Ontario College of Teachers v Lamoureux, 2017 ONOCT 14

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Lamoureux, 2017 ONOCT 14

Date: 2017-02-14

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

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

PANEL: Sara Nouini, OCT, Chair Jean-Luc Bernard, OCT Vicki Shannon, OCT

BETWEEN:

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

– and –

MARC LAMOUREUX (CERTIFICATE #262654) Karen Hamway, Gowling WLG, for Marc Lamoureux

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 at Toronto.

A Notice of Hearing dated September 30, 2014 (Exhibit 1) was served on Marc Lamoureux (“the Member”) requesting his attendance before the College’s Discipline Committee on October 31, 2014 to set a date for a hearing. The hearing was set for February 13, 2017.

The Member was present at the hearing and was represented by counsel.

ALLEGATIONS

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

IT IS ALLEGED that que Marc Lamoureux is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”), in that:

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

(b) he failed to supervise adequately a person who was under his professional supervision, contrary to Ontario Regulation 437, 97, subsection 1(11);

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

(d) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

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

AGREED STATEMENT OF FACTS

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

1. Marc Lamoureux is a member of the College. Attached hereto as Appendix A is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. During the 2010-2011 school year, the Member was employed by the Conseil scolaire de district catholique Centre-Sud (the “Board”) as Vice Principal of École [XXX] (the “School”). The Principal of the School was Carole Wilson.

3. While he was a co-ordinator for the tests administered by the Education Quality and Accountability Office (“EQAO”), the Member contravened the rules of the EQAO and the Ministry of Education as described below.

Non-compliant IEPs

4. While he was Vice Principal of the School, the Member co-planned, with the success team and the administration, the preparation of Individual Education Plans for students in order to implement accommodations for the EQAO tests

5. On or about November 24, 2010, the Member co-planned, with the success team and the administration, the preparation of IEPs for three students in order to implement accommodations for the EQAO tests. An e-mail sent by the Member to Ms. Wilson on November 24, 2010 concerning the preparation of these IEPs can be found in Appendix B.

6. Although the development of IEPs for the purpose described in paragraphs 4 and 5 above might be appropriate in certain circumstances, the Member signed IEPs for 11 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 was contrary to the Education Act, the rules of the Ministry of Education and the EQAO guides described in paragraph 15. The non-compliant IEPs signed by the Member can be found in Appendix C.

Deferrals

7. While he was Vice Principal of the School, the Member helped the Principal implement an EQAO test strategy that included permission for eight students to defer taking the [XXX], as shown in the e-mails from the Member to Ms. Wilson dated November 23, 2010 and March 23, 2011. These e-mails can be found in Appendix D and Appendix E, respectively.

8. Although deferral of the [XXX] might be appropriate, on March 31, 2011, which was the day of the [XXX], the Member told a group of Grade [XXX] students that they would not be writing the [XXX], as per the decision of the success team and Principal and without consulting the students and their parents. These deferrals were not appropriate.

Accommodations Granted during EAO Tests

9. As requested by the Principal, who was not at the School on March 31, 2011, the Member oversaw the administration of the [XXX]. The participating teachers said that he allowed the students to write the tests in a manner contrary to EQAO instructions. They said that the Member permitted the students to ask questions concerning interpretation and to request explanations and translations into English from the teachers invigilating the EQAO tests. The teachers also said that he allowed the teachers to give back to the students their own EQAO assessments after the test period so that they could make corrections or finish their answers. The Member does not recall his exact words. The Member agrees that he is responsible for leading the students and teachers to believe that they could receive or implement accommodations that were not in compliance with EQAO instructions, and for failing to prevent these non-compliant practices.

Disciplinary measure imposed by the School Board

10. An investigation by the School Board confirmed that the Member participated in some irregular practices in administering the EQAO tests. Following the investigation, the Board found that the practices implemented by the Principal were contrary to the EQAO rules.

11. On January 18, 2012, the Board notified the Member of its findings and imposed a disciplinary action to demote him to a teacher position, with no possibility of attaining a management or senior administrative position within the Board for a period of one year. The letter from the Board can be found in Appendix F.

12. The Board Superintendent, Ms. Diane Jamieson, drafted a letter dated February12, 2016 stressing the positive contribution that he has been making to the life of the school as a teacher since the Board’s investigation. The letter from Ms. Jamieson dated February 12, 2016 can be found in Appendix G.

13. The Director of Education of the Board, Mr. André Blais, also wrote a letter dated February 12, 2016 stressing the fact that, since these events, the Member has been an asset to the team in the school where he is currently working. Mr. Blais believes that this has been a learning and growing experience for the Member and that he has maintained a positive and professional attitude. The letter from Mr. Blais dated February 12, 2016 can be found in Appendix H.

Expert Evidence

14. The College obtained an expert report from Mr. Xavier Lambert in this matter. A copy of Mr. Lambert’s report dated November 25, 2016 is attached as Appendix I.

15. The various guides cited by Mr. Lambert can be found in the appendices of this document. The Ministry of Education guide entitled The Individual Education Plan (IEP), A Resource Guide, 2004, is attached as Appendix J. The EQAO guide entitled Guide for Accommodations, Special Provisions, Deferrals and Exemptions – [XXX] ([XXX]), March 2011 is attached as Appendix K, and the EQAO guide entitled Guide for Accommodations and Special Provisions, Grade [XXX]Assessment of [XXX] 2011 is attached as Appendix L.

GUILTY PLEA

16. The Member hereby admits the truth of the facts and exhibits referred to in paragraphs 1-13 and 15 above (the “uncontested facts”).

17. With respect to paragraph 14, the Member acknowledges that Mr. Lambert’s testimony would be consistent with his written report, which can be found in Appendix I. The Member does not agree with all the elements in Mr. Lambert’s report. The Member 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 M.

18. The Member acknowledges that the uncontested facts described above constitute professional misconduct, and acknowledges the allegations of professional misconduct against him, more particularly the offences mentioned in Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), 1(18) and 1(19).

19. The Member declares that he:

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

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

(c) understands that, by pleading guilty to these allegations, he is waiving his right to require the College to prove the case against him and his right to a hearing on the facts;

(d) understands that the decision of the Discipline Committee and its reasons will be published on the College web site, and that a summary of the Discipline Committee’s decision, including reference to his name, will be published in the College’s official publication, 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; and

(f) understands this Agreement and acknowledges that he is executing it voluntarily and unequivocally, and after having had the opportunity to consult legal counsel.

20. In light of the aforementioned uncontested facts and the guilty plea, the College and the Member submit that the Discipline Committee should find that the Member’s actions constitute professional misconduct.

DECISION

Having examined the Agreed Statement of Facts and Guilty Plea and the submissions made by the parties, the Committee finds that the facts support a finding of professional misconduct, and finds the Member guilty of professional misconduct, being more particularly breaches of 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 mentioned above paragraphs 1-13 and 15 of the Agreed Statement of Facts and Guilty Plea, and pleaded guilty to the allegations of professional misconduct against him. He acknowledged, and the Committee agreed, that the uncontested facts constitute professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), 1(18) and 1(19).

Paragraphs 3, 6, 8, 9 and 10 of the Agreed Statement of 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 9 of the Agreed Statement of Facts and Guilty Plea shows that the Member failed to adequately supervise a person under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11).

Paragraphs 3, 6, 8, 9 and 10 of the Agreed Statement of 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 section 264(1) thereof or the Regulations made under this Act, contrary to Ontario Regulation 437/97, subsections 1(15).

Paragraphs 3, 6, 8, 9 and 10 of the Agreed Statement of 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 3, 6, 8, 9 and 10 of the Agreed Statement of 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

In a Joint Submission on Penalty (Exhibit 3), the parties requested that the Committee impose the following penalty:

1. The Discipline Committee directs the Member to appear before the Discipline Committee immediately following the hearing and directs the Committee to impose 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 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 eight months from the date of the Discipline Committee’s order in this matter, and directs that the fact of the suspension be recorded on the Public Register. However, if the Member satisfies the requirements set out in paragraph 3 below, 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 his 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 and 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 that 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 completing 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.

DECISION ON PENALTY

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 DECISION ON PENALTY

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 his involvement in irregular practices related to the development of the IEPs and the administration of the EQAO tests, the Member warrants a reprimand by his peers. This reprimand will enable the Committee to express its concerns directly to the Member, and this will serve as a specific deterrent to him. Entering the reprimand on 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 an eight-month suspension (or a six-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 and vice principals must fulfil the role and responsibilities entrusted to them, and provide a model example of 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 11 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 helped the Principal implement an EQAO test strategy that included allowing eight students to defer the [XXX]. These deferrals were not appropriate and the Member told a group of Grade [XXX] students, without consulting the students and their parents, that they would not be writing the [XXX]. The way in which he oversaw the administration of the [XXX] was likewise inappropriate. The Member 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. He failed to communicate appropriately with students, parents and the other teachers under his supervision. The Committee finds that the Member should have shown better professional judgment and set an example for the other teachers under his supervision. It is the opinion of the Committee that the suspension will act as a specific deterrent to the Member by holding him accountable for his actions. Suspension will also serve as a general deterrent for members of the teaching profession by reminding them that such conduct by a school vice principal cannot be tolerated.

The Committee finds that the course on professional ethics will assist in the Member’s rehabilitation. It will remind him of his obligations as a member of the teaching profession and will help him 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.

February 14, 2017

Sara Nouini, OCT Chair, Discipline Panel

Jean-Luc Bernard, OCT Member, Discipline Panel

Vicki Shannon, OCT Member, Discipline Panel