Ontario College of Teachers v Kellington, 2015 ONOCT 44

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kellington, 2015 ONOCT 44

Date: 2015-02-13

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 Rose Marie Kellington, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair Christine Bellini, OCT Wes Vickers, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS David Leonard, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Law Clerk

– and –

ROSE MARIE KELLINGTON (CERTIFICATE #200153) Vaino Poysa, Ontario Secondary School Teachers’ Federation, for Rose Marie Kellington

Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: February 6, 2015

DECISION, REASONS FOR DECISION AND ORDERS

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

A Notice of Hearing (Exhibit 1), dated April 5, 2012 was served on Rose Marie Kellington (the “Member”), requesting her presence on April 24, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 6, 2015.

The Member was in attendance for the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing, dated April 5, 2012 are as follows:

IT IS ALLEGED that Rose Marie Kellington 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 or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(d) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsections 1(14) and 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).

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, the Member 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 respecting the Member.

2. The Member was employed by the Avon Maitland District School Board (the “Board”) at all material times and was a teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. At all material times, Student No. 1 and Student No. 2 were students at the School.

4. On or about the evening of April 29, 2011, there was a party for the Member’s daughter’s [XXX]birthday. In conjunction with the birthday party was a party for the School’s [XXX] team. The party was held at a cabin of another student’s parents.

5. Before the party took place at the cabin, the Member’s daughter invited several students of the School to her home, including one [XXX] year old female student who requested, and for whom the Member purchased, a small alcoholic beverage.

6. While at the Member’s home, some students were drinking alcohol. The Member did not interact with the students.

7. At around 8:00 p.m. or 8:30 p.m. that evening, the Member drove her daughter and four other students, including Student No. 1 to the cabin where the party was taking place.

8. As the Member and her passengers drove through town, someone in the car mentioned Student No. 2. At that point, the Member angrily stated how much she disliked Student No. 2 for bullying her daughter, a concern the Member had raised on a number of occasions with her Principal and Vice-Principal.

9. When Student No. 1 disputed the Member’s accusation that Student No. 2 was a bully, the Member pulled the car over and accused Student No. 1 of being a bully as well.

10. The Member then told Student No. 1 to get out of the car. When Student No. 1 refused, the Member got out of the car, opened Student No. 1’s door and ordered Student No. 1 out of the car. The Member then drove away leaving Student No. 1 in town, near the family home of the family hosting the party.

11. The Member dropped the remaining students off at the cabin. The Member later went back to find Student No. 1 in order to talk to her. Student No. 1 however, continued to walk away. The Member then left her car and followed Student No. 1, calling her a “bitch” and accusing her of bullying the Member’s daughter. Attached to Exhibit 2 at Tab “B” is the statement of Student No. 1.

12. Student No. 2 was also invited to the party at the cabin. Student No. 2 was driven to the cabin by her mother and arrived at the cabin at around 8:30 p.m.

13. Upon arriving at the cabin, the Member entered the cabin, saw Student No. 2, and moved towards her, pointing her finger at her, and yelling at her, swearing and accusing her of bullying the Member’s daughter. As the Member was speaking to Student No. 2, she continued to walk towards the Student causing the Student to back up and stumble but not fall.

14. Student No. 2 tried once again to respond to the Member, but the Member cut her off. Attached to Exhibit 2 at Tab “C” is the statement of Student No. 2.

15. The Member received a 30 working day unpaid suspension from the Board which was served from May 19, 2011 to June 30, 2011 inclusive and further, was administratively transferred to another school within the Board. Attached to Exhibit 2 at Tab “D” is a disciplinary letter from the Board dated May 18, 2011.

16. Subsequent to the administrative transfer, the Member took courses on Boundary Issues and Working Together. The Boundary Issues course involved review of the relevant legislation and analysis of boundary issue case studies, while the Working Together course focused on teamwork, team building and conflict management.

17. The Member also received a positive performance evaluation following the administrative transfer, with her new Principal concluding that the Member had been “a welcome addition” to school staff. Attached to Exhibit 2 at Tab “E” is a copy of the Member’s November 2011 Summative Report Form.

18. In 2013, the Member received an award for excellence in public education from the Board and the OSSTF. Attached to Exhibit 2 at Tab “F” is a copy of the award.

PLEA OF NO CONTEST

19. By this document the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 18 above (the “Uncontested Facts”).

20. The Member hereby acknowledges that the Uncontested Facts above 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(7.2), 1(14), 1(15), 1(18-unprofessional) and 1(19).

21. By this document the Member states that she:

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

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

22. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 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.

23. In light of the Uncontested Facts, circumstances and 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 evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, 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(14), 1(15), 1(18-unprofessional) and 1(19).

REASONS FOR DECISION

The Member acknowledged that the Uncontested Facts referred to above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct against her. The Committee accepted the Member’s plea and the facts contained in the Statement of Uncontested Facts and Plea of No Contest.

The Committee finds that the Member’s act of purchasing alcohol for an underage student is extremely inappropriate. Not only were the Member’s actions improper, they unquestionably constitute conduct unbecoming a member.

The Committee further finds that the Member’s verbal and physical abuse, and disregard for the wellbeing of Student No. 1 is unacceptable. The Member took the responsibility of driving her daughter, Student No. 1 and three other students to a party. Between 8:00 p.m. and 8:30 p.m., while driving in the car, Student No. 2’s name was mentioned. The Member vocalized her dislike for Student No. 2 as she believed Student No. 2 was bullying her daughter. Student No. 1 disputed the Member’s claim, at which point the Member accused her of being a bully as well and angrily opened the passenger door and physically removed Student No. 1 from the car (Exhibit 2 at Tab “B”). She then drove away leaving Student No. 1 behind.

Although the Member returned to find Student No. 1, she continued to berate her by repeatedly calling her a “bitch” and other obscenities and she accused her of bullying her daughter. At one point, another student arrived and physically restrained the Member (Exhibit 2 at Tab “B”). This conduct clearly displayed the Member’s lack of sound judgment, restraint and self-control. It further demonstrated her disregard for the standards expected to be upheld by all members of this College.

The Member’s serious and impulsive behaviour continued that night upon arrival at the party. The Member found Student No. 2 and began moving towards her with a pointed finger, yelling, swearing and accusing her of bullying her daughter. As the Member continued to move forward, she pushed and rebuked Student No. 2 who subsequently backed up and hit her head on glass doors. The Member then grabbed Student No. 2 by the collar and vigorously shook her while screaming obscenities such as “you are a bitch” and “fucking asshole” in her face (Exhibit 2 at Tab “C”). The Member pushed Student No. 2 one more time causing her to hit her head once again, against the glass door (Exhibit 2 at Tab “C”).

The Committee finds this conduct to be unacceptable. Student-teacher boundaries are essential for all teachers. The Member failed to fulfill her role as a teacher which is required at all times and not just inside the classroom.

As a result of her conduct, the Member received a 30 day unpaid suspension from the Board and was subsequently transferred to another school within the Board.

In light of the Member’s behaviour, 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(14), 1(15), 1(18-unprofessional) and 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 of the Ontario College of Teachers (the “Registrar”) to suspend the Certificate of Qualification and Registration of the Member for a period of 30 working days, with such suspension having been served from May 19, 2011 to June 30, 2011. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately.

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

(a) within eight months of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at her own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and a course with regards to anger management;

(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty, documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and

(ii) the Member has successfully completed the course;

4. 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 RE: PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that the Joint Submission on Penalty, which asks the Committee to direct that the Member receive a reprimand, complete a course on boundaries and anger management and that there be publication of the Member’s name in the official publication of the College, satisfies the principles of general and specific deterrence, rehabilitation of the Member and protection of the public interest.

Counsel for the College submitted that publication with the Member’s name carries the most weight in serving as a specific deterrent to the Member and a general deterrent to the profession.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the Member’s name is not warranted since transparency and serving the public’s interest are met by the agreement of the parties of the Uncontested Facts, the notation on the Register and access to the Committee’s decision on the internet. Counsel for the Member further submitted that publication with name would not serve the best interests of the Member’s career, her students and the small community where the Member teaches. Counsel for the Member further stated that publication of the summary alone is sufficient to inform the profession. Members can appreciate that even a long and unblemished career can be tarnished by a single event.

Counsel for the Member further stated that the goal of specific deterrence is met by the penalty imposed on the Member, as the fact of the penalty will remain on the Member’s certificate, on the College website and on other websites on the Internet. Counsel for the Member further submitted that the Member has successfully moved forward in her career without further incident. Counsel for the Member stated that publication with name would only be detrimental to the Member’s career.

Reply of College Counsel

In reply, Counsel for the College submitted that publication with the name of the Member is both a specific deterrent and a general deterrent. Counsel for the College stated that the series of incidents happened in a small community and the members of that community are entitled to know the outcome of this case. It was further submitted that without the Member’s name being published, the members of the community would have a very difficult time finding the summary and decision of the Committee on the Internet.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register.

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 30 working days, with such suspension having been served from May 19, 2011 to June 30, 2011. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately.

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

(a) within eight months of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at her own expense, a course or courses of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and anger management;

(b) within 30 days of his completion of the course or courses outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider(s) stating that:

(i) he or she has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty, documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and

(ii) the Member has successfully completed the course or courses.

4. There shall be publication of the findings and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee determined that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is appropriate under the circumstances. Therefore, the Committee accepted the proposed penalty presented by the parties.

The Committee agrees that the reprimand and suspension are both warranted and appropriate in the circumstances. As a specific deterrent, this penalty will remind the Member to uphold the standards of the profession and to not engage in conduct unbecoming a member.

The Committee further agrees that the course or courses on appropriate boundaries and boundary violation issues and anger management will assist in the process of remediation and rehabilitation of the Member. The course or courses will also address the misconduct of the Member and serve to improve her professional judgment and decision making in order to avoid similar errors in the future.

The Committee finds that publication with the name of the Member in the official publication of the College provides both a specific deterrent to the Member and a general deterrent to the profession. As a general deterrent, the public and the teaching profession will know that this type of conduct will not be condoned or tolerated and that members of the profession are expected to act professionally with students at all times.

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

Date: February 13, 2015

Robert Gagné, Chair Chair, Discipline Panel

Christine Bellini, OCT Member, Discipline Panel

Wes Vickers, OCT Member, Discipline Panel