DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Vandenberg 2018 ONOCT 15

Date: 2018-02-28

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

Rachel Atim Vandenberg, OCT, a member of the Ontario College of Teachers.

PANEL: Ravi Vethamany, OCT, Chair

Tom Potter

Stéphane Vallée, OCT

BETWEEN: ) Ava Arbuck,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Amy Leung,

) Law Clerk

– and – )

RACHEL ATIM VANDENBERG ) Rachel Atim Vandenberg,

(CERTIFICATE #201074) ) self-represented but not in attendance )

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: February 21, 2018

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 21, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated August 2, 2017 (Exhibit 1) was served on Rachel Atim Vandenberg (the “Member”), requesting her presence on August 31, 2017 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 21, 2018.

The Member was not in attendance for the hearing and did not have legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

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 released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

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

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Rachel Atim Vandenberg 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 during the 2013-2014 and 2014-2015 school years, the Member was employed by the Waterloo Region District School Board as a teacher at [XXX] School (the “School”), a school with approximately [XXX] students in [XXX], Ontario.

3. At all material times during the 2013-2014 and 2014-2015 school years, the Member taught [XXX] at the School. She was the only [XXX] teacher at the School from 2005 to December 2014 and was responsible for all [XXX] classes.

4. During the 2013-2014 and 2014-2015 school years, the Member:

(a) spoke sharply in a harsh tone to students;

(b) regularly raised her voice in class to get students’ attention;

(c) demonstrated exasperation and disappointment in students who answered incorrectly by sighing loudly and rolling her eyes when she believed they should have known the correct responses based on her lessons, such that some students were afraid to participate in her class;

(d) gave a Grade [XXX] male student a detention because his parent had not signed back a [XXX] test within a two-day window;

(e) gave 15 out of 25 Grade [XXX] and [XXX] male students from one class a detention for not being compliant or respectful, having them write out in [XXX], “I am not responsible”, “I am not respectful”, or “I am not organized” during recess, prompting parent calls to the administration;

(f) gave candy to students as a reward for participation after being asked by her principal to stop this practice following some parent complaints that they did not want candy used as an incentive, both for health reasons and because some students felt it was discouraging and unfair to those not rewarded;

(g) disclosed or confirmed to the class that a particular student was participating in an [XXX] program, causing the student to feel embarrassed and singled out. The Member did so to provide the class with a concrete example to set out the routine to be followed when absent from class;

(h) centred out students by criticizing their work or conduct in front of other students.

5. Some students were frightened and intimidated by the Member’s conduct, and anxious about attending her class. Between September and December 2014, the parents of three different students requested that their child be exempted from the Member’s class because their child suffered [XXX] from attending her class.

Inappropriate Conduct with Parents

6. On or about November 8, 2013, the parents of Student 1, a male student in the Member’s Grade [XXX] class, met with the principal and the Member to discuss their son’s poor [XXX] mark. The Member had written on Student 1’s October test, “Did you study?” and “[Student 1] needs to be a better student in class.” During the meeting, as the parents asked questions about how to help their son succeed in the Member’s class, the Member repeated, “just go to my website where there are games to practice.” Student 1’s father grew frustrated with the Member’s lack of constructive responses and said to the Member, “I hope the attitude here isn’t what is given in class, I can understand why [Student 1] would be less than responsive to that.” The Member responded, “I’ve heard about you.”

7. Student 1’s father assumed the Member heard about a meeting with another teacher that did not start off well. He did not appreciate her comment and told the Member “not to go there, it had nothing to do with the issue at hand.” At this point, the principal intervened to conclude the meeting. As the Member was leaving the room, she asked the parents whether Student 1 had studied for a recent [XXX] test. When the parents indicated that he had, the Member responded, “it doesn’t look like he studied”, and handed them what she believed was Student 1’s recent test with a failed mark, then walked out. The parents and principal reviewed the test and saw it belonged to another student with the same first name as Student 1. The principal retrieved the correct test from the Member and continued the meeting. Student 1’s parents were concerned about the Member’s dismissive attitude, and felt unheard and disrespected by the Member.

8. On or about May 20, 2014, the Member approached the parent of Student 2, a student in Grade [XXX], after school in the School’s parking lot to remind her that Student 2 had forgotten her [XXX]for her[XXX]. The parent explained to the Member that Student 2 had her [XXX] in her bag, but she suffered from [XXX], and suggested an incomplete or failing grade for not completing this particular requirement, instead of forcing Student 2 to [XXX]. The Member insisted that Student 2 complete the project as assigned, explaining it was part of the curriculum and the mark was necessary for her daughter’s report card. The Member also told Student 2’s mother she had attended a workshop recently where the presenter advised the best solution for [XXX] was to have the child complete the activity.

9. The parent disagreed and mentioned she had significant experience with [XXX], to which the Member responded, “oh yeah, [Student 3]”, referring to the parent’s older child, whom the Member had taught previously. The Member’s tone was sarcastic and conveyed no empathy despite knowing that Student 3 faced unique challenges including [XXX]. The parent was extremely upset by the Member’s comment, by the Member’s comparison of her children, and by the Member’s unbending approach to the assignment. The Member was suspended for three days without pay as a result of this incident. During a meeting with the principal, the Member and her representative, it was agreed that going forward the Member would only meet with parents with the principal present. Attached hereto and marked as Exhibit “B” is a copy of the Discipline Letter dated June 12, 2014.

10. On or about June 19, 2014, Student 4, a male student in the Member’s Grade [XXX] class, saw his mother waiting outside the classroom and waved at her. She noticed he was seated on a chair at the back of the classroom, while the other students were seated on the floor. At dismissal, when asked by his mother why he was on a chair at the back, Student 4 said he did not know. The Member came over and explained in a loud, exasperated voice, that Student 4 was “distracting the other students” and she asked him to move to the back of the class. The parent was unaware that her son was distracting others, and asked for examples, which the Member did not provide. The parent was so upset with the Member’s attitude and condescending tone that she asked the principal to exempt her son from the Member’s class. When the principal spoke to the Member, she pointed out it was her tone, not her message, that was the issue. The Member responded that she delivered her message quickly in a straightforward manner and, upon reflection, wouldn’t handle the situation any differently. From her perspective, the parent was at fault for not following the rule to wait outside. After the meeting with her principal, the Member discussed the meeting with others. The Member was suspended for five days without pay as a result of the incident. Attached hereto and marked as Exhibit “C” is a copy of the Discipline Letter dated June 25, 2014.

11. During the 2014-2015 school year, the Grade [XXX] class was a boisterous class and the boys often ran around at the end of the day in the Member’s class. On or about November 27, 2014, the Member approached the father of Student 5, a Grade [XXX] male student, where he stood with the other parents in the School’s parking lot after school. In a loud voice overheard by other parents and students she said, “Just to let you know, [Student 5] punched [Student 6] in the face” and, “the boys in the class are all like that.” The father was embarrassed and upset by the Member’s abrupt tone and her delivery of the information in front of others, with no attempt to convey the message privately. He felt belittled and dressed down in front of others by her statements.

Inappropriate Conduct with Staff

12. During the 2013-2014 and 2014-2015 school years, the Member:

(a) yelled at a male colleague, who was the computer contact person at the School, about having the School’s only iPad adaptor in his classroom, causing the colleague to feel the Member had “painted [him] in an unprofessional light” in front of other staff who overheard her raised voice. The Member later acknowledged to her colleague that her conduct made her, not him, look unprofessional; however, she did not believe she yelled;

(b) pointed out to colleagues in the staffroom one day that no one had signed up for kitchen duty. When a colleague commented that she didn’t sign up because she always cleaned up her own messes, the Member leaned across her as she was eating to pick up a piece of popcorn that had fallen out of her bowl, and said in a sarcastic and condescending tone in front of others, “Let me clean that up for you – I’m just making a point here.” The colleague was shocked and confused by the Member’s comment. The Member went into the workroom, followed by the colleague. The Member continued to talk with her about the issue. The colleague felt attacked by the Member and was unable to return to class until she regained her composure;

(c) screamed at a custodian while standing on the first floor, as he was on the second floor moving out an old television set as instructed by the principal, how was she supposed to show her videos without a television. Other staff overheard the Member’s raised voice;

(d) used an inappropriate and unprofessional tone in email exchanges with the School secretary, including accusing her of intentionally withholding information and stating, “I have never been in a school where the Scholastic program was organized on a school level by the secretary. This is novel to me. Good luck!”, prompting the secretary to request that the Member stop emailing her. Earlier that week, the Member had asked and was informed by the secretary that Scholastic flyers had not yet been distributed. The Member was insulted when she received the secretary’s email three days later setting out a new distribution proposal, without having been consulted. Attached hereto and marked as Exhibit “D” is a copy of the email exchanges dated September 7, 2014;

(e) forwarded to her principal and superintendent an email exchange she had with another [XXX] teacher wherein she asked for any thoughts on her principal’s position that she was no longer permitted to show [XXX] videos to students because the program was too dated. She advised her principal that the following commentary on the subject came from “a highly esteemed [XXX] teacher”: “Your principal is a doofus. [XXX] is a classic.” Attached hereto and marked as Exhibit “E” is a copy of the email exchanges dated October 12, 2014.

13. The Member received a verbal warning from her principal regarding the incidents described in paragraphs 12(a) and (b) on December 10, 2013. She received a two-day suspension for the incident referred to in paragraph 12(c). Attached hereto and marked as Exhibit “F” is a copy of the March 3, 2014 Discipline Letter to the Member.

