Ontario College of Teachers v. Hubbs, 2015 ONOCT 40

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Hubbs, 2015 ONOCT 40

Date: 2015-10-23

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

Jennifer Ann Hubbs, a member of the Ontario College of Teachers.

PANEL: Shanlee Linton, OCT, Chair Alexander (Sandy) Bass, OCT Marie-Claude Yaacov

BETWEEN:

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

• and –

JENNIFER ANN HUBBS (CERTIFICATE # 473265) Kate Hughes, Cavalluzzo Shilton McIntyre Cornish LLP, for Jennifer Ann Hubbs

Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: October 16, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on October 16, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated August 8, 2013 (Exhibit 1) was served on Jennifer Ann Hubbs (the “Member”), requesting her presence on August 28, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 16, 2015.

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

THE ALLEGATIONS

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

IT IS ALLEGED that the Member is guilty of professional misconduct 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 failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) she falsified a record relating to her professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

(d) 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);

(e) 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

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

At the hearing on October 16, 2015, Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely the allegation that the Member contravened subsection 1(13) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:

1. Jennifer Ann Hubbs (the “Member”) is a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teacher’s Registered Member Information.

2. At all material times, the Member was employed by the Peel District School Board (the “Board”) as a Teacher Librarian at David Leeder Middle School (the “School”) in Mississauga, Ontario.

The 2011 Book Fairs

3. In 2011, the Member administered Book Fairs on behalf of the School. At the Book Fairs, students purchase books supplied by Scholastic Canada. Funds collected are to be remitted to Scholastic, the book supplier, except for a portion of the funds which is to be retained by the School, as a commission, and used for School purposes.

4. The Member collected funds from students who purchased books at the School’s Book Fairs.

5. Following a Book Fair in the spring of 2011, the Member failed to remit $271 of the total funds received. The balance of $1,814 was properly deposited to the School account and paid to Scholastic.

6. A book fair was held on September 26, 2011 and the Member collected $2,102 from students. In October 2011, Scholastic sent a notice to the School requesting payment of $1,935.12 which represented the total of sales less the commission to be retained by the School. Payment was not received and Scholastic followed up several times with written and telephone reminders.

7. The Member failed to remit any funds from the September 2011 book fair to Scholastic or to transfer any funds to the School.

The School Yearbooks

8. For the 2007-2008, 2008-2009, and 2009-2010 school years, the Member was the staff advisor assisting the students with the design of the yearbook.

9. During the 2010-2011 school year, the Member did not sign up to assist the Yearbook Committee. However, in the spring of 2011, the School’s Principal requested the Member to assist with the sale of the Yearbook.

10. The Member collected funds from students who wished to purchase yearbooks for the 2010-2011 school year at a cost of $20 per book. 275 yearbooks were supplied by the publisher. The funds collected from students should have been remitted to the yearbook publisher to cover the cost of production of the School’s Yearbook. If all copies were sold, the amount collected would total $5,500.

11. The Member failed to remit any funds from the 2010-2011 yearbook sales to the School or the yearbook publisher.

12. The Member also failed to properly account for and remit funds received in connection with the yearbooks sold in the 2009-2010 school year.

Summary of Board’s Actions

13. Between October 2011 and February 2012, the principal of the School received information that invoices from the book publisher, Scholastic Canada, and a yearbook publisher had not been paid.

14. On March 2, 2012 the Board notified the Member that, as a result of discovering some financial irregularities at the School, she was assigned to home with full pay and benefits effective March 2, 2012. Attached to Exhibit 2 at Tab “B” is a copy of the letter dated March 2, 2012 from the Board.

15. In March and April of 2012, the Board conducted an audit of the School’s Book Fair and Yearbook accounts and investigated the Member’s handling of those funds.

16. The Board’s audit and investigation found that there were financial irregularities regarding the Member’s handling of the finances for the School’s Book Fair and Yearbooks for several years.

17. Following the Board’s audit and investigation, the Board asked the Member to personally repay the sum of $6,220. The Member repaid the sum of $6,220 to the Board and resigned her employment effective June 1, 2012.

GUILTY PLEA

18. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 17 above (the “Admitted Facts”).

19. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(10), 1(15), 1(18) and 1(19).

20. 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 Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to otherwise 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 the parties 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.

21. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Jennifer Ann Hubbs committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(10), 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 18 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(10), 1(15), 1(18) and 1(19).

Paragraphs 5, 6, 7, 11 and 12 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 11, 12, 14, 16 and 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10).

Paragraphs 5, 7, 11, 12, 14, 15, 16 and 17 of the Agreed Statement of Facts and Guilty Plea 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 5, 6, 7, 11, 12, 14, 15, 16 and 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member 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 suspend the Certificate of Qualification and Registration of the Member for a period of two years commencing on the date of the Order of the Discipline Committee relating to this matter (October 16, 2015) and the fact of the suspension is to be recorded on the Register.

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 parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that given the serious nature of the misconduct, and the pattern of unethical behaviour spanning over three years, publication of the Member’s name was warranted. 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, provides transparency and openness of the discipline process, and is commensurate with the circumstances of the Member’s case.

In support of this position, College Counsel referred the Committee to two cases: Ontario College of Teachers v. Gillet, 2012 LNONCTD 7, and Ontario College of Teachers v. McLean, 2015 LNONCTD 5. College Counsel submitted that although neither of these cases was directly on point, they dealt with misappropriation of funds or property and, in both cases, publication with name was ordered.

Submissions of Member’s Counsel

Member’s Counsel reminded the Committee that it had the discretion to publish or not publish the Member’s name and that each case should be considered on its own facts. Member’s Counsel noted that the Member had agreed to a very serious penalty of a two year suspension and that there was no need for further specific deterrence. Member’s Counsel also asked that the Committee consider the mitigating circumstances in this case: the Member had co-operated with the Board and the College, had repaid the monies and had accepted responsibility for her actions.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms 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 finds that the Member’s dishonest and unprofessional conduct 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 will serve as a general deterrent to other members of the profession.

The Committee accepts that a two-year suspension is appropriate in this case, given the nature and severity of the Member’s misconduct. Both parties agreed to this term. The suspension will serve as a specific deterrent to the Member. It will also serve as a general deterrent in that it conveys to other members of the profession and to the public that serious misconduct will attract serious consequences. Members of the teaching profession are expected to respect their professional obligations both inside and outside of the classroom, and face serious consequences when they fail to do so. The Member has clearly breached her professional obligations and the Committee’s order must reflect the severity of the breach.

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 does not shield its members when matters of this nature are brought to its attention.

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

Date: October 23, 2015

Shanlee Linton, OCT Chair, Discipline Panel

Alexander (Sandy) Bass, OCT Member, Discipline Panel

Marie-Claude Yaacov Member, Discipline Panel