Ontario College of Teachers v Beeharry, 2015 ONOCT 3

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Beeharry, 2015 ONOCT 3

Date: 2015-09-02

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

Johana Beeharry, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair

Vicki Shannon, OCT

Pauline Smart

BETWEEN: )

) Alyssa Brierley,

) Legal Counsel,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

– and – )

JOHANA BEEHARRY ) Robyn White,

(CERTIFICATE #421515) ) Cavalluzzo Shilton McIntyre ) Cornish LLP,

) for Johana Beeharry

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: August 26, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 26, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated April 8, 2015 (Exhibit 1) was served on Johana Beeharry (the “Member”), requesting her presence on April 22, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for August 26, 2015.

The Member was in attendance for the hearing and had legal representation.

THE ALLEGATIONS

IT IS ALLEGED that Johana Beeharry is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teacher’s 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

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

(e) 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);

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

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

STATEMENT OF UNCONTESTED FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts

and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:

1. At all material times, Johana Beeharry was a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”). The Member was a [XXX] teacher at [XXX] School during the 2011-2012 school year. The Member was a Grade [XXX] teacher at [XXX] School during the 2012-2013 school year.

3. At the material times, Student 1 was a female student at the [XXX] School and Student 2 was a male student at [XXX] School. At the material times, Student 3 was a male student at [XXX] School. All three students were in classes taught by the Member.

4. In January 2012, the Member was standing with Student 1, who is [XXX]. Student 1 turned and kicked the Member on one of the Member’s legs. The Member then kicked out at Student 1.

5. In mid-April 2012, the Member was interacting with Student 2, who was not cooperating with the Member. An Education Assistant reported to the Board that she overheard the Member say to Student 2 “if you kick me, I’ll kick you back.”

6. In late-April 2012, the same Educational Assistant reported to the Board that she overheard the Member say to a student “I’ll tie you up to a chair to get you to work.”

7. On or about April 30, 2012, the Member took hold of Student 2 by the wrists, lifted him to his feet and, after approximately one minute of struggling with him, let go of his arms, allowing him to fall to the side. According to the Educational Assistant who was in the classroom at the time, this occurred in the context of getting students ready for the morning snack. The Member was trying to get Student 2, who was partly standing and “wobbly” to stand up, stating “come on [Student 2] get up; get up;” however Student 2 was not cooperating. According to the Member, she was attempting to perform a restraint on Student 2.

8. In May 2012, the Board commenced an investigation of the Member as a result of complaints of inappropriate language and behaviour toward students. The Board substantiated the allegations that the Member told a student “I will tie you up to a chair to get you to work,” that the Member tossed a student to the carpet and kicked a student. The Board did not substantiate the allegation that the Member said “if you kick me, I’ll kick you back” to Student 2. As a result of these incidents, the Board issued the Member a discipline letter on June 29, 2012, outlining expectations of the Member and required her to review Board Policy PR560 – Abuse and Neglect of Students with the Principal, attend and provide proof of having completed Behavioral Management System Training (“BMST”), visit a demonstration classroom for students with special needs and complete anger management counselling through the Board’s Employee Assistance Program provider.

9. On May 29, 2013, Student 3 was misbehaving in class with another student. The Member asked him to sit on the floor at the back of the classroom. Student 3 went to the back of the classroom and sat on a chair. The Member approached Student 3 and pulled the chair back, and Student 3 fell off the chair and banged his knee. The Member then stepped on Student 3’s foot, which she maintains was inadvertent.

10. Following this incident, the Board substantiated the events as outlined in paragraph 9. During the investigation, the mother of Student 3 and another teacher in the School reported that the Member had called Student 3 “ignorant and rude.”

11. The Board issued the Member a discipline letter on June 20, 2013, suspending the Member for five days without pay, administratively transferring her to another school for the start of the following school year, and requiring the Member to attend additional anger management sessions and two Restorative Practices training sessions.

PLEA OF NO CONTEST

12. By this document, the Member pleads no contest to the facts and exhibits referred to in paragraphs 1-11 above (the “Uncontested Facts”).

13. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18), and 1(19).

14. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) she understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to her name, may be published in the official publication of the College;

(e) she understands that any agreement between her counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

15. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E.23, for the purpose of these proceedings under the Ontario College of Teachers Act 1996, S.O., c. 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

16. In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Statement of Uncontested Facts and Plea of No Contest, 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(7), 1(7.1), 1(7.2), 1(15), 1(18), and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 11 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18), and 1(19).

Paragraphs 4, 6, 7, 8, 9, and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 6 and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 4, 7, and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 4, 6, 7, 9, and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 4, 6, 7, 8, 9 and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member 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).

Paragraphs 4, 6, 7, 8, 9, and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member 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).

Paragraphs 4, 6, 7, 8, 9, and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter 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. direct the Registrar to impose the following term, condition or limitation on the Member’s Certificate of Qualification and Registration, the fact of such term, condition or limitation to be recorded on the Register until such time as it is fulfilled:

(a) within 30 days of the date of the Order of the Discipline Committee, the Member shall provide written confirmation from the course providers, of her successful completion of the Behavioural Management System Training program, two Restorative Practices training sessions, and Anger Management counselling, in a manner satisfactory to the Registrar.

3. direct that there be publication of the findings and order of the Committee in summary form in the official publication of the College Professionally Speaking/Pour parler profession. The Discipline Committee shall determine whether publication shall include the Member’s name.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a specific deterrent to the Member, a general deterrent to the profession to discourage similar behaviour, it provides transparency of the discipline process, and it is commensurate with the circumstances of the Member’s case.

College Counsel urged the Committee to consider three aggravating factors including the very young age of the students involved in the incidents, the vulnerability of one of the students who was [XXX], and the fact that the Member’s inappropriate conduct was not an isolated incident but rather, persisted over time.

College Counsel referred the Committee to four cases involving inappropriate conduct by a member towards students: Ontario College of Teachers v. Reeds Alexander, 2014 LNONCTD 112; Ontario College of Teachers v. Ivanova, 2014 LNONCTD 94; Ontario College of Teachers v. Ashford-Smith, 2014 LNONCTD 73; and Ontario College of Teachers v. Georgiopoulos, 2015 LNONCTD 11. College Counsel submitted that these cases were similar to the Member’s case, and that publication with name was ordered in all four instances.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with name is not warranted in the circumstances and would only amount to “public shaming” of the Member. Counsel for the Member submitted that the Committee has the discretion to determine whether or not the Member’s name should be published in the College’s official publication.

To support the Member’s position that publication with the Member’s name was not warranted, Member’s Counsel referred the Committee to the following eight cases in which other members’ names were not published: Ontario College of Teachers v. MacDonald, 2014 LNONCTD 52; Ontario College of Teachers v. Reist, 2014 LNONCTD 60; Ontario College of Teachers v. Gowans, 2014 LNONCTD 48; Ontario College of Teachers v. Bozin, 2014 LNONCTD 32; Ontario College of Teachers v. Lalonde, 2014 LNONCTD 18; Ontario College of Teachers v. Legros-Stewart, 2014 LNONCTD 97; Ontario College of Teachers v. Vandermeer, 2014 LNONCTD 118; and Ontario College of Teachers v. Brame, 2014 LNONCTD 76. According to Member’s Counsel, the Member’s conduct fell at the low end of the spectrum of professional misconduct, as in the above cases, and publishing her name was therefore unwarranted.

Counsel for the Member further submitted that publication without name was appropriate for the following reasons:

1. the allegation that the Member said “if you kick me, I’ll kick you back” to Student 2 was not substantiated by the Board investigation (see Exhibit 2 at para. 2);

2. the Member maintains that she was attempting to perform a restraint when she held Student 2 by the wrists, lifting him to his feet and letting go of his arms, allowing him to fall to the side (see Exhibit 2 at para. 7);

3. the Member maintains that stepping on Student 3’s foot was inadvertent contact (see Exhibit 2 at para. 9); and

4. the Member taught with the Board without incident for 17 years prior to the 2011-2012 and 2012-2013 academic years. Since that time, the Member has continued teaching with the Board without further incident.

In addition, Counsel for the Member urged the Committee to consider the following mitigating factors when determining whether or not to publish the Member’s name in the College’s official publication: the Member successfully completed extensive rehabilitative courses; she has continued to teach with the Board without further incident; and she received a successful Teacher Performance Appraisal in 2014.

Finally, Counsel for the Member submitted that there was no added value in publishing the Member’s name in the College’s official publication. The entire discipline process, in and of itself, is enough of a deterrent without publishing the Member’s name.

Reply Submissions of College Counsel

In reply, College Counsel submitted that each of the eight cases introduced by Counsel for the Member in relation to the issue of publication is distinguishable from the circumstances of this case. College Counsel submitted that the facts and the circumstances surrounding each case presented by Member’s Counsel were not analogous to the Member’s case. Accordingly, College Counsel urged the Committee not to rely on these cases when determining whether publication of a summary of its finding and order is to include the Member’s name.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an

order in accordance with its terms, as set out above. 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 PENALTY DECISION

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

The Committee is concerned that the Joint Submission on Penalty indicates that the Member is to provide written confirmation of her “successful” completion of the Behavioural Management Systems Training (“BMST”) program, even though the Member continued to demonstrate inappropriate teaching practices following her completion of this program in 2012. Specifically, she engaged in the physical mistreatment of a student, which led to further disciplinary measures and which indicates that the initial BMST program was not a success. Nevertheless, the Committee finds that the Member’s additional Anger Management counselling and Restorative Practices training sessions have helped her to meet her professional obligations for at least two years following her incidents of professional misconduct, without further incident. Therefore, the penalty set out in the Joint Submission on Penalty does not bring the administration of justice into disrepute, and protects the public interest.

The Committee finds that the Member’s inappropriate conduct warrants a reprimand by her peers. The Committee is troubled that the Member behaved aggressively towards her young students, and both physically and verbally abused three of those students. The reprimand will allow the College to directly address its concerns with the Member and serves as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee recognizes that the successful completion of relevant coursework, training sessions, and anger management counselling are important components of the rehabilitative process. The Committee notes that the Member claims to have already successfully completed the BMST program, Anger Management counselling, and two Restorative Practices training sessions. Accordingly, the Committee finds that written confirmation to this effect, in a manner satisfactory to the Registrar, is a reasonable condition to impose on the Member. Given that the Member has returned to teaching without incident during the two years following her completion of the above courses, the Committee is satisfied that these rehabilitative efforts, as a whole, have been effective.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct, and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for her actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and holds members accountable for inappropriate behaviour.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: September 2, 2015

Marie-Claude Yaacov, Chair

Chair, Discipline Panel

______________________________ Vicki Shannon, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel