Ontario College of Teachers v. Nicolson, 2017 ONOCT 85

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Nicolson 2017 ONOCT 85

Date: 2017-11-08

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

Cynthia Ann Nicolson, OCT, a member of the Ontario College of Teachers.

PANEL: Jane Ishibashi, Chair Ravi Vethamany, OCT Wes Vickers, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Charlotte-Anne Malischewski, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

– and –

CYNTHIA ANN NICOLSON (CERTIFICATE # 172452) Mandy Wojcik, Goldblatt Partners LLP, for Cynthia Ann Nicolson

Robin McKechney, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: October 26, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 26, 2017 at the Ontario College of Teachers (the “College”) at Toronto. A Notice of Hearing dated May 28, 2015 (Exhibit 1) was served on Cynthia Ann Nicolson (the “Member”), requesting her presence on June 8, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 26, 2017.

The Member was not in attendance for the hearing but 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 subsection 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

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

(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); and

(g) 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. Cynthia Ann Nicolson 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 Near North District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. The Member has been employed as a teacher by the Board and its predecessor board, Public School Board No. 4, since 1993.

4. During the 2012-2013 and 2013-2014 academic years, the Member was a full time teacher at the School and was assigned to [XXX]. In that assignment, she taught [XXX] to approximately 240 students in classes ranging from [XXX] to Grade [XXX].

2012-2013

5. Student 1 was a female student in the Member’s Grade [XXX] [XXX] class during the 2012-2013 school year. In or around January 2013, as Student 1 presented her [XXX] project to the class, the Member told Student 1 that her project needed more work. Student 1 immediately asked the Member to present her project again, and the Member told Student 1 that she should not want to waste any more of her classmates’ time.

6. Student 1 was upset by the Member’s comments and felt centered out in front of her peers. Her parents contacted the principal expressing their concerns on February 8, 2013.

7. The Board conducted an investigation into the allegations raised by Student 1’s parents and issued a Discipline Letter, dated May 27, 2013. In the letter, the Board advised that it had concluded the Member “made comments to a student that she [the student] perceived as being ridiculed and bullied,” and yelled and screamed at students in the classroom. The Board referred to the Member’s acknowledgment that her personality was “a bit intense,” that she “tend[ed] to be loud and to the point,” and that she “often felt frustrated.” In the letter, the Board advised the Member that her actions were “inappropriate and beyond the bounds of what we would consider an acceptable way to talk with students and conduct yourself as a professional educator.” The Board stated its concern that, despite previous letters “for other inappropriate behaviours” and recommendations, her “misconduct demonstrates that the steps taken to date have not brought about the necessary adherence to the Boards’ policies, procedures and expectations.” The Board suspended the Member for one day without pay. Attached hereto and marked as Exhibit “B” is a copy of the Discipline Letter to the Member dated May 27, 2013.

8. The Member’s union, the Elementary Teachers’ Federation of Ontario, filed a grievance in connection with the May 27, 2013 Discipline Letter, which was referred to arbitration and is being held in abeyance.

9. On or about December 12, 2012, a student requested that the Member help her with a [XXX] quiz. The Member read the question to the student and pointed out the main idea. The student requested further assistance, which the Member did not provide. The student had been absent, and had a newly revised [XXX] that included receiving assistance if and when needed.

2013-2014

10. On January 14, 2014, the Member brought Uncle Lee’s Organic Tea to School, boiled water in her kettle in her classroom, and made hot tea for her Grade [XXX] class. The Member asked two students in the class to place the 3/4 full Styrofoam cups of tea on each students’ desk. Student 2 spilled her cup of hot tea through her clothing, scalding her thighs. Student 2’s parents reported that Student 2 required medical attention for the burns. Student 2 was unable to attend school the following day as a result of her injuries.

11. When the principal spoke to the Member about the incident, the Member provided the following response: she was serving the tea to represent the tea that the First Nations gave explorers to treat scurvy as part of a [XXX] lesson, she didn’t consider the fact that there could be caffeine in the tea, she didn’t know that she was not to have a kettle in her classroom, she equated making and serving hot tea with the school’s practice of serving students warm hot chocolate on occasion, and that “it’s too bad that Student 2 was wearing sweat pants.” Attached hereto and marked as Exhibit “C” is a copy of the company’s website that lists the tea’s ingredients, and a copy of the principal’s Letter of Expectation to the Member, dated February 4, 2014.

12. On January 30, 2014, during the Member’s Grade [XXX] class, Student 3’s seatmate placed silly putty stuck with paperclips on Student 3’s desk. The Member, seeing Student 3 pick up the silly putty, did not realize Student 3 was trying to return it to her seatmate. The Member took the silly putty out of Student 3’s hand. The Member then observed a broken pencil on Student 3’s desk. Student 3 did not tell the Member that her seatmate had broken the pencil and placed it on her desk. The Member moved Student 3’s desk away from her seatmate. The Member told Student 3 in front of the class, “that’s not how you behave.” Student 3 appeared to be upset and the Member expressed frustration with her behaviour, stating that she didn’t have trouble with the [XXX] students breaking pencils. Student 3 was upset because the Member blamed her for something she didn’t do, in front of the class. Student 3’s parents contacted the principal expressing concern about the incident.

13. On or about February 3, 2014, Student 4 told her principal that she was concerned about her upcoming Grade [XXX] class because the Member said she would be showing the class nude photos and videos of private parts to learn about the human body. Student 4 reported that the Member had told students that she did not want to receive phone calls from parents saying their child should not be learning about the human body through pictures or videos. Student 4 expressed concern to the principal about whether the Member should be teaching them this information. The Member denies referring to nude photos or videos. She acknowledges that she told the class she expected a level of maturity from her students and said, “I sure don’t want to receive phone calls from your parents suggesting that it is inappropriate.”

14. On or about February 4th, 2014, during “free time” in the Member’s Grade [XXX] class, Student 5 was talking to her friend about the fact that she and others had accepted a Facebook Friend Request over the weekend from someone who now appeared to be a “fake”. Student 5 was very upset by this news and was behaving in an agitated manner. The Member overheard, and told Student 5 to get off Facebook and sit down. Student 5 reported that she was not on Facebook, only discussing it. The Member, frustrated, stated to the entire class in an elevated stern voice: “I want to make this extremely clear, you are not to be on Facebook in my class.”

15. Student 5 began to cry, and the Member escorted her to the principal’s office. Student 5 told the Member she did not want to go to the office but wanted to go to class. As the Member and Student 5 entered the office area, the Member said to Student 5 in an elevated uncalm voice words to the effect of: “you’re out of balance right now and too emotional to go to class.” Student 5 continued crying, harder. The Member handed a blue “Office Visit” chit to the secretary with “Personal Issue re: Facebook Problems” written on it, and returned to her classroom.

16. The principal overheard the Member’s comments. She told the Member that telling Student 5 she was “out of balance” and “too emotional” was inappropriate and unhelpful. During the Board’s investigation, when asked to explain why she made these comments to Student 5, the Member said that she had spoken to Student 5’s father, who “suggested” that Student 5 can get “extremely emotional.”

17. On or about February 5, 2014, when the Member handed out a work sheet to her Grade [XXX] students, she inadvertently passed over Student 6. The Member recalls that Student 6 may have been in the washroom at the time the work sheet was distributed. Shortly thereafter, the Member asked Student 6 where her work was, and Student 6 said it was in her duo-tang. Student 6 did not realize the Member was referring to the paper she had just handed out. The Member looked through Student 6’s duo-tang and saw that it wasn’t there. In a stern voice, she told at Student 6 in front of the class, “when you’re ready to work, come and see me,” and told her to come in during the break. Student 6 reported that she did not tell the Member she had not received the work sheet because she had started to cry and if she spoke up, other students would realize that she was crying. She was scared, and felt humiliated and embarrassed. When asked about this incident during the Board’s investigation, the Member described her own demeanour as “firm, no nonsense” and explained that she had a “very stern face.”

The Board

18. The Member received a Letter of Discipline dated February 10, 2014, wherein the Member was advised that the Board found her “judgment and conduct to be inappropriate and beyond the bounds of what is expected from a professional educator.” Reference was made to four previous letters of concern and discipline letters between 2010 and 2014 “for other similar inappropriate behaviours.” The Board suspended the Member for five days without pay. Attached hereto and marked as Exhibit “D” is a copy of the February 10, 2014 Discipline Letter to the Member.

19. The Member’s Federation filed a grievance in connection with the February 10, 2014 Discipline Letter, which was referred to arbitration and is being held in abeyance.

20. A subsequent meeting between the Member and the administration was held on February 12, 2014, at which time the Member entered into an agreement with the Board to follow expectations and recommendations on a going-forward basis. As per the agreement, the issues to be addressed include professional judgment and empathy in the Member’s teaching practice. Attached hereto and marked as Exhibit “E” is a copy of the signed Agreement dated February 12, 2014.

21. Shortly thereafter, the Member began accessing sick leave and is presently receiving long-term disability benefits. The Member acknowledges that during the 2012-2013 and 2013-2014 school years, she was dealing with many personal and health-related issues while trying to manage a challenging teaching assignment, and she felt she had a strained relationship with the principal. The Member acknowledges that given these circumstances, she should have removed herself from the classroom at an earlier time.

GUILTY PLEA

22. By this document², the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”)

23. 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(7), 1(7.2), 1(15), 1(18 – unprofessional), and 1(19).

24. 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 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 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.

25. 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 allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.1) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Committee find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Committee granted these requests.

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(7), 1(7.2), 1(15), 1(18 – unprofessional) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 21 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(7), 1(7.2), 1(15), 1(18 – unprofessional) and 1(19).

Paragraphs 5-7, 9-18 and 20 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 5-7 and 12-18 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 5-7 and 12-18 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 5-7, 9-18 and 20 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 5-7, 9-18 and 20 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 5-7, 9-18 and 20 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 in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter³ 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”);

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) prior to undertaking any teaching position or any other position for which a Certificate of Qualification and Registration is required, the Member shall provide proof to the Registrar that she has enrolled in an Additional Qualification (AQ) course, approved in advance by the Registrar, involving the development of foundations of professional practice and commitment to students’ well-being, to be completed at her own expense, subject to the following conditions:

(i) the Member will provide to the course practitioner a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) the Member will provide to the Registrar, for approval, a syllabus for the proposed course developed by the course practitioner which describes the course content, 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 practitioner:

(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.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as amended on October 26, 2017.

With respect to paragraph 1 of the Joint Submission on Penalty, the Committee orders that paragraph 1 will be replaced with the following language:

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 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”)

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties, with the amendment set out above. 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 the parties: Ontario College of Teachers v. Law, 2016 ONOCT 82 and Ontario College of Teachers v. Graham, 2015 ONOCT 32.

The Committee finds that the Member’s pattern of inappropriate, unprofessional, and abusive behaviour towards students, despite the School administration’s interventions and the Board’s disciplinary measures, warrants a reprimand by her peers. The Member’s repeated misconduct involved multiple students over the course of at least two academic years. The Member was impatient with students and made them feel singled out in front of their peers, ridiculed, bullied, upset, scared and embarrassed. The Member refused to provide accommodation to a student with an Individual Education Plan. Members of the teaching profession are expected to provide students with a safe learning environment in which they can learn and develop. The Member repeatedly failed to meet this expectation. The Committee is concerned with the Member’s lack of sensitivity toward students and her lack of professional judgment. 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 Additional Qualification course regarding the development of foundations of professional practice and commitment to students’ well-being will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher, and will help her to make better decisions in any future interactions with students. The coursework will also afford the Member the opportunity to reflect on her misconduct and to learn certain skills that will enable her to better handle her frustration and to communicate more respectfully and professionally with students moving forward.

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: November 8, 2017

Jane Ishibashi Chair, Discipline Panel

Ravi Vethamany, OCT Member, Discipline Panel

Wes Vickers, OCT Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2This “document” refers to the Agreed Statement of Facts and Guilty Plea.
3. 3Given that the Member was not in attendance to receive her reprimand immediately following the hearing, College Counsel submitted that paragraph 1 of the Joint Submission on Penalty should be amended to read that the reprimand would be delivered within 90 days of the date of the Order. Member’s Counsel, however, submitted that the Member would be agreeable to receiving the reprimand in person as soon as possible after the Order was made.