Ontario College of Teachers v. O’Shea, 2016 ONOCT 84

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v O’Shea, 2016 ONOCT 84

Date: 2016-09-29

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 Sheila Angela O’Shea, a member of the Ontario College of Teachers.

PANEL: Jane Ishibashi, Chair Irene Dembek, OCT Stéphane Vallée, OCT

BETWEEN: )

) Shane D’Souza,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,

) assisted by Duane Crocker,

) Law Clerk

-and- )

SHEILA ANGELA O’SHEA ) Sheila Angela O’Shea,

(CERTIFICATE #421862) ) Self-represented

) Rebecca Durcan,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: March 23, 2016.

DECISION ON FINDING AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 23, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated July 31, 2012 was served on Sheila Angela O’Shea (the “Member”), requesting her presence on August 30, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence on March 22, 2016.

On March 22, 2016, the Member brought a motion to adjourn the hearing until March 23, 2016. The Member required an accommodation because she has a hearing impairment. The College consented to the adjournment request and took the necessary measures so that the Member could be accommodated. For the reasons set out in the Committee’s decision of March 22, 2016, an adjournment was granted until March 23, 2016. The hearing of this matter on the merits took place on March 23, 2016.

The Member was in attendance and was self-represented throughout the hearing of this matter.

OVERVIEW

The allegations in this matter arose as a result of the Member’s conduct between April 2010 and May 2011. The Member’s alleged incompetence and/or professional misconduct revolved around five general types of allegations: 1) physical abuse of students; 2) verbal abuse of students; 3) psychological or emotional abuse of students; 4) yelling at staff and administrators; and 5) disciplining students by sending them into the hallway, failing to send them to the office and failing to notify the office.

The particularized allegations can be found at paragraphs 3, 4 and 5 of the Notice of Hearing.

The Member, however, denies all of the allegations contained in the Notice of Hearing.

The task for the Committee is to determine whether there is sufficient evidence to prove the allegations, and if so, whether the Member’s conduct gives rise to a finding of professional misconduct and/or incompetence. For the reasons set out in detail below, the Committee has determined that the College has proven particularized allegations 3, 4(a)–(e), and 5(a)–(d), which give rise to a finding of professional misconduct against the Member in that she contravened subsections 1(5), 1(7), 1(7.1), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

For the reasons set out in detail below, the Committee has determined that the College has not proven the particularized allegation in subparagraph 4(f) of the Notice of Hearing.

As well, for the reasons set out in detail below, the Committee has determined that the College has not proven that the Member breached subsection 1(7.2) of Ontario Regulation 437/97 or that the Member was incompetent

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Sheila Angela O’Shea is incompetent and/or guilty of professional misconduct as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

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

(b) she abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(e) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264 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);

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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Sheila Angela O’Shea is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by Hamilton-Wentworth Catholic District School Board (the “Board”) as an [XXX]Teacher.

3. On or about April 13, 2010, while on assignment at the [XXX] School, the Member pushed male Student 1 out of the classroom.

4. On or about September 28, 2010, while on assignment at the [XXX] School, the Member:

(a) yelled at male Student 2 and told him to “get out” of the classroom;

(b) grabbed and/or squeezed the shoulder of male Student 3;

(c) pushed and/or shoved male Student 3 one or more times and told him to “get out” of the classroom

(d) disciplined a student and/or students by:

(i) sending them into the hallway;

(ii) failing to instruct them to go to the office, and

(iii) failing to notify the office.

(e) yelled at another student and/or students in the classroom;

(f) yelled at a staff member and/or staff members and administration.

5. On or about May 4, 2011, while on assignment at the [XXX] School, the Member:

(a) grabbed male Student 4 by the shirt;

(b) pushed male Student 4 in the chest area with her hand;

(c) yelled at a student and/or students in the classroom;

(d) yelled at a staff member and/or staff members and administration.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

EVIDENCE OF THE COLLEGE

The College called five witnesses: Student 1, who gave evidence regarding paragraph 3 of the Notice of Hearing; Ms. Tracey Ferrie, then vice-principal at [XXX] School, who gave evidence in relation to paragraph 3 of the Notice of Hearing; Ms. Selina Perrone, a then [XXX] student at [XXX] School, who gave evidence regarding paragraph 4 of the Notice of Hearing; Ms. Sandra Caiella, a teacher at [XXX] School, and Ms. Flora Nordoff, the principal of [XXX] School, both of whom gave evidence regarding paragraph 5 of the Notice of Hearing.

Student 1 (Paragraph 3 of the Notice of Hearing, April 13, 2010)

Student 1 testified briefly during the hearing and was cross-examined. Student 1 recounted the specifics of his interactions with the Member in a clear and detailed way. His presentation of his evidence was coherent and precise. The Committee therefore finds Student 1 to be a credible and reliable witness.

At the time of the hearing, Student 1 was [XXX] years old. In April 2010, Student 1 was a [XXX]-year-old Grade [XXX] student at [XXX] School. Student 1’s evidence will be described in greater detail below, but he generally testified that the Member yelled at him during class and that she picked him up by the waist and moved him several feet inside the classroom. He also gave evidence regarding how he felt about what the Member had allegedly done.

Ms. Tracey Ferrie (Paragraph 3 of the Notice of Hearing, April 13, 2010)

Ms. Tracey Ferrie (“Ms. Ferrie”) is an elementary school principal with the Board. She has held that position for six years. In April 2010, she was a vice-principal at [XXX] School. Ms. Ferrie gave her evidence in a straightforward manner. Ms. Ferrie observed the Member’s conduct on April 13, 2010 and she spoke with Student 1 regarding his interaction with the Member. Ms. Ferrie made contemporaneous notes regarding her involvement with the Member. The Committee found her to be a credible witness with no apparent interest in the outcome of the hearing.

Ms. Ferrie’s evidence will be described in greater detail below, but she generally testified about her interaction with Student 1 and the Member on April 13, 2010.

Ms. Selina Perrone (Paragraph 4 of the Notice of Hearing, September 28, 2010)

At the time of the hearing, Ms. Selina Perrone (“Ms. Perrone”) was twenty-two years old and enrolled in an Early Childhood Education program at Conestoga College. In September 2010, Ms. Perrone was a Grade [XXX] student at [XXX] School. Part of her curriculum was a [XXX] placement in a Grade [XXX] class at [XXX] School. Ms. Perrone’s [XXX] placement was every school day from 12:30 p.m. until 3:30 p.m. Her role in the class was not supervisory. Ms. Perrone was in her [XXX] placement on September 28, 2010 when the Member was the [XXX] teacher.

The Committee found Ms. Perrone to be a credible witness. She observed the events about which she testified and, at the request of the school, she made notes of the events immediately thereafter. Ms. Perrone gave her evidence in a straightforward manner and she had no apparent interest in the outcome of the hearing. Ms. Perrone’s evidence will be described in greater detail below, but generally she testified that the Member yelled both at her and at the students; used physical force on students; and disciplined students by sending them into the hallway without telling them to go to the office and without notifying the office.

Ms. Sandra Caiella (Paragraph 5 of the Notice of Hearing, May 4, 2011)

At the time of the hearing, Ms. Sandra Caiella (“Ms. Caiella”) was in her 25^th year of teaching and a teacher at [XXX] School with the Board. In May 2011, she taught a Grade [XXX] class at [XXX] School. The Committee found Ms. Caiella to be a credible witness. Ms. Caiella gave her evidence in a straightforward manner. She observed some of the Member’s conduct on May 4, 2011 and she spoke to students about the Member’s conduct. Ms. Caiella made contemporaneous notes of her involvement with the Member. Ms. Caiella’s evidence will be described in greater detail below, but she generally testified that she heard and observed the Member yelling at students and that the Member yelled at her. She also testified that she was told by students that the Member was yelling at them and that the Member had grabbed one student by his shirt collar.

Ms. Flora Nordoff (Paragraph 5 of the Notice of Hearing, May 4, 2011)

Ms. Flora Nordoff (“Ms. Nordoff”) is the principal of [XXX] School. She has held that position for 14 years. In May 2011, her duties included supervision of the building, managing and ensuring the safety of students and staff, and ensuring that staff members were doing what they were supposed to be doing. The Committee found Ms. Nordoff to be a credible witness. Ms. Nordoff gave her evidence in a straightforward manner. Ms. Nordoff observed some of the Member’s conduct and she spoke with students about the Member’s conduct. Ms. Nordoff made contemporaneous notes regarding her involvement with the Member. Ms. Nordoff’s evidence will be described in greater detail below, but she generally testified that she observed and heard the Member yelling at a tutor. Ms. Nordoff testified that she was told by several students that the Member had pushed a student into his seat. Ms. Nordoff also testified that the Member yelled at her and insulted her.

EVIDENCE OF THE MEMBER

The Member testified on her own behalf. As will be described in greater detail below, the Member gave evidence in which she flatly denied all of the allegations in the Notice of Hearing. She denied that she yelled at students, staff or administrators. She denied that she ever used physical force on any students. She denied that she disciplined students by sending them into the hallway without telling them to go to the office or without notifying the office. The Member testified that the Catholic Children’s Aid Society (the “CCAS”) cleared her in all incidents. The Member testified that Ms. Perrone had concocted her evidence. The Member also testified that the Board was looking for a means to get rid of her.

In regard to the Member’s credibility, the Committee finds that the Member did not provide supportive evidence, either through her own testimony or documentary evidence, which would substantiate her version of the events. The Member often did not address the specific details of the events which formed the basis of the allegations, instead raising collateral issues which were not relevant. As such, the Committee was not able to place a great deal of reliance on the Member’s evidence.

POSITION OF THE PARTIES

The Committee heard submissions from both parties. The following serves as a brief summary of the parties’ positions. In the Committee’s reasons for decision below, the Committee will further explain, as needed, why it accepted or did not accept a party’s position with respect to the particular allegations enumerated in the Notice of Hearing.

Submissions of College Counsel

College Counsel submitted that the Committee ought to find the Member guilty of professional misconduct. College Counsel argued that paragraphs 3, 4 and 5 of the Notice of Hearing represent distinct breaches in classroom management by the Member.

College Counsel submitted that the Committee should make findings against the Member based on the following factors: the number of College witnesses; the witnesses were from three different schools; the witnesses’ evidence related to different students, administrators and staff; and most of the witnesses made contemporaneous notes regarding the incidents alleged in the Notice of Hearing¸ thereby buttressing their credibility. According to College Counsel, the witnesses’ notes were made with no expectation of a hearing at the College. College Counsel submitted that there was no reason for any of the witnesses to fabricate their notes.

College Counsel submitted that there was ample evidence on which the Committee should make findings against the Member. With respect to paragraph 3 of the Notice of Hearing, College Counsel acknowledged that Student 1’s evidence was “broader” than when the allegation was made against the Member, but the gist was the same: Student 1 was physically pushed into the hallway where Ms. Ferrie found him. Ms. Ferrie’s evidence confirmed that Student 1 was outside the classroom. According to College Counsel, the Member ought to have notified the office and she did not.

With respect to paragraph 4 of the Notice of Hearing, College Counsel noted that the Member’s evidence was that Ms. Perrone made up the whole incident. According to College Counsel, however, Ms. Perrone had no reason or incentive to lie. Ms. Perrone also made contemporaneous notes of the events that occurred on September 28, 2010. Ms. Perrone witnessed the Member yelling at Student 2 and telling him to get out of the classroom. Ms. Perrone witnessed Student 3 walking aimlessly around the classroom until the Member grabbed him by the arm. Ms. Perrone witnessed Student 3 repeatedly telling the Member not to touch him, but the Member continued to touch Student 3 causing him to turn over furniture. Ms. Perrone then saw the Member more forcefully grab Student 3 and push him. The Member sent Student 3 out of the classroom. The Member did not notify the office. The Member yelled at Ms. Perrone. Ms. Perrone saw the Member yelling at students. With respect to subparagraph 4(f) of the Notice of Hearing, College Counsel acknowledged that Ms. Perrone was the only “staff member” yelled at by the Member.

With respect to paragraph 5 of the Notice of Hearing, College Counsel noted that the evidence regarding physical abuse of students was based solely on hearsay evidence. According to College Counsel, however, Ms. Caiella’s evidence and contemporaneous notes, Ms. Nordoff’s evidence and contemporaneous notes, and the CCAS letter that found that the Member’s behaviour raised “concerns of risk of physical harm” support a finding against the Member.

College Counsel stated that any evidence regarding the Member’s hearing impairment did not change the character of her actions as instances of misconduct.

College Counsel submitted that yelling equals verbal abuse of students. College Counsel submitted that placing hands on a student, lifting up a student and pushing a student amounts to physical abuse of students. College Counsel argued that the Committee could infer that the Member emotionally or psychologically abused students based on: Student 1’s evidence that he was embarrassed by how the Member treated him; the evidence that Student 3 turned over furniture after repeatedly asking the Member to stop touching him; and the evidence that Ms. Caiella removed her students from the Member’s classroom. College Counsel conceded, however, that the evidence was “not directly on point” and that there was not “strong evidence” of emotional or psychological abuse. College Counsel submitted that the Member’s conduct toward Ms. Perrone and the students was disgraceful, dishonourable and unprofessional, and conduct unbecoming a member.

Finally, College Counsel submitted that the following factors demonstrate that the Member is unfit to carry out her professional responsibilities based on her existing certificate: she sent students into the hallway; she did not send students to the office; she did not tell the office about the students, thus exposing them to potential harm; she inappropriately disciplined students; and she displayed classroom management issues.

Submissions of the Member

The Member submitted that she raised her voice, but she never yelled. The Member submitted that she never used physical force on her students. She submitted that she was exonerated by the CCAS. The Member noted that proving professional misconduct required more than just taking a student’s “word” for it. The Member blamed the Board for not fully considering the circumstances of her health and work history. She was also critical of College Counsel for not bringing forward evidence on these same issues.

LEGAL ISSUES

Admissibility of Hearsay Evidence

Having carefully considered the submissions of both parties and the advice of Independent Legal Counsel, the Committee finds that the hearsay evidence in this matter is admissible, subject to a determination of the appropriate weight to ascribe to the evidence. The Act is silent with respect to the admissibility of hearsay evidence, but section 15 of the Statutory Powers Procedure Act, RSO 1990, c S.22, gives the Committee wide latitude and allows it to admit any document relevant to the subject-matter of the proceeding. The hearsay evidence presented by the College is relevant insofar as it relates to communications allegedly made by the Member which may have constituted misconduct, or statements made by students, staff and the [XXX] student responding to alleged misconduct by the Member. Therefore, the Committee finds the evidence is admissible in these proceedings, and will comment further on the weight to be given to the evidence when discussing whether each allegation has been proven on a balance of probabilities.

DECISION ON FINDING

Onus and Standard of Proof

The College bears the onus of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, the submissions made by College Counsel and the Member, the Committee finds the Member guilty of professional misconduct, as defined in subsection 30(2) of the Act. The College has met its burden of proving, on a balance of probabilities, the allegations particularized at paragraphs 3, 4(a)–(e) and 5(a)-(d) contained in the Notice of Hearing. In particular, the Committee finds that the Member has committed acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(15), 1(18) and 1(19).

The Committee finds that the College has not proven the conduct alleged in subparagraph 4(f) of the Notice of Hearing.

The Committee declines to make a finding of professional misconduct on the basis of a breach of subsection 1(7.2) of Ontario Regulation 437/97.

With respect to the allegation of incompetence, the Committee finds that the College made no submissions and did not proffer any evidence, either oral or documentary, that would substantiate a finding of incompetence against the Member. As such, any findings made by the Committee relate only to professional misconduct.

REASONS FOR DECISION

The Committee has carefully reviewed the submissions of both parties and all of the evidence, both oral and documentary. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. For the sake of clarity and to provide an organizational structure to these reasons, the Committee addresses the allegations of professional misconduct by considering each of the particulars enumerated in the Notice of Hearing at paragraphs 3, 4(a)–(f) and 5(a)–(d). The Committee assesses the evidence relevant to each allegation and makes factual findings with regard to each of these. The Committee then determines whether or not these factual findings give rise to a finding of professional misconduct.

Paragraph 3 of the Notice of Hearing (The Member pushed Student 1 out of the classroom)

The Committee finds, on a balance of probabilities, the Member guilty of professional misconduct in relation to paragraph 3 of the Notice of Hearing in that she contravened subsections 1(5), 1(7.1), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

The Committee heard evidence from Student 1 and Ms. Ferrie in relation to paragraph 3 of the Notice of Hearing. The Member also testified regarding this paragraph.

Student 1’s evidence was, as College Counsel put it, broader than the allegation set out in paragraph 3 of the Notice of Hearing. Student 1’s evidence was that after the Member yelled at him, he was annoyed and decided to leave the classroom. As he was doing so, the Member slammed the classroom door shut, picked up Student 1 by the waist and, with his feet leaving the ground, moved Student 1 several feet back into the classroom.

Ms. Ferrie’s evidence was that she was paged by the teacher who had the classroom next door to the Member’s class. The teacher paged Ms. Ferrie because the Member’s class was very loud. Ms. Ferrie testified that as she approached the Member’s class she could hear yelling and she also saw a male student [Student 1] in the hallway. Ms. Ferrie spoke to Student 1, who told her that the Member had told him to leave the class and, as he was walking slowly, the Member shoved him out of the class. Ms. Ferrie made contemporaneous notes of the incident (Exhibit 3). Ms. Ferrie’s evidence was unshaken in cross-examination.

The Member’s evidence was that Student 1, whom she had taught before, could lack initiative in learning. The Member stated that Student 1 had not caused any problems and had enjoyed soccer. However, when the Member decided to address Student 1’s disinterest in the afternoon by giving him a timeout, he refused to take the timeout. The Member testified that she neither yelled at him nor pushed him out of the classroom. Her evidence was that Student 1 was always in the classroom. The Member’s evidence was that the CCAS found that the allegations against her were not verified.

The Committee finds that the evidence establishes that the Member physically abused Student 1 and, in particular, pushed him. While Student 1’s evidence was broader than the allegation set out in paragraph 3 of the Notice of Hearing, his evidence substantiated the fact that the Member used physical force by lifting him off the ground and physically moving him. Ms. Ferrie’s evidence was that she found Student 1 in the hallway. Ms. Ferrie also testified that Student 1 told her in the hallway that the Member had shoved him out of the classroom. Although there were discrepancies between Student 1’s evidence and Ms. Ferrie’s evidence regarding the details of the physical force used by the Member, the gist of both witnesses’ accounts was very similar. The Committee finds that the Member’s actions in picking up Student 1 and shoving him, as described by Student 1 and Ms. Ferrie, would, by reasonable implication, involving pushing him. The Member provided no documentary proof of the CCAS investigation of the events of April 13, 2010. Therefore, the Committee finds that allegation described in paragraph 3 of the Notice of Hearing has been established.

It is never justifiable for a teacher to use physical force on a student and it is contrary to what is expected of the members of the profession. The Member’s conduct was unacceptable.

Paragraph 4 of the Notice of Hearing (The Member yelled at Student 2 and told him to “get out” of the classroom; the Member grabbed and shoved male Student 3 and told him to “get out” of the classroom; the Member disciplined students by sending them into the hallway, failing to instruct them to go to the Office and failing to notify the Office; the Member yelled at students in the classroom; and the Member yelled at staff members)

The Committee finds, on a balance of probabilities, the Member guilty of professional misconduct in relation to subparagraphs 4(a), (b), (c), (d) (i), (ii) and (iii), and (e) of the Notice of Hearing in that she contravened subsections 1(5), 1(7), 1(7.1), 1(15), 1(18), 1(19) of Ontario Regulation 437/97.

The College relied solely on Ms. Perrone’s evidence, some of which was hearsay evidence, in relation to paragraph 4 of the Notice of Hearing. However, pursuant to section 15 of the Statutory Powers and Procedure Act, the Committee is entitled to accept hearsay evidence. Ms. Perrone’s evidence in chief was consistent and measured. Ms. Perrone’s evidence was unshaken in cross-examination.

With respect to paragraph 4 of the Notice of Hearing, the Member denied that she had yelled at any students or that she had used physical force on any students. The Member denied that she disciplined students by sending them into the hallway without telling them to go to the office and without notifying the office. The Member suggested that Ms. Perrone fabricated her notes and her testimony before the Committee. The Member stated that CCAS had exonerated her.

The Committee accepts College Counsel’s submission that Ms. Perrone had no motive to concoct her notes or testimony regarding the September 28, 2010 incidents. The Committee finds that Ms. Perrone gave her evidence in a straightforward and credible manner. At the school’s request, Ms. Perrone made contemporaneous notes (Exhibit 2) about the incidents involving the Member. Ms. Perrone has no interest in the outcome of the hearing. The Member’s recollections of the events were different than those presented by the witness, but the Member did not present any type of evidence to support her version of the events. The Committee accepts Ms. Perrone’s evidence regarding paragraph 4 of the Notice of Hearing.

Although accommodations were provided during the hearing, no expert medical evidence was presented to the Committee regarding the Member’s hearing impairment and the effects that might have had on the volume of her voice while teaching in the classroom.

The Committee finds that the Member yelled at Student 2, who had been crying because of ongoing pain from a [XXX]. The Member also told Student 2 to get out of the classroom. The Member sent Student 2 into the hallway without instructions to go to the office and she failed to notify the office. Ms. Perrone had to accompany Student 2 to the office.

The Committee also finds that the Member grabbed Student 3 by his arm and pushed him approximately eight to nine feet inside the classroom. Student 3 asked the Member four to five times to stop touching him, but the Member continued touching him. Student 3 kicked over a chair in frustration. The Member then more forcefully grabbed Student 3 by his arm and pushed him outside the classroom. Ms. Perrone accompanied Student 3 to the office. The Committee finds that the Member sent Student 3 into the hallway without telling him to go to the office and without notifying the office.

The Committee also finds that the Member yelled at a female student, who was trying to get the Member’s attention by passing her a note regarding a schoolwork handout.

As well, the Committee finds that the Member yelled at a male student, who had returned to the classroom after having been given permission by Ms. Perrone to go to the bathroom.

It is unacceptable for a teacher to yell at students, engage in physical contact with students, and discipline students by sending them into the hallway without supervision and without notifying the office. This is behaviour that falls below the expected standards of the profession.

The Committee finds that, on a balance of probabilities, the College failed to establish evidence supporting subparagraph 4(f) of the Notice of Hearing. The Committee finds that a [XXX] student is not a staff member or administrator. As such, the fact that the Member yelled at Ms. Perrone does not support the allegation set out in subparagraph 4(f). Furthermore, the Committee notes that no other evidence was led that the Member yelled at staff members or administrators at [XXX] School.

Paragraph 5 of the Notice of Hearing (The Member grabbed male Student 4 by the shirt; pushed male Student 4 in the chest area with her hand; yelled at students; and yelled at staff and an administrator)

The Committee finds the Member guilty of professional misconduct in relation to paragraph 5 of the Notice of Hearing in that she contravened subsection 1(5), 1(7), 1(7.1), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

In particular, the Committee finds that on May 4, 2011, the Member was overheard and seen by Ms. Caiella while the Member was yelling at her students in a “very loud” voice. The Committee also finds that as Ms. Caiella approached the Member’s classroom, she heard a very loud and frustrated voice, which she then identified as coming from the Member. The Committee finds that after Ms. Caiella entered the classroom and made eye contact with the Member, the Member continued to yell and yelled at Ms. Caiella.

The Committee finds that the Member yelled at Student 4 and his friend and that the Member grabbed Student 4 by his shirt collar. The Committee finds that Ms. Nordoff’s evidence disclosed that there were variations in the way students described how the Member pushed Student 4 in the chest area with her hand. The Committee also finds, however, that at its core, the evidence was consistent that the Member engaged in physical contact with Student 4 and pushed him into his seat. The Member denied that she yelled. The Member testified that she only raised her voice. The Member testified that the CCAS found that Student 4 exaggerated. The Member admitted in cross-examination, however, that she had “carried over” an incident from earlier in the day when a tutor had tried to remove a pupil from the Member’s class and that the incident had upset her. Furthermore, the letter from the CCAS regarding Student 4 (Exhibit 8) disclosed that the CCAS found “[c]oncerns of physical harm have been verified…”

The Committee finds that Ms. Caiella was concerned about the yelling and, after hearing of the physical contact, she removed her students from the Member’s class. Ms. Caiella also contacted the principal, Ms. Nordoff, to ensure that a second class of students would not go to the Member’s [XXX].

Ms. Caiella’s testimony that two students, including Student 4, told her that the Member had been yelling at them was corroborated by Ms. Nordoff’s evidence that the students she spoke to all said that the Member was agitated and yelling.

Ms. Caiella’s and Ms. Nordoff’s evidence is consistent. Both agreed that they knew the difference between yelling and speaking loudly. Ms. Caiella said that the Member was yelling. Ms. Nordoff’s investigation disclosed that students also confirmed that the Member had been yelling. Although this evidence was provided as hearsay, the Committee is willing to accept it because the testimony provided by both witnesses was consistent.

The Committee also finds that the Member yelled at the tutor who was attempting to take a student from the Member’s class. Ms. Nordoff’s evidence was that she was summoned to the Member’s classroom by a neighbouring teacher who said the Member’s class was very loud. As she approached the classroom, Ms. Nordoff heard the Member yelling and then witnessed the Member yelling at the tutor who had come to take a student from the Member’s class. The Member denied yelling at the tutor; however, she admitted in cross-examination that she was upset and emotional because she thought the student was rushing from the class.

The Committee further finds that Ms. Nordoff met with the Member after she was paged by Ms. Caiella and that the Member screamed at Ms. Nordoff in front of the class of students such that the students uttered a collective gasp. The Committee also finds that later that morning, the Member: yelled at Ms. Nordoff; called her “incompetent”; pointed her finger at her; and threatened to sue her.

The Member’s conduct in relation to her students, the tutor, Ms. Caiella and Ms. Nordoff is unacceptable. Yelling at students, grabbing a student and pushing him into a seat and yelling at staff and administrators is behaviour that falls below the accepted standards of the profession.

Conclusion

Ultimately, the Committee concludes that the facts of this case support a finding of professional misconduct. While the College has not met its burden of proof with respect to paragraph 4(f) contained in the Notice of Hearing, sufficient evidence was presented to prove that the Member committed the acts alleged in paragraphs 3, 4(a)–(e) and 5(a)–(d), and that this conduct gives rise to a finding of professional misconduct, contrary to subsections 1(5), 1(7), 1(7.1), 1(15) ,1(18) and 1(19) of Ontario Regulation 437/97.

The Member yelled at students, made physical contact with students, disciplined them by sending them into the hallway, and yelled at staff and administrators. The Member’s conduct is unacceptable and falls well below the standard expected of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97.

The evidence was overwhelming that the Member verbally abused students. Yelling at students is never appropriate and is unacceptable behaviour from a member of the profession. The Member’s conduct was a clear breach of subsection 1(7) of Ontario Regulation 437/97.

The Member made physical contact with a number of students over the course of two academic years and in different schools. Teachers must never make inappropriate physical contact with students. The Member’s conduct was a clear breach of subsection 1(7.1) of Ontario Regulation 437/97.

The Member’s conduct with students, namely yelling at them, making physical contact with them and disciplining them by sending them into the hallway, not telling the students to go to the office and failing to notify the office, coupled with her yelling at staff and an administrator, is behaviour that fails to comply with the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97.

The Member’s conduct with students, namely yelling at them, making physical contact with them and disciplining them by sending them into the hallway, not telling the students to go to the office and failing to notify the office, coupled with her yelling at staff and an administrator, is behaviour that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97 and is conduct unbecoming of a member of the profession, contrary to subsection 1(19) of Ontario Regulation 437/97.

The Committee declines to make a finding of professional misconduct on the basis of a breach of subsection 1(7.2) of Ontario Regulation 437/97. College Counsel acknowledged in his submissions that there was not enough evidence directly on point regarding the issue of psychological or emotional abuse. College Counsel submitted, however, that the Committee could infer a finding from: Student 1’s evidence that he was shocked, embarrassed and felt “weird” about what the Member had done; Ms. Caiella’s withdrawal of her students from the Member’s class; and Student 3 flipping furniture over after repeatedly asking the Member not to touch him.

The Committee accepts the evidence of Student 1 regarding his embarrassment and shock, and the evidence given by Ms. Caiella and Ms. Perrone. However, College Counsel did not provide the Committee with any submissions or jurisprudence on what constitutes “psychological or emotional abuse.” In the circumstances, the Committee finds that there is insufficient evidence to make a finding that the Member’s conduct amounted to psychological or emotional abuse of a student or students.

The Committee dismisses the allegation of incompetence against the Member, given the insufficiency of evidence supporting the allegation.

PENALTY

The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.

Date: September 29, 2016

Jane Ishibashi

Chair, Discipline Panel

Irene Dembek, OCT Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel