Ontario College of Teachers v. Green-Johnson, 2016 ONOCT 20

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Green-Johnson, 2016 ONOCT 20

Date: 2016-01-19

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Jennifer Elizabeth Green-Johnson, OCT, a member of the Ontario College of Teachers.

PANEL: Irene Cheung, OCT, Chair

Jane Ishibashi

Stéphane Vallée, OCT

BETWEEN: ) David Leonard,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers ) assisted by Annie Lacroix,

– and – ) Law Clerk

JENNIFER ELIZABETH GREEN-JOHNSON ) Andrea Wobick,

(CERTIFICATE #187439) ) Ursel Phillips Fellows

) Hopkinson LLP

) for Jennifer Elizabeth Green-Johnson

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: January 12, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 12, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated August 7, 2013 (Exhibit 1) was served on Jennifer Elizabeth Green-Johnson (the “Member”), requesting her presence on August 27, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for January 12, 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 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(e) 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);

(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).

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. Jennifer Elizabeth Green-Johnson was at all material times, 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. At all material times, the Member was employed by the Grand Erie District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. In and around January 2011, the Member told her students that she had been “raped” and therefore did not trust men around her children. This information made some of her students feel uncomfortable.

4. On or about January 21, 2011 before class started, two male students were play wrestling outside of the Member’s classroom and one student jumped on the other student’s back. The Member saw this and said to one of the students words to the effect of, “So you like it from behind”. This comment was overheard by another student.

5. In March 2011, the Member was suspended for one day without pay by the Board for the conduct described in paragraphs 3 and 4 above. Attached to Exhibit 2 at Tab “B” is a copy of the letter from the Board to the Member dated March 10, 2011.

6. During the 2011-2012 academic year, Student 1 was a [XXX] year old female student in the Member’s class, Student 2 was a [XXX] year old male student in the Member’s class and Student 3 was a [XXX] year old male in the Member’s class.

7. Between September 2011 to December 2011, the Member made inappropriate comments to students in her class as follows:

(a) In November 2011, while the class was watching a movie that contained scenes of nudity, the students jokingly commented about the size of the man’s penis. The Member made a comment to the effect that you could not see the actor’s penis without a microscope.

(b) On December 1, 2011, the Member was informing her Grade [XXX] students of their marks in class. During this process some of the students were standing around the Member’s desk and talking. One female student did not hear what the Member said her mark was, and stayed by the Member’s desk to ask again. The Member looked at her and told her to “sit down or I will bop you in the nose” or words to that effect. This comment was overheard by other students in the class.

(c) Also on December 1, 2011, the Member said words to the effect of “stop bitching and sit down” after discussing one of Student 1’s assignments with her. This comment was overheard by other students in the class.

(d) On more than one occasion, the Member used the words “stupid”, “idiots”, “bitching” and/or “ass” while conducting her class.

8. On one occasion in the fall of 2011, near the end of class Student 3 and another male student were joking about how much it would hurt to get hit in the groin. They began to swing binders at each other’s groins. The Member attempted to stop one of the students from swinging a binder at the other and in doing so made accidental contact with Student 3’s groin, causing him to fall to the ground in tears.

9. The Member was suspended with pay by the Board from December 5, 2011 to February 2, 2012. Ultimately, once the investigation was concluded by the Board, the Member was suspended for three days without pay in April 2012 for the conduct referred to in paragraphs 7 and 8 above. Attached to Exhibit 2 at Tab “C” is a copy of the letter from the Board dated April 18, 2012.

10. Moreover, the Member received an expectation letter dated June 19, 2009 as well as a disciplinary letter dated February 8, 2010. Attached to Exhibit 2 at Tabs “D” and Exhibit “E” are copies of the letters dated June 19, 2009 and February 8, 2010 respectively.

11. By this document, the Member admits the truth of the facts and the exhibits referred to in paragraphs 1 to 10 above (the “Uncontested Facts”).

PLEA OF NO CONTEST

12. 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(15), 1(18) and 1(19).

13. 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 Statement of Uncontested Facts being presented to the Discipline Committee;

(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;

(d) she understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to her name, may be published in the official publication of the College;

(e) she understands that any agreement between Counsel for the College and herself with respect to the penalty proposed 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.

14. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline 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.

DECISION

Counsel for the College requested that the allegation of professional misconduct outlined in paragraphs (c) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1) and 1(7.2) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

Having considered the Statement of Uncontested Facts and Plea of No Contest, 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(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 10 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(15), 1(18) and 1(19).

Paragraphs 3, 4 and 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 4 and 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 4 and 7 of the Statement of Uncontested Facts and Plea of No Contest 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 3, 4 and 7 of the Statement of Uncontested Facts and Plea of No Contest 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 3, 4 and 7 of the Statement of Uncontested Facts and Plea of No Contest 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 and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”). The reprimand will be delivered in person at the offices of the College, 101 Bloor Street West, Toronto, Ontario;

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of one month, with such suspension having been served from December 5, 2011 to January 5, 2012. 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 three months of the date of the Oral Decision and Order, the Member shall enrol in and successfully complete, at her own expense, courses of instruction pre-approved by the Registrar regarding appropriate boundaries with students and appropriate classroom management;

(b) within 30 days of her completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written certificate from each of the course providers 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 Order of the Committee; and

(ii) the Member has successfully completed the course; and

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 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 the penalty ordered by the Committee should address the principles of specific deterrence, general deterrence, rehabilitation, transparency and the protection of the public interest. Publication with name serves an important purpose in achieving these penalty objectives. It is embarrassing for members of the profession to have their names published in Professionally Speaking/Pour parler profession and as such, publication with name serves as a general deterrent to other members of the profession by informing them that their names could be published if they engage in similar behaviour. Publication with name also helps to ensure the transparency of the discipline process.

College Counsel submitted that the aggravating factors in this matter outweigh the mitigating factors, which also justifies the publication of the Member’s name in Professionally Speaking/Pour parler profession. According to College Counsel, the aggravating factors in this matter include the following: the Member’s conduct was not an isolated incident, but formed part of a pattern of behaviour; and, the Member was disciplined by the Board on more than one occasion, which indicates the serious and repeated nature of her conduct.

College Counsel presented the Committee with one case to assist with its determination with respect to publication: Ontario College of Teachers v. Cobden, 2011 LNONCTD 14 (“Cobden”). College Counsel submitted that Cobden involved misconduct within the same range as the misconduct in the Member’s case and that publication with name was ordered. Accordingly, it would be reasonable for the Committee to direct that the Member’s name be published in the summary of the finding and order of the Committee in Professionally Speaking/Pour parler profession.

Submissions of Member’s Counsel

Member’s Counsel submitted that the Committee has the discretion to order publication with or without the name of the Member and that in this case, publication with name is not warranted. The penalty objectives, including specific deterrence, general deterrence, rehabilitation and transparency will be met through the Member’s reprimand, her suspension, and the coursework that she will be required to successfully complete. According to Member’s Counsel, there is no value added by publishing the Member’s name in the College’s official publication.

Member’s Counsel added that publication with name would unduly prejudice the Member, who has successfully moved forward in her teaching career without further incident. According to Member’s Counsel, the mitigating factors in this case outweigh the aggravating factors. The mitigating factors include the following: the Member’s misconduct was at the low end of the spectrum of professional misconduct; a significant amount of time has passed since the Member’s misconduct last occurred; the Member has successfully continued her employment with the Board; the Member has already received discipline from her Board and has served her Board-imposed penalties; and, the Member has taken responsibility for her misconduct by pleading no contest to the allegations, thereby preventing students from having to testify in this matter and conserving judicial resources.

Member’s Counsel further submitted that publishing the Member’s name in the College’s official publication would have a negative impact on both her and her children, and would unduly prejudice her privacy interests. Member’s Counsel urged the Committee to consider that the Member teaches in a very small community and that publishing her name could be detrimental to her teaching career. According to Member’s Counsel, members of the profession who work for smaller school boards or in small communities may not be afforded the same level of anonymity as members who work for larger school boards. Member’s Counsel indicated that the Member has one child currently attending the School and her remaining three children will be attending the School in the near future.

Member’s Counsel referred the Committee to three cases in support of her position that publication with name is not warranted in this matter: Ontario College of Teachers v. McCalla, 2015 LNONCTD 53; Ontario College of Teachers v. Shuber, 2015 LNONCTD 6; and, Ontario College of Teachers v. Trueman, 2014 LNONCTD 4. According to Member’s Counsel, the professional misconduct in each of these cases was more serious than that of the Member, but the members’ names were not published in any of these cases. The Member’s name should therefore not be published in this less serious matter. Member’s Counsel further submitted that the case presented by College Counsel (Cobden) was distinguishable on the basis of its facts and should not be relied upon by the Committee when determining the issue of publication.

Reply Submissions of College Counsel

College Counsel replied to the submission of Member’s Counsel that the Committee ought to consider the size of the Member’s community and the impact on the privacy of the Member and her children when determining the appropriate penalty in this case. According to College Counsel, there is no evidence that the impact of publication with name is greater in small communities nor is there evidence that publishing the Member’s name would have a negative impact “beyond the obvious”. College Counsel urged the Committee not to consider the impact that publication with name would have on the Member’s children because, once again, there is no evidence to support the submission of Member’s Counsel in this regard. College Counsel submitted that it would be unreasonable to assume that, if the Member’s name were published in the College’s official publication, the Member’s colleagues would treat her children differently after having read a summary of the finding and order against the Member.

Finally, College Counsel reminded the Committee that the Member’s misconduct was not an isolated incident. Her behaviour was repeated over several years, which is a significant aggravating factor that the Committee must consider when determining the issue of publication.

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 misconduct warrants a reprimand by her peers. The Committee is troubled by the Member’s unprofessional behaviour towards her students, her use of profanity in the classroom on numerous occasions, and the various inappropriate comments that she made to students. The reprimand will allow the Committee to directly address these 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.

Given the serious and repeated nature of the Member’s conduct, the Committee finds that a one month suspension is reasonable and appropriate. The Committee has directed the Registrar to suspend the Member retroactively as the Member has already served three suspensions through the Board for her repeated misconduct. The Committee finds that a retroactive suspension is appropriate, as it will avoid any additional disruptions to the Member’s classroom environment. Furthermore, the Member has continued to teach successfully since the last incident which occurred four years ago. The Committee believes that the recording of the suspension on the Register will serve as a general deterrent to other members of the teaching profession.

The Committee finds that the courses of instruction regarding appropriate boundaries with students and appropriate classroom management will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in her future interactions with students.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. The aggravating factors outweigh the mitigating factors in this matter. In particular, the Committee is concerned with the pattern of behaviour displayed by the Member and the fact that the Member’s conduct did not improve, even after several interventions by her Board. Publishing the Member’s name will impress upon other members of the profession the serious nature of the Member’s misconduct and the consequences of such behaviour.

Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for her actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention. The Committee believes that, in this case, publication with name will ensure that the Member is held accountable for her misconduct.

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

Date: January 19, 2016

Irene Cheung, OCT

Chair, Discipline Panel

______________________________ Jane Ishibashi

Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel