Ontario College of Teachers v. Cheechoo, 2017 CanLII 15618

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Cheechoo 2017 ONOCT 25

Date: 2017-01-03

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

AND IN THE MATTER OF a discipline proceeding against

Barbara Cheechoo, a retired member of the Ontario College of Teachers.

PANEL: Vicki Shannon, OCT, Chair Jean-Luc Bernard, OCT Merzak Damou, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Eli Mogil, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Duane Crocker, Law Clerk

– and –

BARBARA CHEECHOO (CERTIFICATE #585421) Mary Chakasim, Mary Chakasim Barrister & Solicitor for Barbara Cheechoo

Robin McKechney, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: December 8, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 8, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated April 16, 2013 (Exhibit 1) was served on Barbara Cheechoo (the “Member”), requesting her presence on May 14, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 8, 2016.

The Member had legal representation, but neither the Member nor her counsel attended the hearing. Member’s Counsel provided written submissions with respect to penalty, which were given to the Committee by College Counsel (see Exhibit 7).

THE ALLEGATIONS

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

IT IS ALLEGED that the Barbara Cheechoo is guilty of professional misconduct as defined in subsections 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

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

(b) she failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);¹

(c) she 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);² and

(d) 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 the following:

1. Barbara Cheechoo is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Member’s Registered Information.

2. At all material times, the Member was employed by the [XXX] (the “Board”) as a full-time teacher at the [XXX] School (the “School”) in [XXX], Ontario.

3. During the 2010-2011 school year, the Member taught a Grade [XXX] class of 24 students. The Member was informed at the outset of the school year that her teaching duties included planning, chaperoning and fundraising for the annual Grade [XXX] trip to [XXX] (the “School Trip”). The annual [XXX] trip was a school tradition that the Grade [XXX] students looked forward to every year.

4. Early on in the 2010-2011 school year, the parents and guardians of the Grade [XXX] students signed contracts with the Member in which the Member outlined the expectations to be met for their child to attend the trip. The contracts required students to keep up with school work and to raise funds for the trip.

5. Over the course of the year, the Member became aware that some students were keeping the money they raised from fundraising activities, rather than contributing it to the cost of the trip. In addition, some students were not keeping up with their school work as required.

6. Prior to the School break in April, the Member sent home a memo to the parents and guardians of the students not keeping up with their work, together with a package of incomplete assignments to be completed over the break, to be eligible to go on the class trip.

7. After the break, on April 26, 2011, the Member advised her vice-principal that she was cancelling the [XXX] trip because the students had not handed in the required work and had not contributed the missing money. At the suggestion of the vice-principal, the students were canvassed by the Member regarding their willingness to attend [XXX] instead, and the students agreed.

8. A number of students were upset that the [XXX] trip had been cancelled and their parents called the School over the next three school days for more information. The parents were upset because they heard about the cancellation from their children, and not from the Member or the School, and they wanted to meet with the Member to discuss the issue.

9. The Member did not return their calls. Instead, on May 9, 2011, she sent home a letter to the parents and guardians of her students in which she advised that the [XXX] trip had been cancelled due to “disagreements”.

10. Upon receipt of the Member’s letter, a number of parents requested a meeting with the Member to discuss the issue with her.

11. The Member did not return their calls. Instead, the Member wrote a letter to her principal dated May 10, 2011, explaining that she cancelled the trip because she did not receive the required completed work packages, or the missing fundraising money. She referred to the fact that the vice-principal had agreed with her decision, as long as the majority of the class was in favour. Attached hereto and marked as Exhibit “B” is a copy of the letter dated May 10, 2011.

12. The following day, the Member wrote an additional letter to her principal advising that she was stepping down from the responsibility of the year-end trip to [XXX] if the decision was made to proceed with it. Attached hereto and marked as Exhibit “C” is a copy of the May 11, 2011 letter.

13. A number of Grade [XXX] parents, at least two of whom were Board members, wanted to discuss the issue further and attended a Board Council Meeting on May 12, 2011. The Member and her principal were also in attendance and when the issue of the [XXX] trip was raised, the Member read out her May 10, 2011 letter to her principal (Exhibit “B”). She also informed those present that if the decision was made to proceed with the trip, she intended to step down from supervising it.

14. At the conclusion of the Council Meeting, after the attending parents made it clear that they wished to proceed with the [XXX] trip, a directive was given from the Board that the Member and the Grade [XXX] parents were to work out the issue.

15. Following the Council Meeting, the parents who wished to proceed with the [XXX] trip attempted to meet with the Member to discuss her efforts to date, including the funds raised, so they could take over the planning and organization of the trip. The Member refused to meet with the parents.

16. On May 17, 2011, the vice-principal requested that the Member provide all information in her possession in relation to the trip and present it to the parents as soon as possible, because they intended to proceed with the trip on June 3, 2011, as originally scheduled. Attached hereto and marked as Exhibit “D” is a copy of the memo dated May 17, 2011.

17. On May 19, 2011, the Member provided the vice-principal with a duo-tang containing information relating to the trip. The vice-principal found the documentation confusing and asked the Member to meet with the parents to explain it to them. The Member advised that she was going out of town and could not meet with the parents until she returned on May 25, 2011.

18. That afternoon, in response to a Council member’s request for additional trip-related documents, the Member advised by reply email: “I’m sorry, but once everything is handed in, its off my hands, you’ll have to deal with administration at [the School]” [sic].

19. School administrators arranged a meeting with the parents for May 25, 2011, upon the Member’s return. The principal requested the Member’s attendance at the meeting. The Member refused to meet with the parents, and stated that she could not be forced to meet with them.

20. Administrators met with the parents on May 25, 2011 as planned. The Member did not attend. The parents requested clarification of some of the Member’s efforts and records regarding fundraising money. Administrators were not able to provide the requested information without the Member’s input; only she could explain her notes, including what she had done to date in preparation for the [XXX] trip.

21. To be able to respond to the parents’ request, the vice-principal scheduled a meeting with the Member the following afternoon. However, the Member provided a doctor’s certificate stating that she was unable to return to work until the following Monday.

22. The vice-principal sent the Member a written request to meet with him regarding issues relating to the [XXX] trip on June 2, 2011. On June 3, 2011, the Member submitted a document recording the fundraising events and monies raised, along with a memo stating that “as of May 19th at approximately 2:00 p.m.” she was no longer in charge of fundraising. She did not meet with the vice-principal. Attached as Exhibit “E” are copies of the June 2 and the June 3 memos.

23. By letter dated June 10, 2011, the principal notified the Member that the Board did not intend to renew her Probationary Teaching Contract beyond June 30, 2011, as a result of “a number of critical administrative, parental and student issues that arose that we have not been able to resolve in a mutual and satisfactory fashion.” Attached hereto and marked as Exhibit “F” is a copy of the June 10, 2011 letter.

24. The Board postponed the school trip until July. Two Board members who had children in the Grade [XXX] class, along with three non-Board member parents, took eight of the Grade [XXX] children on this July trip.

GUILTY PLEA

25. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

26. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5) and 1(19). Attached hereto and marked as Exhibit “G” is a copy of the Ontario College of Teachers’ Standards for the Teaching Profession.

27. By this document the Member states that:

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

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

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

(d) she understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to her name, may be published in the official publication of the College;

(e) she understands that any agreement between her and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

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

28. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (c) of the Notice of Hearing, namely that the Member contravened subsection 1(10) and 1(15) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 24 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5) and 1(19).

Paragraphs 9, 11, 15, 19 and 22 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 9, 11, 15, 19 and 22 of the Agreed Statement of Facts and Guilty Plea demonstrate 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 4), the parties jointly submitted that the appropriate penalty to be imposed by the Committee in this matter would be that the Committee:

1. direct that the Member appear before the Committee within 120 days of the date of this Order, on a date to be arranged by the Member, to receive a reprimand which will be delivered either electronically or in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct that there be publication of the finding and order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PENALTY

Submissions of College Counsel

College Counsel provided detailed submissions with respect to penalty, given the recent amendments to the Act. College Counsel noted that the Joint Submission on Penalty (Exhibit 4) was signed on October 20, 2016, and that as a result of more recent amendments to the Act, portions of the parties’ agreement are no longer enforceable. In particular, College Counsel submitted that the Committee no longer has the discretion to order publication with or without name (as it previously did), and that the recent amendments to the Act provide for mandatory publication with name.

College Counsel thoroughly reviewed the relevant amendments to the Act with respect to publication. Bill 37 is an Act to amend the Early Childhood Educators Act, 2007 and the Ontario College of Teachers Act, 1996. It received Royal Assent on December 5, 2016. Prior to the amendments in Bill 37, the Committee had the discretion to order publication with or without a member’s name, in accordance with subsection 30(5)3 of the Act. This provision which provided the Committee with discretion regarding publication has now been repealed (see subsection 8(5) of Bill 37). In its place, the Act has been amended to now include subsection 45.1, which addresses the issue of publication. Subsection 45.1(1) of the Act now requires the College to publish every decision of the Discipline Committee and its reasons. Subsection 45.1(2) of the Act now requires the College to publish a summary of every decision of the Discipline Committee and a summary of its reasons in the official publication of the College. Subsection 45.1(5) of the Act now provides that the publication referred to at subsections 45.1(1) and (2) shall include the name of the member who is the subject of the matter. Simply put, publication with name is now mandatory and the Committee’s former discretion in this regard no longer exists.

College Counsel further submitted that the transitional provisions of Bill 37 provide that the amendments to the Act that relate to mandatory publication take effect immediately (see section 31 of Bill 37, which sets out the relevant amendments to subsections 63.1(1) and (2) of the Act). College Counsel agreed with the advice of Independent Legal Counsel that subsection 63.1(2)7 of the Act effectively removes any doubt as to whether the Committee still has discretion with regard to publication during the transition period. Publication with name is now mandatory in cases like the Member’s that are before the Committee.

Given that the parties’ Joint Submission on Penalty was signed before these amendments to the Act received Royal Assent, College Counsel provided the Committee with correspondence between the parties that indicates that Member’s Counsel was made aware of these changes regarding publication before the hearing, and did not take issue with proceeding in this matter in light of the changes to the Act. Exhibit 5 shows that Ms. Ava Arbuck (another lawyer who worked on this matter at the law firm representing the College) brought the recent amendments regarding mandatory publication to the attention of Member’s Counsel. Exhibit 6 shows that Member’s Counsel received this correspondence, is aware of the recent amendments, and did not oppose proceeding in the manner set out by the College.

College Counsel also made submissions with respect to the reprimand portion of the penalty sought in Exhibit 4. The parties agreed that a reprimand was warranted in this matter, but they disagreed with respect to the form of the reprimand. College Counsel submitted that the reprimand ought to be delivered either in person or electronically (i.e. using Skype or a similar video conferencing technology). According to College Counsel, reprimands are typically delivered in person, which is the most effective way for the Committee to directly convey its concerns to a member. Given the circumstances in this case, including the fact that the Member lives a great distance away from the College offices in Toronto, College Counsel submitted that it would be appropriate to deliver the reprimand electronically to accommodate the Member (even though this is an uncommon request). College Counsel further submitted that the Member’s misconduct in this case was at the low end of the spectrum of professional misconduct.

College Counsel referred the Committee to two cases involving similar types of misconduct, in which similar penalties to that sought in this matter were ordered: Ontario College of Teachers v. Shackleton, 2016 ONOCT 47 and Ontario College of Teachers v. Valentini, 2012 ONOCT 40. These cases demonstrate that the penalty sought by the parties is within a reasonable range, based on prior analogous cases before the Discipline Committee. College Counsel noted that the penalty sought in the Member’s case does not provide for remediation because the Member’s low-end and discrete misconduct does not require remedial coursework. The reprimand will adequately meet the penalty objectives in this case.

Submissions of Member’s Counsel

Although Member’s Counsel was not in attendance for the hearing, she provided the Committee with written submissions regarding penalty (see Exhibit 7).³ Member’s Counsel requested that the reprimand be delivered to the Member in written form, rather than in person or electronically. According to Member’s Counsel, the Member lives far away from the College and travel to the College to receive a reprimand in person would be unduly expensive and difficult. Member’s Counsel noted that Internet service is available in the Member’s community and that it would be possible for her to receive a reprimand electronically, but that the quality of Internet service in the Member’s northern community is sometimes unreliable and can be unexpectedly interrupted.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member shall receive a written reprimand from the Committee within 120 days of the date of this Order, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

2. There shall be publication of the finding and order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee finds that the penalty proposed in the Joint Submission on Penalty (with the modifications provided in the Committee’s penalty order set out above) is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The changes that were made to the parties’ Joint Submission on Penalty are appropriate given the recent amendment to the Act with respect to mandatory publication, and the parties’ submissions regarding the form of the reprimand. While the parties agreed that a reprimand was appropriate, they invited the Committee to consider what the most appropriate form of the reprimand would be, given the circumstances of this case. The penalty ordered is within a reasonable range, based on the analogous cases presented by College Counsel.

The Committee finds that the Member’s failure to communicate effectively with parents and School administration warrants a reprimand by her peers. The Committee believes that a written reprimand is appropriate in this case for the following reasons: 1) the Member lives in a remote, northern community that is a far distance from the College; 2) travel to the College to receive a reprimand in person would be very costly and difficult for the Member; 3) a reprimand delivered electronically (i.e. using Skype or a similar video conferencing technology) is not a desirable option given the unreliable Internet service in the Member’s community; and 4) given that the Member’s misconduct in this case was at the low end of the spectrum of professional misconduct, a written reprimand will adequately meet the penalty objectives in this case. The written reprimand will allow the Committee to address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee accepts the submissions of College Counsel with respect to mandatory publication and recognizes that it no longer has the discretion to order publication with or without name. In accordance with the recent amendments to the Act (and subsection 45.1 in particular), a summary of the Committee’s decision and reasons shall be published with the Member’s name on the College’s website and in the official publication of the College, Professionally Speaking/Pour parler profession.

Publication with the name of the Member identifies to the profession the nature of the Member’s misconduct and the consequences of such behaviour. It acts as a specific deterrent to the Member as it holds her accountable for her actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

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

Date: January 3, 2017

Vicki Shannon, OCT Chair, Discipline Panel

Jean-Luc Bernard, OCT Member, Discipline Panel

Merzak Damou, OCT Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2Ibid.
3. 3In light of the recent changes to the Act mandating publication with name, and the correspondence between the parties which demonstrates that Member’s Counsel did not oppose proceeding in this matter despite the fact that the Committee no longer has the discretion to order publication without name, the Committee only relied on Exhibit 7 to the extent that it refers to the Member’s request for a written reprimand (and it disregarded the portion of Exhibit 7 referring to publication without name).