DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Theresa Liana Riccardi, OCT, a member of the Ontario College of Teachers.
PANEL: John Tucker, Chair
Stefanie Achkewich, OCT
Irene Dembek, OCT
BETWEEN: )
) Shane D’Souza,
ONTARIO COLLEGE OF TEACHERS ) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
) assisted by Bev Hodsdon,
-and- ) Law Clerk
) Jerry Raso,
THERESA LIANA RICCARDI ) Ontario English Catholic Teachers’
(CERTIFICATE #256783) ) Association,
) for Theresa Liana Riccardi
) Marc Spector, ) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
Heard: October 20, 2014
PENALTY DECISION AND REASONS FOR PENALTY
On March 18, 2014, a panel of the Discipline Committee (the “Committee”) rendered a written decision finding Theresa Liana Riccardi (the “Member”) guilty of professional misconduct and to be incompetent.
The Committee considered the evidence, onus and standard of proof as well as the submissions made by the parties and ultimately found that the facts supported a finding of professional misconduct and incompetence.
The Committee has determined that the Member acted inappropriately and insufficiently, without proper regard for student safety. By failing to submit Conduct Reports in a timely fashion, the Member did not keep records as required by her professional duties and failed to maintain the standards of the profession, contrary to subsections 1(5), 1(10) and 1(11) of Ontario Regulation 437/97 (the “Regulation”). Her decision to begin a Conduct Report following a student intrusion into her classroom and to withhold this report for a month was a violation of subsection 1(15) of the Regulation. Moreover, her inability to manage her classroom and students during five separate incidents demonstrated a failure to adequately supervise students, in contravention of subsection 1(11) of the Regulation. The Member’s acts of omission, which were dishonourable and unprofessional, constituted a breach of subsection 1(18) of the Regulation.
The Committee found the Member guilty of professional misconduct and, given the recurring nature of her conduct, determined that she was incompetent in that she displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of her students of a nature or extent that demonstrated that the Member is either unfit to carry out her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.
The Committee reconvened the hearing on October 20, 2014 to hear submissions on penalty. The Member was present during the penalty hearing and had legal representation.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the Committee ought to order the following penalties:
a reprimand;
a requirement that the Member take a course in classroom management and effective student discipline;
a one month suspension of the Member’s Certificate;
publication of a summary of the case with the Member’s name in the College’s official publication, Professionally Speaking/Pour parler profession; and
an award of costs against the Member in the amount of $15,000.
College Counsel submitted that a reprimand would ensure that the Member hears from the Committee directly that her conduct was unacceptable and did not meet the College’s standards or the public’s expectations. A reprimand was warranted, according to College Counsel, because the Member repeatedly exposed students to an unsafe learning environment, she failed to report students’ misbehaviours even when asked to do so, and she ignored or did not put a stop to inappropriate conduct directed towards her and other students.
College Counsel submitted that a course on classroom management and effective student discipline was necessary because the Member continued to display a lack of insight into her misconduct years after the underlying incidents occurred. Throughout the hearing process, the Member maintained that she had acted appropriately during the incidents in question. According to College Counsel, this demonstrated her lack of insight, which could only be remediated with an appropriate course.
College Counsel further submitted that a one month suspension would be appropriate given the circumstances of this case. College Counsel noted that the Committee made a finding of professional misconduct and incompetence in relation to at least five incidents that were inadequately addressed by the Member and which led to an unsafe learning environment. Furthermore, the Member did not submit conduct reports in a timely manner or at all for several of these incidents, despite having been instructed to do so. College Counsel relied on Ontario College of Teachers v. Stirling, 2007 LNONCTD 53 (“Stirling”) for the proposition that a one month suspension would be appropriate. College Counsel further requested that the Committee take into account the “Pillars of Islam” incident that involved inflammatory imagery, when deciding whether or not to order a suspension.
With regards to publication, College Counsel submitted that publication with name serves the important policy goals of general and specific deterrence and transparency. According to College Counsel, the Committee must send a message to the teaching profession that student safety cannot be sacrificed and that timely intervention is important. Publication with name would also serve as a specific deterrent to the Member who stills lacks insight into her conduct. In addition, publication with name ensures the transparency of the College’s discipline process, which is in the public interest. According to College Counsel, given that the Member’s name and the decision on finding are already posted on the College’s website, there is no principled reason not to publish the Member’s name in the College’s official publication, Professionally Speaking/Pour parler profession.
College Counsel also submitted that an award of costs in the amount of $15,000 would be appropriate in this case. The Member was advised prior to the hearing that costs would be sought if this matter were contested. College Counsel submitted that, pursuant to s. 30(5) of the Ontario College of Teachers Act, 1996 (the “Act”), the Committee has the discretion to order that the Member pay costs to the College. Pursuant to Rule 16.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Committee may order a party to pay costs where the conduct of the party has been unreasonable, frivolous, vexatious or a party has acted in bad faith. College Counsel submitted that the Member’s conduct was unreasonable and frivolous. According to College Counsel, a cost award of $15,000 is more than reasonable given that Tariff A of the Rules provides that daily hearing fees amount to $10,000 and that this hearing lasted three days.
College Counsel also presented case law to the Committee, both from the Ontario College of Teachers and from the College of Physicians and Surgeons of Ontario, to support its request for costs. According to College Counsel, given that the underlying facts in this case were largely uncontested, this hearing could have been conducted in one day. Instead, as a result of what College Counsel believed to be a frivolous and unreasonable defence, the hearing lasted three days. The College had to prepare and call four witnesses and also had to break early on the second day of hearings because Member’s Counsel did not want to start the Member’s testimony without having a full day for the Committee to hear her evidence. College Counsel submitted that these factors contributed to an unreasonably long hearing and a waste of resources.
SUBMISSIONS OF MEMBER’S COUNSEL
Counsel for the Member agreed with College Counsel that a reprimand and a course on classroom management would be reasonable given the circumstances of this case. Member’s Counsel, however, did not agree that publication with name, a one month suspension, or a cost award were appropriate.
With regards to publication, Member’s Counsel submitted that publication of the decision without the Member’s name would provide enough of a deterrent on its own.
Member’s Counsel submitted that a suspension was not appropriate in this case. According to Member’s Counsel, Stirling was distinguishable from this case and should not be relied on as an authority for ordering a one month suspension. In Stirling, the Committee had ordered a three month suspension only if the condition that the member complete a course in classroom management were not met. The suspension was therefore not ordered to punish the underlying action, but rather to penalize the member if he failed to comply with the Committee’s orders. The suspension in this case was sought for different reasons.
Member’s Counsel further submitted that a suspension was not warranted in this case because this was not a pure case of professional misconduct. The fact that the Member was found to be incompetent as a result of her poor classroom management suggests that the Member needs help and not punishment. While a course in classroom management is appropriate, according to Member’s Counsel, suspension is not.
Member’s Counsel also submitted case law which suggested that even where members had been found guilty of professional misconduct and had been involved with incidents that jeopardized student safety and that had led to student injury, the Discipline Committee had not ordered a suspension. For instance, Ontario College of Teachers v. Neumann, 2014 LNONCTD 23 (“Neumann”) and Ontario College of Teachers v. Davidson, 2014 LNONCTD 43 (“Davidson”), involved more severe incidents, according to Member’s Counsel, than those with which the Member was involved. If suspensions were not warranted in those cases, then a one month suspension in this case would not be appropriate either.
With respect to costs, Member’s Counsel requested that the Committee hold a separate proceeding rather than hearing cost submissions at the same time as other penalty submissions. Member’s Counsel submitted that, pursuant to Rule 16.03 of the Rules, the Committee may direct that the issue of costs be dealt with in a separate motion. Member’s Counsel further submitted that, because the Committee did not have sufficient evidence before it, it would not be proper to address the issue of costs at this stage.
REPLY SUBMISSIONS OF COLLEGE COUNSEL WITH RESPECT TO SEPARATE MOTION FOR COSTS
College Counsel submitted that there was no principled reason to hold a separate motion to hear submissions regarding costs. Rule 16.03 of the Rules is discretionary. The point of bringing a separate motion for costs, with a notice of motion, is to provide notice to the opposing party that costs will be sought. According to College Counsel, however, the Member was notified prior to the hearing that the College would seek costs if the hearing went forward. Furthermore, Member’s Counsel came to the penalty hearing prepared to argue costs. According to College Counsel, there was no good reason for the Committee to exercise its discretion to order a separate motion with respect to costs; fairness did not require it. In addition, all of the evidence that the Committee needed to decide the issue of costs had already been tendered during the three days of hearings.
DECISION WITH RESPECT TO SEPARATE MOTION FOR COSTS
The Committee determined that it was unnecessary to hold a separate motion to deal with the issue of costs and directed Member’s Counsel to make submissions regarding costs.
REASONS FOR DECISION WITH RESPECT TO SEPARATE MOTION FOR COSTS
The Committee carefully considered the submissions of Member’s Counsel and College Counsel, as well as Independent Legal Counsel, with respect to holding a separate motion to determine the issue of costs. The Committee recognizes that Rule 16.03 grants it the discretion to direct that the issue of costs be dealt with in a separate motion; however, the exercise of this discretion is unnecessary in this case. The Member had received notice prior to the hearing that the College would seek costs if the hearing went forward, and Member’s Counsel was prepared to make submissions with respect to costs during the penalty hearing. The Committee agreed with College Counsel that there was no principled reason to hear costs submissions separately from other penalty submissions.
SUBMISSIONS OF MEMBER’S COUNSEL WITH RESPECT TO COSTS
Member’s Counsel submitted that it was inappropriate to award costs against the Member in this case. Member’s Counsel refuted the College’s submissions that the Member had unreasonably or frivolously delayed proceedings. According to Member’s Counsel, members have a right to due process and a right to defend themselves. By contesting the allegations against her, the Member was exercising her right to a full hearing.
Member’s Counsel submitted that the three day hearing was actually shorter than the originally scheduled four day hearing that had been anticipated. Member’s Counsel also disagreed that it caused unreasonable delay to begin the Member’s testimony on the third day of hearings, even though there was time to begin her examination in chief on the second day of hearings. According to Member’s Counsel, this decision was made on consent and it was not unreasonable to present all of the Member’s evidence in one day, rather than breaking it up over two, non-consecutive days.
Member’s Counsel also disagreed with College Counsel that the underlying facts of this case were largely undisputed and that it was unreasonable and/or frivolous for the Member to contest the allegations against her. According to Member’s Counsel, the College did not provide an Agreed Statement of Facts (“ASF”) for the Member to consider. Moreover, Member’s Counsel submitted that it would have been impossible for the Member to agree to an ASF because there was disagreement on several key facts. For instance, the Member disagreed with the College’s view of the severity of the incidents and she disagreed with the College’s view that her responses were inappropriate. Member’s Counsel also submitted that there were disagreements with regard to the facts surrounding the condom incident, the intruder incident, the field trip incident, and the bus incident. Given that there were several key, contested facts, this case could not have been resolved more efficiently by means of an ASF.
Member’s Counsel also submitted case law to support his position that discipline proceedings have very serious effects on the lives of members and that members therefore have a fundamental right to due process and to defend themselves. While costs may be appropriate to avoid conduct that unnecessarily prolongs a hearing, the awarding of costs is a discretionary remedy, and one that should only be used in exceptional cases. Member’s Counsel submitted that this case was not exceptional – the Member was simply exercising her right to due process and there were no actions attributable to the defence that unreasonably delayed proceedings.
Member’s Counsel also noted that of the hundreds of cases decided at the College, College Counsel was only able to submit one case in support of an order for costs against a member. This, and the fact that the College had to rely on jurisprudence from the College of Physicians and Surgeons in support of its request for costs, signals that the College of Teachers does not often award costs and that costs should only be awarded in exceptional circumstances.
REPLY SUBMISSIONS OF COLLEGE COUNSEL WITH RESPECT TO COSTS
In reply, College Counsel submitted that the record had to be corrected on two fronts. First, contrary to the submissions of Member’s Counsel, an ASF was proposed by the College to the Member on April 18, 2012. Second, Member’s Counsel had received adequate notice that the College was seeking costs against the Member. College Counsel presented a series of emails dated September 26, 2014 in which Member’s Counsel acknowledged that he had been aware that a cost award against the Member would be sought by the College.
College Counsel also refuted the submissions of Member’s Counsel that the Member disagreed with several underlying facts. According to College Counsel, the point was that the basic narrative was undisputed. Although the Member may have disputed some of the facts, the majority of the key underlying facts were undisputed and could have been included in an ASF to save both time and resources.
College Counsel further submitted that the issue for the Committee is not whether the Member disagreed with certain facts or not; the issue is whether her disagreement was reasonable or not. Costs can be imposed if the Member unreasonably contested certain facts and unnecessarily delayed proceedings. According to College Counsel, the Member frequently disputed facts for the sake of the dispute and not for any reasonable purpose. For instance, the Member argued that Exhibit 3 was a conduct report even though it bore absolutely no resemblance to a conduct report.
College Counsel also submitted that the Committee should not rely on the jurisprudence presented by Member’s Counsel for the proposition that a cost award against the Member was inappropriate. Both Davidson and Neumann had proceeded by way of ASF or Statement of Uncontested Facts and were therefore compromises, which are not analogous to the case before the Committee. According to College Counsel, a member who has negotiated an agreement to avoid expending the time and resources required for a full hearing should receive a lesser penalty than a member who has unreasonably contested all allegations against her.
Finally, College Counsel submitted that the fact that it provided only one case from the College of Teachers in support of its argument for costs is immaterial. There were no analogous cases because this case is unique; the Member’s conduct was so obviously wrong that one would not expect to find any similar cases that had proceeded to a full hearing. College Counsel also submitted that it had provided cases from the College of Physicians and Surgeons because those cases provided fulsome descriptions of the factors to consider when awarding costs and because they might assist the Committee when deciding whether or not to award costs. Member’s Counsel did not dispute the principles drawn from those cases. Moreover, there is no principled reason not to seek guidance from decisions of other Colleges, where appropriate.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Member is directed to appear before the Committee within 60 days of the date of this decision, and before completing the requirements set out in paragraph 2 below, to receive a reprimand. The fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
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 is to be recorded on the Register until such time as they are fulfilled:
(i) within ninety (90) days of the date of the Reprimand set out in paragraph 1 above, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding classroom management and effective student discipline.
(ii) within thirty (30) days of her completion of the course outlined in (i) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:
A. the course provider has reviewed a copy of the Committee’s decisions on finding and penalty (i.e. Decision on Finding and Reasons for Decision dated March 18, 2014 and the Penalty Decision and Reasons for Penalty dated January 6, 2015) in this matter; and
B. the Member has successfully completed the course.
- 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 carefully considered the submissions of Member’s Counsel and College Counsel as well as their supporting jurisprudence in arriving at its decision. The Committee determined that the appropriate penalty in this case was to order a reprimand, to direct that the Member successfully complete a course in classroom management and effective student discipline, and to publish a summary of the case with the Member’s name in the College’s official publication, Professionally Speaking/Pour parler profession. The Committee determined that it was not appropriate to suspend the Member or to award costs against the Member.
