the [XXX] about which the Occasional Teacher substituting for him needed to know. The Member did not raise any concerns. The Occasional Teacher, however, reported that, among other issues, there was a [XXX] that was unbalanced and hoisted precariously in the [XXX]. It could have toppled over and seriously injured a student or staff member (see Exhibit 3 at pages 65, 70, and 74-77). Mere days after this incident, another [XXX] was found to be hoisted precariously in the Member’s classroom (see Exhibit 3 at page 84).
By the end of October 2012, there were still several safety concerns in the Member’s class, including various trip and fall hazards and open chemical containers that were releasing fumes into the [XXX] (see Exhibit 3 at pages 96 and 97). The Committee shares Principal Bannerman’s disappointment that many of the safety issues were still not remedied by November and December 2012, despite her numerous meetings with the Member about these issues (see Exhibit 3 at pages 17 and 61). On October 24, 2012, the Member received a one-day suspension without pay from the Board (his second suspension) in response to some of these incidents (see Exhibit 4).
In addition to the above safety violations, the Committee finds that the Member did not adequately teach his students about [XXX] safety. The Committee accepts Principal Bannerman’s evidence that the Member did not provide her with any sort of documentation to demonstrate that he was teaching his students about [XXX] safety. The Member did not create any lesson plans that might have demonstrated that he had taught his students about [XXX] safety. The Committee is concerned that the Member was not even familiar with the concept of a lesson plan, despite having been previously provided with a lesson plan template from Principal Bannerman and having discussed lesson planning with her (see Exhibit 3 at pages 36 and 89).
The Committee finds that the College has presented sufficient evidence to prove, on a balance of probabilities, that the Member failed to take adequate steps to ensure that his students complied with safety requirements and that his [XXX] classroom was maintained in a safe condition. The evidence presented above demonstrates that the Member repeatedly failed to maintain adequate safety conditions in his classroom, and that he did not remedy these safety violations despite having been given many opportunities to address them.
The Member’s teaching performance
The Committee finds the Member to be incompetent, based on its consideration of Principal Bannerman’s evidence and having reviewed the documentation that supported her conclusions regarding the Member’s teaching performance. The following are the key pieces of evidence that the Committee relied on in making this finding.
On April 18, 2012, Principal Bannerman and the Member reviewed the competencies that the Member would need to demonstrate during his first TPA (see Exhibit 3 at page 2). The Member told the principal that he did not meet any of these competencies at the time, and the principal informed him that he would receive an unsatisfactory result if he did not work to improve this. The principal indicated that she was surprised that the Member had such minimal understanding of his professional responsibilities; no teacher had ever told her that they did not meet any of the required competencies before. As a result, the principal offered to support the Member and she sent him a lesson plan template to help him improve his teaching practice (see Exhibit 3 at pages 36 and 89). She also scheduled his TPA to allow him as much time as possible to develop his lesson plans before evaluating his teaching performance.
Principal Bannerman gave detailed evidence with respect to the Member’s two TPAs that she conducted and she described the Improvement Plans that were developed following his unsatisfactory performance appraisals. The Committee accepts the principal’s evidence that the Member’s teaching performance did not improve, despite the support that he received.
The Member’s first TPA
As part of his first TPA, Principal Bannerman held a pre-observation meeting with the Member on October 31, 2012 where she set her expectations with him. The Member’s first classroom observation was held on November 6, 2012 and his first post-observation meeting was held on November 12, 2012 (see Exhibit 5).
With respect to the Member’s first classroom observation, the Committee was struck by Principal Bannerman’s testimony that she had never seen a classroom as out of control as the Member’s class in her life. She explained that little to no learning occurred during this lesson. Among other things, students were: swearing back and forth at each other; lying on top of desks; eating in class; talking on their cellular phones; and, referring to the Member by his first name (see Exhibit 6). The Committee finds that the Member demonstrated significant classroom management deficiencies and it is concerned with the lack of instruction that occurred in the Member’s class.
The Committee also reviewed the five domains that were assessed as part of the Member’s TPA, as contained in his first Summative Report (see Exhibit 5). The first domain is “Commitment to Pupils and Pupil Learning”. The Committee accepts Principal Bannerman’s evidence that the Member did not even begin to meet expectations in relation to this domain. The Member did not create a classroom environment that was conducive to learning, nor did he create a safe learning environment. The Member could not even properly articulate the purpose of the work that he gave to students and it was clear that students were not learning the curriculum.
The second domain relates to “Professional Knowledge”. The Committee finds that, although the Member knew a lot about the subject of the [XXX] and repair of [XXX], he did not know his curriculum. Among other issues, the Member did not set any learning goals for his students, his classroom management strategies were ineffective or non-existent (Principal Bannerman described them as the worst that she had ever seen), and he did not support his students’ grades with any demonstrable evidence.
The third domain assessed as part of the TPA relates to “Professional Practice”. The Committee accepts Principal Bannerman’s evidence that the Member was unable to develop clear and achievable classroom goals and that there was very little teaching and learning that occurred in his class. In addition, the Member struggled to develop clear and achievable classroom expectations with students due to the diverse range of student needs. The Member also did not communicate often enough with parents or effectively with his students.
The fourth domain relates to “Leadership in Learning Communities”. The Committee finds that while the Member may have worked cooperatively with his colleagues and School administration, this did not translate into an effective teaching practice in his classroom.
The fifth domain assessed as part of the TPA relates to “Ongoing Professional Learning”. The Committee accepts Principal Bannerman’s evidence that, although the Member actively participated during staff meetings and professional development days, he did not put the practices that he learned into place in his class.
Ultimately, Principal Bannerman concluded that the Member’s overall teaching performance was unsatisfactory. She conveyed this result to the Member on November 12, 2012 at the post-observation meeting and claimed that the Member was not surprised by the outcome.
Following his unsatisfactory result, Principal Bannerman developed an Improvement Plan with the Member (see Exhibit 7). She identified areas that the Member could work to improve for his second TPA and she specifically noted four items that he should focus on for improvement, including: 1) setting clear behaviour expectations for his class; 2) developing learning goals and success criteria for each unit; 3) identifying safety risks in his lesson plans; and 4) completing diagnostic and formative assessments before and during every unit of study.
Principal Bannerman also provided a variety of support to the Member following his first unsatisfactory TPA. Among other things, she: recommended that he attend a classroom management workshop; purchased a book for him regarding classroom management; worked regularly with him to develop lesson plans; and, offered him release time to work with a mentor. She also outlined sample indicators of success for the Member so that he could gain a better sense of what a satisfactory teaching practice resembles.
On November 13, 2012, Principal Bannerman sent the Member a letter regarding his first TPA and Improvement Plan (see Exhibit 8). This letter notified the Member that he was on Review Status, in accordance with subsection 277.36(2)(a) of the Education Act, and it set out the timelines for his second TPA.
The Committee accepts Principal Bannerman’s evidence that, following his first Improvement Plan, the Member showed very little improvement in the lead up to his second TPA. By late November 2012, the Member still did not know what a lesson plan was (see Exhibit 3 at page 14). By early December 2012, students were still calling the Member by his first name and not very much work was being done in his class (see Exhibit 3 at page 16). By mid-December 2012, the Member had only read two chapters of the book that he was given about classroom management (see Exhibit 3 at page 121). The Member also did not know the difference between a diagnostic and a formative assessment, despite previously having been explained these concepts (see Exhibit 3 at page 126). By January 2013, the Member did not remember the four items that he had agreed to work on two months earlier as part of his Improvement Plan (see Exhibit 9). The Committee notes the principal’s frustration with the Member’s lack of improvement and his lack of effort.
The Member’s second TPA
As part of his second TPA, Principal Bannerman held a pre-observation meeting with the Member on January 17, 2013, she conducted the Member’s second classroom observation on January 21, 2013, and she held his second post-observation meeting on January 25, 2013 (see Exhibit 11).
The Committee accepts Principal Bannerman’s evidence that the Member’s second classroom observation was even worse than his first. Within the first five minutes of the class, seven of his sixteen students were using their cellular phones. Among other things, students were playing music on their devices, one was watching a ball game on his device, some students were swearing at each other, some were eating in class, and one student was lying on a desk doing leg exercises (see Exhibit 10). At one point during the lesson, the principal observed that only one out of sixteen students was working. The Committee shares Principal Bannerman’s disappointment that the Member had not better prepared for his second TPA.
With respect to the Member’s second Summative Report, the Committee finds that the Member’s teaching performance had either not improved or it had deteriorated with respect to the five domains that were assessed (see Exhibit 11). The Member had no control over his class and his students had no idea what they were supposed to be learning. In spite of the support that the Member received from School administration, his overall teaching performance did not improve and it was found to be unsatisfactory.
Following the Member’s second unsatisfactory TPA, a second Improvement Plan was developed, in which Principal Bannerman reiterated the steps that the Member needed to follow in order to improve his teaching practice and she indicated that she would provide him with additional support (see Exhibit 12). Principal Bannerman even offered to run a mock-teaching demonstration for the Member so that he could observe her teaching strategies and attempt to implement some of them during the following academic year.
On February 5, 2013, Principal Bannerman sent the Member a letter regarding his second TPA and Improvement Plan (see Exhibit 13). This letter notified the Member that he was on Review Status, in accordance with subsection 277.37(2)(a) of the Education Act, and it set out the timelines for his third TPA.
Following his second unsatisfactory TPA, the Member did not return to teaching at the School. Principal Bannerman testified that she has not seen him since that time.
Conclusions with respect to professional misconduct and incompetence
The Committee finds that the Member’s safety violations described above give rise to a finding of professional misconduct. In particular, the Committee finds that the Member has breached subsections 1(5), 1(11), 1(15) and 1(18) of Ontario Regulation 437/97.
First, the Member’s inability to meet his professional obligations across a number of domains demonstrates that he failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Member did not provide his students with a safe classroom environment that was conducive to learning, and he jeopardized the safety of students and staff.
Second, the Member failed to adequately supervise students who were under his professional supervision, contrary to subsection 1(11) of Ontario Regulation 437/97. The Member did not adequately supervise students during the Fire Incident and he generally failed to adequately supervise his students by allowing them to engage in numerous types of unruly behaviour, as described above.
Third, the Member failed to comply with subsection 264(1) of Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. In particular, the consistent and repeated unruly behaviour of the Member’s students demonstrates that the Member failed to maintain proper order and discipline in his classroom, as required by section 264(1)(e) of the Education Act.
Fourth, the Member’s conduct would reasonably be regarded by members as unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97, in that he demonstrated a cavalier attitude towards his students’ safety.
Finally, the Committee finds that the Member’s teaching performance described above gives rise to a finding of incompetence, as defined in subsection 30(3) of the Act. In particular, the Member has displayed, in his professional responsibilities, a lack of knowledge, skill or judgment and a disregard for the welfare of his students of a nature or extent that demonstrates that he is unfit to continue to carry out his professional responsibilities or that a certificate held by the Member under this Act should be made subject to terms, conditions or limitations.
In arriving at this conclusion, the Committee relied on the content of the Member’s performance appraisals, and not simply on the fact that he received two unsatisfactory performance appraisals. The Committee received clear, cogent and convincing evidence that the Member consistently failed to meet his professional responsibilities across all domains of his teaching practice. Despite having received clear expectations from his principal as well as support throughout the performance appraisal process, the Member demonstrated a consistent inability to meet his professional responsibilities, and he showed no signs of improvement.
PENALTY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the Committee ought to make the following order with respect to penalty:
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the date of the order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register.
The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:
(a) prior to commencing or returning to a teaching position or any other position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, the following course or courses pre-approved by the Registrar:
(i) Schedule B Additional Basic Qualifications in Transportation Technology;
(ii) to the extent that the following topics are not part of the curriculum in (i) above, a course or courses covering lesson planning, instructional strategies, classroom management, assessment of student learning and safety in the Transportation Technology classroom.
(b) prior to enrolling in the above course or courses, the Member must forward the Decision, Reasons for Decision and Order of the Discipline Committee to the above-noted course provider(s). The Member must also provide to the Registrar, within ten days of so forwarding, proof that the Decision, Reasons for Decision and Order has been forwarded to the course provider(s);
(c) within 30 days of his completion of the course or courses outlined in (i) and (ii) above, the Member shall provide to the Registrar a written certificate from the course provider(s) stating that he has successfully completed the course or courses;
(d) the Member shall advise the Registrar, at least 30 days before his return to any teaching position, of the date of such return, the name of his employer, and the nature of said employment, and will ensure that the requirements at (a), (b) and (c) above have been complied with;
(e) upon the commencement of his employment, the Member shall take all reasonable steps to cause his employer to conduct a performance appraisal in each school year for the first two school years, and the Member shall provide copies of the reports of such performance appraisals to the Registrar within 30 days of their completion. If the Member’s employer is unable or unwilling to perform either of the performance appraisals, the Member shall immediately notify the Registrar;
(f) prior to returning to a teaching position, the Member must forward a copy of the Decision, Reasons for Decision and Order of the Discipline Committee to his employer. The Member must also provide to the Registrar, within ten days of the date of so forwarding, proof that the decision has been forwarded to his employer.
- There shall be publication of the finding and order of the Committee, with respect to the Member’s professional misconduct only, in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.
According to College Counsel, because the Member was found guilty of professional misconduct and he was found to be incompetent, the penalty order should respond to these two different findings. College Counsel submitted that the suspension component of the proposed penalty addresses the Member’s professional misconduct related to his safety violations. The terms, conditions or limitations that are contained within the proposed penalty are remedial in nature and serve to address the Member’s incompetence. Publishing the name of the Member in Professional Speaking/Pour parler profession helps to achieve the penalty objectives of deterrence, transparency, and protection of the public interest.
College Counsel presented three cases in support of its proposed penalty: Ontario College of Teachers v. Gow, 2014 LNONCTD 88 (“Gow”); Ontario College of Teachers v. Robitaille, 2014 LNONCTD 125 (“Robitaille”); and, Ontario College of Teachers v. Waugh, 2002 LNONCTD 34 (“Waugh”). According to College Counsel, the Committee ought to consider these similar cases when determining the appropriate penalty to order in this matter.
College Counsel submitted that the facts in Gow were similar to those in the Member’s case, but that the professional misconduct in Gow was not as serious as that in the Member’s case. Accordingly, Gow provides helpful guidance with respect to the terms, conditions or limitations that were ordered to remediate the member’s incompetence, but the penalty ordered in Gow provides little assistance with respect to addressing the Member’s professional misconduct in this matter; namely, the Member’s safety violations.
College Counsel submitted that the facts in Robitaille were also similar to those in the Member’s case. In Robitaille, a one-month suspension was ordered. College Counsel submitted that a longer, three-month suspension is being sought in the Member’s case because his misconduct was more serious than that of Ms. Robitaille. While Ms. Robitaille made inappropriate comments to students, among other things, she did not expose students to the risk of harm in the way that the Member did through his safety violations. College Counsel presented Robitaille to the Committee to indicate the type of misconduct that would attract a lesser penalty than that sought in this matter.
College Counsel submitted that Waugh was similar to the Member’s case in that it also involved a number of safety violations. In Waugh, a one-year suspension was ordered. College Counsel submitted that a shorter suspension is sought in the Member’s case because the Member’s misconduct was not as serious as that in Waugh, and there were no significant cost consequences to the Board in the Member’s case, unlike in Waugh. The Member exposed students and staff to a risk of harm through his safety violations, but fortunately nobody was actually injured. Because there was no actual harm to students or staff in the Member’s case, College Counsel submitted that the Member’s misconduct was not at the highest end of the spectrum of professional misconduct, which would have attracted a lengthier suspension.
Finally, College Counsel submitted that the above cases provide the Committee with a range of acceptable penalty orders to guide its determination of the appropriate penalty in this case.
PENALTY DECISION
The Committee accepts the penalty proposed by the College and makes an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee carefully considered the submissions of College Counsel with respect to penalty and reviewed the relevant jurisprudence provided. The Committee accepts the College’s proposed penalty and makes an order in accordance with its terms, which satisfy the penalty objectives of deterrence, transparency, rehabilitation, and protection of the public interest.
The Committee finds that a three-month suspension is reasonable and appropriate given the nature of the Member’s misconduct. The suspension is sufficiently long to respond to the serious nature of the Member’s misconduct, while not being overly punitive given that the Member’s misconduct was not at the highest end of the spectrum of professional misconduct. While the Committee was concerned that the Member exposed his students and colleagues to a risk of harm, it is cognizant that nobody was injured as a result of the Member’s misconduct. The suspension serves as an important deterrent, particularly as it informs other members of the profession that there are serious consequences for engaging in the type of conduct in which the Member engaged. This component of the Committee’s penalty order will remind the profession of the importance of maintaining safe classrooms at all times.
The Committee finds that the terms, conditions or limitations proposed by College Counsel are also reasonable and appropriate given the circumstances. They will serve an important rehabilitative function, should the Member seek a return to teaching. The coursework component will help to ensure that the Member does not return to teaching before learning how to properly plan lessons, manage his classroom, instruct the curriculum, and assess student learning. The monitoring measures that have been ordered will help to protect the public interest by ensuring that the Member does not return to teaching before he has been rehabilitated.
Finally, the Committee finds that publication with the name of the Member in Professionally Speaking/Pour parler profession is appropriate in this matter, but notes that the publication will be limited to the Member’s professional misconduct only, in accordance with subsection 30(5) of the Act. Publication with the name of the Member identifies to the profession the serious nature of the Member’s repeated misconduct and the consequences of such behaviour. It also holds the Member accountable for his actions. Publishing the Member’s name serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, it ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: December 8, 2015
______________________________ Tom Potter
Chair, Discipline Panel
Irene Cheung, OCT
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel