Ontario College of Teachers v Alphonso, 2016 ONOCT 1

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Alphonso, 2016 ONOCT 1

Date: 2016-09-15

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

Maurino Baptista Alphonso, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair

Sara Nouini, OCT

Ravi Vethamany, OCT

BETWEEN: ) Christine Wadsworth,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix, Law

) Clerk

– and – )

MAURINO BAPTISTA ALPHONSO ) Glenroy Bastien,

(CERTIFICATE #565041) ) Bastien’s Professional Corporation,

) and Joshua David Hemmings,

) Joshua David Hemmings’ Barrister

) & Solicitor, for Maurino Baptista

) Alphonso

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) Heard: August 26, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 26, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated May 5, 2015 (Exhibit 1) was served on Maurino Baptista Alphonso (the “Member”), requesting his presence on May 20, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for August 26, 2016.

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 Maurino Baptista Alphonso is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he provided false information or documents with respect to his professional qualifications, contrary to Ontario Regulation 437/97, subsection 1(1);

(b) he used a name other than his name as set out in the register, in the course of his professional duties, contrary to Ontario Regulation 437/97, subsection 1(4);

(c) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(d) he signed or issued, in his professional capacity, a document that he knows or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(e) he falsified a record relating to his professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

(f) he 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) he 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) he 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 2), which provides the following:

1. Maurino Baptista Alphonso was at all material times, a member of the Ontario College of Teachers. He received his Certificate of Qualification and Registration in September 2009. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. The Member was employed as an emergency replacement teacher by the Toronto District School Board (the “Board”) from April 1, 2004 to May 10, 2005. After receiving his Certificate of Qualification and Registration in 2009, he applied to the Board for a position as an occasional teacher.

3. The Member’s wife was employed by the Board as an occasional teacher from September 2008 to August 2011. She was also employed as an occasional teacher by another school board.

4. On several occasions when the Member’s wife was assigned an occasional teaching assignment by the Board, the Member attended in her place and completed the occasional teaching assignment.

5. Examples of when the Member attended and taught at schools in place of his wife, include but are not limited to the following:

(a) September 15, 2009 at Lynnwood Heights Public School;

(b) March 30, 2009 at Nelson Mandela Park Public School;

(c) February 22, 2010 at North Preparatory Public School;

(d) September 17, 2010 at General Crerar Public School;

(e) October 20, 2010 at Corvette Public School;

(f) November 4, 2010 at Scarborough Village Public School;

(g) December 10, 2010 at Dallington Public School;

(h) December 13, 2010 at Muirhead Public School;

(i) December 15, 2010 at Iroquois Junior Public School;

(j) January 6, 2011 at Dorset Park Public School;

(k) January 10, 2011 at Faywood ABC School;

(l) January 11, 2011 at J.G. Workman Public School;

(m) January 12, 2011 at Galloway Road Public School (half-day assignment);

(n) January 12, 2011 at J.S. Woodsworth Public School (half-day assignment);

(o) January 14, 2011 at Forest Hill Public School.

6. The Member failed to disclose his true identity when attending at the school. Instead he used his wife’s name instead of his own when teaching at the schools. He was able to do so because his wife’s name was not readily identifiable as either male or female.

7. The Member’s impersonation of his wife came to light in January 2011 when the Board was investigating allegations of inappropriate comments made by the Member to students and staff. As a result of those investigations it became evident that the teacher in question was male, whereas the assigned occasional teacher was female.

8. Subsequent investigation by the Board revealed that the Member had impersonated his wife on many prior occasions.

9. The Member and his wife have gained financially as a result of the Member failing to disclose his true identity when attending at the school.

10. The Member’s wife was assigned a Long-Term Occasional position with another board from October 21, 2009 to May 14, 2010. During that timeframe she was unavailable to accept any assignments at the Board, but did not advise the Board that she was unavailable. Instead the Member took on numerous teaching assignments impersonating his wife. During that timeframe alone the Member’s wife was paid approximately $27,814.57 (gross pay), for assignments actually completed by the Member.

11. On other occasions when the Member was impersonating his wife from 2008 to 2011, his remuneration was between a range of $188.00 to $235.00 (gross pay) per day.

GUILTY PLEA

12. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 11 above (the “Admitted Facts”).

13. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(1), 1(4), 1(5), 1(12), 1(13), 1(15), 1(18), and 1(19).

14. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

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

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he 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 his name, may be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

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

15. 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 and the submissions of the parties, 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(1), 1(4), 1(5), 1(12), 1(13), 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 11 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(1), 1(4), 1(5), 1(12), 1(13), 1(15), 1(18), and 1(19).

Paragraph 6, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member provided false information on documents with respect to his professional qualifications, contrary to Ontario Regulation 437/97, subsection 1(1).

Paragraphs 4, 5, 6, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member used a name other than his name as set out in the register, in the course of his professional duties, contrary to Ontario Regulation 437/97, subsection 1(4).

Paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 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 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member signed or issued, in his professional capacity, a document that he knows or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12).

Paragraphs 6, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member falsified a record relating to his professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13).

Paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 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 4, 5, 6, 7, 8, 9, 10 and 11 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, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 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 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of nine months commencing on the date of the Order of the Discipline Committee;

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) prior to commencing or returning to a teaching position or any other position for which a Certificate of Qualification and Registration (collectively referred to as a “Teaching Position”) is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:

(i) the Member will provide to the course provider approved by the Registrar, 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;

(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 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 to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, and prior to commencing or returning to a Teaching Position the Member shall provide to the Registrar a written report from the course provider which:

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

4. 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 to 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 in Professionally Speaking/Pour parler profession is warranted in light of the Member’s misconduct in this case. Publication with the name of the Member is an important tool for deterrence that serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important because it informs the public and members of the profession that matters before the Committee are resolved in an open and transparent manner, thereby fostering trust in the College and the teaching profession.

College Counsel referred the Committee to two cases involving premeditated and dishonest conduct by a member: Ontario College of Teachers v. Gillet, 2012 LNONCTD 7 (“Gillet”) and Ontario College of Teachers v. Sacco, 2013 LNONCTD 62 (“Sacco”). College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in both instances.

Submissions of Member’s Counsel

Member’s Counsel submitted that publication with the name of the Member is not warranted in this case. According to Member’s Counsel, the penalty objectives, including deterrence and the protection of the public interest, will be met through the reprimand of the Member and the public nature of the discipline process. Publishing the Member’s name in the College’s official publication will not deter other members of the profession from engaging in similar misconduct.

Member’s Counsel submitted that the Committee has discretion to order publication with or without the name of the Member and in this case, publication with name is not warranted. Member’s Counsel referred the Committee to R. v. Proulx, 2000 SCC 5 (“Proulx”), which states that sentencing is an individualized process in which a judge has considerable discretion in fashioning a fit sentence. Member’s Counsel submitted that the Committee should base its decision with respect to the publication of the Member’s name on the principle of proportionality, which requires an examination of the specific circumstances of the Member and the acts committed when determining the appropriate penalty.

Member’s Counsel highlighted several mitigating factors in relation to the Member, for the Committee’s consideration, including: the Member has taken responsibility for his misconduct, as evidenced by the Agreed Statement of Facts and Guilty Plea and the Joint Submission on Penalty; the Member is an experienced teacher with no prior discipline history; publication of the Member’s name would be catastrophic for the Member in obtaining future employment; and the Member has not engaged in similar misconduct since he was made aware of the allegations against him.

Reply Submissions of College Counsel

In reply, College Counsel submitted that the Committee’s decision with respect to publication should not be based on the Member’s potential difficulty seeking future employment because the Member would likely face consequences for his misconduct regardless of whether his name were published in the College’s official publication. College Counsel noted that the Committee’s decision is public and contains the Member’s name. There will also be a notation on the Member’s Certificate of Qualification and Registration setting out the Committee’s finding and order.

With respect to the issue of proportionality raised by Member’s Counsel, College Counsel submitted that publishing the Member’s name is proportionate to the serious nature and premeditated conduct of the Member, which resulted in personal financial gain.

College Counsel also submitted that Proulx was distinguishable and should not be relied upon by the Committee because it was a criminal matter addressing the issue of sentencing and the discretion of judges in determining an appropriate sentence. College Counsel stated that the Committee’s discretion is different in the Member’s case because the parties presented a Joint Submission on Penalty to the Committee.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

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

The Committee finds that the Member’s repeated pattern of inappropriate and dishonest conduct warrants a reprimand by his 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 finds that a nine-month suspension is warranted in this case given the serious nature of the Member’s misconduct. The Member’s conduct was fraudulent and an abuse of the public trust, and is completely unacceptable. Further, the Member’s repeated, deceitful conduct leading to financial gain is deplorable. It is imperative for school administration to be able to monitor and control who is working within a school, so that they can ensure the safety of their students and staff, and so that students are being taught by teachers qualified for their teaching assignments. By impersonating another teacher and stepping into a role for which he was not selected or hired, the Member put his financial interests above all others, including the interests of the students at the schools in which he deceitfully worked. The duration of the suspension is also appropriate given that it is within a reasonable range as established by other similar cases before the College’s Discipline Committee, including Gillet and Sacco.

The Committee finds that the course of instruction regarding professional ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. While the Member has no prior or subsequent discipline history, the aggravating factors in this case outweigh the mitigating factors presented by Member’s Counsel. The Member’s misconduct was very serious. By impersonating another teacher and completing assignments for which he was not selected or hired, the Member deceived the Board and put his own interests above all others, including the interests of students, the Board, and the public. Motivated by financial gain, the Member engaged in a long-term pattern of repeated and premeditated misconduct, which occurred at least 15 times over a three-year period. Publication with name is therefore appropriate in the circumstances.

Publication with the name of the Member also 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 his 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 the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: September 16, 2016

Marie-Claude Yaacov

Chair, Discipline Panel

______________________________ Sara Nouini, OCT

Member, Discipline Panel

Ravi Vethamany, OCT

Member, Discipline Panel