Ontario College of Teachers v. Ostainvil, 2016 ONOCT 93

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Ostainvil, 2016 ONOCT 93

Date: 2016-12-20

IN THE MATTER OF the Ontario College of Teachers Act and Ontario Regulation 437/97;

AND IN THE MATTER OF a discipline proceeding against Marc Elie Ostainvil, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair Ravi Vethamany, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Christine Lonsdale and Alexandre Blanchard, McCarthy Tétrault LLP, for Ontario College of Teachers

– and –

Marc Elie Ostainvil (CERTIFICATE #515689) Monika Ferenczy, for Marc Elie Ostainvil

Renée Kopp, Jones Litigation Counsel LLP, Independent Legal Counsel

Heard: February 3 and 5, 2016 and July 19 and 20, 2016

DECISION AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on February 3, 2016 at Toronto.

A Notice of Hearing dated October 14, 2014 (Exhibit 1) was served on Marc Elie Ostainvil (“the Member”) requesting his attendance before the College’s Discipline Committee on November 13, 2014 to set a date for a hearing. The hearing was subsequently set for February 3, 2016 and continued on February 5, 2016 and July 19 and 20, 2016.

PRELIMINARY MATTERS

Conflict of Interest and Recusal of Sara Nouini

When the hearing was over, Sara Nouini (one of the members of the panel hearing the matter) recused herself from the Committee because of her discovery of a conflict of interest relating to her employment. While reviewing in-depth the 432-page document package in the file during the hearing (Exhibit 47), she discovered that an individual to whom she must report at work may have been involved in the decision to terminate the Member’s position in 2013. Ms. Nouini was not aware of this conflict when the hearing began, and the conflict does not involve any of the witnesses or testimony heard during the hearing. Although Exhibit 47 was introduced at the hearing, no reference was made to the person in question during the hearing. The conflict in question in no way affects any of the other Committee members or their ability to make a fair and impartial decision in this matter.

After discovering this conflict of interest, Ms. Nouini immediately ceased her participation in the Committee’s deliberations and did not take any part in the decision. Pursuant to subsection 4.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), the other two members of the Committee continued their deliberations and gave a decision without Ms. Nouini’s participation.

The Member’s Representative

The Member was in attendance and was represented by Ms. Ferenczy on February 3 and 5, 2016. He was not present on July 19 and 20, 2016, but was represented by Ms. Ferenczy. The parties were in agreement and the Committee found that Ms. Ferenczy was authorized to represent the Member, even though she is not a lawyer. The Committee acknowledged the conflicting provisions in Rule 13.08 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules of Procedure”) and section 10 of the SPPA with regard to the representation of a party to a proceeding, and noted that the SPPA is less restrictive than the Rules of Procedure in this regard. Pursuant to section 32 of the SPPA, the Act prevails over the Rules of Procedure in the event of a conflict.

According to section 10 of the SPPA, a party to a proceeding may be represented by a representative, defined as a person authorized under the Law Society Act to represent a person in that proceeding. According to By-law 4, section 30(4), of the Law Society Act, a friend may, without a licence, provide legal services in Ontario under certain conditions. The Committee considered, and the parties agreed, that Ms. Ferenczy satisfied these conditions and could therefore represent the Member in this proceeding. Ms. Ferenczy assured the Committee that she was acting solely as a friend of the Member and was not receiving any compensation for doing so.

SUMMARY

At all material times, the Member was employed by the Conseil des écoles publiques de l’Est de l’Ontario (“the Board”) as a teacher. During the 2009-2010 and 2010-2011 school years, the Member was teaching at [XXX], and during the 2011-2012 and 2012-2013 school years, he was teaching at [XXX] (the “School”). In November 2010, the Member underwent a teacher performance appraisal, and received a rating of “Development Needed.” In June 2012 and April 2013, he underwent two more performance appraisals, both with a rating of “Unsatisfactory.”

According to the College, the Member’s performance was significantly deficient in three key areas of teaching practice, notably: 1) classroom management, 2) planning and 3) teaching strategies. In spite of support from the School administration and other sources, the College alleges that the Member demonstrated no significant improvement in his performance. The College further alleges that the Member is guilty of professional misconduct and is incompetent as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1996 (the “Act”).

The Member denies all of the allegations set out in the Notice of Hearing.

For the following reasons, the Committee finds that the Member is not incompetent as defined in subsection 30(3) of the Act, and that he is not guilty of professional misconduct as defined in subsection 30(2) of the Act.

ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated October 14, 2014 are as follows:

IT IS ALLEGED that Marc Elie Ostainvil is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) of 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 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Marc Elie Ostainvil (“the Member”) is a member of the Ontario College of Teachers in good standing.

2. At all material times, the Member was employed by the Conseil des écoles publiques de l’Est de l’Ontario, as a teacher. During the 2009-2010 and 2010-2011 school years, the Member was teaching at [XXX]. During the 2011-2012 and 2012-2013 school years, the Member was teaching at [XXX].

3. On November 5, 2010, the Member underwent a teacher performance appraisal, and received a rating of “Development Needed.”

4. On June 19, 2012, the Member underwent a second performance appraisal, and received a rating of “Unsatisfactory.”

5. On April 5, 2013, the Member underwent a third performance appraisal, and received a rating of “Unsatisfactory.” On April 24, 2013, the Board dismissed the Member.

6. The Member’s performance was unsatisfactory in the following ways:

A. Commitment to Pupils and Pupil Learning:

1. During the observation, the Member failed to show any evidence of improvement in the management of his group;

2. The Member’s feedback on the most recent summative assessment was cursory;

3. The students tended to shout out the answers because of the lack of instructions;

4. The Member always chose the same students, knowing that they would give the correct answer;

5. Because of the inadequate classroom management, some students who might benefit from individual attention were left behind;

6. There was little improvement in the use of effective questioning techniques or shaping instruction to motivate students to become more engaged in their own learning;

7. Classes continued to be lectures rather than differentiated instruction to meet the individual needs of all students;

8. The instruction was teacher- rather than student-centred;

9. The technology available to the teacher was under-used;

10. Manipulatives were used infrequently;

11. No links were made between the [XXX] concepts being taught and students’ own experiences;

12. Students were given no explanation concerning the lesson or class procedure, so had no understanding of the Member’s expectations;

13. Students appeared hesitant to answer questions or to ask them when needed.

B. Professional Knowledge:

1. During the observation, the lack of classroom management or instructional strategies made it difficult for the Member to convey the subject matter effectively to students.

C. Professional Practice:

1. During the observation, the expectations concerning the subject matter and student supervision and conduct were not explained to the students. The Member’s short- and long-term lesson planning was disorganized;

2. Although it had been requested by the Principal on numerous occasions following the most recent summative report, the Member failed to submit his daily, weekly and monthly planning; during the observation, his follow-up was inadequate with students whose attendance, punctuality or productivity were deficient;

3. The Member completed only one Student Success Report, even though several students were struggling with [XXX];

4. The teacher assessed his students in accordance with the prescribed program but, when marking evaluations, he did not take the time to thoroughly review the corrections.

MEMBER’S PLEA

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

EVIDENCE

The College and the Member called one witness each. The following is a summary of their testimony. The relevant portions of the witnesses’ evidence will be described in greater detail, where required, in the Reasons for Decision below. The Member did not testify on his own behalf. The Committee notes that the College did not call an expert witness nor did it seek to describe Mr. Chiasson as an expert or a participant expert.

Witness for the College: René Chiasson

At the hearing, the College called one witness: René Chiasson (“Mr. Chiasson”). Mr. Chiasson is now retired, but he was an experienced principal with approximately 35 years of experience in the teaching profession (see Exhibit 3). During the 2011-2012 and 2012-2013 school years, he was on special assignment as Principal of the School. Mr. Chiasson testified that he did not know the Member prior to the 2011-2012 school year and that their professional relationship was very cordial. He denied any accusation of racism.

Mr. Chiasson had an opportunity to appraise the Member’s performance twice, and he testified that the Member received an Unsatisfactory rating in both appraisals. Mr. Chiasson described his two appraisals of the Member in detail and stated that the Member’s performance was seriously deficient in the key areas of teaching practice, specifically, classroom management, planning and teaching strategies.

Although Mr. Chiasson was away from the School for 80 days between 2011 and 2013 (see Exhibit 40), he testified that he was present most of the time, and often enough to be able to carry out a fair appraisal of the Member’s performance.

Mr. Chiasson’s Credibility

The Committee finds Mr. Chiasson’s evidence unreliable for the following reasons. Firstly, his observations of the Member were limited. Between 2011 and 2013, he observed the Member’s teaching only five times. During this period in which Mr. Chiasson appraised the Member’s performance, Mr. Chiasson was away from the School for 80 days (see Exhibit 40), or approximately 20% of the time. He did not observe the mentoring sessions involving the Member during the appraisal period. In addition, Mr. Chiasson based his finding that the success rates of the Member’s students were much lower than average on inaccurate statistics given to him by third parties. Mr. Chiasson relied on these statistics without himself confirming their reliability or observing the data on which they were based.

Secondly, Mr. Chiasson had a potential interest in the outcome of the hearing that could distort his recollection of the events. Because he was the only one who appraised the Member’s performance at the School, Mr. Chiasson may have wanted the Committee’s findings to correspond to his own. Furthermore, Mr. Chiasson was aware that the Member had previously filed a complaint against him with the College, which may have influenced his testimony against the Member.

Thirdly, Mr. Chiasson’s evidence was not entirely plausible or reasonable. He did not adhere closely to the Teacher Performance Appraisal: Technical Requirements Manual (the “Manual”) (see Exhibits 30 and 65) in his appraisals of the Member. For example, he did not clearly establish his expectations of the Member during the previous meetings, nor did he conduct pre- and post-observation meetings for three of the Member’s five classroom observations. Mr. Chiasson’s conclusions are not entirely reasonable if he did not follow the procedure outlined in Exhibits 30 and 65.

Moreover, Mr. Chiasson’s testimony indicated a fundamental lack of understanding of the appraisal criteria for new teachers. He testified that new teachers are appraised according to 16 competencies and they must meet a higher standard than experienced teachers who are appraised on only 8 of the 16 competencies. He explained that experienced teachers are held to a lower standard because they are presumed to be competent. Exhibits 30 and 65 show that the opposite is in fact the case. Questions were also raised concerning the fairness of the appraisal process. For example, in his email dated September 20, 2012, the Member states that Mr. Chiasson would not allow him to add his comments in the “Evalens” program and erroneously told him to include his comments in the appraisal form for experienced teachers, when the correct form was the one for the NTIP (see Exhibit 34, page 151). Although some of these problems were eventually resolved, the Committee feels that this confusion and the lack of understanding of the appraisal criteria probably compromised Mr. Chiasson’s appraisals.

Fourthly, the evidence produced by Mr. Chiasson was not externally consistent. For example, Mr. Chiasson concluded that the Member had opted not to use the services of a learning consultant to improve his classroom management (see Exhibit 7). Under cross-examination, however, Mr. Chiasson acknowledged that the Member was at the School that day, but left for medical reasons (see Exhibit 26, page 404). The evidence also shows that the Member sought and accepted the support of several mentors or learning consultants, contrary to Mr. Chiasson’s testimony (see, for example, Exhibit 32, page 86; Exhibit 18, page 88; Exhibit 47, page 105; Exhibit 9, page 123; and Exhibit 22, page 399).

The Committee finds that there are other problems with the external consistency and the plausibility of Mr. Chiasson’s evidence. His observations in the Summative Report dated April 2013 (see Exhibit 7) are based on two classroom observations made on October 23, 2012 and March 1, 2013. Mr. Chiasson’s comments concerning the observation on October 23, 2012 are not consistent with the video clips produced, which were filmed during the same observation period (see Exhibits 37.1 and 37.2). Although the video clips cover a period of only some 35 minutes, the Committee considers it unlikely that the Member’s performance could have deteriorated so severely during the other half of the observation period.

Furthermore, Mr. Chiasson’s observations in Exhibit 7 were based on the classroom observation on March 1, 2013, but several emails indicate that the Member’s class was scheduled to complete a formative assessment during the classroom observation on March 1, 2013, and Mr. Chiasson was informed of this beforehand (see, for example, Exhibit 47, pages 362-371). The Committee does not understand why Mr. Chiasson could not have postponed the observation so he could properly appraise the Member’s teaching, and finds it unlikely that Mr. Chiasson could have observed all the deficiencies referred to in Exhibit 7 during his limited classroom observation on March 1, 2013. He would not have had enough time or opportunity to observe all the deficiencies he noted in Exhibit 7.

Witness for the Member: Ahmed Bouragba

During the presentation of his case, the Member called one witness: Ahmed Bouragba (“Mr. Bouragba”), who opted to testify in English. Mr. Bouragba did not testify as an expert, but he described his experience as a teacher. Mr. Bouragba has been a teacher in Ontario for approximately 12 years. He knows the Member because they are both teachers in the Ottawa teaching community. He testified that the Member has a good reputation and is very involved in his community. Under cross-examination, Mr. Bouragba acknowledged that he had never taught in the same class or the same school as the Member, nor was he present during the appraisals of the Member that are at issue.

Mr. Bouragba testified that he was very familiar with the New Teacher Induction Program (“NTIP”) and described it in detail. According to Mr. Bouragba, the Member’s Summative Reports and Enrichment and Improvement Plans contained a number of irregularities, including the fact that they were missing signatures and were incomplete. Under cross-examination, Mr. Bouragba acknowledged that he had never been a school principal and had never formally appraised another teacher’s performance. He did not have any special or professional training in teacher performance appraisal.

Basically, Mr. Bouragba testified that there was a discrepancy between the Ontario Ministry of Education guidelines and the appraisals of the Member that were carried out by his employer. According to Mr. Bouragba, it is unusual for a teacher to be appraised three times in four years. He found it surprising that the Member should have received an overall rating of Satisfactory in his appraisal at [XXX] (described by Mr. Bouragba as a challenging school for a visible-minority teacher such as the Member), but an overall Development Needed rating a few months later at the School where he was well liked by his students. Furthermore, after reviewing Exhibit 31 (the letter from the School’s principal to the Board recommending termination of the Member’s employment), Mr. Bouragba noted that only one Summative Report was attached to the letter in support of the recommendation.

According to Mr. Bouragba, the allegations set out in the Notice of Hearing are unfounded. He testified that, in his opinion, the NTIP in the Member’s case had been administered unfairly to warrant the teacher’s dismissal, not to support him, contrary to the objective of the program.

Credibility of Mr. Bouragba

The Committee has serious concerns on the score of Mr. Bouragba’s evidence. Mr. Bouragba was unable to observe the events. In fact, he never taught in the same class or the same school as the Member, nor was he present during the Member’s appraisals. His testimony concerning the Member’s reputation was unsubstantiated. Moreover, Mr. Bouragba does not have any special or professional training in teacher performance appraisal and he is not an expert witness. Thus, even though he provided a detailed description of his understanding of the NTIP appraisal process and gave his opinion concerning the Member’s appraisals, his testimony was of no use to the Committee.

His lengthy statements relating to the College and his experiences as an elected member of the College Council were also irrelevant in deciding the matters before the Committee. Mr. Bouragba’s testimony on this subject cast doubt on the objectivity and credibility of his testimony. He was clearly biased against the College and chose to express personal concerns instead of restricting his testimony to the matters within the Committee’s jurisdiction. It was clear from Mr. Bouragba’s testimony that he had not witnessed any of the facts at issue and that he had a personal interest that affected the relevance of his testimony. He appeared dissatisfied with the way in which his complaint against some members of the Board had been handled by the College and ranted against the College for lengthy portions of his testimony.

Consequently, the Committee assigned very little probative value to his testimony.

THE COLLEGE’S SUBMISSIONS ON THE FINDING

College Counsel submitted that the evidence produced supported the case for incompetence as defined in subsection 30(3) of the Act. As for the allegations of professional misconduct, the College is not withdrawing them but is not insisting on the fact that it has proven them. According to the College, the Member displayed in his professional responsibilities a lack of knowledge, skill or judgment and/or a disregard for the welfare of students of a nature or extent that demonstrates that his certificate should be made subject to terms, conditions or limitations.

The College’s submissions covered four main categories: 1) matters to decide and to disregard; 2) types of evidence; 3) the evidence in support of the finding of incompetence; and 4) case law.

1) Matters to Decide and to Disregard

College Counsel submitted that the Committee had to decide whether the allegations of professional misconduct and incompetence set out in the Notice of Hearing had been proven, on a balance of probabilities. The College argued that the Member’s performance was unsatisfactory as regards his three appraisals described in the Notice of Hearing (for which the Member obtained one overall rating of “Development Needed” and two overall ratings of “Unsatisfactory”).

The College maintained that the most recent appraisal in April 2013 contained the best evidence for the Committee’s review of the Member’s performance. College Counsel emphasized the following particulars in the Notice of Hearing as examples of the Member’s incompetence: paragraphs 6A1, 6A5, 6A7, 6A9, 6A10, 6C2 and 6C3.

According to the College, the Committee has no jurisdiction to make a decision concerning several matters that were raised during the hearing. These include the College’s contention that the Committee has no jurisdiction as regards the Member’s grievance, the complaints against Mr. Chiasson or other members of the school board, the procedure for the Member’s investigation or Mr. Bouragba’s criticisms of the College.

2) Types of Evidence

College Counsel submitted that the Committee had to review five types of evidence: 1) Mr. Chiasson’s testimony, which the College described as straightforward testimony; 2) Mr. Bouragba’s testimony, which was of little use and lacked credibility, according to the College; 3) the 66 exhibits, a number of which were not introduced by a witness, were irrelevant or unreliable and had no probative value, according to the College; 4) the video, which raised numerous issues, according to the College; and 5) the fact that the Member could have testified, bud did not do so, which prompted the College to demand that the Committee rule against him.

3) The Evidence in Support of the Finding of Incompetence

According to College Counsel, the evidence produced by Mr. Chiasson demonstrated that the Member’s performance was seriously deficient in several key areas of teaching practice, namely in classroom management, planning and teaching strategies. The Member’s performance was unsatisfactory in spite of the support he received from his mentors and from the School administration.

The College argued that the three key items of evidence in this matter are: Exhibit 4 (a schedule drawn up by Mr. Chiasson describing the documents relevant to the Member’s appraisal); Exhibit 5 (the Member’s “Unsatisfactory” June 2012 Summative Report); and Exhibit 7 (the Member’s “Unsatisfactory” April 2013 Summative Report). According to the College, the Committee had not heard any evidence contradicting the above-mentioned deficiencies in the key areas of the Member’s teaching practice.

4) Case Law

College Counsel produced two decisions of the Discipline Committee in support of the finding of incompetence, namely Ontario College of Teachers v. Bruni, 2016 LNONECD 3 (“Bruni”) and Ontario College of Teachers v. Gow, 2014 LNONECD 88 (“Gow”). Although the circumstances in these two cases were not absolutely identical to those in the Member’s case, they were similar enough to assist the Committee in making its decision concerning the Member’s incompetence.

The College also introduced an excerpt from The Law of Evidence in Canada in support of its demand that the Committee rule against the Member, based on the fact that he did not testify in this matter (Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed., Markham, LexisNexis Canada Inc., 2014, §6.450). According to the College, the explanation for the Member’s absence and his decision not to testify was not acceptable and it was therefore appropriate to find against the Member.

SUBMISSIONS BY THE MEMBER’S REPRESENTATIVE ON THE FINDING

The Member’s representative asked the Committee to dismiss the allegations of professional misconduct and incompetence altogether. According to her, the College failed to satisfy the burden of proof, the statutes were contravened, the allegations were unfounded, the procedural irregularities were serious enough to dismiss the case and the Member’s case was “catastrophically mismanaged by the Member’s employer and mishandled by the College.” She maintained that the documents introduced in evidence by the College were forged, false and incomplete. The Summative Reports were not reliable and should be struck.

The Member’s representative argued further that there were serious problems with Mr. Chiasson’s testimony. He was absent from the School more often than he was there. He could not explain the errors and omissions on the summative evaluations. He could not explain why the documents were unsigned. The Improvement Plans were incomplete and the School administration did not provide any support. According to the representative, Mr. Chiasson’s entire testimony “cannot be considered and ought to be struck because all of his comments on summative appraisals are too late. They exceed NTIP’s 24-month time limit.” Furthermore, according to her, the e-mail correspondence between Mr. Chiasson and the Member shows that the Member sincerely wanted to meet the Principal’s demands, but they were becoming excessive, arbitrary and groundless.

According to the Member’s representative, the evidence shows that the Member is competent. His Certificate of Qualification indicates that he completed a second masters degree while he was away from teaching during this discipline procedure, and he previously took Additional Qualification courses in [XXX] and [XXX] Moreover, he was well liked by his students, as shown in Exhibits 28 and 44; he had worked on projects with his students, as shown in Exhibit 45; he was an author and had published works to his name, as testified by Mr. Bouragba; and, according to his representative, “he is actually overqualified for teaching.”

The Member’s representative reviewed the Notice of Hearing and claimed that the College had failed to prove any of the allegations or clarifications. For example, with respect to the alleged deficiencies in planning, the representative argued that Exhibits 12, 14 and 16 show that the Member submitted the documents requested. She argued that asking a new teacher repeatedly to submit weekly planning (as Mr. Chiasson did) was harassment, and that the College did not produce samples of planning that the Board or the Principal would have liked to receive from the Member.

Concerning the allegation that the Member’s follow-up was inadequate with students having poor attendance, punctuality or productivity, the representative argued that this was not the Member’s responsibility, especially with adult students. The School’s principal should have followed up with the students in this regard.

The Member’s representative also made a case for what she claimed were the shortcomings of the Member’s employer. Specifically, she maintained that the Member’s employer had not updated its policy to comply with NTIP and Regulation 266/06. The Notice of Hearing does not refer to Regulation 266/06 either and thus is invalid, according to the Member’s representative. The purpose of NTIP is to support the success of a new teacher (as the Member was at the time) in the profession, not his or her failure. The representative stated that NTIP was not properly followed in the Member’s case.

The Member’s representative disagreed with the College’s argument that the Committee ought to find against the Member because he did not testify in this matter. According to the representative, the Member had the right to testify or not. His participation in the proceeding was apparent from the documents he prepared (or helped to prepare) to share his experience with the Committee. He had no requirement to testify in person and the fact that he decided not to do so should not be held against him.

The Member’s representative drew the Committee’s attention to one decision: Ontario College of Teachers v. Hiamey, 2013 LNONECD 33 (“Hiamey”). She maintained that the Committee should be guided by this similar decision which found that the College had failed to establish the Member’s incompetence because the proof was insufficient. She also introduced extracts from the Education Act, R.S.O., 1990, c. E.2, Part X.2; extracts from Parts IV and VIII of the Act (concerning the Investigation Committee and the Registrar’s investigatory powers); and extracts from Ontario Regulation 266/06 (concerning NTIP) and Ontario Regulations 98/02 and 99/02. The Member’s representative added that the case law produced by the College differed from the present matter and should be disregarded.

THE COLLEGE’S SUBMISSIONS IN REPLY TO THE FINDING

The College replied that, in her submissions, the Member’s representative had referred repeatedly to facts that were not in evidence. The College asked the Committee to disregard them and to rely on the notes it had taken during the hearing and on the Committee members’ memories.

College Counsel argued that the case law on which the Member’s representative relied was very different from the present matter. The member in Hiamey testified and introduced the evidence, unlike the Member. Furthermore, in Hiamey, the three appraisals were carried out over a short period of time, whereas in the Member’s case, his appraisals took place over a lengthy period.

The College disagreed with the Member’s representative concerning the validity of the Notice of Hearing. According to the College, it was not necessary to refer to the NTIP regulation in the Notice of Hearing. The College also maintained that, even if there was an omission in the Notice of Hearing, it was in no way prejudicial to the Member. The Member definitely understood the allegations against him and knew which evidence he needed to refute.

DECISION

Onus and Standard of Proof

The College is required to prove the allegations in accordance with the standard of proof set out in F.H. v. McDougall, [2008] SCR 53, that is, on the balance of probabilities, which consists in determining the likelihood of the occurrence of the alleged events.

Finding

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and the Member’s representative, the Committee finds that the facts do not support a finding of incompetence as defined in section 30(3) of the Act and finds that Marc Élie Ostainvil did not display a lack of knowledge, skill or judgment or disregard for the welfare of students of a nature or extent that demonstrates that he is unfit to continue to carry out his professional responsibilities or that a certificate held by him should be made subject to terms, conditions or limitations.

Furthermore, the facts do not support a finding of professional misconduct. The allegations that the Member was guilty of professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5) and 1(15), as set out in the Notice of Hearing, are therefore dismissed.

REASONS FOR DECISION

The Committee carefully reviewed the submissions by the parties and the evidence submitted. In the reasons that follow, it gives an opinion solely on those portions of the evidence that most closely correspond to the allegations set out in the Notice of Hearing, and the legal issues raised during the hearing. The Committee does not discuss issues that are not specifically related to the Notice of Hearing.

Legal Issues

The Admissibility and Probative Value of the Evidence

The College raised certain legal issues during the hearing pertaining to the admissibility of several pieces of evidence which the Member’s representative attempted to introduce. In general, the College argued that an item of evidence could not be introduced through a witness if the witness could not identify it. The Member’s representative attempted to introduce into evidence two sets of photographs, one labelled “Activities Using Manipulatives,” through Mr. Chiasson. The Committee found that the photographs were not admissible through Mr. Chiasson because the witness could not identify them. The set of photographs labelled “Activities Using Manipulatives” was marked as Exhibit A for identification and the other set of photographs was marked as Exhibit B for identification.¹

Similarly, the Member’s representative attempted to introduce into evidence one of the Member’s school schedules through Mr. Chiasson. Because Mr. Chiasson could not identify the document, the Member’s representative agreed not to introduce it into evidence. The calendar was marked as Exhibit C for identification.

During her defence, the Member’s representative produced a number of pieces of evidence without introducing them through a witness (or introduced them through an inappropriate witness). The College argued that these items of evidence were irrelevant, unnecessary or unreliable and were therefore inadmissible. Because they were not introduced by a witness, and the Committee received them without any context, the College did not have an opportunity to verify the evidence under cross-examination.

The Committee acknowledges that the rules of evidence that apply to the College’s discipline hearings are relaxed. If a document is relevant to the subject matter of a proceeding, it is generally admissible, in accordance with section 15 of the SPPA and Rule 13.01 of the Rules of Procedure. However, although the Committee can decide whether a piece of evidence is admissible, it must then decide how much weight to assign it. The reliability of the item is an important consideration when making this determination. In view of the legal discussion generated in this regard, the Committee will address the issue of the weight to assign to the contentious pieces of evidence, taking the aforementioned context into account.

The Committee assigns little weight to Exhibit 28, which is a printout from the “RateMyTeachers.com” website. The printout contains only three ratings for the Member, the evaluators are anonymous and did not testify at the hearing, and the ratings do not relate to the period during which the Member was teaching at the School.

With the College’s consent, the Member’s representative introduced the Member’s résumé (see Exhibit 41). This document is not in dispute.

The Committee assigns little weight to Exhibit 42, which is a copy of the first page of notes from a classroom management training session dated May 11, 2010. Although the Member’s representative claimed that this document proved that the Member took part in the training session, the document is not signed and the Committee received no evidence that the handwriting is the Member’s or even that the notes were taken during the training session.

The Committee assigns weight to Exhibit 43, which is an e-mail from the Member to Ms. Routhier-Matergio and others, dated November 10, 2011. Although the College argued that the evidence was introduced out of context and without hearing anyone’s testimony, the Committee is able to determine the context based on the totality of the evidence. The Committee does not, however, agree with the Member’s representative who argues that the exhibit is simply evidence of the Member’s collaboration. In fact, it also demonstrates the Member’s failure to provide differentiated instruction to meet the individual needs of all of his students.

The Committee assigns little weight to Exhibit 44, which contains three letters of appreciation dated March 7, 2013. The Committee has not received any proof that the letter-writers were the Member’s students, and the typed letters are not signed. They are not reliable.

The Committee assigns limited weight to Exhibit 45, which is the cover page of a document entitled “Budding Poets of Grade [XXX].” This item may be an example of student-focused instruction, but the Committee notes that the Member was teaching at [XXX] at the time this document was created and therefore finds that it is not directly relevant to the determination of the issues before the Committee.

The Committee assigns little weight to Exhibit 46, which is the set of photographs labelled “Activities Using Manipulatives,” previously marked as Exhibit A for identification. No witness has explained the context of the photographs, which appear to show (at a cursory glance) that some of the Member’s students are measuring the floor with rulers and tape measures. Without any additional context, the exhibit is of little use.

The Committee assigns some weight to Exhibit 48, which is a page that the Member’s representative had forgotten to include in the extract she introduced as Exhibit 30. The Committee recognizes that the exhibit is only a single page of a longer policy document, but policies concerning teachers’ performance appraisals (see also Exhibits 30 and 65) are useful to the Committee.

The Committee assigns some weight to Exhibits 49 to 53, which are all related to the Member’s teacher performance appraisal process at [XXX], which was carried out by Mr. Jean (the Principal of the school). The Committee is able to understand the context of these exhibits based on the totality of the evidence, and finds that the exhibits are reliable because they were introduced by the Member’s representative, they are contrary to the Member’s interests and their authenticity is not disputed. These exhibits are useful because they show the appraisal process planned according to the Manual, which Mr. Jean followed (in contrast to the procedure adopted by Mr. Chiasson). Although these exhibits point to some shortcomings in the Member’s teaching, the Committee considers that the totality of the evidence does not support a finding that the Member is incompetent as defined in subsection 30(3) of the Act.

The Committee assigns little weight to Exhibit 55, which is a copy of the first page of one of the Member’s Summative Reports. It is similar to Exhibit 5, except that the dates of the meetings and the classroom observation are written in English instead of French. The Member’s representative could have presented the Exhibit to Mr. Chiasson for an explanation of why the dates were in English, but she did not give him this opportunity. Because it has not received a satisfactory explanation for the difference between Exhibit 55 and Exhibit 5, and because Mr. Chiasson did not have a chance to explain the differences between them, the Committee assigns little weight to Exhibit 55.

The Committee assigns little weight to Exhibit 56, which is a copy of the Secure Electronic Signature Regulations. The Committee has not heard any testimony from an expert familiar with the Regulations, and without additional context or explanation, the Regulations are of little use.

The Committee assigns little weight to Exhibit 58, which is a table outlining the Member’s teaching qualifications. The exhibit is in fact a reading aid or a list of evidence prepared to assist the Committee; it is not the actual proof. Moreover, the contents appear in the Summative Reports which have already been introduced into evidence. Exhibit 58 thus reiterates factual information that is already part of the record and is readily available, and does not add anything new to the record.

The Committee assigns limited weight to Exhibit 59, which is a letter of dismissal from the Board to the Member and a letter from the Board to the College advising it of this fact. Other than informing the Committee that the Member was dismissed by the Board in April 2013 on the grounds of unsatisfactory performance, the Exhibit is of little use.

The Committee assigns limited weight to Exhibit 60, which is related to the Member’s grievance. Although the Committee accepts that a grievance was initiated, this Exhibit, without benefit of any explanation from an informed witness, is of limited use to the Committee.

The Committee has no jurisdiction in the investigation carried out by the College and thus assigns little weight to Exhibit 61, which is an e-mail from the College Investigator in this matter.

The Committee assigns limited weight to Exhibit 62, which is a letter dated March 28, 2014 from Ms. Ferenczy and Mr. Bouragba to the College Registrar and the Chair of the College Council. The letter is a complaint against certain members of the school board. The Committee finds that it is not relevant to the allegations in the Notice of Hearing and is thus useful solely in that it shows Mr. Bouragba’s lack of objectivity (and therefore credibility) in this matter.

The Committee assigns little weight to Exhibit 63, which is a letter dated June 16, 2014 from the Member to the Director of Investigations and Hearings (at the time). The letter concerns the College’s internal complaints and investigations procedures, and is therefore irrelevant to the allegations in the Notice of Hearing.

Exhibit 64 is a table of errors and omissions identified by the Member in the documents relating to his appraisal, but this is a working tool, not proof. For this reason, the Committee assigns it little weight.

The Committee assigns little weight to Exhibit 66, which is a letter dated October 31, 2013 from Ms. Dutrisac to the Member informing him of the complaint filed against him and of the College’s investigation procedure. The letter is not particularly relevant or useful in the determination of the issues in this matter.

The Member’s representative attempted to introduce a document summarizing all the other documents presented by her. Since the representative helped to prepare this document, and it is an argument tool rather than written evidence, the Committee found that the document is not admissible as evidence.

The Video Clips (Exhibits 37.1 and 37.2)

The Member’s representative introduced two video clips of the Member’s class to demonstrate his satisfactory performance (see Exhibits 37.1 and 37.2). The College maintained that the witness, Mr. Chiasson, was entitled to view the video clips in their entirety before having to answer the questions put by the Member’s representative concerning them. In accordance with Rule 13.08(2) of the Rules of Procedure, the Committee considered it appropriate to allow Mr. Chiasson to view the video clips in their entirety before answering questions concerning them. The video clips were subsequently marked as Exhibits 37.1 and 37.2 with no objection from the College concerning their admissibility.

The College argued that the Committee should assign little weight to the video clips which had been filmed by the Member during the classroom observation on October 23, 2012, without the knowledge or permission of Mr. Chiasson, who was carrying out the appraisal (even though he was clearly visible at the back of the classroom). It was not clear either whether the students in the video clips had given their consent before being filmed. According to Mr. Chiasson, filming employees and students without permission is officially prohibited. The Member’s representative argued, however, that the Member’s students were adults and therefore their permission was not necessary. Because the video clips were entered into evidence with no objection from the College concerning their admissibility, the Committee will not comment further on this issue.

The Member’s representative claimed that the video clips showed that the Member was a competent teacher and that, by filming himself and producing the video clips for the Committee, he was demonstrating confidence in his competencies. Although the Committee acknowledges that the video clips at least partially support the Member’s assertions with regard to his competencies, it nevertheless takes into account the fact that they cover only half of one teaching period. The two video clips combined cover one 35-minute segment of a teaching period that was 75 minutes long. Furthermore, Mr. Chiasson noted that he had observed the Member’s teaching over six teaching periods, not all of which had been filmed as far as he knew.

The Member’s representative asked Mr. Chiasson if the video clips showed deficiencies on the Member’s part in the key areas of teaching practice, as alleged in paragraph 6 of the Notice of Hearing. According to Mr. Chiasson, they did not illustrate all the problems he had observed in the Member’s teaching practice because of their limited length and because the Member’s unsatisfactory appraisals were based on more than 40 minutes or so of observation.

The Committee notes, however, that Mr. Chiasson’s conclusions in his second (and final) Summative Report, dated April 2013, are based on only two classroom observations, one on October 23, 2012 and the other on March 1, 2013. On March 1, 2013, the Member’s class was completing a formative evaluation, giving Mr. Chiasson little opportunity to appraise the Member’s teaching. Consequently, the video clips covering 35 minutes represented a large portion of the classroom observation on which Mr. Chiasson’s final appraisal was based. However, a number of the comments in Mr. Chiasson’s final Summative Report dated April 2013 do not correspond to the facts in the video clips (see Exhibit 7).

The Committee therefore assigns substantial weight to the content of the video clips (Exhibits 37.1 and 37.2). As noted above, they cover a substantial portion of the Member’s final appraisal. The Committee compared the observations and comments in Mr. Chiasson’s final Summative Report (see Exhibit 7) against the Member’s performance as filmed in the video clips and finds that the video clips discredit some of the evidence produced by Mr. Chiasson. They do not appear to support the Member’s shortcomings in classroom management, planning, questioning techniques with students or use of manipulatives, contrary to Mr. Chiasson’s comments. Although the clips do not show a flawless performance, they are far from establishing the validity of the appraisal in the April 2013 Summative Report.

Issues Prior to the Drafting of the Notice of Hearing Will Not Be Addressed

The Committee heard a number of submissions from the Member’s representative concerning the issuance of the Notice of Hearing, the investigation resulting in this discipline hearing and other institutional and procedural issues prior to the drafting of the Notice of Hearing. These issues were not clearly articulated and, in any case, fall outside the Committee’s jurisdiction and will not be addressed in this decision.

No Unfavourable Finding

The College asked the Committee to rule against the Member based on his failure to testify in this matter. The Member’s representative objected to the motion. The Independent Legal Counsel advised the Committee that it would be risky to find against the Member based on his failure to testify because the onus of proof lay with the College and the Member was not required to testify. The Committee is not ruling against the Member because he chose not to testify.

Findings of Fact

The Facts Produced Do Not Support the Finding of Incompetence

The Member underwent a performance appraisal in November 2010 for which he received a rating of “Development Needed.” In June 2012 and April 2013, while he was teaching at the School, he underwent two additional performance appraisals, both with a rating of “Unsatisfactory” (see Exhibits 5 and 7). The Committee received numerous documents relating to the Member’s performance appraisals.

The College argued that the Member was incompetent as defined in subsection 30(3) of the Act, largely basing its case for incompetence on Mr. Chiasson’s evidence and testimony. According to the College, the evidence shows that the Member’s performance was seriously deficient in key areas of his teaching practice, including 1) classroom management, 2) planning and 3) teaching strategies. The College claimed that, in spite of the support he received from the School administration and other sources, the Member’s performance did not improve. The Committee, however, finds that Mr. Chiasson’s evidence (and thus the bulk of the evidence produced by the College) lacked credibility.

Moreover, the Committee did not hear any expert evidence to establish the standard expected of teachers (in line with Novick v. Ontario College of Teachers, 2016 ONSC 508), and the Committee is not empowered to frame the standard itself. No indication was thus provided concerning the extent of the competency expected of members of the teaching profession. Similarly, the College did not produce any expert evidence to explain the ways in which the Member’s performance failed to maintain the professional standards. Given that this is not a case in which the Member’s performance is so flagrant that no expert evidence is necessary, and that the Committee heard credible evidence contradicting the observations and conclusions of the College’s only witness, the Committee finds that the College failed to satisfy its onus of proof.

Furthermore, of all the allegations set out in the Notice of Hearing, only paragraphs 6A2, 6A7, 6A8 and 6C4 have been proven. These facts, however, do not give cause for a finding of incompetence in the circumstances, for the reasons which follow. Even if the College successfully established certain deficiencies in the Member’s teaching, the analysis involves a second step requiring the Committee to rule on the issue of whether these facts are such that his certificate should be made subject to terms, conditions or limitations. In the Committee’s opinion, these deficiencies are not of a nature or extent that would lead the Committee to find that the Member is either unfit to carry out his professional responsibilities or that his certificate should be made subject to terms, conditions or limitations.

1) Alleged Deficiencies in Classroom Management

The College argued that the Member demonstrated serious deficiencies in classroom management. In the Summative Report dated June 2012, Mr. Chiasson noted several problems with the Member’s classroom management (see Exhibit 5, pages 22-23). The Committee, however, is not relying on Mr. Chiasson’s observations, because of the aforementioned questions concerning his credibility. Specifically, Mr. Chiasson’s observations are not consistent with the totality of the evidence, including the video clips that show the Member’s performance during one of his classroom observations. Here are some additional examples.

Mr. Chiasson used statistics to support his testimony on classroom management. According to the Summative Report dated June 2012, only 52% of the students registered in the Member’s classes completed the session (see Exhibit 5, page 22), whereas the other teachers at the School had success rates of 80%. Under cross-examination, however, Mr. Chiasson acknowledged that an e-mail from the Member dated May 11, 2012 shows that 100% of his students had completed the class successfully (see Exhibit 33), and the only explanation he provided for the discrepancy is that the statistics were given to him by third parties. He had not confirmed the reliability of the statistics, but relied on them nonetheless for his Summative Report. According to the Member’s observations in Exhibit 5 (page 25), 5 of his 57 students quit the class for various reasons, 50 were able to complete it successfully and only one failed the class.

According to Mr. Chiasson, the Member’s classroom management did not improve after his unsatisfactory appraisal in June 2012, as stated in his Summative Report dated April 2013 (see Exhibit 7). Although the Principal arranged for a learning consultant to coach the Member in order to help him with his classroom management, Mr. Chiasson considered that the teacher had decided not to use her services (see Exhibit 7, page 36). Mr. Chiasson testified that the Member was not even at the School on the day one of his learning consultants was supposed to work with him. Under cross-examination, however, Mr. Chiasson acknowledged that the Member was at the School that day, but left for medical reasons (see Exhibit 26, page 404). Numerous e-mails also show that the Member sought and accepted the support of several mentors or learning consultants, contrary to Mr. Chiasson’s testimony (see, for example, Exhibit 32, page 86; Exhibit 18, page 88; Exhibit 47, page 105; Exhibit 9, page 123; and Exhibit 22, page 399).

Furthermore, under cross-examination, Mr. Chiasson acknowledged that his letter to the Board dated April 5, 2013, concerning the termination of the Member’s employment (see Exhibit 31, page 44), states that the teacher was seriously deficient in the area of Professional Knowledge, whereas the two Summative Reports dated June 2012 and April 2013 state that the Member demonstrated mastery of the subject knowledge (see Exhibit 5, page 23, and Exhibit 7, page 34). Mr. Chiasson explained that, even though the Member demonstrated mastery of the subject knowledge, he did not teach it effectively to his students. The video clips and the success rates of the Member’s students, however, contradict Mr. Chiasson’s explanation.

In the Teacher’s Comments on the Improvement Plan dated October 2012, marked as Exhibit 6, page 30, the Member stated that he did not have any trouble with his classroom management. The Member did not feel that he was responsible for his adult students’ punctuality and attendance; he claimed that his students behaved perfectly well in the classroom and they were all adults who were coming to the School to learn, not to be disruptive; and that he was always moving around his classroom, leading discussions with his students after activities and encouraging them.

The Member also stated in an email to Mr. Chiasson dated May 11, 2012 (see Exhibit 32) that he had followed all of Mr. Chiasson’s instructions during his classroom observation on March 1, 2012 and had not shown any deficiencies in classroom management during his subsequent classroom observations.

According to the Member’s comments in Exhibit 7, page 43:

Let me reiterate that most of Mr. Chiasson’s statements in all of the reports are untrue and this was done deliberately and unfairly to get back at me, for reasons I still don’t know. And I can prove it!

The Member expressed his concerns to the Principal of the School in a letter dated October 16, 2012, with regard to the appraisals carried out by Mr. Chiasson (see Exhibit 47, pages 175-178). This letter is credible because it is contemporaneous evidence and it is unlikely that the Member would have sent such a letter to the Principal of the School for no reason.

Finding with Respect to the Member’s Classroom Management

The Committee finds that the College failed to prove, on a balance of probabilities, that the Member’s classroom management was deficient. After viewing the video clips of one of the classroom observations and considering the totality of the evidence, the Committee finds that Mr. Chiasson’s observations are not sufficiently credible to support the College’s position with respect to the Member’s classroom management. The Committee finds it concerning that Mr. Chiasson included observations that he had not verified properly beforehand, such as the aforementioned statistics, and that he included comments that are inconsistent with a number of contemporaneous documents, as described above. The Committee questions the reliability of the Summative Reports prepared by Mr. Chiasson. Although the Member did not testify at the hearing, the Committee received numerous documents from the time of the events that support his position and refute the College’s position.

2) Alleged Deficiencies in Planning

The College argued that the Member demonstrated serious deficiencies in lesson planning. In the Summative Report dated June 2012, Mr. Chiasson noted a number of problems with the Member’s planning.

During his appraisal in April 2013, Mr. Chiasson stated that the Member’s short- and long-term lesson planning was still disorganized. He was required to submit his daily, weekly and monthly planning to the Principal, as well as copies of the accompanying evaluations and corrections, to obtain support from the Principal. According to Mr. Chiasson, the Member often failed to submit all of the documents as requested (see Exhibit 7, page 34, and Exhibit 8, page 70). Mr. Chiasson testified that he had to request a number of documents relating to the Member’s evaluations several times (see Exhibit 10, page 191; Exhibit 11, page 286; Exhibit 13, page 342; and Exhibit 15, page 349). He also stated that the Member submitted documents late, on the evening before or the morning of an appraisal (see Exhibit 12, page 317, and Exhibit 14, page 346).

The Member’s representative, conversely, argued that the Member’s planning was good. She asked the Committee to refer to the following documents in support of her position: Exhibit 8 (pages 72-75); Exhibit 12 (page 317); Exhibit 14 (page 346); Exhibit 16 (page 388); Exhibit 33 (pages 90-93); and Exhibit 47 (pages 59-61, 68-69, 79-85, 94-101 and 106-118).

Finding with Respect to the Member’s Planning

The Committee finds that the College failed to prove, on a balance of probabilities, that the Member’s planning was seriously deficient. Although the Member sometimes submitted his planning documents late to Mr. Chiasson (see, for example, Exhibit 15, page 349), he submitted most of the requested documents on time. According to the totality of the evidence, the Member worked with his mentors and learning consultants to plan his classes effectively. A number of documents from the time of the events (see, for example, Exhibit 8, pages 73-75; Exhibit 12, pages 318-322; Exhibit 16, page 388; and Exhibit 47, pages 58-67, 94-110 and 106-118) and the video clips presented to the Committee (see Exhibits 37.1 and 37.2) show that the Member must have done some lesson planning and, in the Committee’s estimation, any deficiencies in planning were insufficient to find for the Member’s incompetence.

Mr. Chiasson’s evidence with regard to the Member’s planning was also contradicted by several contemporaneous documents. For example, Mr. Chiasson testified that the Member’s weekly planning was often late (see, for example, Exhibit 8, page 70); however, pages 72-75 of Exhibit 8 show that he submitted his planning on time. Similarly, Mr. Chiasson stated that he had requested several of the Member’s documents by e-mail (see, for example, Exhibit 10, page 191) and the Member submitted them to him late; however, Exhibit 23 (page 199) shows that the requested documents were submitted on time. Furthermore, Mr. Chiasson introduced his e-mail in Exhibit 11 (page 286) in support of the College’s position; however, on a full reading of Exhibit 11 (from pages 286-302), it becomes clearer that Mr. Chiasson agreed that several of the documents listed on page 286 could be submitted “bit by bit” instead of straight away.

After reviewing the totality of the evidence, the Committee is not convinced that the Member’s planning was seriously deficient, as alleged. It may not have been perfect, but in the circumstances, given his difficulties with the Principal and all the demands of the appraisal process, and in view of the reliable evidence contradicting Mr. Chiasson’s testimony, the Committee finds that the College failed to meet the evidentiary standard required in respect of this allegation.

3) Alleged Deficiencies in Teaching Strategies

The College argued that the Member demonstrated serious deficiencies in teaching strategies. According to Mr. Chiasson, the Member taught the subject matter in lecture mode and did not prepare hands-on exercises to ensure an understanding of the concepts he was teaching (see Exhibit 5, pages 22-24). No links were made between theoretical and practical lessons or with students’ own experiences. Furthermore, according to the record given to the Principal, the Member’s students had undergone only four summative assessments, whereas other teachers’ students had undergone six over the same period.

Mr. Chiasson also maintained that the students did not take any notes in the Member’s classes, because the teacher failed to offer any clear instructions. Mr. Chiasson also testified that the Member’s students clearly needed considerable supervision to structure their work more efficiently and be more successful in the classes (see Exhibit 7, page 33). Mr. Chiasson said that when the Member asked his students questions, he always chose the same students, knowing that they would give the correct answer. Other students who wanted to ask questions or discuss the difficulties they were having had no opportunity to do so (see Exhibit 7, page 33). This evidence, however, is contradicted by the video clips produced for the Committee (see Exhibits 37.1 and 37.2). The Committee prefers the video evidence to Mr. Chiasson’s inconsistent and uncorroborated evidence.

Lastly, Mr. Chiasson testified that the Member’s deficient teaching strategies had discouraged his students, who lost all interest in his classes, and that his students’ dropout rate had gone up. As aforementioned, however, the dropout rates produced by Mr. Chiasson are inaccurate and unreliable. Mr. Chiasson’s evidence in this regard has been discredited, while the Member documented high success rates for his students (see, for example, Exhibit 33).

Moreover, according to the Member’s observations in Exhibit 5, page 26, he used a variety of teaching and learning strategies to enhance learning. For example, his students had several formative assessments during their learning, and he used a variety of activities with them. In Geometry, the Member stated that he always made effective use of the interactive whiteboard (see Exhibit 6, page 31). He also described his students’ use of manipulatives and an example of project-based learning. The Member did not, however, provide any examples of his use of differentiated teaching strategies.

Finding with Respect to the Member’s Teaching Strategies

The Committee finds that, even though some deficiencies in the Member’s teaching methods have been identified, they are insufficient to find for his incompetence, in the circumstances. The Member is not required to prove that his teaching was flawless; the onus of proof lies with the College. In the absence of expert evidence and credible proof from the College’s only witness, the Committee cannot say that the Member’s deficiencies were so serious as to make him an incompetent teacher. The only deficiencies proven by the College are those alleged in paragraphs 6A2, 6A7, 6A8 and 6C4 of the Notice of Hearing, which do not show that the Member displayed in his professional responsibilities a lack of knowledge, skill or judgment and/or a disregard for the welfare of students of a nature or extent that demonstrates that his certificate should be made subject to terms, conditions or limitations.

The Committee recognizes that the Member was a new teacher at the time of his appraisals and that he followed the advice of his mentors and learning consultants concerning his teaching practice. In addition, the Committee notes that Mr. Chiasson did not identify his expectations for the Member in accordance with Ontario Ministry of Education policy (see Exhibits 29, 30 and 65). Specifically, during his first appraisal of the Member, Mr. Chiasson held only one pre-observation meeting with him even though he carried out three classroom observations (see Exhibit 5). Similarly, during his second appraisal of the Member, Mr. Chiasson held only one pre-observation meeting with him even though he carried out two classroom observations (see Exhibit 7), contrary to the Teacher Performance Appraisal: Technical Requirements Manual, which states that the teacher and principal must have a pre-observation meeting to prepare for the classroom observation component of the appraisal (see Exhibit 65, page 30). The pre-observation meeting is essential because its objectives include:

• making certain that the expectations for the appraisal process are clearly understood;

• identifying exactly what is expected during the lesson to be observed;

• discussing the teacher’s plan for the classroom observation period;

• identifying the expectations for student learning that are the focus of the lesson;

• discussing the unique qualities of the teacher’s class of students;

• discussing how the teacher’s performance will be assessed, including a review of the competencies that will form the basis of the teacher’s performance appraisal;

• establishing procedures in advance (see Exhibit 65, page 30).

According to the evidence before it, the Committee finds that Mr. Chiasson failed to follow the steps in the Manual and failed to clearly convey his expectations to the Member. For example, according to the Manual, Mr. Chiasson should have met with the Member prior to each classroom observation, but he did not do so. In addition, there is no evidence that Mr. Chiasson suggested in the pre-observation meetings that the Member use other teaching strategies or that he gave the Member individual advice concerning his teaching strategies in his Improvement Plan (see Exhibit 6).

Consequently, the Committee finds that, although there may have been deficiencies in the Member’s teaching methods, they were not serious enough to warrant a finding of incompetence, in the circumstances. The Member followed the advice of his mentors and learning consultants and he received very little useful guidance from Mr. Chiasson. The totality of the evidence, including the video clips, pointed to some deficiencies in the Member’s teaching strategies (see paragraphs 6A2, 6A7, 6A8 and 6C4 in the Notice of Hearing), but they do not support the case for incompetence.

4) The Support Received by the Member and his Improvement

The College argued that the Member received substantial support, but his performance failed to improve. According to Mr. Chiasson, the Member had three learning consultants and a mentor at the School at the time of the events in question. Mr. Chiasson said that he had helped the Member with organizing educational support (see Exhibit 17, page 76; Exhibit 18, page 88; and Exhibit 22, page 396) and that the Member had found the work sessions with his learning consultants to be beneficial (see Exhibit 19, page 173). The Principal sometimes gave the Member time off from his classes to work with his learning consultants (see Exhibit 20, page 261). The Member also had an opportunity to attend several training sessions offered by the Board relating to his teaching practice (see Exhibit 27, page 408). The support he received was intended to help him with aspects of his teaching that included his classroom management, students’ engagement in their learning and his teaching strategies. However, the Member often had to take the initiative to receive the necessary support (see, for example, Exhibit 19, page 173; Exhibit 47, page 176; and Exhibit 20, page 266).

According to the evidence, the Member was receptive to the support he was offered. For example, Exhibit 32 (page 86), Exhibit 18 (page 88), Exhibit 47 (pages 105 and 123), Exhibit 20 (pages 260-272) and Exhibit 22 (page 399) indicate that the Member accepted the support of his mentors and his teaching and learning practice improved, contrary to Mr. Chiasson’s evidence. His lesson-planning improved with the support of one of his mentors (see, for example, Exhibit 47, pages 106-118), who commented on the Member’s excellent work in an e-mail shared with the Principal (see Exhibit 47, page 123). The evidence also contradicts Mr. Chiasson’s conclusion that the Member opted not to use the services of a learning consultant to improve his classroom management (see Exhibit 7); the Member was at the School that day, but left for medical reasons as he told the Principal (see Exhibit 26, page 404).

According to Mr. Chiasson, the Member was not co-operative during his meetings with the Principal. When Mr. Chiasson tried to share with him his observations on his performance, the Member, according to Mr. Chiasson, refused to continue with the meeting (see Exhibit 24, page 245). On another occasion, when the Principal tried to give him his Improvement Plan, he had to end the meeting because of the Member’s lack of co-operation (see Exhibit 25, page 352). Although these two examples were documented by Mr. Chiasson, a number of examples of the Member’s co-operation with the improvement and mentoring process were also documented (see above).

After monitoring the Member’s performance through the appraisal process for two years, Mr. Chiasson concluded that his teaching was unsatisfactory, in spite of the support he had received. However, Mr. Chiasson’s evidence lacked credibility and his conclusions are not all reliable (as described above).

According to the Member’s observations in Exhibit 6, page 31, the aforementioned Improvement Plan did not include any training or other resources to help him improve. The Member claims that he asked the Principal to provide him with all sorts of resources to help him meet the objectives in the Improvement Plan (see, for example, Exhibit 47, page 176), but the Principal gave him no encouragement or support.

Finding with Respect to the Support Received by the Member and his Improvement

The Committee finds that the Member received considerable support and his performance improved. Although he did not necessarily receive the encouragement or support that he wanted from Mr. Chiasson, and the relationship between the Member and Mr. Chiasson may have been tense, the evidence shows clearly that the Member received support with regard to his teaching and learning practice. Furthermore, contrary to Mr. Chiasson’s testimony, the Member showed signs of improvement. The evidence, including the aforementioned video clips and e-mails, shows the improvement in the Member’s teaching and learning practice following his work with his mentors and learning consultants. In view of the onus of proof and the inconsistency between Mr. Chiasson’s evidence and the rest of the evidence, including the e-mails from third parties supporting the improvement in the Member’s teaching and learning practice, the Committee finds that the College failed to meet the evidentiary standard required in respect of this allegation.

Finding as to Incompetence

After examining all of the evidence and for the aforementioned reasons, the Committee finds that the College failed to prove, on a balance of probabilities, that the Member is incompetent as defined in subsection 30(3) of the Act. As previously mentioned, the only allegations proven by the College are those set out in paragraphs 6A2, 6A7, 6A8 and 6C4 of the Notice of Hearing, but they do not support the College’s case for incompetence. Even though the College has successfully established certain deficiencies in the Member’s teaching, the analysis involves a second step requiring the Committee to rule on the issue of whether the facts are such that his certificate should be made subject to terms, conditions or limitations. The Committee finds that the Member’s deficiencies are not of a nature or extent that demonstrates that he is unfit to continue to carry out his professional responsibilities or that a certificate held by him should be made subject to terms, conditions or limitations.

Moreover, the Committee notes that the College did not introduce any expert evidence to identify the standard expected (in line with Novick v. Ontario College of Teachers, 2016 ONSC 508), and that the Committee is not empowered to act in the role of expert and to frame the standard itself. Absent any indication from an expert witness concerning the competencies required by the teaching profession, the Committee is unable to find that the Member is an incompetent teacher.

Finding as to Professional Misconduct

The Committee recognizes that the College has not withdrawn the allegations of professional misconduct, but College Counsel have made no representations demonstrating that these allegations have been proven. The Committee finds that the College failed to prove, on a balance of probabilities, that the Member was guilty of professional misconduct as defined in subsection 30(2). The evidence produced in this case concerns the Member’s competency, not his contravention of Ontario Regulation 437/97, subsections 1(5) and 1(15), as alleged in the Notice of Hearing. The College failed to meet its burden of proof with regard to the allegations of professional misconduct.

FINAL OBSERVATIONS

The Committee notes that this discipline proceeding was unnecessarily difficult. While it recognizes the contradictory nature of contested discipline hearings, greater co-operation between the parties could have facilitated the process. The documentary evidence was comprehensive and useful, but the hearing was constantly interrupted owing to the parties’ lack of co-operation.

December 20, 2016

Marie-Claude Yaacov Chair, Discipline Committee

Ravi Vethamany, OCT Member, Discipline Committee

Footnotes

1. 1The set of photographs labelled “Activities Using Manipulatives” was subsequently marked as Exhibit 46 during the hearing.