Ontario College of Teachers v. Wilson, 2017 ONOCT 13

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Wilson, 2017 ONOCT 13

Date: 2017-02-14

IN THE MATTER OF the Ontario College of Teachers Act, 1996, and Ontario Regulation 437/97 thereunder;

AND IN THE MATTER OF a discipline proceeding against Carole Wilson, OCT, a member of the Ontario College of Teachers.

PANEL: Sara Nouini, OCT, Chair

Jean-Luc Bernard, OCT

Vicki Shannon, OCT

BETWEEN: ) Christine Lonsdale and Alexandre ) Blanchard,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

– and – )

CAROLE WILSON ) Karen Hamway,

(CERTIFICATE #259137) ) Gowling WLG,

) for Carole Wilson

) Renée Kopp,

) Jones Litigation Counsel LLP, ) Independent Legal Counsel

) ) Heard: February 13, 2017

DECISION, REASONS FOR DECISION AND ORDER

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 13, 2017 in Toronto.

A Notice of Hearing dated September 30, 2014 (Exhibit 1) was served on Carole Wilson (“the Member”), requesting her presence on October 31, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 13, 2017.

The Member was present at the hearing and had legal representation.

ALLEGATIONS

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

IT IS ALLEGED that Carole Wilson is guilty of professional misconduct as defined in section 30(2) of the Ontario College of Teachers Act, 1996, in that:

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

(b) she failed to supervise adequately a person who was under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(c) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsections 264(1) and 265(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) 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);

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

AGREED STATEMENT OF FACTs

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:

1. Carole Wilson is a member of the College. A copy of the Ontario College of Teachers Registered Member Information respecting the Member is attached as Appendix A.

2. During the 2009-2010 and 2010-2011 school years, the Member was employed by the Conseil scolaire de district catholique Centre-Sud (the “Board”) as Principal of École [XXX] (the “School”). During this school year, the Member was also assigned on a 50% basis to the Association des directions et directions adjointes des écoles franco-ontariennes (“ADFO”). Marc Lamoureux was Vice-Principal of the School.

3. While she was responsible for the tests administered by the Education Quality and Accountability Office (the “EQAO”), the Member contravened the instructions issued by the EQAO and the Ministry of Education as described below.

Non-Compliant IEPs

4. While she was Principal of the School, the Member approved the preparation of Individual Education Plans (“IEPs”) for certain students in order to implement accommodations for the EQAO tests.

5. Although there are circumstances in which the development of the IEPs might be appropriate, the IEPs in this instance were not properly developed. The Member signed IEPs for two students without ensuring that:

(a) the parents were consulted when the IEPs were developed;

(b) the parents were asked to sign the IEPs;

(c) the other teaching staff concerned were informed that these students had IEPs;

all of which contravened the Education Act, Ministry of Education rules and EQAO requirements. The non-compliant IEPs, signed by the Member, and all of the IEPs approved by the Principal, are attached as Appendix B.

Deferrals

6. While she was Principal of the School, the Member implemented a strategy for the EQAO tests that included EQAO test deferrals for certain students. This strategy is referred to in the e-mails between Mr. Lamoureux and the Member dated November 23, 2010 and March 23, 2011, which are attached as Appendices C and D, respectively. Although granting deferrals may be appropriate in some circumstances, the deferrals for certain students that were granted and approved by the Member did not comply with the relevant rules. They were arranged without consultation with the students or their parents. While the Member was away from the School and Mr. Lamoureux was administering the [XXX] ([XXX]) on March 31, 2011, he informed certain students of their deferrals on the actual day of the [XXX], which was inappropriate.

Accommodations Granted during EQAO Tests

7. The Member failed to adequately supervise and train Mr. Lamoureux in preparation for the administration of the [XXX]. As a result, on March 31, 2011, during the [XXX], Mr. Lamoureux allowed the students to write the tests in a manner that contravened the EQAO instructions. The teachers who took part in the test claim that, in particular, Mr. Lamoureux allowed the students to ask questions concerning interpretation and to request explanations and translations into English from the teachers invigilating the tests. They claim that he allowed teachers to give students back their own EQAO assessments after the test period so they could make corrections or finish their answers. These practices contravene the EQAO instructions.

The Board Imposed a Disciplinary Measure

8. An investigation by the Board found that the Member was involved in irregular practices related to the development of the IEPs and the administration of the EQAO tests. After its investigation, the Board found that the practices implemented by the Principal contravened the EQAO rules.

9. On January 18, 2012, the Board advised the Member of its findings and disciplined her by demoting her to the position of vice-principal with no possibility of promotion to a senior management position for one year. The letter sent by the Board is attached as Appendix E.

10. Director of Education Réjean Sirois wrote a letter dated September 21, 2015 emphasizing the Member’s positive role within the Board. He wrote, inter alia, that the Member was a valuable asset to the teaching and learning team and that her expertise was much appreciated by all. Mr. Sirois’s letter, dated September 21, 2015 is attached as Appendix F.

Expert Evidence

11. The College sought an expert witness report by Xavier Lambert in this matter. A copy of Mr. Lambert’s report, dated November 25, 2016, is attached as Appendix G.

12. The guides to which Mr. Lambert referred are appended to this document. The Ministry of Education’s guide entitled, The Individual Education Plan (IEP): A Resource Guide, 2004 is attached as Appendix H. The EQAO’s Guide for Accommodations, Special Provisions, Deferrals and Exemptions—[XXX] ([XXX]), March 2011 is attached as Appendix I, and its Guide for Accommodations and Special Provisions: Grade [XXX] [XXX], 2011 is attached as Appendix J.

GUILTY PLEA

13. By this document, the Member admits the truth and accuracy of the facts and exhibits referred to in paragraphs 1 to 10 and 12 above (the “Uncontested Facts”).

14. Concerning paragraph 11, the Member is aware that Mr. Lambert’s testimony would be consistent with his written report, which is attached as Appendix G. The Member does not agree with all elements in Mr. Lambert’s report. She acknowledges that the Uncontested Facts described above constitute a breach of the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession, copies of which are attached as Appendix K.

15. The Member acknowledges that the Uncontested Facts described above constitute professional misconduct and admits to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), 1(18) and 1(19).

16. The Member states that she:

(a) understands fully the nature of the allegations of professional misconduct against her;

(b) understands that, by signing this document, she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) understands that, by pleading guilty to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) understands that the Decision and Reasons for Decision of the Discipline Committee will be posted on the College website, and that a summary of the Committee’s decision and reasons, including reference to her name, will be published in the official publication of the College, Professionally Speaking/Pour parler profession;

(e) understands that any agreement between the parties with respect to the penalty does not bind the Discipline Committee, and that if the Committee rejects the agreement, a contested penalty hearing will follow;

(f) understands this Agreement and acknowledges that she is executing it voluntarily, unequivocally, and with the advice of legal counsel.

17. In light of the Uncontested Facts described above, and the Guilty Plea, the College and the Member submit that the Discipline Committee find that the Member’s actions constitute professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions by the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member is guilty of professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), 1(18) and 1(19).

REASONS FOR dEcision

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 and 12 of the Statement of Uncontested Facts and Guilty Plea, and pleaded guilty to the allegations of professional misconduct against her. She acknowledged, and the Committee accepts, that the Uncontested Facts constitute professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), 1(18) and 1(19).

Paragraphs 5, 6, 7 and 8 of the Statement of Uncontested Facts and Guilty Plea show that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraph 7 of the Statement of Uncontested Facts and Guilty Plea shows that the Member failed to supervise adequately a person who was under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11).

Paragraphs 5, 6, 7 and 8 of the Statement of Uncontested Facts and Guilty Plea show that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsections 264(1) and 265(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 5, 6, 7 and 8 of the Statement of Uncontested Facts and Guilty Plea show that the Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 5, 6, 7 and 8 of the Statement of Uncontested Facts and Guilty Plea show that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties asked the Committee to impose the following penalty:

1. The Discipline Committee directs the Member to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand that will be delivered in person at the College’s offices at 101 Bloor Street West, Toronto, Ontario, and directs that the fact of the reprimand be recorded on the Public Register.

2. The Committee directs the Registrar to suspend the Member’s Certificate of Qualification and Registration for a period of nine months from the date of the Committee’s order in this matter, and directs that the fact of the suspension be recorded on the Public Register. Should the Member satisfy the requirements set out in paragraph 3 below, however, the last two months of the suspension shall not take effect.

3. The Committee directs the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, and directs that the fact of such terms, conditions or limitations be recorded on the Public Register:

(a) Within 90 days of the date of this order, the Member shall enrol in and successfully complete, at her own expense, a course on professional ethics, pre-approved by the Registrar, that satisfies the following conditions:

(i) the Member shall provide a Registrar-approved course provider with a copy of the Statement of Uncontested Facts and Guilty Plea, the Joint Submission on Penalty entered into evidence at the hearing into this matter, and the Decision and Reasons of the Discipline Committee;

(ii) after a review of the documents referred to in (i) above, the course provider shall submit to the Registrar, for his approval, a program for the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The program proposed by the course provider shall also specify the length of said course and describe the course objectives;

(b) Within 30 days of her completion of the course outlined in (a) above, the Member shall provide the Registrar with evidence in writing from the course provider stating that:

(i) the Member has successfully completed the course, and describing the Member’s progress with respect to the course objectives.

PENALTY decision

The Committee accepts the Joint Submission on Penalty proposed by the parties and makes an order based on its terms and conditions, as noted above.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it has determined its jurisdiction to make the order in question, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances. The penalty proposed by the parties falls within a reasonable range, based on similar case law produced by Counsel for the College, namely, Ontario College of Teachers v. Fair, 2007 ONOCT 15; Ontario College of Teachers v. Bennett, 2007 ONOCT 6; and Ontario College of Teachers v. Snow, 2009 ONOCT 50.

The Committee finds that, because of her involvement in irregular practices related to the development of the IEPs and the administration of the EQAO tests, the Member warrants a reprimand by her peers. It will enable the Committee to express its concerns directly to the Member, which will serve as a specific deterrent to her. The fact that the reprimand will be published in the Public Register is important, as it will serve as a general deterrent to the other members of the teaching profession.

In view of the seriousness of the Member’s misconduct, the Committee finds that a nine-month suspension (or a seven-month suspension, if the Member satisfies the requirements set out in paragraph 3 of the aforementioned Joint Submission on Penalty) is reasonable and appropriate in the circumstances. School principals should fulfil the role and responsibilities entrusted to them, and model respect for professional ethics. The Member failed to live up to these expectations and contravened the instructions issued by the EQAO and the Ministry of Education.

Specifically, the Member signed IEPs for two students without ensuring that the parents were consulted when the IEPs were developed, that the parents were asked to sign the IEPs or that the other teachers concerned were informed that these students had IEPs. In addition, the Member granted and approved EQAO test deferrals for certain students that did not comply with the relevant rules. They were arranged without consultation with the students or their parents. She also failed to adequately supervise and train the School’s vice-principal, Mr. Lamoureux, in preparation for the administration of the [XXX]. As a result, Mr. Lamoureux allowed the students to write the tests in a manner that contravened the EQAO instructions.

The Member’s conduct constituted a serious breach of the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession, and a lack of professional judgment. She failed to communicate effectively with students, parents and the other teachers under her supervision. In addition, the Member failed to adequately supervise and train the School’s vice-principal in preparation for the administration of the [XXX], which demonstrates that she did not act in the best interests of the students. The suspension will act as a specific deterrent to the Member as it holds her accountable for her actions. It will also serve as a general deterrent by reminding the profession that such behaviour on the part of a school principal is not tolerated.

The Committee finds that the course on professional ethics will assist in the Member’s rehabilitation. It will remind her of her obligations as a member of the teaching profession and will help her to make better decisions in the future.

The Committee acknowledges that it no longer has discretionary power in the matter of publication of an accused member’s name, as publication is now compulsory pursuant to section 45.1 of the Act. Accordingly, the Committee’s decision and reasons, with the Member’s name, will be posted on the College website and a summary of its decision and reasons, with the Member’s name, will be published in the official publication of the College, Professionally Speaking/Pour parler profession.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: February 14, 2017

Sara Nouini, OCT

Chair, Discipline Panel

______________________________ Jean-Luc Bernard, OCT

Member, Discipline Panel

Vicki Shannon, OCT

Member, Discipline Panel