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
Benedetto Venditti, OCT, a member of the Ontario College of Teachers.
PANEL: Marie-Claude Yaacov, Chair Irene Dembek, OCT Stéphane Vallée, OCT
BETWEEN: ) Caroline Zayid, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix, ) Law Clerk
– and – )
BENEDETTO VENDITTI ) David Bloom, (CERTIFICATE #276253) ) Cavalluzzo Shilton McIntyre ) Cornish LLP, ) for Benedetto Venditti ) Rebecca Durcan, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: December 10, 2015
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 10, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated April 16, 2013 (Exhibit 1) was served on Benedetto Venditti (the “Member”), requesting his presence on May 27, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 10, 2015.
The Member was in attendance for the hearing and had legal representation.
THE ALLEGATIONS
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) 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 the professional supervision of the member, 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); and
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Benedetto Venditti 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 for the Member.
At all material times, the Member was employed by the Toronto Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”).
Around the period of May 25 to June 5, 2009, EQAO testing took place at the School. During that period, the Member administered the Grade [XXX] EQAO language assessment in his classroom.
During the administration of the Grade [XXX] EQAO language assessment, the Member:
(a) allowed students to interact with each other contrary to EQAO policies and procedures;
(b) read a reading passage aloud to a student with an IEP contrary to EQAO policies and procedures and within hearing of other students;
(c) allowed instructional materials to be posted on the classroom walls and bulletin boards contrary to EQAO policies and procedures.
An investigation was undertaken by the Board Superintendent of Education. The findings supported the allegations against the Member. Attached to Exhibit 2 at Tab “B” is a copy of the EQAO Quality Assurance report completed by the Board Superintendent.
The Member was ill-prepared for the administration of the EQAO assessment. The Member did not pick up his EQAO materials from the Vice-Principal’s office until the day of the test, thereby not giving himself adequate time to read the materials and/or prepare for the test.
GUILTY PLEA
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 6 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(11), 1(15) and 1(18 – unprofessional).
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 prove the case against him and the right to have a hearing;
(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;
(e) he understands that any agreement between the parties with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
- 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 allegation of professional misconduct outlined in paragraph (e) of the Notice of Hearing, namely that the Member contravened subsection 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), 1(15) and 1(18 – unprofessional).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 6 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), 1(15) and 1(18 – unprofessional).
Paragraphs 4, 5 and 6 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 4 and 5 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to supervise adequately a person who is under the professional supervision of the Member, contrary to Ontario Regulation 437/97, subsection 1(11).
Paragraphs 4, 5 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 4, 5 and 6 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18 – unprofessional).
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”). The parties have not agreed on the length of time that the reprimand will remain on the Register, and submissions will be made on this issue.
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 enrol in and successfully complete at his own expense, within 90 days of the order of the Discipline Committee, a course of instruction pre-approved by the Registrar regarding ethics in the profession;
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:
(i) he or she has reviewed 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; 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.
The parties do not agree on whether, and if so for how long, the hyperlink to the Discipline Committee’s decision in this matter shall appear on the Register and submissions will be made on that issue.
ADDITIONAL SUBMISSIONS ON PENALTY
The parties made submissions with respect to three issues that had not been agreed upon in the Joint Submission on Penalty: 1) whether or not the Member’s name should be published in the College’s official publication, Professionally Speaking/Pour parler profession; 2) the length of time that the fact of the reprimand should remain on the Register; and 3) whether, and if so for how long, the hyperlink to the decision shall appear on the Register.
Submissions of College Counsel
Publication with name is appropriate
College Counsel submitted that publication with the name of the Member in Professionally Speaking/Pour parler profession is warranted in this case. The administration of EQAO testing is an important responsibility for members of the teaching profession, and the Member’s failure to meet his professional obligations should be met with appropriate consequences, including publication with name. Publishing the Member’s name will serve as a specific deterrent to the Member and as a general deterrent to the profession. According to College Counsel, the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.
In support of this position, College Counsel referred the Committee to two cases where publication with name was ordered: Ontario College of Teachers v. Brown, 2006 LNONCTD 7 and Ontario College of Teachers v. Curridor, 2014 LNONCTD 42. College Counsel submitted that although these cases are not directly on point, they are analogous in that they involve similar irregularities while administering EQAO testing.
The fact of the reprimand should remain on the Register for three years
College Counsel submitted that the purpose of recording the fact of the reprimand on the Register is to ensure transparency and to satisfy the penalty objectives of specific and general deterrence. College Counsel submitted that there is no reason to shorten the length of time that the fact of the reprimand will remain on the Register as this is not an exceptional case. College Counsel relied on Ontario College of Teachers v. De Santis, 2014 LNONCTD 123, in support of its position on this issue.
The Committee should not make an order to restrict the use of the hyperlink
With respect to whether the hyperlink to the decision in this matter shall appear on the Register, College Counsel submitted that no order should be made restricting the use of the hyperlink since the Committee does not have the power to make such an order pursuant to subsections 30(4) and 30(5) of the Act. College Counsel noted that hearings and discipline decisions are public and that decisions are disseminated by the College pursuant to subsection 25.01 of the Bylaws of the Ontario College of Teachers (the “College’s Bylaws”). College Counsel submitted that the hyperlink issue is an operational matter that should be left in the hands of the College, and that there is no good reason to depart from the normal procedure in this regard. Decisions are accessible via hyperlink so that the public can easily access them, which ensures the transparency of the discipline process.
Submissions of Member’s Counsel
Publication with name is not appropriate
Counsel for the Member submitted that publication with the name of the Member is not warranted in this case and noted that the Committee has the discretion to order publication with or without the name of the Member. According to Member’s Counsel, publishing the Member’s name is a form of public shaming and a means of embarrassing teachers. Member’s Counsel reminded the Committee that there is no presumption in favour of publishing the Member’s name and that the decision to publish or not to publish a members name should be made on a case-by-case basis with reference to the facts of the case.
Member’s Counsel submitted that there are a number of mitigating factors that weigh against the publication of the Member’s name in the College’s official publication, including the following. First, the Member accepted responsibility for his actions, acknowledged that he was ill-prepared for the 2009 EQAO testing, and is prepared to receive a reprimand and to take the necessary coursework to remedy his teaching practice. Second, the Member has been certified to teach since 1993 with no prior or subsequent history of misconduct outside of the 2009 EQAO incident. Third, the Member’s inadvertent misconduct was an isolated incident that occurred more than six years ago. Fourth, the Member did not intend to interfere with the testing process. Fifth, the Member administered EQAO testing in 2010 without incident. Sixth, the Member’s misconduct is at the low end of the spectrum of professional misconduct.
Member’s Counsel further submitted that it is unnecessary to publish the Member’s name in Professionally Speaking/Pour parler profession, in order to meet the penalty objectives, including specific and general deterrence. According to Member’s Counsel, both specific and general deterrence are achieved without publishing the Member’s name in the College’s official publication. Moreover, given that decisions (which include members’ names) are readily available on the College website, publishing the Member’s name in the Professionally Speaking/Pour parler profession is not necessary and not justified, under these circumstances.
Member’s Counsel urged the Committee to rely on the following three cases in which publication with name was not ordered: Ontario College of Teachers v. Brame, 2014 LNONCTD 76; Ontario College of Teachers v. Macdonald, 2014 LNONCTD 52; Ontario College of Teachers v. Ammoura, 2010 LNONCTD 1.
Member’s Counsel submitted that the cases presented by College Counsel in which publication with name was ordered should not be relied upon because they are distinguishable on their facts and are more serious than the Member’s case. Unlike the Member’s case, the cases presented by College Counsel resulted in suspensions and they involved the misconduct of a principal and a superintendent who were in positions of greater responsibility than the Member.
The fact of the reprimand should remain on the Register for 12 months
Counsel for the Member requested that the Committee order that the fact of the reprimand remain on the Register for a period of 12 months instead of the usual three years contemplated by subsection 26.01(a) of the College’s Bylaws, and noted that the Committee has the discretion to grant this request. Member’s Counsel submitted that reducing the period of time that the reprimand remains on the record would not diminish the specific deterrent effect of the Committee’s order. According to Member’s Counsel, the Committee ought to consider the nature of the case and the Member’s prior record when determining the appropriate length of time that the fact of the reprimand should remain on the Register.
Member’s Counsel urged the Committee to rely on the following three cases in which panels of the Discipline Committee ordered that the fact of the reprimand remain on the Register for less than three years: Ontario College of Teachers v. Middleton, 2014 LNONCTD 103; Ontario College of Teachers v. Hoidas, 2009 LNONCTD 34; and Ontario College of Teachers v. Miller, 2004 LNONCTD 23.
The hyperlink to the decision should be removed from the Register in 12 months
In the interest of symmetry, Member’s Counsel submitted that the hyperlink to the decision should be removed from the Register at the same time that the fact of the reprimand is removed, and that it is appropriate for the Committee to make this order. According to Member’s Counsel, it would be inconsistent with section 26 of the College’s Bylaws to maintain a hyperlink to the decision on the Register after the fact of the reprimand is removed from the Register. Member’s Counsel relied on the Supreme Court of Canada decision in Crookes v. Newton, 2011 SCC 47 at para. 40 (“Crookes”), for the proposition that hyperlinking certain materials could be defamatory.
Reply submissions of College Counsel
In reply, College Counsel disagreed with the suggestion of Member’s Counsel that the Member’s conduct was inadvertent, and she submitted that this assertion was not supported by any evidence or by the facts before the Committee. College Counsel also disagreed with the position of Member’s Counsel that publication with name serves to shame and embarrass the Member. She reiterated that the purpose of publication with name is to achieve specific and general deterrence, and to ensure the transparency of the discipline process.
With respect to limiting the length of time that the fact of the reprimand will remain on the Register, College Counsel submitted that one of the Member’s cases in support of this position has been appealed and is of no assistance, and that the other two cases included agreements by the parties to reduce this time period, unlike in the Member’s case where no agreement has been reached.
With respect to the hyperlink issue, College Counsel submitted that it is not necessary for the hyperlink to be removed at the same time as the fact of the reprimand is removed from the Register, since there is no requirement to achieve symmetry between the two. According to College Counsel, Crookes is of no assistance to the Committee because it is a defamation case that is not relevant in this matter. College Counsel added that there is no logical reason to remove the hyperlink given that the Committee’s decision will remain publicly accessible whether or not the hyperlink is removed.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty proposed by the parties and makes an order in accordance with its terms, as set out above. In addition to the terms set out above, the Committee orders that the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers for a period of 12 months, beginning December 10, 2015. The Committee does not, however, order that the hyperlink to its decision be removed at the same time as the fact of the reprimand is removed from the Register. The hyperlink will remain on the Register in accordance with subsection 25.01 of the College’s Bylaws. 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 misconduct warrants a reprimand. The reprimand will serve as a specific deterrent and it will allow the College to address its concerns with the Member. Additionally, recording the fact of the reprimand on the Register for a period of 12 months will serve as a general deterrent as it will inform other members of the teaching profession of the consequences for engaging in professional misconduct.
The Committee is not often called upon to direct that the fact of the reprimand be recorded on the Register for a specified period (in this case, 12 months). This is an uncommon request that will be considered on a case-by-case basis. Given the nature of the Member’s case and the significant mitigating factors in this matter, the Committee granted the Member’s request. The Committee believes that the penalty objectives are still achieved, notwithstanding this order, and that the public interest is adequately protected.
The Committee does not order that the hyperlink to its decision be removed at the same time as the fact of the reprimand is removed from the Register. The hyperlink will remain on the Register in accordance with subsection 25.01 of the College’s Bylaws. Discipline decisions are publicly available and it is in the public interest that they be made readily available. This helps to ensure the transparency of the discipline process. Posting a hyperlink to discipline decisions on the Register is an effective way to ensure that the public and members of the profession can access discipline decisions. There is no good reason to remove the hyperlink from the Register when the decision that is hyperlinked will remain publicly available. It would not be in the public interest to make it more difficult to access discipline decisions that are intended to guide the profession and that play an essential role in self-regulation.
With respect to the terms, conditions or limitations contained in the Joint Submission on Penalty, the Committee finds that the course of instruction regarding ethics in the profession will assist in the rehabilitation of the Member. The coursework will remind the Member of his professional obligations and it will help him to improve his teaching practice.
Given the circumstances of this case, the Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is not warranted. The Committee came to this decision having considered the significant mitigating factors in this matter, which outweigh the aggravating factors. Among other mitigating factors, the Committee recognizes that the Member’s conduct was at the low end of the spectrum of professional misconduct, that a significant amount of time has elapsed since the conduct occurred, that the conduct was an isolated incident, that the Member had no prior or subsequent history of professional misconduct, that the Member administered the EQAO testing in 2010 (the year after the incident in question) without any issues, and that the Member has accepted responsibility for his actions.
The Committee finds that the penalty objectives of deterrence and transparency will be adequately met without publishing the Member’s name in the College’s official publication. The Committee notes that its finding and order will still be published on the College’s website.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: January 29, 2016
Marie-Claude Yaacov Chair, Discipline Panel
Irene Dembek, OCT Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel