PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Charette 2018 ONOCT 32

Date: 2018-06-20

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

Kirk Rheal Joseph Charette, OCT, a member of the Ontario College of Teachers.

PANEL: Vicki Shannon, OCT, Chair

Jean-Luc Bernard, OCT

Stéphane Vallée, OCT

BETWEEN: ) Christine Lonsdale,

) McCarthy Tétrault LLP,

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

– and – ) Law Clerk

KIRK RHEAL JOSEPH CHARETTE ) Kirk Rheal Joseph Charette,

(CERTIFICATE #524182) ) Self-represented

) Renée Kopp,

) Jones Litigation Counsel LLP, ) Independent Legal Counsel

) ) Heard: June 20, 2018

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on June 20, 2018, at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated December 14, 2017 was served on Kirk Rheal Joseph Charette (the “Member”) inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for June 20, 2018.

The Member was self-represented and he was in attendance during the hearing. 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 Kirk Rheal Joseph Charette is guilty of professional misconduct and/or is incompetent as defined in the Ontario College of Teachers Act, 1996 (the “Act”) 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 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);

(c) 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);

(d) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

(e) he displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.¹

AGREED STATEMENT OF FACTS

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

Kirk Rheal Joseph Charette 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.
The Member is also a Certified Engineering Technologist (“CET”) certified by the Ontario Association of Certified Engineering Technicians and Technologists.
From about September 2007 to about May 2015, the Member was employed by the Conseil scolaire catholique Providence (the “Board”) as a teacher at École [XXX] (the “School”) in [XXX], Ontario.
On more than one occasion, the Member used an inappropriate tone in communications to his colleagues and supervisors, including:

(a) Suggesting to colleagues that they were not qualified to engage in certain activities or roles at the School involving technology;

(b) Reprimanding colleagues by email and copying School administrators on his communications;

(c) Disputing the authority of the School Principal with respect to administrative decisions such as participating in a robotics competition, and copying external parties on his communications;

(d) Advising the Director of the Board that since the Member was a CET, the Director was in effect the Member’s client;

The Member was cautioned and disciplined with respect to the above conduct. Attached hereto and marked as Exhibit “B” is a copy of the April 30, 2014 letter from the Director of Human Resources to the Member. Attached hereto and marked as Exhibits “C” and “D”, respectively, are copies of the September 15, 2014 letters to the Member from the Director of Human Resources and the Superintendent of Education to the Member [sic]. Attached hereto and marked as Exhibit “E” is a copy of the October 14, 2014 letter of discipline from the Director of Human Resources to the Member.
The Member also failed to cooperate with the School coordinator of the Specialist High Skills Major (“SHSM”) program (“Teacher 1”) because the Member disagreed with the way in which the administration of the program had been set up. The Member exchanged communications with Teacher 1 which were inappropriate in tone, including:

(a) Stating that as a CET, the Member was the only person qualified to make decisions with respect to the SHSM budget;

(b) Stating that the Member should have Teacher 1’s position;

(c) Telling Teacher 1 that the Member was in charge and to step aside and allow a group of students to learn their lesson, when Teacher 1 attempted to intervene with students to ensure their safety;

(d) Suggesting to Teacher 1 that if Teacher 1 did not help the Member with the Board’s recommendation to terminate the Member’s employment, “this could easily wind up in court and ruin the Team Spirit.”

The Member sent communications to Board administrators attaching documents which made inappropriate comments about the School Principal and the Board, including:

(a) “When Conseil not perfect”;

(b) “It is disrespectful for School Principal to ignore a proper question from a s. 264 statutory authority (i.e. Teacher) with a statutory duty”;

(d) “Csc Providence Negligent when Former Shop Students not prepared”.

On more than one occasion, the Member improperly refused to allow the School Principal to enter his classroom. Attached hereto and marked as Exhibit “F” is a copy of the March 1, 2013 letter from the Director of Human Resources to the Member.
The Member failed to attend at the School on March 2, 2015, the date scheduled to submit his revised course plans to the School administration.
On or around March 2, 2015, the Member placed posters on the door of his classroom, without the School administration’s authorization, indicating that the room had not been inspected, to give the impression that it was not safe. This was inappropriate.
In or around May 2015, the Member failed to follow the Board’s instructions to cease communication with the School administration and members of the Board for information requests or other matters, despite having been specifically warned not to do so on May 2 and 5, 2015.
During the academic years 2013-2014 and 2014-2015, the Member failed to cooperate with the School Principal and the Board Superintendent in the conduct of a performance appraisal. The Member failed to attend School on dates scheduled for his appraisal.
In or around the period 2013 to 2015, the Member:

(a) failed to adequately prepare complete course plans;

(b) failed to mark his class assignments and/or failed to use adequate assessment grids in his marking;

(d) was insufficiently prudent in the use of school resources, for example with respect to the school equipment.

(e) spoke English in the classroom and in his interactions with his colleagues, the School administration and the Board, despite the fact that the language of instruction and work should have been French;

(f) failed to take appropriate action when students used inappropriate language, wore caps, or played video games in class;

(g) offered money to students as a reward for their work.

Attached hereto and marked as Exhibit “G” is a copy of the January 29, 2015 letter from the Director of Education to the Member. Attached hereto and marked as Exhibit “H” is a copy of the March 10, 2015 letter from the Director of Education to the Member.
On or about May 12, 2015, the Board terminated the Member’s employment. Attached hereto and marked as Exhibit “I” is a copy of the May 13, 2015 termination letter from the Director of Human Resources to the Member.