The Committee determined that a reprimand was appropriate in this case. A reprimand addresses the need for specific deterrence and will encourage the Member to consider her actions in the future. It will ensure that the Member hears from the Committee directly that her conduct was unacceptable, unprofessional and did not meet the College’s standards or the public’s expectations.
The Committee further determined that a course on classroom management and effective student discipline would be appropriate in this case. Coursework will provide the Member with strategies for effective classroom management and student discipline and therefore satisfies the need for rehabilitation. The Committee agreed with College Counsel that a course on classroom management and effective student discipline was necessary because the Member continued to display a lack of insight into her misconduct years after the underlying incidents had occurred.
The Committee also determined that publication with the Member’s name in Professionally Speaking/Pour parler profession was appropriate in the circumstances. Publication with name serves the important policy goals of general and specific deterrence and transparency. The Committee finds that publication with the Member’s 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. Similarly, publication with name will serve as a specific deterrent to the Member as it reinforces that her conduct was unacceptable and will not be tolerated.
The Committee determined that a suspension was not appropriate in this case. College Counsel relied on Stirling to support the submission that a suspension was warranted in this case. The Committee, however, found that Stirling did not support an argument for suspension in the present case because, in Stirling, the suspension was ordered conditionally to ensure that the member completed a remedial course, and was not ordered to address the underlying conduct of the member. Unlike in Stirling, the College sought a suspension here to address the Member’s conduct that gave rise to these proceedings. Stirling, therefore, is not an analogous case.
The Committee had concerns regarding student safety as a result of the Member’s conduct in this case. In particular, the Committee was concerned with the way in which the Member handled the intruder incident. Despite its concerns, the Committee was not provided with sufficient evidence or jurisprudence to support the order of a suspension.
The Committee also carefully weighed the arguments for and against an award of costs against the Member. Ultimately, the Committee determined that the award of costs would not be appropriate in the circumstances of this case. The College submitted that the Member’s conduct was unreasonable and frivolous and should therefore give rise to an order of costs. The Committee, however, determined that the Member’s conduct during these proceedings was not unreasonable or frivolous.
The Committee determined that the Member reasonably held to her convictions. For instance, as a result of the intruder incident, the Member did not submit the Conduct Report in a timely manner because she believed that it would be damaging to the student intruder to submit the report and she felt that she could properly handle the situation on her own. Although the Committee does not agree that the Member handled this situation properly (which is why the Committee has ordered a reprimand and coursework), the Committee does not find that the Member acted unreasonably in putting forward this sincerely held defence. Accordingly, a cost award is not appropriate in this case.
In arriving at its decision as to costs, the Committee carefully considered several cases presented by both parties. College Counsel submitted that Ontario College of Teachers v. Chew, 2001 LNONCTD 2, stood for the proposition that where a member behaves unreasonably and frivolously, the College could seek costs. The Committee did not find that the Member’s conduct, in this case, was unreasonable or frivolous. Similarly, the Committee did not find that the Member had contested the facts of this case for the sake of contesting. Unlike in Re: Franklin, [2007] O.C.P.S.D. No. 29, the Committee determined that the Member was not unreasonable in contesting the version of events put forward by the College.
The Committee finds that the hearing proceeded in a timely fashion and was not unreasonably delayed or extended by the Member. The Committee was presented with Re: Deep, [2008] O.C.P.S.D. No. 11, and Re: Markman, [2002] O.C.P.S.D. No. 12, which the College relied on for the proposition that an award of costs would be appropriate because the Member unreasonably delayed these proceedings. The Committee did not find it unreasonable that, given the scheduling of these proceedings, the Defence presented their evidence all in one day, rather than dividing the Member’s testimony over two days.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: January 6, 2015
John Tucker
Chair, Discipline Panel
______________________________ Stefanie Achkewich, OCT
Member, Discipline Panel
Irene Dembek, OCT
Member, Discipline Panel