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
Amanda Josephine O’Connor, OCT, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Sara Nouini, OCT
Ravi Vethamany, OCT
BETWEEN: ) Zirka Jakibchuk,
) Legal Counsel,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers
– and – )
AMANDA JOSEPHINE O’CONNOR ) Adam Beatty,
(CERTIFICATE #495998) ) Cavalluzzo Shilton McIntyre ) Cornish LLP,
) for Amanda Josephine O’Connor
) Marc Spector,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: February 25, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 25, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated October 5, 2015 (Exhibit 1) was served on Amanda Josephine O’Connor (the “Member”), requesting her presence on October 29, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 25, 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 as defined in subsection 30(2) of the Ontario College of Teacher’s 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, or students, physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) 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, subsections 1(15);
(e) 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
(f) 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:
Amanda Josephine O’Connor is and 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 with respect to the Member.
At all material times, the Member was employed by the Hamilton-Wentworth District School Board (the “Board”) as a teacher at [XXX] School in Hamilton, Ontario. She was responsible for the [XXX] Program, a program geared towards students who have [XXX].
During the 2013-2014 academic year, Student 1 was a [XXX] male student with [XXX] in the Member’s class. [XXX].
On or about October 18, 2013, Student 1 was in the classroom with the Member and the EA when he began to act up and throw items around the room. Student 1 also climbed onto furniture in the classroom and began to wrap a cord around his neck. The Member verbally asked Student 1 to stop. However, he ignored her requests and continued to misbehave.
The EA reported that, as a result of Student 1’s actions, the Member physically restrained him by blocking him into the corner of the classroom, while holding his arms behind his back.
The Member held Student 1 in this position for about one to three minutes, until Student 1 began to cry.
As a result of the Member’s actions described in paragraphs 4 through 6 above, the Board suspended the Member with pay pending the outcome of its investigation. Attached to Exhibit 2 at Tab “B” is the Board’s letter to the Member dated October 23, 2013.
On November 20, 2013, the Member was criminally charged with Assault Level 1 against Student A under section 266 of the Criminal Code of Canada. The criminal charges were stayed on December 16, 2014.
The Children’s Aid Society of Hamilton (“CAS”) conducted an investigation into the incident and verified that that the Member used “inappropriate physical force towards a student”. The criminal charges were still proceeding at the time of the CAS investigation. As such, and on the advice of legal counsel, the Member was unable to provide a statement to the CAS. Accordingly, the CAS did not have the benefit of hearing from the Member when it verified the alleged conduct. Attached to Exhibit 2 at Tab “C” is a copy of the letter from the CAS to the Member’s counsel dated December 30, 2013.
Following the stay of the criminal charges and the Board’s investigation, the Member’s employment with the Board was terminated, effective June 25, 2015. Attached to Exhibit 2 at Tab “D” is the Board’s termination letter dated June 24, 2015.
PLEA OF NO CONTEST
By this document, the Member does not contest the facts and exhibits referred to in paragraphs 1 to 10 above (the “Uncontested Facts”) and agrees that the Discipline Committee accepts these facts as correct for the purposes of this proceeding only.
The Member hereby acknowledges that the Uncontested Facts referred to in paragraph 4 – 6 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), 1(15), 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 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 prove the case against her and the right to have a hearing;
(d) she understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to her name, may be published in the official publication of the College;
(e) she understands that any agreement between the parties with respect to the penalty proposed in this document does not bind the Discipline Committee; and
(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
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.
In light of the Uncontested Facts, circumstances and plea of no contest, 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 allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 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), 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), 1(15), 1(18) and 1(19).
Paragraphs 5 and 6 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 5 and 6 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).
Paragraphs 5 and 6 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 5 and 6 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 5 and 6 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:
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”);
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 seeking or engaging in employment requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at her own expense, a course of instruction, pre-approved by the Registrar, regarding classroom management, including as it pertains to students with special needs;
(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course practitioner 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;
- direct that there be publication of the finding and order of the Committee in summary form in the official publication of the College Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.
SUBMISSIONS ON PUBLICATION
Submissions of College Counsel
College Counsel submitted that publication with the name of the Member is warranted in this case and noted that it is necessary to achieve the goals of specific deterrence, general deterrence, transparency and accountability.
According to College Counsel, there are a number of aggravating factors that the Committee should consider when determining the issue of publication. These factors include: 1) the serious nature of the misconduct; 2) the fact that the misconduct was directed towards a young student with [XXX] who may be more vulnerable than other students; 3) the fact that a criminal charge was brought against the Member, even though it was stayed; 4) the fact that the CAS verified that the Member used inappropriate physical contact toward Student 1; and 5) the fact that the Board terminated the Member’s employment as a result of her misconduct.
College Counsel further submitted that publication with name is especially important as a specific deterrent to the Member, who was certified as a teacher in 2005 and who potentially has a long career ahead of her in the profession if she chooses to continue teaching. Publishing her name sends a strong message to the Member that this type of misconduct will not be tolerated. As a general deterrent, publication with name is equally important to make other members aware that the College will not tolerate the physical abuse of any student, and particularly students with [XXX]. Furthermore, College Counsel submitted that publication with name is a crucial element of the College’s duty to protect the public interest and to maintain the public’s trust in the profession, which can be achieved by ensuring that the discipline process encourages transparency and accountability.
College Counsel referred the Committee to three cases, each involving a single incident of inappropriate physical contact with a student by a member: Ontario College of Teachers v. Jarzylo 2014 LNONCTD 16 (“Jarzylo”); Ontario College of Teachers v. Berlin 2015 LNONCTD 61 (“Berlin”); and Ontario College of Teachers v. George, 2014 LNONCTD 85 (“George”). College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in each case.
Finally, College Counsel submitted that unless there are exceptional circumstances, the Committee should order publication with the Member’s name. In this case, there is no good reason not to publish the Member’s name.
Submissions of Member’s Counsel
Counsel for the Member submitted that publication with the name of the Member is not warranted in this case. The goals of specific deterrence, general deterrence, transparency and accountability can still be met without publishing the Member’s name in the College’s official publication. These goals must be balanced against other interests.
Member’s Counsel dismissed the notion that publication with name was necessary as a specific deterrent in this case. Specific deterrence will be achieved in this case, without publishing the Member’s name, given the following circumstances: the Member was arrested and charged criminally (although the charge was stayed); the Member’s employment was terminated by the Board; the CAS made an adverse finding against the Member; and the Member will receive a reprimand from the Committee.
Member’s Counsel submitted that the need for transparency and accountability must be balanced against Student 1’s right to confidentiality. This case is unique because it involves [XXX]. Given the circumstances, publishing the name of the Member would also reveal the identity of Student 1, and would therefore result in the disclosure of confidential information about Student 1’s school record, including [XXX], which is otherwise privileged information.
In the alternative, Member’s Counsel submitted that publication with name is unnecessary because the details of this case, including the name of the Member, will be contained the discipline decision that will be publicly accessible on the College’s website.
According to Member’s Counsel, the cases submitted by College Counsel are each distinguishable on the basis of their facts and should not be relied upon. In the Member’s case, the physical contact by the Member toward the student was in response to a safety issue, as Student 1 had begun to wrap a cord around his neck. In Jarzylo and Berlin, however, the members’ misconduct was not committed to ensure student safety. In George, the member’s conduct was unnecessary and aggressive (the member hit a student in the face and caused him to hit a wall), whereas the Member’s conduct in this matter was defensive.
In response to a Committee question regarding the termination of the Member’s employment with the Board, Member’s Counsel indicated that a grievance is underway.
Reply Submissions of College Counsel
College Counsel replied to the submission of Member’s Counsel that, because [XXX], publication with name would inevitably reveal the identity of Student 1. College Counsel reassured the Committee that Student 1’s identity would not be revealed since it is the College’s practice to redact any information from its decisions and summaries that might identify a student.
College Counsel also replied to the submission of Member’s Counsel that publication with name was unnecessary given the other specific deterrents in this case, including the criminal charge, the CAS adverse finding, and the Board’s termination of the Member’s employment. According to College Counsel, the College’s mandate is different from that of the above-mentioned institutions because the College is specifically mandated to protect the public interest. College Counsel urged the Committee to send as strong a message to the Member as the above-mentioned institutions did.
College Counsel further replied to the assertion of Member’s Counsel that Jarzylo and Berlin were distinguishable because the members’ misconduct in those cases was not committed to ensure student safety. College Counsel submitted that the Committee ought to be cautious in considering this submission of Member’s Counsel because there is no evidence before the Committee that the Member intervened for the purposes of protecting Student 1.
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 one amendment. Given that the Member was not in attendance on the day of the hearing, paragraph 1 of the Joint Submission on Penalty has been amended, with the consent of both parties, as follows:
- Within three months of the date of the Oral Decision and Order, the Member shall appear before the Committee, on a date to be arranged by the Member with the Hearings Office, 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”).
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, with the above amendment that was made on consent, 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 conduct warrants a reprimand by her peers. The Committee is troubled by the Member’s inappropriate form of discipline towards Student 1. 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 by informing other members of the profession that the College will discipline members who conduct themselves in an unprofessional manner.
The Committee finds that the course of instruction regarding appropriate classroom management, including as it pertains to students with [XXX], will assist in the rehabilitation of the Member. The Member’s actions towards Student 1 is indicative of her lack of understanding of student sensitivities and appropriate classroom management in this unique setting. The coursework ordered by the Committee will clarify and reinforce for the Member the need to maintain appropriate professional conduct and it will assist her in making informed decisions on how to manage student behaviour in a proper manner.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. The Committee determined that publication with name would serve the sentencing goals of specific and general deterrence, and promote transparency and accountability and it did not find that there was any good reason not to publish the Member’s name.
The Committee took notice that the College protects the identity of vulnerable students or witnesses in its publication of discipline decision summaries and it is satisfied that Student 1’s identity will be protected.
Publication with the name of the Member 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 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 furthers the transparency of the discipline process.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: March 8, 2016
Tom Potter
Chair, Discipline Panel
_____________________________ Sara Nouini, OCT
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel