DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Ursula Clio Nahatchewitz, OCT, a member of the Ontario College of Teachers.
PANEL: Vicki Shannon, OCT, Chair Jean-Luc Bernard, OCT Jane Ishibashi
BETWEEN: ) Christine Wadsworth, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker, ) Law Clerk – and – ) URSULA CLIO NAHATCHEWITZ ) Sarah Colman, (CERTIFICATE #169798) ) Ontario Principals’ Council, ) for Ursula Clio Nahatchewitz ) Marc Spector, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: April 5, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 5, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated May 4, 2015 (Exhibit 1) was served on Ursula Clio Nahatchewitz (the “Member”), requesting her presence on May 20, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for April 5, 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 subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) she used a name other than the member’s name, as set out in the register, in the course of her professional duties, contrary to Ontario Regulation 437/97, subsection 1(4);
(b) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(c) she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);
(d) she falsified a record relating to her professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);
(e) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) 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).
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:
Ursula Clio Nahatchewitz 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.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a Vice-Principal at Northern Secondary School (the “School”) in Toronto, Ontario.
At all material times, Person A and Person B were male colleagues at the School.
The Member inadvertently discovered that Person A and B were exchanging emails that contained disparaging statements about the Member, which caused her to fear that her job security may be threatened.
On or about March 25, 2011, after the school day ended, the Member entered Person A’s office and used Person A’s computer without permission or authorization.
The Member accessed Person A’s Board email account without permission or authorization.
The Member created a rule within Person A’s Board email account, to forward any email that Person A received from specific colleagues, namely, the Principal of the School, Person B, and the Superintendent of Education, to another email account.
The Member created an email account in Person A’s name to receive the forwarded emails. The Member had sole access to the account. The emails from the individuals referred to in paragraph 7 above would be forwarded to the email account in Person A’s name and automatically deleted from Person A’s Board email account. Person A was not aware of the email account that the Member had created in his name and had no access to it.
On or about March 26, 2011, Person A received an email from the email account in his name that the Member had created. He had not set up this email address so he became suspicious.
On or about March 28, 2011 to April 1, 2011 Person A noticed that his Board emails from his Board issued Blackberry were being sent to the email account in his name. Furthermore, Person A noticed that only certain emails were being sent to that email account, namely from the Principal of the School, Person B, and the Superintendent of Education. He noticed that none of the emails sent to him by the Member were being forwarded.
Person A called the Board’s IT department for assistance and the account was frozen. Subsequently, the Board’s IT department determined that a rule had been created in Person A’s Board email account.
On or about April 1, 2011, Person A reported what occurred to the police.
On or about August 22, 2011, the Member was charged under the Criminal Code with mischief, unauthorized use of a computer and interception of private communications. The Member was assigned to home during the police investigation. On or about May 23, 2012, all three counts were withdrawn by the Crown after the Member provided a written apology to Person A as well as information about counselling she had undertaken and the 75 community service hours she had completed. Attached to Exhibit 2 at Tab “B” is the written apology from the Member to Person A dated March 8, 2012.
The Member admitted her misconduct to her employer, voluntarily relinquished her position as a Vice-Principal and returned to a teaching position in September 2012, a role that she fulfilled successfully until her retirement to pension in December 2013. Since her retirement, she has not sought work requiring a teaching certificate.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 14 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(4), 1(5), 1(18) and 1(19).
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 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 her and counsel for the College 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.
- 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
Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (c), (d) and (e) of the Notice of Hearing, namely that the Member contravened subsection 1(12), 1(13) and 1(15) 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(4), 1(5), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 14 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(4), 1(5), 1(18) and 1(19).
Paragraph 8 of the Agreed Statement of Facts and Guilty Plea demonstrates that the Member used a name other than the Member’s name, as set out in the register, in the course of her professional duties, contrary to Ontario Regulation 437/97, subsection 1(4).
Paragraphs 5, 6, 7 and 8 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 5, 6, 7 and 8 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 5, 6, 7, and 8 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:
directs 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”);
directs 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 resuming a teaching position or any other position for which a Certificate of Qualification and Registration is required (collectively referred to as a “Teaching Position”), the Member shall enrol in and successfully complete at her 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 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) upon review of the documents noted at paragraph (i) above, the course practitioner 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 practitioner 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 her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner 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
- directs 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 the Committee has the discretion to order publication with the name of the Member. In view of the Member’s unethical, inappropriate and unprofessional behaviour, publication with the name of the Member is warranted. Although College Counsel acknowledged that the Member’s misconduct is at the lower end of the spectrum, she submitted that it is misconduct nonetheless and must be taken seriously.
College Counsel submitted that by accessing and setting up a new email account in the name of Person A, the Member interfered with Person A’s privacy and proper transmission of information within the Board. Online privacy is becoming increasingly important, particularly in regard to personal email accounts. Teachers and administrators are meant to be role models and the Member’s actions clearly violated this expectation.
College Counsel submitted that publication with the name of the Member is one of the Committee’s most important tools to achieve deterrence. Publication with name sends a strong message to both the profession and the public that this type of behaviour will not be tolerated. Furthermore, publication with name fosters transparency and helps to restore public trust in the profession.
College Counsel referred the Committee to two cases involving unethical and dishonest behaviour of members: Ontario College of Teachers v. Kopylov, 2016 LNONCTD 8 and Ontario College of Teachers v. Moffat, 2012 LNONCTD 9. College Counsel submitted that these cases involved similar misconduct and that publication with name was ordered in both instances.
Submissions of Member’s Counsel
Member’s Counsel submitted that the penalty objectives can be achieved without publishing the Member’s name. As a specific deterrent, publication with name is unnecessary given that the Member will receive a reprimand and because she has already experienced significant personal, professional and financial repercussions as a result of her actions.
Member’s Counsel submitted that the principles of general deterrence and transparency are satisfied without publishing the Member’s name, as a result of the publication of the Notice of Hearing, the public nature of the hearing, and the publication of the summary of the Committee’s decision in Professionally Speaking/Pour parler profession. Additionally, the Committee’s decision will be publicly accessible on the College’s website and linked to the Member’s Certificate in perpetuity.
Member’s Counsel submitted that the principle of rehabilitation has been achieved through counselling, which the Member continues to attend. Member’s Counsel also indicated that the Member planned to take the proposed coursework immediately in order to clear her certificate of any terms, conditions or limitations.
Member’s Counsel urged the Committee to consider the mitigating factors when determining whether publication with or without the Member’s name should be ordered. The mitigating factors include: the Member’s misconduct was an isolated incident in a long and successful career; the misconduct was at the lower end of the professional misconduct spectrum; the misconduct did not jeopardize the safety of any students; and the Member successfully returned to the profession without further incident, before retiring with full a pension. Member’s Counsel further submitted that the Member’s attempt to set up the email “rule” to divert Person A’s emails was ineffectual and that the impact of her behaviour did not unduly disrupt communications within the Board.
Member’s Counsel referred the Committee to eight cases: Ontario College of Teachers v. Hill, 2012 LNONCTD 30; Ontario College of Teachers v. Milsap, 2012 LNONCTD 52; Ontario College of Teachers v. Blanchard, 2012 LNONCTD 17; Ontario College of Teachers v. Mukts, 2013 LNONCTD 98; Ontario College of Teachers v. Brooks, 2015 LNONCTD 46; Ontario College of Teachers v. Lalonde, 2014 LNONCTD 18; Ontario College of Teachers v. Worthy, 2015 LNONCTD 82; and Law Society of Upper Canada v. Flumian, 2013 ONLSHP 92 (“Flumian”). According to Member’s Counsel, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession.
Member’s Counsel submitted that the mitigating factors in the case law presented were similar to the mitigating factors in the Member’s case. Member’s Counsel further 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
In reply to the submission of Member’s Counsel that the Member was not successful in setting the email “rule” which diverted Person A’s email, College Counsel submitted that the Member’s lack of success is irrelevant and that it is her intention that matters. She made a conscious decision to access and manipulate information by diverting emails between Person A and Person B. This is a clear invasion of privacy.
College Counsel further replied to the submission of Member’s Counsel that the penalty objectives can be achieved without publishing the Member’s name. College Counsel submitted that if this were true, there would never be any reason to publish a member’s name in the College’s official publication, which is not the case. Publication with name is an important deterrent.
Finally, College Counsel submitted that the decision in Flumian, presented by Member’s Counsel, should be disregarded as it is a decision from a different adjudicating body.
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, 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 actions were unprofessional and unethical, and warrant a reprimand by her peers. The reprimand allows the Committee to directly address its concerns with the Member and serves as a specific deterrent. Recording the fact of the reprimand on the Register serves as a general deterrent to other members of the profession.
The Committee finds that the course of instruction regarding professional ethics will assist in the rehabilitation of the Member, should she return to teaching. The coursework will remind the Member of her obligations as a teacher and an administrator, and will help her to make better decisions in the future regarding professional behaviour.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is not warranted. The Member has acknowledged that, although she was distressed about inadvertently discovering that Person A and Person B were sharing disparaging emails about her, her actions to intercept further emails were unprofessional, inappropriate and unethical. The Member took full responsibility and apologized for her actions.
The Committee finds that the mitigating factors in this matter outweigh the aggravating factors. The Member’s conduct was at the lower end of the professional misconduct spectrum, it was a single incident in a long and successful teaching and administrative career, she continued to be employed by the Board without further incident until she qualified for full retirement, and she took full responsibility for her actions. The Committee further finds that the risk of repetition is minimized as the Member has retired and has taken steps, at her own expense, to address the concerns surrounding her misconduct. Given the circumstances, the Committee finds that publication with name would be unnecessarily punitive, would not provide additional deterrence value, and is not necessary to protect the interest of the public.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: May 24, 2016
Vicki Shannon, OCT
Chair, Discipline Panel
Jean-Luc Bernard, OCT
Member, Discipline Panel
Jane Ishibashi
Member, Discipline Panel