Disclosure of Confidential Information

14. On or about January 23, 2014, the Member posted a question in the “Assessment” conference of WaterWorks, the Board’s email and collaboration system, seeking clarification regarding how to access the section of student report cards enabling her to input comments. To illustrate what she was referring to, the Member attached a screenshot of a student’s report card, thereby disclosing identifiable student and assessment information to readers of the conference. Administration immediately removed the posting due to privacy concerns, pointing out that Board staff must protect the confidentiality of information as defined in the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”), and that sharing student names and/or assessment information in a public conference violated MFIPPA. The Member received a Letter of Expectation from the School principal. Attached hereto and marked as Exhibit “G” are the documents relating to this incident.

Additional Discipline by the Board

15. On October 22, 2014, the Member received a Discipline Letter, attached and marked as Exhibit “H”, that related to the incidents described in paragraphs 4(e), 4(g) and 12(d) of this document².

16. By letter dated December 19, 2014, following the incident referred to in paragraph 11, the Board advised the Member that her employment had been terminated for cause. Attached hereto and marked as Exhibit “I” is a copy of the Board’s December 19, 2014 letter to the Member.

GUILTY PLEA

17. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 16 above (the “Admitted Facts”).

18. 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(6), 1(7.2), 1(15), 1(18) [unprofessional] and 1(19).

19. 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 the Discipline Committee’s decision and a summary of its reasons, including reference to 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 the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and without the advice of legal counsel.

20. 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) 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 College Counsel, the Committee rendered an oral decision on February 21, 2018 finding the Member guilty of professional misconduct. In particular, the Committee found that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(6), 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 16 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(6), 1(7.2), 1(15), 1(18) [unprofessional] and 1(19).

Paragraphs 4-14 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(g) and 14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6).

Paragraphs 4 and 5 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 4, 5, 7, 9, 10 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, 7, 9, 10 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 4, 5, 7, 9, 10 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 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 Discipline Committee either immediately following the hearing of this matter, or on a date to be arranged by the Member within 120 days of the date of the Discipline Committee’s Order, 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 suspend the Certificate of Qualification and Registration of the Member for a period of one month commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register;

3. 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 commencing or returning to teaching or any position requiring a Certificate of Qualification and Registration (a “Teaching Position”), the Member shall enrol in and successfully complete at her own expense, two courses of instruction pre-approved by the Registrar with respect to (i) classroom management with a focus on effective communication with students, parents and colleagues, and disclosure of confidential information, and (ii) sensitivity training in relation to students, including students with special needs, subject to the following conditions:

(i) the Member will provide to the course practitioners approved by the Registrar, 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) upon review of the documents noted at paragraph (i) above, the course practitioner 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 practitioner 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 each 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

In an oral decision rendered on February 21, 2018, the Committee accepted the Joint Submission on Penalty presented by the parties and made 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. Graham, 2015 ONOCT 32, Ontario College of Teachers v. Williams, 2016 ONOCT 55, Ontario College of Teachers v. Robitaille, 2014 ONOCT 92 and Ontario College of Teachers v. Manga, 2017 ONOCT 48.

The Committee finds that the Member’s repeated pattern of inappropriate conduct, despite the various disciplinary measures taken by the Board to address her behaviour, warrants a reprimand by her peers. The wide range of insensitive and inappropriate remarks and behaviours displayed by the Member is of serious concern to this Committee. She repeatedly used a harsh or raised tone of voice, causing some of her students to feel belittled in front of their peers, frightened, intimidated and anxious about attending her class. Similarly, the Member made condescending, rude and sarcastic comments to colleagues, the School’s principal and parents, demonstrating a lack of respect that reflects poorly on the teaching profession as a whole. She also inappropriately disclosed confidential information about a student by posting a screenshot of a student’s report card in an online conference through the Board’s email and collaboration system. The Member’s pattern of unprofessional behaviour towards students, parents, colleagues, including a custodian, a school secretary and her principal demonstrated a significant lack of awareness and an unwillingness to accept responsibility for her misconduct and its impact on others. 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 suspending the Certificate of Qualification and Registration of the Member for a period of one month is proportionate to the misconduct committed by the Member. The duration of the suspension is within a reasonable range based on other similar cases before the College’s Discipline Committee, as submitted by College Counsel. The suspension will serve as a specific deterrent to the Member and should cause her to reflect on the nature of her misconduct. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that the courses of instruction regarding (i) classroom management with a focus on effective communication with students, parents and colleagues, and disclosure of confidential information, and (ii) sensitivity training in relation to students, including students with special needs will assist in the rehabilitation of the Member. Educators are not only expected to model appropriate and respectful behaviour when teaching in the classroom but to also apply the same principles when it comes to their interactions with all members of the school community. 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, parents and colleagues.

The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: February 28, 2018

Ravi Vethamany, OCT

Chair, Discipline Panel

______________________________ Tom Potter

Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2For the purposes of paragraphs 15, 17 and 19, this “document” refers to the Agreed Statement of Facts and Guilty Plea.