GUILTY PLEA

By this document,³ the Member admits the truth of the facts and exhibits referred to in the paragraphs 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 him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18) and 1(19).
By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he 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 his name, shall be published in the official publication of the College;

(e) he understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel.

In light of the Admitted Facts and circumstances and the guilty plea, the Ontario College of Teachers and the Member jointly submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Counsel for the College submitted that it was not seeking a finding with respect to the allegation of incompetence outlined at paragraph (e) of the Notice of Hearing; namely, that the Member displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations. The Member made no plea with respect to his alleged incompetence and the Committee received insufficient evidence with respect to this allegation. Therefore, the Committee makes no finding in this regard.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on June 20, 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(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 15 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He 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(15), 1(18) and 1(19).

Paragraphs 4-13 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 4-12 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 4-12 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 4-12 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)⁴, 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 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”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of six months 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;
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 a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary issues as they relate to interactions with peers and supervisors, subject to the following conditions:

(i) the Member will provide to a course provider 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 and Reasons of the Discipline Committee;

(ii) following 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 his 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;

(c) prior to commencing a Teaching Position, the Member shall enroll in and successfully complete at his own expense, an Additional Qualification course which covers the subjects of lesson planning, student assessment, and evaluation;

(d) within 30 days of his completion of the course outlined in (c) above, the Member shall provide to the Registrar a written certificate from the course provider stating that the Member has successfully completed the course;

(e) the Member shall advise the Registrar, within 30 days before his return to a Teaching Position, of the date of such return, the name of his employer, and the nature of said employment, and will ensure that the requirements at (a), (b), (c), and (d) above have been complied with;

(f) upon commencement of a Teaching Position, the Member shall take all reasonable steps to cause his employer to conduct a performance appraisal within the first school year, and the Member shall provide a copy of the next teacher performance appraisal to the Registrar within 30 days of its completion. If the Member’s employer is unable or unwilling to perform a performance appraisal, the Member shall immediately notify the Registrar.

The parties did not seek costs in this matter.

PENALTY DECISION

In an oral decision rendered on June 20, 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 range of reasonable outcomes, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Woltman, 2015 ONOCT 88 and 2015 ONOCT 89; Ontario College of Teachers v. Sullivan, 2017 ONOCT 41 affirmed in 2018 ONSC 942 (ONDC); Ontario College of Teachers v. O’Shea, 2016 ONOCT 84 and 2017 ONOCT 8; Ontario College of Teachers v. Lowrie, 2015 ONOCT 53; and Ontario College of Teachers v. Edusei, 2013 CanLII 101568 (ON OCT).

Reprimand

The Committee finds that the Member demonstrated a pattern of uncooperative, insubordinate and unprofessional conduct, which warrants a reprimand by his peers. Among other things, the Member was disrespectful and inappropriate in his communications with colleagues. He sent insubordinate emails to Board administrators about his principal and his employer. He also failed to follow Board instructions to cease communications about certain matters.

Members of the teaching profession are expected to promote and participate in the creation of collaborative, safe and supportive learning communities. The Member, however, failed to meet this expectation. In addition to his insubordinate and disrespectful behaviour with colleagues and superiors, set out above, the Member refused to allow his principal to enter his classroom, he put a poster on his classroom door that gave the wrong impression that the room was not safe, and he failed to attend school on the dates scheduled for his Teacher Performance Appraisal (“TPA”). The Member’s failure to attend his TPA was particularly concerning given the number of shortcomings that he demonstrated in various areas of his teaching practice. The Committee is also concerned that the Member’s inappropriate conduct continued over the course of several years, and that it persisted despite the cautions and discipline that he received from his Board.

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.

Suspension

The Committee finds that suspending the Certificate of Qualification and Registration of the Member for a period of six months is proportionate to the misconduct committed by the Member. The duration of the suspension is within a reasonable range based on similar prior cases before the College’s Discipline Committee, as submitted by College Counsel. The Member’s misconduct was serious and repeated, despite numerous interventions and warnings by his Board. A significant sanction is therefore appropriate in this case. The suspension will serve as a specific deterrent to the Member and should cause him to reflect on the unprofessional nature of his misconduct. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

Coursework

The Committee finds that the course of instruction regarding boundary issues as they relate to interactions with peers and supervisors will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher to act professionally and to work cooperatively with colleagues and supervisors at all times. Members are expected to act as leaders within their school communities, and they are expected to work collaboratively with their colleagues.

The Committee further finds that the Additional Qualification course, which will cover the subjects of lesson planning, student assessment and evaluation, is appropriate in this case. The Member demonstrated a number of shortcomings with respect to his teaching performance, including deficiencies regarding his course planning, evaluation and assessment, use of school resources, language of instruction, and classroom management. The requirement that the Member complete this Additional Qualification course before returning to a teaching position is in the public interest. It will help to ensure that the Member has the necessary knowledge and understanding regarding his professional practice before he returns to the classroom, and it should help him to participate successfully in any future TPA process. The reporting requirements set out in the Joint Submission on Penalty will help the College to properly monitor the Member’s progress, should he return to the teaching 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: June 20, 2018

Vicki Shannon, OCT

Chair, Discipline Panel

______________________________ Jean-Luc Bernard, OCT

Member, Discipline Panel