Ontario College of Teachers v Gibson, 2015 ONOCT 29

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Gibson, 2015 ONOCT 29

Date: 2015-04-23

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 Sean Lee Gibson, a member of the Ontario College of Teachers.

PANEL: Monique Lapalme Arseneault, Chair Irene Dembek, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Beverley Hodsdon, Law Clerk

-and-

SEAN LEE GIBSON (CERTIFICATE # 455555) Sean Lee Gibson was not present and did not have legal representation

Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: March 6, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 6, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

Shortly after the commencement of the hearing on March 6, 2015, the original Committee was reduced by one member. Christine Bellini, who was a member of the original Committee, was unable to complete the hearing or to participate in the decision. Pursuant to section 4.4(1) of the Statutory Powers Procedure Act, the remaining members of the Committee were able to hear the evidence, receive submissions and continue with the hearing. Monique Lapalme Arseneault and Irene Dembek remained on the Committee and heard the testimony of Brian Marenchin and the submissions of College Counsel.

A Notice of Hearing (Exhibit 1) dated January 21, 2014 was served on Sean Lee Gibson (the “Member”), requesting his presence on February 13, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for March 6, 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 Beverley Hodsdon (Exhibit 2), sworn March 2, 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 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

This case involves allegations of professional misconduct and allegations of incompetence brought by the College against Sean Lee Gibson, who was a grade [XXX] teacher at [XXX] School (the “School”) at the time of the events in question. During the 2011-2012 and 2012-2013 academic years, the Member is alleged to have received two unsatisfactory Teacher Performance Appraisals as a result of his deficiencies in many areas of his teaching practice. Among other things, numerous questions were raised with regard to the Member’s ability to provide his students with an environment conducive to learning. The Member is alleged to have been extremely reluctant to improve his teaching practice and he did not show significant signs of improvement before his employment was eventually terminated by the Windsor-Essex Catholic District School Board (the “Board”) on November 13, 2012.

In addition, the Member is alleged to have possessed and/or used cocaine at the School, while entrusted with the care of children.

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 and incompetence. For the reasons that follow, the Committee finds the Member guilty of professional misconduct and further finds the Member to be incompetent as defined in section 30(3) of the Ontario College of Teachers Act, 1996 (the “Act”).

THE ALLEGATIONS

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

IT IS ALLEGED that Sean Lee Gibson is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1996 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1)(c) or the regulations made thereunder, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(f) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(g) 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);

(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Sean Lee Gibson is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Windsor-Essex Catholic District School Board as a teacher at [XXX] School.

3. During the 2011-2012 academic year and the 2012-2013 academic year, the Member was a grade [XXX] teacher at the School.

4. The Member, inter alia:

(a) Failed to demonstrate a commitment to the well-being and development of his students;

(b) Failed to demonstrate an effort to teach and support student learning and achievement;

(c) Failed to treat all students equitably and with respect;

(d) Failed to provide an environment for learning that encouraged students to be problem solvers, decision makers, lifelong learners, or contributing members of a changing society;

(e) Failed to demonstrate knowledge of the subject matter, the Ontario curriculum and education-related legislation;

(f) Failed to take adequate steps to create, implement or assess individual education plans;

(g) Failed to demonstrate a variety of effective classroom management strategies;

(h) Failed to align assessment strategies with learning objectives and employ appropriate diagnostic techniques to assess student difficulties;

(i) Failed to adequately integrate curriculum expectations into lesson planning;

(j) Failed to communicate and/or interact effectively and/or professionally with students, parents and colleagues;

(k) Failed to adequately assess his students’ progress, evaluate their achievement, or report results to students and parents regularly;

(l) Failed to adequately adapt and refine his teaching practices;

(m) Failed to use appropriate technology in his teaching practices and related professional responsibilities;

(n) Failed to adequately collaborate with other teachers and colleagues to create and sustain learning communities in his classroom and school;

(o) Failed to work with and demonstrate a positive attitude with other professionals, parents and members of the community to enhance student learning, achievement and school programs;

(p) Failed to engage in ongoing professional learning and apply it to his teaching practices.

5. In or about October 2012 the Member possessed and/or used cocaine at the School.

6. On October 17, 2012, the Member was arrested for possession (x2) of a controlled substance (cocaine), contrary to the Controlled Drugs and Substances Act.

7. The Member was terminated by the Board on November 13, 2012.

8. On or about November 27, 2013, the Member was found guilty of possession of cocaine, contrary to the Controlled Drugs and Substances Act.

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, Mr. Brian Marenchin, who was the principal of the School at the time of the events in question.

Testimony of Mr. Brian Marenchin

Mr. Marenchin (“the principal”) testified that he has been a principal for five years and that he has been the principal at the School since the fall of 2011. The Member was already a grade [XXX] teacher at the School when the principal began working there. The Member’s classroom was located adjacent to the main office at the School. The principal testified that he had been informed by Human Resources that there were concerns with the Member’s attendance, before the principal began working at the School.

The Member’s unprofessional communications during meetings with the principal

The principal testified that he had introduced himself to each teacher at the School by going to their classrooms. He noted that his introduction to the Member was awkward because the Member was very abrupt and appeared as though he had been caught doing something wrong. As a result of the Member’s strange behaviour, the principal monitored his class more closely than others.

The principal also testified that the Member behaved unusually during several meetings with him. The first meeting occurred two weeks after the principal joined the School, and was intended to address issues regarding one of the Member’s students who had an [XXX]. The principal testified that he was talking and brainstorming with the Member to find ways to better meet this student’s needs, when the Member stood up and stated that he would not continue the meeting without his union representative present. The principal testified that he had never encountered a similar situation where a teacher had requested the attendance of a union representative at this type of meeting.

The second meeting in which the Member’s communications were unprofessional involved parents who had requested that the principal attend their meeting with the Member because they felt uncomfortable with the Member. During this meeting, a conflict arose and the Member stood up and said, “No goddamn way am I doing that!” The principal adjourned the meeting, tried to calm the Member down, and told him that he could not speak to parents in that way.

The principal also testified with regard to a third meeting in which he had met with the Member to address concerns reported by a student with an [XXX] and the student’s Educational Assistant (“EA”). According to the student and the EA, the Member had said that the student’s work was “crap” in front of the class. During this meeting, the Member indicated that he might have used the word “garbage” but did not call the student’s work “crap”. Nonetheless, the principal testified that the Member’s body language suggested that he understood that he had done something wrong.

Teacher Performance Appraisals

The principal also testified with regard to the Teacher Performance Appraisals (“TPA”) that he conducted during the 2011-2012 academic year. The Member had received two TPAs and both were unsatisfactory. The principal was involved with the Member’s pre- and post-observation meetings. During the pre-observation meeting on January 17, 2012, the principal raised a number of concerns with the Member’s teaching practice (see Exhibit 5 at Tab 2). The principal was concerned with the Member’s pattern of absences and an incident where he left early for lunch and left his class unsupervised. The principal also raised concerns regarding the way in which the Member disciplined two of his students. The Member had placed their desks in the corner of the classroom facing the wall for days on end. The principal testified that he had to address this issue with the Member on more than one occasion.

First TPA and Improvement Plan

Based on the principal’s observations of the Member as part of the first TPA, the principal concluded that the Member’s teaching performance was deficient in a number of areas (see Exhibit 5 at Tab 3). The Member did not treat his students with respect and his classroom management was poor. The principal testified that the Member did not interact with his students during lessons and that students were afraid and would not speak or participate during class, which was “eerie” and unusual for a grade [XXX] class. According to the principal, the Member’s classroom setting was not conducive to learning and was like “something out of the Dark Ages”:the curtains were drawn, the air conditioning was set to very cool, only he would talk and the students would listen; and, if the students did not listen, they were put in the corner of the classroom. The principal further noted that there had been a pattern of unprofessional behaviour in the way that the Member dealt with students, staff, and parents as part of his daily routine.

Overall, the principal testified that he was extremely concerned with the results of the Member’s first TPA, and that numerous questions were raised with regard to the Member’s ability to provide his students with an environment conducive to learning. The Member was of the belief that his teaching practices were good and that he did not need to “conform to these new ways of teaching.”

Although the principal explained to the Member that he wanted to work with him to help him improve his teaching practices, the principal testified that the Member’s reaction during the post-observation meeting held on February 2, 2012 made this very difficult. According to the principal, the Member responded in a very unprofessional manner: he became agitated; he threw his pen down; he paced the room; and, he used vulgarity in referencing the TPA process. The Member also indicated that he disagreed with 95% of the TPA. The principal had to end the post-observation meeting because he felt uncomfortable and intimidated by the Member. The principal issued the Member a letter of concern shortly after the post-observation meeting as a result of the Member’s conduct (see Exhibit 5 at Tab 4).

The principal further testified that he provided the Member with an Improvement Plan (see Exhibit 5 at Tab 6) on February 24, 2012. Within the Improvement Plan, the principal had indicated that he was available to assist the Member if invited to assist. The principal, however, testified that the Member never asked to meet with the principal in regard to the Improvement Plan. The Improvement Plan also contained suggestions from the principal with regard to program preparation, planning and curriculum delivery. The Member, however, did not implement the principal’s suggestions.

Moreover, with regard to professionalism, the principal suggested that the Member maintain a log of his teaching practice, he offered to provide professional resources and support to the Member as needed or as requested, and he invited the Member to attend any currently available workshops which would address the concerns described in the Summative Report. The Member, however, did not make use of any of these resources.

With the aid of his notes (see Exhibit 5 at Tab 5), the principal testified that he followed up with the Member on February 27 and 29, 2012 and on March 1, 2, and 5, 2012 with regard to the Improvement Plan. The Member, however, was reluctant to cooperate and would not answer any of the principal’s questions without the advice of his union representative. During the principal’s visit on March 1, when he reminded the Member to teach according to the Ministry guidelines, the Member walked over to the principal and got very close (nose to nose) and said, “Get out of my class.” According to the principal, the Member had not made any effort to improve his teaching practice in anticipation of his second TPA.

Second TPA and Improvement Plan

The Member’s second TPA was carried out in April 2012 and, once again, the Member received an unsatisfactory rating (see Exhibit 5 at Tab 7). Although the Member wanted the classroom observation to focus on the Math Block, the principal chose to evaluate the Member on the Literacy Block because of concerns in this area. With regard to the Member’s commitment to pupils and pupil learning, the principal testified that the Member still had difficulties with students who learn or act differently. In addition, while the Member had made some improvements in balancing student and teacher-directed discussions and lessons, he still failed to promote the expression of student ideas on a consistent basis. According to the principal, the Member was moving around the room and attempting to interact with students during his formal observation, but it appeared contrived and the students did not react to his efforts. The principal had recommended that the Member create a warmer and more inviting atmosphere for a junior level classroom, but the Member never made any improvements in this regard.

In addition, the principal testified that the Member continued to demonstrate only a limited understanding or working knowledge of sound Assessment and Evaluation practices, during his second TPA. His professional knowledge was lacking.

With regard to the Member’s professional practice, the principal noted that the Member needed to continue to consistently develop clear and achievable classroom expectations with his students. During his formal observation as part of his second TPA, the Member attempted to incorporate anchor charts and success criteria charts into his teaching practice. The principal saw the use of these tools as a small improvement from the Member’s first TPA. The Member also indicated that he was doing “Guided Reading” with his students. When asked to explain how he was doing “Guided Reading”, however, it became evident to the principal that the Member did not understand what this was. The Member’s union representative instructed him not to provide any further explanation for fear that he might incriminate himself.

The principal further testified that the Member’s understanding of the curriculum was nonexistent, that there remained many areas of professional learning that required attention, and that the Member did not take advantage of his opportunities for assistance.

Ultimately, although the principal indicated that the Member had shown some limited improvement since his first TPA, his second TPA still raised numerous questions regarding the Member’s ability to provide an environment conducive to learning for his students. The principal further noted that it was very difficult to have a conversation with the Member about professional growth due to the Member’s inability to articulate sound pedagogical practices and as a result of his union representative’s insistence that the Member not respond to questions during the post-observation meetings.

The principal explained that the second TPA was not signed because the Member consistently denied having received TPAs or Improvement Plans and would not return them as requested. The principal further noted that when a member receives a second unsatisfactory TPA, it goes into the member’s Human Resources file. According to the principal, he tried to give the Member his second TPA, but the Member ignored him. In order to avoid a confrontation, the principal told the Member that he had put the second TPA in the Member’s mailbox. On May 4, 2012, following the Member’s second unsatisfactory TPA, the principal also sent the Member a letter (see Exhibit 5 at Tab 8), which included a brief written summary of what was lacking in his teaching performance, what was expected of him, and possible ways in which his performance might have changed since his first TPA. The second Improvement Plan, which was signed by the principal and his supervisor, was also attached to this letter.

The second Improvement Plan contained a long list of competencies requiring development (see Exhibit 5 at Tab 9). The principal testified that the Member had not shown significant improvement from the first TPA to the second TPA. Although the Member had tried to incorporate tools such as the anchor chart into his teaching practice, the principal testified that the Member did not know how to utilize these sorts of tools properly. The date of a third TPA was set for the following academic year, but it was ultimately not completed as the Member’s employment was terminated by the Board before the third TPA was concluded.

Parental concerns with the Member

The principal testified that he had sent a letter to all parents at the School on April 26, 2012 (see Exhibit 5 at Tab 10), in preparation for the following academic year. The purpose of the letter was to open the lines of communication with parents and to allow them to express any concerns that they had in relation to the upcoming academic year. The principal testified that many parents responded to this letter by raising concerns about the Member: many parents did not want the Member to teach their child; some described serious problems that occurred with the Member in the previous academic year, including instances where the Member bullied their children; others explained that their children were extremely anxious about the possibility of being in the Member’s class during the upcoming academic year; and, some parents stated that they would move their children to another school if the Member was assigned to teach their children.

As a result of the negative parental feedback regarding the Member, the principal scheduled a meeting with the Member that was supposed to take place in June 2012, but the meeting had to be postponed as a result of an issue with the Member’s Report Cards.

Report Cards issue

The principal testified that, at the end of the 2011-2012 academic year, an issue arose with the Member in relation to his Report Cards. The Member had not properly filled out the “Comment” sections of his Report Cards, despite being familiar with the appropriate format to follow. The principal indicated that he had asked the Member to correct these mistakes, but the Member refused.

Drug issues

The principal testified that, in October 2012, he attended a Board conference about police protocol that included a seminar on substance abuse led by a Windsor Police Detective. Having heard a description of the signs and symptoms of substance abuse, the principal testified that he became suspicious that the Member might have a substance abuse problem. The principal suspected that the Member’s use of fans and air-conditioning in his classroom might be a response to drug-induced perspiration and overheating. He was also concerned about the Member’s routine of coming and leaving the School, and the amount of time that the Member spent in the staff washroom. As a result of his suspicions, the principal had the police set up an undercover operation where they monitored the staff washroom and the Member’s behaviour. The undercover operation resulted in the arrest of the Member, who did not subsequently return to his teaching position at the School.

Joint Recommendation for Member’s Termination of Employment

The principal testified that he was involved in the discussions with the Board regarding the termination of the Member’s employment (see Exhibit 5 at Tab 11). Despite the numerous efforts made by the principal and the Board to assist the Member to improve upon his teaching practice, the Member repeatedly refused assistance and did not show significant signs of improvement. The Member consistently maintained that his teaching style was “good practice” and that he did not need to conform to “new ways of teaching”, which he believed were merely fads. The principal and the Board ultimately recommended the termination of the Member’s employment as a result of his two unsatisfactory TPAs and their opinion that he would not have been successful in obtaining a satisfactory rating following a third TPA (if the third TPA process had not been frustrated by the fact that the Member was arrested and charged with the use of a controlled narcotic on the school premises). The principal and two Superintendents of Education determined that the Member’s continued presence in the classroom would be inconsistent with the protection of the best interest of pupils.

SUBMISSIONS OF COLLEGE COUNSEL

Brief of Court Documents

Before making submissions on finding, College Counsel presented the Committee with a Brief of Court Documents (Exhibit 6) which contained the following documents:

1. Certified Copy of Information;
2. Certified Copy of Conditional Sentence Order;
3. Certified Copy of Probation Order; and
4. Transcript of Proceedings at Guilty Plea before the Honourable Justice L. Dean on November 27, 2013, at Windsor, Ontario.

The evidence presented in Exhibit 6 confirms that on November 27, 2013, the Member pled guilty to possession of cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act. Justice Dean imposed upon the Member a conditional sentence of 45 days of house arrest and further imposed a 12-month probation order to follow the conditional sentence order.

As part of his reasons for sentence, Justice Dean highlighted two significant aggravating factors. The first aggravating factor was the type of drug that the Member had possessed – cocaine is a Schedule 1 substance. The second aggravating factor was that there was evidence that the Member had been using this drug while he was entrusted with the care of children. Parents send their children to school trusting that teachers are not under the influence of any illegal substances. The fact that the Member was using cocaine at the School while caring for children was an aggravating factor.

Submissions on Finding

College Counsel submitted that the evidence before the Committee supports a finding of professional misconduct and incompetence as alleged against the Member. With respect to the allegation of incompetence, College Counsel submitted that the principal’s testimony regarding his observations of the Member’s teaching practices support a finding of incompetence. In addition, the Summative Reports, the Improvement Plans that the Member did not follow, and the Joint Recommendation of Termination of Employment also provide evidence to support a finding of incompetence.

The Member received an unsatisfactory rating on his first TPA. According to College Counsel, the principal met with the Member in January 2012 regarding the first TPA process. He informed the Member of his concerns with regard to the Member’s teaching practices and his professional attitude towards students, parents and administrators. A post-observation meeting was held in February 2012 and the principal explained that it was unproductive because of the Member’s aggressive and intimidating conduct. This meeting resulted in the principal sending the Member a letter of concern.

College Counsel further submitted that the principal provided the Member with an Improvement Plan following the first unsatisfactory TPA, but that the Member never accepted the principal’s offers of assistance. The Improvement Plan offered the Member various suggestions for improving his teaching practice, but the Member made no significant effort to improve or to correct his professional shortcomings.

Similarly, the Member received an unsatisfactory rating on his second TPA. According to College Counsel, although the Member had made some minimal efforts to improve his teaching practice, there were no significant improvements in the Member’s teaching abilities from the first TPA to the second TPA. College Counsel submitted that the second TPA raised numerous questions regarding the Member’s ability to provide an environment conducive to learning for his students.

College Counsel further submitted that the Member had issues properly completing his Report Cards, and that numerous parents had complained to the principal about the Member and they did not want their children enrolled in his class during the 2012-2013 academic year.

Moreover, College Counsel submitted that the Member had used cocaine at the School while he was entrusted with the care of children. This, according to College Counsel, demonstrates the Member’s lack of judgment and disregard for his students.

Based on the evidence above, College Counsel submitted that there was ample support to prove allegation (i) contained in the Notice of Hearing. Accordingly, College Counsel urged the Committee to make a finding of incompetence.

In addition, College Counsel submitted that the evidence before the Committee supported a finding of professional misconduct as alleged against the Member. College Counsel submitted that the Member acted unprofessionally during a meeting with parents, in which the Member said that there was “no goddamn way” that he was going to do what was asked of him. He also acted unprofessionally when he referred to the work of a student with an [XXX] as “garbage” in front of his class. College Counsel submitted that the “garbage” incident proves allegation (b) contained in the Notice of Hearing (i.e. that the Member verbally abused a student).

With respect to allegations (a), (d), (e), (f), (g), and (h) contained in the Notice of Hearing, College Counsel submitted that the Member’s finding of guilt in criminal court proves these allegations of professional misconduct.

Finally, with respect to allegation (c) contained in the Notice of Hearing, College Counsel submitted that the Member emotionally abused at least two students by making them sit in the corner of the classroom facing the wall for days on end. According to College Counsel, this form of discipline, which singles children out in front of their peers, constitutes emotional abuse.

Based on the documentary evidence and the testimony of the principal, College Counsel submitted that there was ample evidence to prove the allegations of professional misconduct as alleged against the Member.

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.

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, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(16), 1(17), 1(18) and 1(19). The Committee further finds the Member to be incompetent as defined in section 30(3) of the Act.

REASONS FOR DECISION

Having carefully considered the evidence and submissions presented by the College, the Committee finds that the Member is incompetent and that he is guilty of professional misconduct, for the reasons that follow.

Incompetence

In order to find that the Member is incompetent, the Committee had to determine that he displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his 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. The evidence in this case clearly supports a finding of incompetence.

The Committee heard uncontradicted evidence from the principal that the Member received an unsatisfactory rating on two TPAs and that, despite the School administration’s support and the principal’s efforts to help the Member improve his teaching practice, the Member showed little interest and made no significant improvements to his teaching practice. The results of the Member’s TPAs demonstrated his lack of knowledge and skill.

Based on the principal’s observations of the Member as part of the first TPA in January 2012, the principal gave evidence that the Member did not treat his students with respect and that his classroom management was poor. The principal described the Member’s students as being afraid to participate during class, and he described the classroom environment as “eerie” and unusually silent for a grade [XXX] class. The principal indicated that the Member’s classroom was like “something out of the Dark Ages”, in that the curtains were drawn, the air conditioner was set to very cold, the teacher was the only person talking during lessons, and if the students did not listen, they were disciplined by having their desks placed in the corner of the classroom. The Committee agrees with the principal’s assessment that numerous questions were raised with regard to the Member’s ability to provide his students with an environment conducive to learning.

During the post-observation meeting on February 2, 2012, the principal indicated that he had attempted to work with the Member to help him improve his teaching practices. The Committee heard evidence that the Member’s response to the principal’s offer of support was both unprofessional and intimidating. The Member became very agitated, he paced the room, and he used vulgarity in referencing the TPA process. The Member did not show signs that he was interested in self-improvement.

Similarly, the Committee heard evidence from the principal that he had provided the Member with an Improvement Plan on February 24, 2012. The Improvement Plan contained suggestions from the principal with regard to program preparation, planning and curriculum delivery. The principal also offered his assistance if the Member wanted it, and he offered to provide the Member with a number of professional resources to help address the concerns with the Member’s teaching practice. The Member, however, did not make use of any of these resources and did not make any efforts to improve his teaching based on the principal’s suggestions. The principal followed up with the Member several times in anticipation of the second TPA, but the Member remained reluctant and uncooperative.

The Member also received an unsatisfactory rating on his second TPA in April 2012. The Committee heard evidence from the principal that the Member continued to demonstrate only a limited understanding of sound Assessment and Evaluation practices and that his professional knowledge was lacking. Moreover, the principal indicated that the Member’s understanding of the curriculum was poor. Although the Member had attempted to incorporate new tools into his teaching practice, such as anchor charts and “Guided Reading”, it was evident to the principal that the Member did not know how to properly utilize these tools. The Member was provided with a second Improvement plan that contained a long list of competencies requiring development, but the Member did not implement these suggestions and did not demonstrate significant improvement following his unsatisfactory TPAs.

Moreover, the Committee received evidence through the Joint Recommendation of Termination of Employment, signed by the principal and two Superintendents of Education, indicating that the administrators did not believe that the Member would be successful in obtaining a satisfactory rating following a third TPA (had the Member not been arrested prior to the third TPA). The administrators recommended the termination of the Member’s employment based on his failure to address the majority of the concerns outlined in the Summative Reports and the Improvement Plans and his demonstrated unwillingness to participate in the improvement process.

The Committee also received evidence that the Member had issues with the proper completion of his Report Cards and that numerous parents complained to the principal about the Member and indicated that they did not want the Member to teach their children.

Based on the evidence described above, the Committee finds that the Member displayed both a lack of knowledge and skill that gives rise to a finding of incompetence.

In addition, the Committee finds that the Member’s use of cocaine at the School, while he was entrusted with the care of children, demonstrates that the Member displayed a lack of judgment and a disregard for the welfare of his students. Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee & of the Fitness to Practise Committee allow the Committee to accept a certified copy of a Court Information as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted.

Having reviewed the certified copy of the Court Information contained in the Brief of Court Documents (Exhibit 6), the Committee accepts as fact that on November 27, 2013, the Member was found guilty of possession of cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act, which serves as proof that the Member committed the offence. The Member has not appealed the criminal conviction or sentence.

The Committee is dismayed that the Member used cocaine at school while children were under his care. This conduct clearly demonstrates the Member’s lack of judgment and his disregard for the welfare of his students. Members of the teaching profession are expected to be positive role models for students and they are expected to ensure the safety of students at all times. The Member did the exact opposite. His conduct was reckless and the Committee finds that his use of an illicit substance while caring for children at school clearly gives rise to a finding of incompetence as defined in subsection 30(3) of the Act.

Professional Misconduct

The Committee finds that the facts in this case support a finding of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(16), 1(17), 1(18) and 1(19).

First, the fact that the Member was found guilty of possession of cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act, proves the allegations that the Member breached subsections 1(5), 1(15), 1(16), 1(17), 1(18), and 1(19) of Ontario Regulation 437/97. Using cocaine at school while entrusted with the care of children is clearly conduct unbecoming a member of the teaching profession. The Member failed to maintain the standards of the profession, his conduct was entirely unprofessional, and his contravention of the law put students at risk and called into question the Member’s suitability to hold a Certificate of Qualification and Registration.

Second, with respect to subsection 1(7) of Ontario Regulation 437/97, the Committee finds that the Member verbally abused a student when he referred to the work of a student with an [XXX] as “garbage” in front of the class. Members of the teaching profession are expected to provide positive encouragement to students and to help them succeed. The Member’s conduct towards this student had the exact opposite effect and was unprofessional.

Third, with respect to subsection 1(7.2) of Ontario Regulation 437/97, the Committee finds that the Member emotionally abused at least two students by making them sit in the corner of his classroom facing the wall for long, continuous periods of time. By disciplining his students in this manner, the Member singled children out in front of their peers and embarrassed them, which constitutes emotional abuse. The Committee also received evidence of complaints from parents to the principal, which indicated that some students felt very anxious about the possibility of being placed in the Member’s class and that others felt as though the Member had bullied them. The Committee finds the Member’s conduct to be abusive and unprofessional.

The Committee also received uncontradicted evidence that the Member behaved unprofessionally in several meetings with parents, colleagues and school administrators. During a meeting with parents, the Member said that there was no “goddamn way” that he was going to do what was asked of him, and the principal had to end the meeting and explain to the Member that it was unprofessional to address parents in that manner. The Member also acted unprofessionally in a meeting with the principal that was intended to address issues regarding one of the Member’s students who had an [XXX] . While the principal was brainstorming ways to better meet the student’s needs, the Member stood up and stated that he would not continue the meeting without his union representative being present. Although the Committee does not find this conduct to be as serious as some of the Member’s other misconduct, the Member’s lack of professionalism towards parents, colleagues, and administrators is evident.

Accordingly, the Committee finds that there is ample evidence in this case to support a finding of professional misconduct against the Member, in addition to the finding of incompetence.

PENALTY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the sole purpose of any order of the Committee is to protect the public, to maintain high professional standards, and to preserve the public’s confidence in the teaching profession. In order to achieve these goals, there are four aspects of penalty that must be met: specific deterrence, general deterrence, rehabilitation of the member, and protection of the public.

College Counsel submitted that the Committee ought to order the following penalties:

1. a reprimand;
2. a 12-month suspension of the Member’s Certificate of Qualification and Registration;
3. a number of terms, conditions or limitations, which generally include the following:

(a) prior to returning to any teaching position or any position for which a Certificate of Qualification and Registration is required (collectively referred to as a “Teaching Position”), the Member shall undergo an examination and assessment including a cocaine and/or toxicology screening test by an addiction medicine specialist (“specialist”) to determine whether the Member is or has been a user of any substances relevant to his teaching practice;

(b) once the Member returns to a Teaching Position, the Member shall undergo cocaine and/or toxicology screening tests by an addiction medicine specialist or another treating physician (“physician”) at intervals recommended by the specialist or physician for a period of three years;

(c) within 30 days of commencing or resuming employment in a Teaching Position, the Member shall provide a Consent to Disclose Personal Health Information (“Consent”) pursuant to the Personal Health Information Protection Act, 2004, to the specialist or other physician, which will allow the specialist or physician to notify the Registrar if the Member has failed to comply with any of the required cocaine and/or toxicology screening tests, if the Member is using or abusing any substances related to his teaching practice, or if any of the screening tests result in a positive test result;

(d) prior to beginning or returning to a Teaching Position, the Member shall attend and successfully complete a course in classroom management, a course in assessment practices, a course on instructional strategies relating to the creation of a classroom environment that is conducive to the delivery, organization, and assessment of student learning, development and advancement, and a course on ethics; and

(e) within 30 days of his beginning or returning to a Teaching Position, the Member shall request of his employer that a performance appraisal of the Member be conducted each school year for two years, and that copies of the performance appraisal reports be provided to the Registrar within 30 days of the Member’s receipt of each report; and

4. publication of the findings and order of the Committee, in summary form, with respect to the findings of professional misconduct only, with the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession.

According to College Counsel, the reprimand is intended to address the Member’s professional misconduct and not his incompetence. The 12-month suspension reinforces the seriousness of the misconduct in this case. College Counsel further submitted that the terms, conditions or limitations highlighted above are reasonable and that the Committee had a sufficient basis to require the Member to be monitored with regard to his substance abuse. Monitoring is important as it will serve to protect the public. The courses described above are intended to address the Member’s incompetence.

College Counsel further submitted that publication with name is warranted because of the seriousness of the Member’s misconduct. Publication with name serves as a specific deterrent to the Member and a general deterrent to the profession. It lets the public and the profession know that the Committee is not shielding its members by publishing without name. Given the publicity that this case has already received, College Counsel submitted that the public and the profession have a right to know how the matter was resolved by the Committee. Publication with name also ensures the transparency of the discipline process, which inspires public confidence.

College Counsel also provided the Committee with jurisprudence to support its proposed penalty.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. Prior to beginning or returning to a Teaching Position, the Member is directed to appear before the Committee on a date to be arranged by the Member through the Hearings Office, to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 12 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;

3. The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) Prior to beginning or returning to any Teaching Position, the Member shall:

(i) undergo, at his own expense, an examination and assessment, including a cocaine and/or toxicology screening test, by an addiction medicine specialist approved in advance by the Registrar, to determine whether the Member is or has been a user of any substances relevant to his teaching practice;

(ii) provide the specialist with a copy of the Decision, Reasons for Decision and Orders of the Discipline Committee in this matter, and with access to any medical records or other information the specialist considers necessary, in the course of the examination and assessment referred to above;

(iii) provide the Registrar with a report from the specialist regarding his or her assessment which, in the opinion of the Registrar, confirms that the results of the screening test are negative and that any issues related to substance use and/or abuse have been adequately addressed and that the Member is capable of fulfilling his professional duties; and

(iv) provide the Registrar with an undertaking in a form satisfactory to the Registrar, agreeing that the Member will comply with any condition on his return to practise recommended by the specialist.

(b) Once the Member begins or returns to a Teaching Position, the Member shall:

(i) undergo, at his own expense, cocaine and/or toxicology screening tests by his addiction medicine specialist or another treating physician approved in advance by the Registrar, at intervals recommended by the specialist or physician for a period of three years, to determine whether the Member is or has been a recent user of any substances relevant to his teaching practice;

(ii) provide the Registrar with written confirmation from the specialist or physician following each screening test, of the results of the screening tests and whether the Member is capable of fulfilling his professional duties; and

(iii) comply with any treatment, monitoring or other condition recommended by the specialist or physician.

(c) Within 30 days of commencing or resuming employment in a Teaching Position, the Member shall provide a Consent to Disclose Personal Health Information pursuant to the Personal Health Information Protection Act, 2004, to the specialist or other physician approved by the Registrar, and shall provide the Registrar with evidence that he has provided the Consent to the specialist or physician. The Consent shall permit the specialist or physician to notify the Registrar if:

(i) the Member has failed to comply with any of the required cocaine and/or toxicology screening tests under his or her supervision;

(ii) he or she has reason to believe that the Member is using and/or abusing any substances relevant to his teaching practice;

(iii) any of the screening tests result in a positive test;

(iv) the Member fails to renew the Consent every 12 months for a period of three years.

(d) Prior to beginning or returning to any Teaching Position, the Member shall attend, at his own expense, and successfully complete the following courses, pre-approved by the Registrar:

(i) a course in classroom management;

(ii) a course in assessment practices;

(iii) a course on instructional strategies relating to the creation of a classroom environment that is conducive to the delivery, organization, and assessment of student learning, development and advancement; and

(iv) a course on ethics.

(e) Within 30 days of his completion of each of the courses referred to in paragraph (d) above, the Member shall provide to the Registrar a written certificate from each course provider stating that:

(i) he or she has reviewed a copy of the Decision, Reasons for Decision and Orders of the Discipline Committee; and

(ii) the Member has successfully completed the course.

(f) Prior to beginning or returning to any Teaching Position, and following his successful completion of the courses referred to in paragraph (d) above, the Member shall advise the Registrar at least 15 days before his return to any Teaching Position of the date of his intended return, the name of his employer, and the nature of said employment.

(g) Within 30 days of his beginning or returning to a Teaching Position, the Member shall request of his employer, in writing, that his employer conduct a performance appraisal of the Member each school year, for two years, and the Member shall provide copies of the reports of such performance appraisals to the Registrar within 30 days of his receipt of each report.

4. There shall be publication of the findings and orders of the Committee in summary form with respect to the findings of professional misconduct only, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee carefully considered the submissions of College Counsel and the relevant jurisprudence in arriving at its decision with respect to penalty. The Committee finds that the penalty proposed by the College is proportionate to the misconduct committed by the Member and is appropriate under the circumstances.

The Committee finds that a reprimand is appropriate in this case. The reprimand will address the Member’s professional misconduct. A reprimand responds to the need for specific deterrence and will encourage the Member to more carefully consider his actions in the future. It will ensure that the Member hears from the Committee directly that his conduct was unacceptable and that it did not meet the College’s standards or the public’s expectations.

The Committee also finds that a 12-month suspension is appropriate given the circumstances. The 12-month suspension reinforces the seriousness of the Member’s misconduct. In addition to his substandard and unprofessional teaching practices, the Committee was particularly troubled by the fact that the Member used cocaine at the School while there were children under his care. This conduct is completely unacceptable and must be met with severe consequences.

The Committee further finds that the terms, conditions or limitations imposed on the Member’s Certificate of Qualification and Registration are reasonable and warranted given the Member’s conduct. One of the key purposes of the Committee’s orders is to ensure the protection of the public. By using cocaine at school, the Member jeopardized the safety of his students and his colleagues. Given his conduct, the Committee is satisfied that there is a sufficient basis to require the Member to be screened and monitored with regard to his substance abuse. The public and the profession must be confident that members of the teaching profession are not under the influence of any substances that could negatively affect their teaching practice or put students and other members of the profession at risk.

In addition, the Committee finds that the Member must successfully complete significant coursework prior to returning to the teaching profession. The courses in classroom management, assessment practices, instructional strategies relating to the creation of a classroom environment that is conducive to the delivery, organization, and assessment of student learning, development and advancement, and the course on ethics will respond to the deficiencies in the Member’s teaching practice. The courses are intended, among other things, to address the Member’s incompetence. The courses will provide the Member with the tools and knowledge that are currently lacking from his teaching practice, and they therefore satisfy the objective of rehabilitation.

Finally, the Committee finds that publication, with the Member’s name, of a summary of the findings and orders with respect to the Member’s professional misconduct is warranted in this case. Publication with name serves the important policy goals of specific and general deterrence and transparency. The Committee finds that publication with the Member’s name will serve as a specific deterrent to the Member as it will reinforce that his conduct was unacceptable and will not be tolerated. Similarly, publication with name will serve as a general deterrent to the profession as it informs the profession that there are serious consequences to incidents of professional misconduct. The Committee agrees with College Counsel that the public and the profession are entitled to know how this matter was resolved. Publication with name ensures the transparency of the discipline process, which in turn inspires public confidence.

Date: April 23, 2015

Monique Lapalme Arseneault Chair, Discipline Panel

Irene Dembek, OCT Member, Discipline Panel