DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Pascal Chéron, OCT, a member of the Ontario College of Teachers.
PANEL: Sara Nouini, OCT, Chair
Marie-Thérèse Hokayem
Ravi Vethamany, OCT
BETWEEN: ) Alexandre Blanchard,
) McCarthy Tétrault LLP,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,
) assisted by Annie Lacroix,
) Law Clerk
– and – )
) Lise Leduc,
PASCAL CHÉRON ) Goldblatt Partners LLP,
(CERTIFICATE #533351) ) for Pascal Chéron
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: March 8, 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 March 8, 2017 in Toronto.
A Notice of Hearing dated November 11, 2014 (Exhibit 1) was served on Pascal Chéron (“the Member”), requesting his presence on January 19, 2015 to set a date for the hearing, and specifying the charges. The hearing was subsequently set for March 8, 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 Pascal Chéron is guilty of professional misconduct as defined in section 30(2) of the Ontario College of Teachers Act, 1996, 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 is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11)[1];
(c) 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);
(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);
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
Statement of Uncontested FACTs
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
The Member 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.
At all material times, the Member was employed by the Conseil scolaire de district catholique Centre-Sud (the “Board”) as a [XXX]at [XXX] (“the School”), in[XXX]. At the time, he did not have any Additional Qualifications in[XXX]. Because he had been newly hired in August 2010 as a [XXX]teacher, the Member was on probation until the end of the 2011-2012 school year.
During the 2010-2011 school year, at the specific request of the Vice-Principal, Marc Lamoureux, the Member developed approximately 23 Individual Education Plans (“IEPs”) for students. The IEPs were developed:
(a) without consulting the parents of the students;
(b) without consulting the classroom teachers of the students;
(c) without sharing the IEPs with the students and their parents;
(d) without providing the accommodations described during regular classroom assessments.
The IEPs developed by the Member were designed to provide specific accommodations for the students for the Grade [XXX] and Grade [XXX] assessments by the Education Quality and Accountability Office (“the EQAO”). A copy of one of the IEPs developed by the Member is attached as Appendix B. The Member noted on the IEPs that they were developed “at the request of the Principal.”
The Member believes that the Principal’s aim was to improve the EQAO test results of the School’s students, and the results obtained for 2009, 2010 and 2011 attest to the success of the strategy.
The Member attempted more than once to express to the Principal his concerns about the School’s practice of developing IEPs under such circumstances, and each time, Ms. Wilson, the Principal, and Mr. Lamoureux criticized him for questioning their authority in the matter of the provincial tests. The Member was genuinely fearful of losing his job if he did not obey his supervisors’ instructions. In May 2011, the Member disclosed the situation to his union. In the fall of 2011, the Board conducted an investigation into the School’s practice.
The development of the IEPs drafted by the Member contravened the Education Act, Ministry of Education rules and EQAO requirements. The Ministry of Education’s guide entitled, The Individual Education Plan (IEP): A Resource Guide, 2004 is attached as Appendix C. The EQAO’s Guide for Accommodations and Special Provisions: [XXX]Assessment of[XXX], 2011 is attached as Appendix D, and its Guide for Accommodations, Special Provisions, Deferrals and [XXX], March 2011 is attached as Appendix E.
In developing the IEPs in question, the Member was obeying the instructions issued by Ms. Wilson and Mr. Lamoureux.
In November 2011, the Board conducted an investigation into the School’s IEP development practices. Following its investigation, the Board produced a report which found that the practices implemented at the School contravened the EQAO rules. A copy of the Board’s Investigation Report, dated November 8, 2011, is attached as Appendix F.
When the investigation was over, the Member received a disciplinary letter from the Board. A copy of the disciplinary letter, dated February 23, 2012, is attached as Appendix G.
The College sought an expert witness report by Xavier Lambert in this matter. At a hearing, the parties agreed that Mr. Lambert’s testimony would be consistent with his written report dated November 25, 2016. A copy of Mr. Lambert’s report, dated November 25, 2016, is attached as Appendix H.
The Member acknowledges that by obeying his supervisors’ instructions, he contravened the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession, copies of which are attached as Appendix I.
PLEA OF NO CONTEST
By this document, the Member does not contest the truth and accuracy of the facts and exhibits referred to above (the “Uncontested Facts”).
The Member acknowledges that the Uncontested Facts described above constitute professional misconduct and admits to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
The Member states 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 the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him 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 his 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;
(f) understands this Agreement and acknowledges that he is executing it voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Uncontested Facts described above and the Plea of No Contest, the College and the Member submit that the Discipline Committee find that the Member’s actions constitute professional misconduct.
DECISION
At the hearing on March 8, 2017, Counsel for the College requested that the allegation of professional misconduct set out in paragraph (b) of the Notice of Hearing, to the effect that the Member contravened subsection 1(11) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions by the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Pascal Chéron is guilty of professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 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 12 of the Statement of Uncontested Facts and Plea of No Contest, and pleaded no contest to the allegations of professional misconduct against him. He acknowledged, and the Committee accepts, that the Uncontested Facts constitute professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
The Committee also received additional submissions from the parties to the effect that the Member contravened the aforementioned subsections (and particularly subsection 1(18)), even though he was a new teacher on probation who was obeying his supervisors’ instructions. The Committee accepts the parties’ additional submissions that the Member’s actions were unprofessional and respects the parties’ agreement.
Paragraphs 3, 7, 9, 10 and 12 of the Statement of Uncontested Facts and Plea of No Contest show that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 3, 7, 9, 10 and 12 of the Statement of Uncontested Facts and Plea of No Contest show that the Member 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).
Paragraphs 3, 7, 9, 10 and 12 of the Statement of Uncontested Facts and Plea of No Contest show that the Member committed acts that were contrary to Ontario Regulation 437/97, subsection 1(18). In particular, his acts, having regard to all the circumstances, could reasonably be regarded by members of the teaching profession as unprofessional.
Paragraphs 3, 7, 9, 10 and 12 of the Statement of Uncontested Facts and Plea of No Contest 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 jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
direct the Member to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the College’s offices at 101 Bloor Street West, Toronto, Ontario, and that the fact of the reprimand be recorded on the College’s Register.
direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification, and that the fact of such terms, conditions or limitations be recorded on the Register:
(a) Within 120 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) within 30 days of the date of the Decision and Reasons of the Committee, the Member shall provide a Registrar-approved course provider with a copy of the Statement of Uncontested Facts and Plea of No Contest, 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 curriculum for the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The curriculum proposed by the course provider shall also specify the length of said course and describe the course objectives;
(b) Within 30 days of his 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 the discipline process into disrepute or otherwise be contrary to the public interest. 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; i.e., Ontario College of Teachers v. Fair, 2007 ONOCT 15; Ontario College of Teachers v. Bennett, 2007 ONOCT 6; Ontario College of Teachers v. Brown, 2006 LNONECD 7; and Ontario College of Teachers v. Venditti, 2016 ONOCT 53.
The Committee acknowledges that the Member was obeying his supervisors’ instructions, that he was on probation and that he was genuinely fearful of losing his job (as mentioned above and described in Exhibit 2) when he became involved in irregular practices related to the development of the IEPs, but he failed to maintain the standards of the profession and his misconduct must be addressed. The Committee therefore accepts the parties’ Joint Submission on Penalty, including a reprimand and a course on ethics in the profession, given the circumstances.
Publication of an accused member’s name 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 Joint Submission on Penalty proposed by the parties serves and protects the public interest.
Date: March 9, 2017
Sara Nouini, OCT
Chair, Discipline Panel
Marie-Thérèse Hokayem
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel
1Allegation withdrawn.