DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Lesley Jane-Ann MacKellar, OCT, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair
Sara Nouini, OCT
Vicki Shannon, OCT
BETWEEN: )
) Zirka Jakibchuk,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers
– and – )
LESLEY JANE-ANN MacKELLAR ) Sarah Colman,
(CERTIFICATE #261773) ) Ontario Principals’ Council, ) for Lesley Jane-Ann MacKellar
) Robin McKechney,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) ) Heard: October 30, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 30, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated August 23, 2017 (Exhibit 1) was served on Lesley Jane-Ann MacKellar (the “Member”), requesting her presence on September 25, 2017 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 30, 2017.
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 the Member is guilty of professional misconduct as defined in 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 signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);
(c) she falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);
(d) 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);
(e) 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); and
(f) 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:
Lesley Jane-Ann MacKellar is a member of the Ontario College of Teachers. In October 2003, the Member obtained a Certificate of Qualification and Registration. Attached as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Upper Canada District School Board (the “Board”) as a vice-principal at [XXX] School (the “School”) in[XXX], Ontario. The Member began working as vice-principal at the School in 2012. Prior to this, she worked as a teacher at the School for eleven years.
At all material times, [XXX][XXX]was a student at the School.
From February 13, 2015 to February 11, 2016, the Member made adjustments to five of [XXX][XXX] final course marks as follows:
(a) on February 13, 2015, the Member changed [XXX][XXX] mark in [XXX]from a 96 to a 97, and on October 27, 2015, from a 97 to a 98;
(b) on October 14, 2015, the Member changed [XXX][XXX] mark in [XXX]from a 97 to a 98;
(c) on October 27, 2015, the Member changed [XXX][XXX] mark in [XXX]from an 87 to an 89;
(d) on February 11, 2016, the Member changed [XXX][XXX] mark in [XXX]from an 88 to a 90; and
(e) on February 11, 2016, the Member changed [XXX][XXX] mark in [XXX]from an 87 to an 89.
These alterations were made without the knowledge or authorization of the School principal, after report cards had been completed and signed by the principal.
Some teachers who worked at the School reported that the Member had exerted pressure on them in an effort to influence their grading of [XXX][XXX]. Two teachers mentioned that the Member took a significant interest in [XXX][XXX] grades, making the teachers increasingly uncomfortable given the supervisory role the Member had in relation to them.
In or about April 2016, the Board commenced an investigation. The Member was assigned to home pending the completion of the Board investigation.
On June 8, 2016, the Board confirmed the allegations in paragraphs 4-6 above and issued a letter of discipline to the Member, a copy of which is attached as Appendix “B”. In its discipline letter, the Board advised that the Member:
(a) would be suspended without pay for a period of four working months, beginning June 8, 2016 and ending December 8, 2016;
(b) would be required to complete a course on ethical behavior, at her own expense, by December 8, 2016 and prior to her return to work;
(c) would be required to attend a re-entry interview meeting with the Board’s Director of Education before returning to work;
(d) would not be considered for an administrative promotion within the Board beyond her current role as vice-principal, for the remainder of the time that she is employed with the Board; and
(e) would be assigned to a central administrative position at the Board’s Administrative Office when she returns to work, pending the decision of the Ontario College of Teachers in this matter. During this period, the Member’s administrative responsibilities would be restricted, she would not be granted access to student records and should would have limited access within the administrative building. The Member has not returned to her position as a school administrator since April 2016.
The Member was also prohibited from attending [XXX][XXX] high school graduation ceremony, [XXX] [XXX], [XXX][XXX][XXX].
In September 2016, the Member completed a nine-hour course in ethical practice with a College-approved course practitioner. Attached as Appendix “C” is a copy of a letter from the course practitioner dated September 26, 2016, confirming the Member’s successful completion of the course and attaching the course practitioner’s Course of Study outline.
The Member deeply regrets her conduct and admits that she exercised extremely bad judgment in altering [XXX][XXX] marks. She has accepted, without initiating the dispute resolution process in her employment contract, the serious discipline imposed by the Board. Although not in any way an excuse for her behavior, if the Member were to testify, she would state that the reason she altered some of [XXX] [XXX] marks was out of frustration with the assessment practices in some of [XXX][XXX] classes and that she felt powerless to advocate for [XXX][XXX]as a vice-principal at the School [XXX] [XXX][XXX][XXX].
The Member has no previous discipline history with the College or the Board and the teachers interviewed during the course of the Board’s investigation stated that they believed the Member was a good administrator and that she worked hard for the benefit of her students.
GUILTY PLEA
By this document1, the Member admits the truth of the facts and appendices referred to in paragraphs 1-12 above (the “Admitted Facts”).
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), 1(12), 1(13), 1(15), 1(18) and 1(19).
By signing this document the Member states that:
(a) she understands fully the nature of the allegations against her;
(b) she understands that she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) she understands that she is pleading guilty to the allegations, and is waiving the right to require the College to prove the case against her and the right to have a hearing;
(d) she understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including her name, shall be published in the official publication of the College;
(e) she understands that any agreement between her and the College with respect to the penalty does not bind the Discipline Committee; and
(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Agreed Statement of Facts and Guilty Plea 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(5), 1(12), 1(13), 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 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), 1(12), 1(13), 1(15), 1(18) and 1(19).
Paragraphs 4, 5, 6, 8 and 11 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 4, 5, 8 and 11 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member signed or issued, in the Member’s professional capacity, a document that the Member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12).
Paragraphs 4, 5, 8 and 11 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member falsified a record relating to the Member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13).
Paragraphs 4, 5, 6, 8 and 11 of the Agreed Statement of Facts and Guilty Plea 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 4, 5, 6, 8 and 11 of the Agreed Statement of Facts and Guilty Plea demonstrate 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 4, 5, 6, 8 and 11 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 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
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 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”); and
direct the Registrar of the Ontario College of Teachers to suspend the Member’s Certificate of Qualification and Registration for a period of four months, with such suspension having been served from June 8 to 30, 2016, and September 1 to December 8, 2016. The fact of the suspension is to be recorded on the Register immediately.
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.
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 the discipline process into disrepute or be otherwise 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 of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Jones, 2017 ONOCT 7, Ontario College of Teachers v. Crouse, 2016 ONOCT 99, Ontario College of Teachers v. Curridor, 2014 ONOCT 29, Ontario College of Teachers v. Green-Johnson, 2016 ONOCT 20 and Ontario College of Teachers v. Lakhani, 2017 ONOCT 59.
The Committee finds that the Member’s dishonest conduct warrants a reprimand by her peers. Vice-principals are expected to model ethical behaviour to the entire school community at all times, and the Member’s actions in this case demonstrate a significant lapse in judgment on her part. The pressure exerted by the Member on teachers under her supervision regarding the grading of the [XXX] [XXX]made her colleagues feel uncomfortable. Furthermore, the Member’s altering of records, done without the knowledge or authorization of the School’s principal, jeopardized the fairness and validity of the grading process. 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 a four-month suspension is appropriate given the circumstances of the Member’s case. As agreed to by the parties, the suspension will be applied retroactively to correspond with the Board-imposed unpaid suspension, which was served during working days from June 8 to 30, 2016, and September 1 to December 8, 2016. The Committee accepts that a retroactive suspension is reasonable given the circumstances of this case. The Member has already received significant discipline from her Board, which includes the requirements that she serve a four-month suspension without pay; complete coursework regarding ethical behaviour before returning to work; attend a re-entry interview with the Board’s Director of Education before returning to work; not be considered for an administrative promotion within the Board beyond her role as vice-principal; and that her administrative responsibilities would be restricted as set out in paragraph 8 of the Agreed Statement of Facts and Guilty Plea.
The Member has already completed a nine-hour course in ethical practice and she has accepted responsibility for her misconduct. Accordingly, the Committee is satisfied that a retroactive suspension is appropriate, and notes that recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession by signalling that there are significant consequences for engaging in the type of dishonest conduct in which the Member engaged. This type of unethical behaviour undermines the public’s trust and confidence in the teaching profession and is unacceptable.
Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name 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 meets the principle of serving and protecting the public interest.
Date: October 30, 2017
Robert Gagné
Chair, Discipline Panel
______________________________ Sara Nouini, OCT
Member, Discipline Panel
Vicki Shannon, OCT
Member, Discipline Panel