Ontario College of Teachers v von Eppinghoven, 2017 ONOCT 67

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v von Eppinghoven 2017 ONOCT 67

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

Elizabeth Marie von Eppinghoven, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair

Sara Nouini, OCT

Wes Vickers, OCT

BETWEEN: ) Ava Arbuck,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers, ) assisted by Annie Lacroix,

– and – ) Law Clerk

ELIZABETH MARIE VON EPPINGHOVEN ) Patricia D’Heureux,

(CERTIFICATE #101450) ) Cavalluzzo Shilton McIntyre Cornish LLP,

) for Elizabeth Marie von Eppinghoven

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) Heard: December 6, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 6, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated August 13, 2013 (Exhibit 1) was served on Elizabeth Marie von Eppinghoven (the “Member”), requesting her presence on September 18, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 6, 2016.

The Member was in attendance for the hearing and had legal representation.

THE ALLEGATIONS

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

IT IS ALLEGED that Elizabeth Marie von Eppinghoven is guilty of professional misconduct as defined in subsection 30(2) of the Act in that:

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

(b) she abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);²

(c) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);³

(d) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);⁴

(e) 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);

(f) 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);

(g) she 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 a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:

1. Elizabeth Marie von Eppinghoven is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Toronto District School Board as a Grade [XXX] teacher at [XXX] School (the “School”).

3. In September 2011, the Member threw a foam chalk eraser at a male student in her Grade [XXX] class in jest. That student threw the chalk eraser back at the Member, after which the Member threw a small piece of chalk back at the student. The chalk inadvertently hit another female student (“Student 1”) in the face, for which the Member immediately apologized.

4. On another occasion in September 2011, the Member threw a piece of chalk at a female student in her Grade [XXX] class (“Student 2”), inadvertently hitting her near her eye, for which the Member immediately apologized.

5. In September 2011, the Member made inappropriate comments about students with exceptionalities, including the comment that students who have multiple acronyms such as ADD and OCD should also have the acronym “FIH”, which stood for “fucked in the head”.

6. In September 2011, following some disagreements between parents at the School’s Curriculum Night, the Member shared her interpretation of parent comments made at the meeting with her class, which some students interpreted as negative comments about their parents.

PLEA OF NO CONTEST

7. By this document the Member does not contest, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).

8. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(15), 1(18 - unprofessional), and 1(19).

9. 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 Uncontested Facts being presented to the Discipline Committee;

(c) she understands that by pleading no contest 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.

10. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

11. In light of the Uncontested Facts and circumstances and the plea of no contest, 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 allegation of professional misconduct outlined in paragraphs (a), (b), (c) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(7), 1(7.1) and 1(7.2) 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 of the parties, 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(15), 1(18 - unprofessional) and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(15), 1(18 - unprofessional) and 1(19).

Paragraphs 3, 4, 5 and 6 of the Statement of Uncontested Facts and Plea of No Contest demonstrate 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, 4, 5 and 6 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 3, 4, 5 and 6 of the Statement of Uncontested Facts and Plea of No Contest 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 3), 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 immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor St. West, 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 the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) within 120 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries, subject to the following conditions:

(i) the Member will provide to a course provider approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

3. 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 PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that publication with the name of the Member is warranted in this case. According to College Counsel, the Member is an experienced teacher who displayed inappropriate and unprofessional behaviour on four separate occasions. College Counsel argued that publication with the name of the Member is an important tool for the College because it serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel submitted that publication with the Member’s name demonstrates to the public and the profession that acts of professional misconduct will not be tolerated. Moreover, publication with the Member’s name is important because it reassures the public that the College is accountable and acts to protect the public interest. Furthermore, according to College Counsel, publishing the Member’s name will inform the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner, and that the College does not shield its members when matters of professional misconduct are brought to its attention.

College Counsel referred the Committee to three cases involving inappropriate conduct by a member towards students: Ontario College of Teachers v. De Santis, 2014 ONOCT 34; Ontario College of Teachers v. Bédard, 2015 ONOCT 2; and Ontario College of Teachers v. Williams, 2016 ONOCT 55. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all instances.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case and that the Committee has discretion with respect to publication. The purposes of penalty, including specific deterrence, general deterrence, and transparency will be met through the reprimand of the Member, the recording of the fact of the reprimand on the College Register, and the coursework that the Member is required to take. Member’s Counsel added that the discipline process is a public process, and that the transparency objectives would be adequately achieved without publishing the Member’s name in the College’s official publication.

Counsel for the Member argued that publication with name is not necessary in this case because the Member’s misconduct was at the low end of the spectrum of professional misconduct. Member’s Counsel submitted that there is no public safety concern and that the misconduct was an isolated incident that occurred during the course of the Member’s otherwise unblemished 23-year teaching career. The Member has no prior or subsequent discipline history. Member’s Counsel urged the Committee to consider the Member’s privacy interests when determining the issue of publication.

Member’s Counsel referred the Committee to three cases: Ontario College of Teachers v. Legros-Stewart, 2014 ONOCT 57; Ontario College of Teachers v. Naklicki, 2015 ONOCT 62; and Ontario College of Teachers v. McCalla, 2015 LNONCTD 53. According to Member’s Counsel, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession. Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

Reply Submissions of College Counsel

With respect to the submission of Member’s Counsel that the conduct at issue was an isolated incident, College Counsel disagreed and replied that the Member’s case involved multiple incidents of inappropriate and unprofessional behaviour.

College Counsel also disagreed with the submission of Member’s Counsel that the Committee should not rely on the cases presented by the College, and reiterated that the Member’s case is analogous to the cases presented in which publication with name was ordered.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, 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 of this case.

The Committee finds that the Member’s inappropriate and unprofessional conduct on multiple occasions warrants a reprimand by her peers. The reprimand will allow the Committee to directly 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 finds that the course of instruction regarding professional boundaries will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her make better decisions in any future interactions with students.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted, and would have been ordered even if the Committee still retained its discretion under the Act in this regard.⁵ The Committee weighed the mitigating and aggravating factors presented by the parties. With respect to mitigating factors, the Committee accepts that the Member has had a long teaching career with no prior history or subsequent incidents of misconduct. The Committee also accepts that the misconduct occurred more than five years ago.

The Committee finds, however, that the aggravating factors outweigh the mitigating factors. The Member threw classroom objects at students, which is dangerous. The Member used profanity and made inappropriate comments about certain students. In addition, following some disagreements between the Member and parents at a School meeting, the Member shared her interpretation of parent comments made at the meeting with her class, which caused some students to interpret the Member’s words as negative comments about their parents. The Committee finds that the Member’s misconduct was serious, and does not agree with Member’s Counsel that it was at the low end of the spectrum of professional misconduct.

Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name 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

Marie-Claude Yaacov

Chair, Discipline Panel

______________________________ Sara Nouini, OCT

Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2Ibid.
3. 3Ibid.
4. 4Ibid.
5. 5While the Committee heard argument about publication and decided to publish the Member’s name, the Committee notes that Bill 37 received Royal Assent the day before the hearing on December 5, 2016, and as a result, the panel had no discretion to order publication without the member’s name on December 6, 2016.