Ontario College of Teachers v Desrosiers-Houde, 2015 ONOCT 19

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Desrosiers-Houde, 2015 ONOCT 19

Date: 2015-11-05

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 Nicole Desrosiers-Houde, OCT, a member of the Ontario College of Teachers

PANEL: Marie-Claude Yaacov, Chair Sara Nouini, OCT Jean-Luc Bernard, OCT

BETWEEN:

Joanne Excellent, Legal Counsel, ONTARIO COLLEGE OF TEACHERS for Ontario College of Teachers

– and –

Cassandra Porter, Goldblatt Partners LLP, NICOLE DESROSIERS-HOUDE for Nicole Desrosiers-Houde (CERTIFICATE #183420)

Renée Kopp, Jones Litigation Counsel LLP, Independent Legal Counsel

Heard: October 19, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 19, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated November 17, 2014 (Exhibit 1) was served on Nicole Desrosiers-Houde (the “Member”) requesting her presence on December 9, 2014 to set a date for a hearing and specifying the charges. The hearing was subsequently set for October 19, 2015.

Nicole Desrosiers-Houde was not in attendance at the hearing, but had legal representation.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Nicole Desrosiers-Houde is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

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

(b) she abused a student, or students, physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) she committed acts or omissions 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) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

MEMORANDUM OF AGREEMENT

Counsel for the College advised the Committee that, subject to ratification by the Committee, an agreement had been reached between the parties and a Memorandum of Agreement (Exhibit 3) dated October 16, 2015 (the “MOA”) was introduced, which provides the following:

Agreed Statement of Facts

For the purpose of this proceeding only, the parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed and agree to the receipt of this document by the Discipline Committee.

1. At all material times, the Member was employed by the Conseil scolaire de district catholique du Nouvel-Ontario (the “Board”) as a regular teacher at [XXX] (the “School”) in [XXX], Ontario (Exhibit 3).

2. According to the documents attached to the complaint, on November 14, 2011, the Member grabbed Student 1, a boy in the [XXX] program, by the neck when he refused to put away a box of crayons when told to do so by the Member.

3. The Member states that she did not grab Student 1, but rather merely touched his shoulder and told him to put away his crayons.

4. The incident was reported to the Children’s Aid Society of Algoma (the “CAS”) as an incident involving a child at risk of physical harm. In a letter dated December 5, 2011, the CAS found that an incident did in fact take place on November 14, 2011, but it could not confirm whether any physical abuse had occurred.

5. The Ontario Provincial Police (the “OPP”) were briefed concerning the CAS investigation, but no criminal charges were brought against the Member in relation to this incident.

6. In a letter dated December 20, 2011, the Board’s Superintendent of Education suspended the Member without pay for a three-day period, from December 21 to 23, 2011. The suspension was grieved by the Association des enseignantes et des enseignants franco-ontariens (“AEFO”), the Member’s negotiator. The grievance is currently awaiting a hearing before an adjudicator.

7. According to the documents attached to the complaint, an investigation by the Board found that on February 9, 2012, the Member smacked Student 2, a boy in the [XXX] program, on the cheek after breaking up a scuffle between Student 2 and another student.

8. The Member states that she stepped in to separate Student 2 and another student, who were fighting, on February 9, 2012, but denies smacking Student 2 on the cheek when she was reprimanding him.

9. This incident, too, was reported to the CAS as an incident involving a risk of physical harm. In a letter dated April 3, 2012, the CAS found that, in its estimation, the incident had in fact taken place on February 9, 2012, but the exact nature of the incident was uncertain and the CAS could not confirm that physical abuse had occurred. The CAS noted that the Member’s ongoing history with the CAS was cause for concern.

10. The OPP was briefed concerning the CAS investigation, but no criminal charges were brought against the Member in relation to this incident.

11. In a letter dated May 18, 2012, the Board’s Superintendent of Education suspended the Member without pay for a six-day period, from May 22 to 29, 2012. The suspension was grieved by AEFO. The grievance is currently awaiting a hearing before an adjudicator.

12. The Member has been on long-term sick leave from her position since May 30, 2012.

Plea of No Contest

13. The Member pleads no contest to the allegations of professional misconduct against her in the Notice of Hearing dated November 17, 2014.

14. The Member voluntarily admits the above particulars and understands that by doing so, she is waiving the right to require the College to prove the case against her and the right to have a hearing.

15. The Member is providing a Plea of No Contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, c. E. 23, c. 12, for the purpose of this proceeding under the Ontario College of Teachers Act, S.O. 1996, c. 12, as amended, and for no other purpose. The Member’s Plea of No Contest does not constitute an admission by her as to the facts or findings in any other civil, criminal or administrative proceeding.

Joint Submission on Resolution

The Parties agree to resolve the complaint as follows:

16. The Parties agree, for the purposes of this administrative proceeding, that upon ratification of this MOA, there shall be no further action taken in the complaint, no appeal of any or all of the terms of this MOA and no application for judicial review, providing the terms are observed.

17. The Parties understand that if any provision of this MOA is declared null and void, the MOA will be interpreted as if this provision had been deleted and the MOA so amended shall then be in effect.

18. The Member agrees and understands that upon ratification of this MOA, the Discipline Committee will find that she is guilty of professional misconduct, and will deliver a reprimand.

19. The Member is required to appear before the Discipline Committee within eight months of the hearing into this matter to receive a reprimand. The fact of the reprimand is to be recorded on the Register, and the reprimand will be delivered at 101 Bloor Street West, Toronto, Ontario.

20. The Member acknowledges and understands that for the purposes of the examination of this matter, the Discipline Committee shall receive a copy of this MOA and of the Notice of Hearing which will be produced as exhibits at the hearing and will constitute the evidence against her on which the Plea of No Contest, the finding of professional misconduct and the penalty will be based.

21. Prior to returning to her current teaching position, or filling any other position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at her own expense, a course of instruction pre-approved by the Registrar regarding the theory and practice of classroom management. The Member accepts and acknowledges that certain terms, conditions and limitations will be imposed on her Certificate of Qualification and Registration until the terms and conditions set out in paragraphs 21 and 22 have been met.

22. The Member shall provide the Registrar with written confirmation from the course provider of her successful completion of the above-mentioned course, within 30 calendar days of the date of completion of the course.

23. The Member understands that upon ratification of this MOA, a notation shall be placed on the Register, in accordance with section 23 of the Act, and on the Member’s Certificate of Qualification and Registration, and Statement of Professional Standing. Amendments may be made to the Register, Certificate of Qualification and Registration, and Statement of Professional Standing to reflect this agreement between the Parties, inter alia, any changes to the Member’s status, status history, and terms, conditions or limitations.

24. The Member understands that upon ratification of this MOA, the College shall publish a summary of the finding and order of the Committee, with the Member’s name, in the official publication of the College, Professionally Speaking/Pour parler profession, on the College web site, and in any other forum that the Registrar deems appropriate.

25. The Member understands that upon ratification of this MOA, the College shall make the Decision, Reasons for Decision and Orders of the Committee accessible to the public in the College’s Margaret Wilson Library, on the College web site, and in any other forum that the Registrar deems appropriate.

26. The Member understands that upon ratification of this MOA, the College may post the Decision, Reasons for Decision and Orders of the Committee on Quicklaw or any other on-line legal database.

27. The Member understands that this MOA is the entire agreement between the Parties and that there have been no oral or written representations made by the College as an inducement or threat to enter into this MOA.

28. The Member confirms that she understands the nature and effect of this MOA, and that she obtained legal advice from independent legal counsel in this regard.

29. The Parties agree that a signed copy of the MOA that is sent by fax machine or another similar method shall have the same force and effect as the original.

30. The Parties agree that this MOA may be signed in several copies, each of which shall be considered an original, and together shall constitute a single MOA.

DECISION

Having examined the exhibits filed, and based on the MOA, the Member’s guilty plea and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the MOA. The Committee finds that Nicole Desrosiers-Houde committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 12 of the MOA and pleaded guilty to the allegations of professional misconduct against her. The Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15), 1(18) and 1(19).

Paragraphs 2 and 7 of the MOA demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 2, 7 and 8 of the MOA demonstrate that the Member abused a student, or students, physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 2 and 7 of the MOA demonstrate that the Member failed to comply with the Education Act or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 2 and 7 of the MOA demonstrate that the Member committed acts or omissions that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 2 and 7 of the MOA demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

RESOLUTION

The Committee accepts the Joint Submission on Resolution presented by the Parties and makes the following order:

1. The Discipline Committee directs that Nicole Desrosiers-Houde appear before the Committee within eight months of the hearing into this matter to receive a reprimand. The reprimand will be delivered at 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register;

2. The Committee directs the Registrar to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification and Registration, and to enter them on the Register until such time as they have been met:

(a) Prior to returning to her current teaching position, or filling any other position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at her own expense, a course of instruction pre-approved by the Registrar regarding the theory and practice of classroom management.

(b) The Member shall provide the Registrar with written confirmation from the course provider of her successful completion of the above-mentioned course, within 30 calendar days of the date of completion of the course.

3. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR RESOLUTION

The Committee accepts the resolution jointly proposed by the Parties. The Committee recognizes that once it has verified its jurisdiction to make the order being sought, the law confines the Committee’s role to determining only whether the proposed resolution is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the resolution proposed in the Joint Submission on Resolution is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

On two occasions, the Member resorted to physical force to discipline two students under her care and, in the Committee’s estimation, this fact warrants a reprimand by her peers. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register is important, in that it will serve as a general deterrent to other members of the profession.

The Committee finds that the course of instruction regarding the theory and practice of classroom management will assist in the rehabilitation of the Member. It will remind the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students.

The Committee finds that publication with the name of the Member will serve as a specific deterrent to the Member, by holding her accountable for her actions. It will also serve as a general deterrent to the members of the profession by reminding them that such conduct will not be tolerated. Furthermore, the publication of the Member’s name ensures the transparency of College discipline proceedings and provides reassurance to the public that the teaching profession acts decisively and does not protect its members when such matters are brought to its attention.

The Committee is satisfied that the resolution in this matter is appropriate under the circumstances and serves and protects the public interest.

Date: November 5, 2015

Marie-Claude Yaacov Chair, Discipline Panel

Sara Nouini, OCT Member, Discipline Panel

Jean-Luc Bernard, OCT Member, Discipline Panel