Ontario College of Teachers v. Van Duyse, 2015 ONOCT 83

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Van Duyse, 2015 ONOCT 83

Date: 2015-11-26

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

Lorna Stacey Van Duyse, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair

Irene Dembek, OCT

Sara Nouini, OCT

BETWEEN: ) ) Caroline Zayid,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,

) Law Clerk

• and – )

LORNA STACEY VAN DUYSE ) Adam Beatty,

(CERTIFICATE #183998) ) Cavalluzzo Shilton McIntyre

) Cornish LLP,

) for Lorna Stacey Van Duyse

) Julie Maciura,

) Steinecke Maciura LeBlanc ) Independent Legal Counsel ) ) Heard: November 19, 2015

REASONS FOR DECISION, DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (“the College”) on November 19, 2015 at Toronto.

Two Notices of Hearing were issued and served on Lorna Stacey Van Duyse (the “Member”), in 2012 and in 2014. The first Notice of Hearing dated September 5, 2012 (Exhibit 1) was served on the Member and requested her presence on September 27, 2012 to set a date for hearing, and specifying the charges. The second Notice of Hearing dated July 7, 2014 (Exhibit 2) was served on the Member and requested her presence on July 28, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 19, 2015.

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

THE ALLEGATIONS

College Counsel requested that both matters proceed together and there was no objection from the Member.

The allegations against Lorna Stacey Van Duyse in the first Notice of Hearing (Exhibit 1) dated September 5, 2012 are as follows:

IT IS ALLEGED in 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 abused a student 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 supervise adequately a person who is under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

(e) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 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).

The allegations against the Member in the second Notice of Hearing (Exhibit 2) dated July 7, 2014 are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(e) she failed to supervise adequately a person who is under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

(f) 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);

(g) 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

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

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 3), which provides the following:

1. Lorna Stacey Van Duyse is a member of the Ontario College of Teachers. Attached to Exhibit 3 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information.

2. At all material times, the Member was employed by the Ottawa-Carleton District School Board (the “Board”) and was a Grade [XXX]teacher at [XXX] School (the [XXX]“ School”) in [XXX], Ontario. The Member was moved to [XXX] School (the [XXX]“ School”) for the 2012-2013 school year.

3. At all material times during the 2009-2010 school year Student 1, a male student, was taught by the Member.

4. In and around September 2010, Student 1’s father complained to the Children’s Aid Society (the “CAS”) that the Member had sexually abused his son. Student 1’s father subsequently issued an apology through his legal counsel and stated that he had no personal knowledge that the Member had sexually assaulted his son.

5. When the Board commenced its investigation into the allegation of sexual abuse made by Student 1’s father, several students and staff were interviewed. The allegation of sexual abuse was not verified; however, the students and staff raised additional concerns about how students were disciplined.

6. The Board found that during the 2009-2010 academic year, the Member failed to adequately supervise a student and/or students, disciplined a student and/or students in an inappropriate or biased manner, and verbally abused a student and/or students by making inappropriate and/or disrespectful comments.

7. When Student 1 was interviewed by the Board, he stated that the Member: made him feel nervous; bullied him; singled him out; would send him to the Daily Physical Activity (“DPA”) room to work and would lock him in the room; on one occasion she told him that if she tripped over the leg of his chair, he would go to jail. He reported that he was afraid the Member would kill him, that he felt worthless and that he had nightmares. If called to give evidence at a contested hearing, the Member’s evidence would be that she disputes that she locked Student 1 in the room or that she ever said that the student would go to jail.

8. Other students in the same class as Student 1 who were interviewed by the Board reported, inter alia, that the Member: would remove Student 1 from the class and send him to the DPA room; would get mad at Student 1 because he would forget things and would be late for class; yelled at Student 1 more than other students; subjected Student 1 to punishment that was not justified; was often heard saying to Student 1, “I don’t want to see your face.” If called to give evidence at a contested hearing, the Member’s evidence would be that she disputes that she often said to Student 1 that she did not want to see his face.

9. Students also said that the Member would “draw attention” to a white student who forgot something or who spoke out, but she would yell at Student 1 when he did the same thing.

10. One of the male students felt that the Member had her favourites and that she singled out two of the male students, one of whom included Student 1. He felt that the Member was “bugging” Student 1 and the other student, and even if it was a small thing, she repeatedly criticized them.

11. The same student also stated that his group talked about the Member being sexist and that the boys got the worst of it. An example was given that if the boys wore the same shirt to class that they wore in [XXX] class, the Member would make them wear something from the lost and found because we “smelled badly” however, the girls did not have to change.

12. Another male student felt he was picked on and made fun of by the Member. He stated that it was mostly guys who were in trouble and that the Member treated the girls as if they were better than the guys were.

13. Mr. Gauthier, a Social Worker at [XXX] School, stated that in his nine years at [XXX] School, the Member was “the most complained about” and that he believed that the Member had gender issues with the students in her class - she appeared to pick on the boys, particularly the ones that she saw as avoidant or lazy. However, Mr. Gauthier never actually observed Ms. Van Duyse in her classroom and based his comments on his interactions with students.

14. Principal Heather Graham was interviewed and she stated that she had received numerous letters from parents regarding the Member’s unfair treatment of students and that they asked that their younger children not be placed in the Member’s class the following year. Principal Graham stated that the treatment targeted students’ learning skills and typically, at risk students. Principal Graham said it was not racism but that there may have been a pattern where boys were punished more than girls. Principal Graham felt that the punishment was about little things.

15. Attached to Exhibit 3 at Tab “B” are copies of the notes of the interviews conducted by the Board.

16. Principal Graham reported that there were a number of incidents that she had to resolve with the Member over the three years that they worked together. Principal Graham stated that she felt that the Member’s style of discipline was inappropriate as she yelled, gave time outs, would make students stand in the hall for inappropriate amounts of time, and used humiliation, put downs and degradation when dealing with students. Principal Graham stated that, in each instance, she would follow up with the Member and discuss her concerns and her expectations regarding future behaviour.

17. Attached to Exhibit 3 at Tab “C” is a copy of Principal Graham’s “Historical Information” document regarding the Member.

18. The Member was transferred to [XXX] School commencing in the 2011-2012 academic year.

19. During the 2012-2013 academic year, the Member was the Grade [XXX] teacher of Student A, a female student, Student B, a male student, Student C, a female student and Student D, a male student, at [XXX]. School.

20. In and around June 2013, several students met with Principal Graham in regard to complaints about the Member. Also, in and around June 2013, Student A’s mother sent a letter of complaint to Principal Graham in regard to the Member’s conduct in the classroom. The concerns raised by students and the parent involved, inter alia, verbal abuse of students, lack of supervision and student safety issues, and unprofessional behaviour.

21. As a result of these complaints, the Board conducted an investigation and interviewed the parent complainant, Student A and several other students in the Member’s class.

22. Students felt that the Member failed to follow the protocol for police-established lockdown procedures and directed the students contrary to police advice for lockdown procedures. Following a lockdown practice, the police suggested improvements to the class including but not limited to the removal of a board that was obstructing the exit door. After the police left, the Member replaced the board and changed the rules. As a result, the students were confused. The Member thought she was in fact complying with the procedures.

23. The Member asked students to move [XXX] carts, which were often laden with equipment, upstairs, and because she taught in a portable, occasionally through the snow. Student A reported that when moving the cart through the snow in January 2013, another teacher advised that they should not be moving the carts.

24. The Member failed to ensure that students wore protective equipment when using hot glue guns in class, and on one occasion, Student D’s finger was burnt. The parent of the Student D confirmed that he had burnt his finger while using a glue gun in class and that he had not been wearing protective gloves.

25. The Member asked Student A to do a back flip, despite Student A’s reluctance to do so. Student A said she felt pressured by the Member even though the Member had offered to spot her.

26. Several students who were interviewed by the Board recalled that the Member said, “Do you know that boys should wear boxers and not briefs?” When a student asked “Why?”, the Member stated, “You’ll learn all about that in [XXX].” Students also reported that the Member told them that boys should wear boxer shorts for testicular health, which embarrassed some students.

27. During a [XXX] class a student said the word “orgasm” when he meant to say “organism”. The Member laughed. Three students reported that the Member said “it is an organism not an orgasm…you will learn more about that in [XXX] class.”

28. On another occasion in the [XXX] class, students were stretching balloons and Student B was making balloon animals. The Member told Student B in front of the class that his balloon looked like a condom and laughed.

29. The Member spoke to Student C in the class about wearing an oversized bra. Student C’s mother stated that her daughter was embarrassed by the comment and did not want to go to school. If the Member were called to testify the Member would say she did not intend to embarrass the student.

30. The Member jokingly asked Student D’s friends what Student D’s password was for his iPod.

31. The Member asked students to complete teacher duties and responsibilities which were unrelated to their studies. One student was asked to go to the Member’s car and take clothes to another teacher. When busy helping other students, the Member asked Student A to assist other students with their work, especially the IEP students and asked Student B to mark [XXX] tests and to explain math work to other students.

32. Students reported that the Member often checked her Twitter account and/or conducted other personal computer activity during class including during student presentations. For evaluation purposes the Member would, on occasion, ask student presenters to repeat portions of their presentations.

33. From time to time the Member would ask students to write their question on a post-it note and place it on the side of their desk instead of interrupting the lesson to ask the question.

34. Students reported that the Member showed a Canadian [XXX] film about the Iroquois which included a graphic scene depicting an Iroquois native woman torturing and/or seducing a male and slitting his throat. Students B and D and other male students reported that this made them feel uncomfortable. Students also reported that the Member told the class to look away and asked Student B, who was operating the video, to speed up the video and bypass the graphic parts.

35. On one occasion during [XXX] class when the students were playing a game using mats, the Member encouraged Student A to get on the Member’s back during a [XXX] class but Student A did not want to accept. The Member grabbed Student A’s leg which forced her to either fall down or comply. Student A felt she had no choice but to put her other leg over the Member’s hip and accept the ride.

36. Attached to Exhibit 3 at Tab “D” are copies of the notes of the interviews conducted by the Board.

GUILTY PLEA

37. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 36 above (the “Admitted Facts”).

38. The Member hereby acknowledges that the Admitted Facts referred to above constitute conduct which is professional misconduct and admits 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(11), 1(15), 1(18) and 1(19).

39. 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 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.

40. 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 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(11), 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 36 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(7), 1(7.1), 1(7.2), 1(11), 1(15), 1(18) and 1(19).

Paragraphs 6, 7, 8, 9, 10, 11, 12, 16, 20, 22, 23, 24, 26, 27, 28, 29, 34, and 35 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 6, 7, 8, 11, 16, 20 and 29 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraph 24 of the Agreed Statement of Facts and Guilty Plea demonstrates that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 6, 7, 8, 9, 10, 11, 12, 14, 16, 25, 26, 27, 28, 29 and 34 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 6, 7, 8, 23, 24, and 32 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to supervise adequately a person who is under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11).

Paragraphs 6, 7, 8, 9, 10, 11, 12, 16, 20, 22, 23, 24, 26, 27, 28, 29, 34, and 35 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 section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 6, 7, 8, 9, 10, 11, 12, 16, 20, 22, 23, 24, 26, 27, 28, 29, 34, and 35 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 6, 7, 8, 9, 10, 11, 12, 16, 20, 22, 23, 24, 26, 27, 28, 29, 34, and 35 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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 4), 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 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 120 days of the Decision, Reasons for Decision and 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 classroom management with an emphasis on supervision and classroom safety, and effective student discipline, subject to the following conditions:

(i) within 30 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member will provide a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee to the course provider;

(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course or courses which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course or courses to be undertaken by the Member, and the assignments to be completed by the Member;

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

(i) confirms that the Member has successfully completed the course or courses and reports on the progress of the member with respect to addressing the outlined goals of the course.

3. direct that there be publication of the finding 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 publication with the name of the Member is warranted in this case, as it addresses the principles of sanction, which are specific and general deterrence, transparency and accountability.

In support of this position, College Counsel referred the Committee to three cases: Ontario College of Teachers v. Bryant, 2014 LNONCTD 80; Ontario College of Teachers v. Gal, 2014 LNONCTD 46; and, Ontario College of Teachers v. Ashford-Smith, 2014 LNONCTD 73. College Counsel submitted that although these cases were not directly on point, they dealt with similar facts involving inappropriate discipline, classroom management and the failure to properly supervise students and, in all three cases, publication with name was ordered.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case and noted that the Committee has the discretion to order publication with

or without the name of the Member.

Member’s Counsel submitted that the allegations were quite old and that the incidents were at the milder end of the spectrum of professional misconduct. Member’s Counsel added that publication with name is unnecessary to achieve the transparency objectives described by College Counsel, which are already met through this open hearing process and through the publication of decisions including members’ names on the College website. Member’s Counsel noted that these decisions are also publicly available in the College library.

Counsel for the Member submitted that the cases submitted by College Counsel should not be relied on by the Committee because they are distinguishable on their facts, given that the conduct in those cases was more serious than that of the Member.

Finally, Member’s Counsel requested that the Member have a support person present during the delivery of the reprimand, and submitted two doctors’ notes in support of this request.

Reply Submissions of College Counsel

In reply, College Counsel had no objection to the Member having a support person present during the delivery of the reprimand. She cautioned that the doctors’ notes could only be relied on for the purpose of demonstrating that a support person should be present during the Member’s reprimand.

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. The Committee grants the Member’s request to have a support person present with her during the reprimand, as agreed to by the parties. 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 inappropriate conduct warrants a reprimand by her peers. The reprimand will allow the College 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 finds that it is reasonable to allow the Member to have a support person accompany her during the delivery of the reprimand, given that the College did not object to this request, and based on the doctors’ notes that the Committee received.

The Committee finds that the course or courses on classroom management with an emphasis on supervision and classroom safety, and effective student discipline will assist in the rehabilitation of the Member. The coursework will help the Member to better communicate with students, to discipline students in an appropriate manner, and to ensure student safety and proper supervision.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted in this case. There were several aggravating factors that support this order. The Member’s misconduct was serious and occurred over the course of two school years. During this time, the Board received numerous complaints from students and parents regarding the Member’s treatment of students. The Member repeatedly engaged in unfair treatment of students, which included yelling, giving inappropriate time outs, and making students stand in the hall for inappropriate amounts of time. The Member also made inappropriate comments which humiliated and put down students. At times, the Member also failed to properly supervise students and to ensure their safety.

Publishing the Member’s name in Professionally Speaking/Pour parler profession serves as an important general deterrent as it signals to other members of the profession that conduct of this nature is taken seriously by the College. Furthermore, 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 the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: November 26, 2015

______________________________ Robert Gagné

Chair, Discipline Panel

Irene Dembek, OCT

Member, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel