Ontario College of Teachers v. Gumkowski, 2016 ONOCT 22

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Gumkowski, 2016 ONOCT 22

Date: 2016-04-22

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

Robert Andrew Gumkowski, OCT, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair

Pauline Smart

Ravi Vethamany, OCT

BETWEEN: ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

– and – )

ROBERT ANDREW GUMKOWSKI ) Robyn White,

(CERTIFICATE # 440909) ) Cavalluzzo Shilton McIntyre

) Cornish LLP,

) for Robert Andrew Gumkowski

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: March 30, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 30, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated May 20, 2015 (Exhibit 1) was served on Robert Andrew Gumkowski (the “Member”), requesting his presence on May 27, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for March 30, 2016.

The Member was not in attendance for the hearing but 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 and/or is incompetent as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

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

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

(c) 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);

(d) 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);

(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

(f) he displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

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. Robert Andrew Gumkowski is 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 with respect to the Member.

2. At all material times, the Member was employed by the Keewatin-Patricia District School Board (the “Board”).

3. During the 2003-2004 academic year, the Member was assigned to teach a grade [XXX] class at [XXX] School. The Member's performance was evaluated during this academic year. His performance was rated “good” following the evaluation.

4. The Member's next performance appraisal took place during the 2008-2009 academic year. At that time he was assigned to teach a grade [XXX] class at [XXX] School. The Member's performance was rated “satisfactory” following the evaluation.

5. During the 2012-2013 and 2013-2014 academic years, the Member was a teacher at [XXX] School (the “School”) in [XXX], Ontario.

2012-2013

6. During the 2012-2013 academic year, the Member taught a Grade [XXX] combined class at the School. The Member’s class consisted of [XXX] students including [XXX] with Individualized Education Plans (“IEP”), and a full-time Educational Assistant.

7. During the 2012-2013 academic year, the Member’s performance was evaluated by his principal pursuant to two Teacher Performance Appraisals (“TPA”), resulting in Summative Reports dated November 14, 2012 and December 20, 2012. His performance was rated “unsatisfactory” following both evaluations.

8. In her summative report dated November 14, 2012, the principal documented concerns in relation to all domains. In particular, although she observed that the Member performed some of the competencies at the satisfactory level, she found that “overall, [the Member’s] performance in alignment to the majority of the competencies is substandard. In the consideration of multiple classroom observations and communication to and from parents/guardians and students, it is my professional judgment that there are significant classroom management practices that are negatively impacting the student learning environment in grades 6/7.” Attached to Exhibit 2 at Tab “B” is a copy of the Summative Report Form for Experienced Teachers dated November 14, 2012.

9. Following the November 14, 2012 Summative Report, the Member’s principal, with the Member's input, created an Improvement Plan. Attached to Exhibit 2 at Tab “C” is a copy of the Improvement Plan dated November 28, 2012.

10. In her Summative Report dated December 20, 2012, the principal noted some improvement from the Member’s previous appraisal. However, she found that the Member continued to perform at a substandard level regarding most competencies. The Member was required to continue to implement the initial improvement plan. Attached to Exhibit 2 at Tab “D” is a copy of the Summative Report Form for Experienced Teachers dated December 20, 2012, and attached to Exhibit 2 at Tab “E” is a copy of the Improvement Plan dated January 14, 2013.

11. The Member was off work for medical reasons from January 28, 2013 to August 2013.

2013-2014

12. During the 2013-2014 academic year, the Member taught a Grade [XXX] combined class at the School. There were [XXX] students in the Member’s class.

13. The Member met with the School’s new Principal in late August 2013, to review the Improvement Plan already in place at the commencement of the 2013-2014 academic year. Attached to Exhibit 2 at Tab “F” is a copy of the Improvement Plan with Actions for Improvement effective August 27, 2013.

14. On September 24, 2013, one of the Member’s [XXX] year old Grade [XXX] student failed to return to the classroom after the 1:40 p.m. recess break. The Member was unaware of the student’s absence for approximately one hour, until advised by the office that she was missing. The student was paged throughout the School multiple times, following which there was an extensive search of the grounds by other staff. The student was found by a community member near the parking area of the School. The Member later confirmed that he had not verified that all students were in class following recess and he apologized for the incident. As a result of this incident, the Member was suspended by the Board without pay for ten days. Attached to Exhibit 2 at Tab “G” is a copy of the Letter of Discipline dated October 9, 2013.

15. In November 2013, the Member's performance was assessed and the Member received a third “unsatisfactory” rating. The principal noted deficiencies in relation to all domains. Attached to Exhibit 2 at Tab “H” is a copy of the Summative Report Form for Experienced Teachers completed regarding the November 2013 performance appraisal.

16. On November 7, 2013, the Member advised the Board that he was resigning his position from the Board effective November 11, 2013. Attached to Exhibit 2 at Tab “I” is a copy of the Member’s resignation.

GUILTY PLEA

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

18. The Member hereby acknowledges that the Admitted Facts described in paragraph 14 constitutes 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(5), 1(11), and 1(18 - unprofessional). The Member also admits that by virtue of the conduct described in paragraphs 7-10, 13 and 15, he displayed a lack of knowledge, skill or judgment and disregard for the welfare of his students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Act.

19. 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 any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;

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

20. 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 to be guilty of professional misconduct, as set out in Ontario Regulation 437/97 subsections 1(5), 1(11) and 1(18 - unprofessional), and to be incompetent, as defined in subsection 30(3) of the Act.

DECISION

Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (c) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(15) and 1(19) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

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(11), and 1(18 - unprofessional). The Committee also finds that the Member displayed a lack of knowledge, skill or judgment and disregard for the welfare of his students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Act.

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraph 14 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(5), 1(11), and 1(18 – unprofessional).

The Member also admitted that by virtue of the conduct described in paragraphs 7 to 10, 13 and 15, he displayed a lack of knowledge, skill or judgment and disregard for the welfare of his students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Act.

Paragraph 14 of the Agreed Statement of Facts and Guilty Plea demonstrates that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraph 14 of the Agreed Statement of Facts and Guilty Plea demonstrates that the Member failed to supervise adequately a person who is under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11).

Paragraph 14 of the Agreed Statement of Facts and Guilty Plea demonstrates 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 - unprofessional).

Paragraphs 7, 8, 9, 10, 13 and 15 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member displayed a lack of knowledge, skill or judgment and disregard for the welfare of his students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Act.

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 receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”). Submissions will be made regarding the appropriate form of the reprimand;

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) the Member shall advise the Registrar at least 30 days before his return to any teaching duties or to any position for which a Certificate of Qualification and Registration is required (collectively referred to herein as a “Teaching Position”), of the date of such return, the name of his employer, and the nature of said employment;

(b) prior to any return to a Teaching Position, the Member shall enrol in and successfully complete at his own expense, an Additional Qualification (“AQ”) course, or coursework equivalent in length to an Additional Qualification course, with a focus on lesson planning, classroom management, instructional strategies, communication skills, and student learning and assessment, pre-approved by the Registrar and subject to the following conditions:

(i) the Member shall provide to a course practitioner 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) if the course is not an AQ course, the course practitioner will provide to the Registrar, for pre-approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s teaching practice, as outlined in (b) above. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member. If the course is an AQ course, the Member will provide to the Registrar, for pre-approval, a syllabus for the proposed course developed by the course practitioner which describes the course content, the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(iii) the course shall be completed no more than 90 days before commencing or returning to a Teaching Position;

(c) within 30 days of his completion of the course outlined in (b) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting 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

Counsel for the College submitted that the goal of any order of the Committee is to protect the public, to maintain high professional standards, and to preserve public confidence in the teaching profession. In order to achieve this goal, the Committee must consider the principles of specific deterrence, general deterrence, rehabilitation and remediation, and the protection of the public.

With respect to the finding of professional misconduct, College Counsel submitted that publication with name is warranted. College Counsel stated that although the misconduct in this case is not as serious as in other cases, it is still serious enough to warrant publication with the name of the Member. College Counsel urged the Committee to consider the aggravating factors, which include: the age of the Student; the Member being advised by the principal that the Student had a [XXX]; the Member not being in the practice of accounting for all of his students on a daily basis; the length of time the Student was unaccounted for; the extensive search conducted to locate the Student; and the Student’s absence going unnoticed by the Member until it was brought to his attention.

College Counsel submitted that publication with the name of the Member addresses the requirement for specific deterrence by emphasizing to the Member the seriousness of his misconduct. Furthermore, publication with name serves as a general deterrent by informing other members of the profession of the consequences of not accounting for students in one’s care. According to College Counsel, if just one member of the profession is deterred from this type of conduct then the goal of general deterrence will have been accomplished.

College Counsel further submitted that publication with name demonstrates accountability and transparency which is expected by the public. Publication with name informs the profession and the public that the Committee has acted to serve and protect the public interest, and it therefore inspires public confidence in the discipline process.

College Counsel referred the Committee to three cases involving lack of supervision of students in which publication with name was ordered, and urged the Committee to rely on these precedents when determining the issue of publication: Ontario College of Teachers v. Brown, 2013 LNONCTD 7; Ontario College of Teachers v. Powers, 2014 LNONCTD 111; and, Ontario College of Teachers v. Kowal, 2013 LNONCTD 89.

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 publication with name is not warranted in this case. The goals of penalty, including specific deterrence, general deterrence, and transparency will be met without publishing the Member’s name in the College’s official publication, given that: the Committee’s decision will be publicly accessible on the College’s website; a summary of the Committee’s finding and order will be published in Professionally Speaking/Pour parler profession; this hearing was open to the public; and, the fact of the reprimand will be recorded on the Register.

Member’s Counsel disagreed with College Counsel’s submission that if even one member of the profession is deterred, then the goal of general deterrence will have been accomplished. According to Member’s Counsel, publishing the Member’s name is not the key to achieving general deterrence. Other members of the profession will be deterred from engaging in similar conduct by learning, through a summary of the Committee’s finding and order, of the consequences related to this type of misconduct. The inclusion of the Member’s name in this summary adds no value as a general deterrent.

Member’s Counsel urged the Committee to consider the following mitigating factors when making its decision with respect to publication (with or without name): the Member’s misconduct was an isolated incident and his mistake caused no harm to any students; his misconduct did not involve inappropriate conduct with students; the Member expressed remorse for his conduct and he apologized; and, the Member is no longer employed as a teacher. Member’s Counsel added that publishing the Member’s name might negatively affect the Member’s future employment opportunities, even if he does not return to the teaching profession.

Finally, Member’s Counsel submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

Reply Submissions of College Counsel

College Counsel agreed with Member’s Counsel that the Committee has the discretion to order publication with or without the name of the Member, but she submitted that the current trend is to include the Member’s name in the publication of the summary of the Committee’s finding and order. College Counsel submitted that publication with name best serves the public interest by serving as a deterrent and by contributing to the transparency of the discipline process.

College Counsel disagreed with the submission of Member’s Counsel that publication with the name of the Member would have no added value to the penalty objectives and submitted that publication with name has a strong deterrent effect. Members of the profession regard publication with name as a serious consequence for engaging in professional misconduct. By not ordering the publication of the Member’s name, the Committee might fail to convey the serious nature of the Member’s misconduct to the profession.

In reply to the submission of Member’s Counsel that the Member’s misconduct was an isolated incident and a mistake, College Counsel submitted that the Member’s misconduct was not merely a simple oversight; it demonstrated his poor professional practice of not properly accounting for his students on a regular basis. At the time of the incident, the Member admitted that he needed to improve his practice of regularly accounting for his students. College Counsel submitted that a child should never have gone missing in order for the Member to start acting responsibly for the students in has care.

Finally, College Counsel agreed with the submission of Member’s Counsel that the case law presented on behalf of the College was factually distinct from the Member’s case, but she noted that the cases are current, they involve a lack of supervision of students, and publication with name was ordered in all instances.

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 the form of the reprimand, the Committee directs that it be delivered in the form requested by Member’s Counsel and supported by College Counsel. 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, with respect only to the Member’s professional misconduct, in the official publication of the College, Professionally Speaking/Pour parler profession, without 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 failure to adequately supervise his students 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. The Committee is satisfied that the requested form of the reprimand, which request was supported by College Counsel, satisfies the penalty objectives in this case. Accordingly, the Committee orders the reprimand be given in accordance with the request made by Counsel for the Member.

Prior to commencing or returning to a Teaching Position, the Member is required to complete an Additional Qualification course, or coursework equivalent in length to an Additional Qualification course, with a focus on lesson planning, classroom management, instructional strategies, communication skills, and student learning and assessment. This coursework will help the Member to acquire the necessary skills to improve his practice and it will remind him of the competencies expected of a teacher. Accordingly, the course will address the Member’s teaching deficiencies and it will serve to rehabilitate the Member.

The Committee has determined that there shall be publication of its finding and order in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession, without the name of the Member. The Committee determined that the requirement for specific deterrence is met through the reprimand. The objective of protecting the public is satisfied by the fact that the Member is currently not teaching and has expressed no desire to return to teaching. The Committee recognizes the importance of general deterrence and transparency and determined that in this case, these objectives are adequately served by the fact that this decision is available to the public on the College’s website, and that a summary of the Committee’s finding and order in relation to the Member’s professional misconduct will be published in Professionally Speaking/Pour parler profession.

In addition, the Committee determined that the mitigating factors, which favour publication without name, outweigh the aggravating factors in this case. The mitigating factors that the Committee considered include: the misconduct being at the lower end of the professional misconduct spectrum; the case proceeding by way of agreement; the Member’s plea of guilt at this hearing; and the misconduct being a single omission.

The Committee is satisfied that the penalty objectives are satisfied in this case and that the public interest has been served and protected.

Date: April 22, 2016

Tom Potter

Chair, Discipline Panel

______________________________ Pauline Smart

Member, Discipline Panel

Ravi Vethamany, OCT

Member, Discipline Panel