DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

DECISION, REASONS FOR DECISION AND ORDER

Citation: Ontario College of Teachers v Burke 2018 ONOCT 75

Date: 2018-12-28

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

Andrew Harold Burke, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANDREW HAROLD BURKE (REGISTRATION #188353)

PANEL: Jonathan Rose, Chair Vicki Shannon, OCT Stéphane Vallée, OCT

HEARD: December 11, 2018

Zirka Jakibchuk, for Ontario College of Teachers

Jerry Raso of Ontario English Catholic Teachers’ Association, for Andrew Harold Burke

Robin McKechney of Steinecke Maciura LeBlanc, Independent Legal Counsel

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.

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 11, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated May 26, 2017 (Exhibit 1) was served on Andrew Harold Burke (the “Member”), requesting his presence on June 19, 2017 to set a date for hearing and specifying the allegations. The hearing was subsequently set for December 11, 2018.

The Member was in attendance for the hearing and 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 Andrew Harold Burke is guilty of professional misconduct 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 supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(c) 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);

(d) 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); and

(e) he 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. Andrew Harold Burke is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “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 Simcoe Muskoka Catholic District School Board (the “Board”) as Acting Vice-Principal at [XXX] School (the “School”) in [XXX], Ontario.

3. The Member began in the role of Acting Vice-Principal at the School in January 2016. The School Principal acted as the Member’s mentor while he was in the Vice-Principal position. Prior to assuming the acting Vice-Principal role, the Member was a secondary school teacher at the School. He has since returned to teaching.

Background

4. Commencing in or around the 2001-2002 school year, the Grade [XXX] Ontario Secondary School Literacy Test (the “OSSLT”) was made a requirement for students in the Province of Ontario who are in Grade [XXX] and working toward obtaining an Ontario Secondary School Diploma. All students across the province write this test on the same date, usually in late March of each year.

5. Since that time, the OSSLT has been administered on an annual basis at the direction of the Education Quality and Accountability Office (the “EQAO”).

6. On March 31, 2016, 170 students at the School wrote the OSSLT. The Member was involved in the administration of the test.

7. The EQAO investigated and concluded that there were several irregularities in the administration of the March 2016 OSSLT at the School. The EQAO also found that the Member was involved in the inappropriate administration of the test.

Before the Test

8. The Member was assigned a number of duties with respect to the administration of the March 2016 OSSLT at the School.

9. Prior to the test, the Member was provided with the EQAO Administration Guide 2016 (the “Guide”), a copy of which is attached hereto and marked as Appendix “B”.

10. The Principal instructed the Member to meet with all of the test captains to review the testing procedure in advance. The Member met with the captains the morning of the March 2016 OSSLT.

11. The Member had not received any formal training or instruction with respect to the administration of the test himself. Previous to the March 2016 OSSLT, the Member’s role was limited to that of floater during the test itself.

After the Test

12. After the test was completed, the Principal approached the Member and two other teachers and instructed them to review the test booklets and identify incomplete booklets. The Member went to the Office Conference Room, reviewed some test booklets, placed sticky notes on incomplete booklets, and provided the incomplete booklets to the Principal.

13. The Principal then instructed the School secretaries to call the students with incomplete booklets out of class to the office. If a student was not in class, the Principal instructed the secretaries to call the student’s home number and/or the parents’ cellphone number and request that the student return to the School.

14. When students attended the office, the Member or the Principal led the students to an office area (i.e. the Principal’s office, the Vice-Principal’s office, health room, photocopy room, etc.). Upon the Principal’s direction, the Member returned test materials to the students and instructed them to complete a specific part or part(s) of the booklets and submit the booklets to the Member or the Principal upon completion.

15. The Member collected the booklets from the students when they were done and returned them to the Principal.

16. Twenty-one students attended at the office to finish their incomplete OSSLT booklets, contrary to EQAO rules, after the test was concluded. Of the 21 students who returned to the office, seven completed the questionnaire only and 14 completed test questions and/or the questionnaire.

17. In taking the actions described in paragraphs 12–15 above, the Member was following the instructions of his Principal. However, the Member’s conduct was contrary to the EQAO rules (as set out in the Guide) and the Ethical Standards of the Teaching Profession and the Standards of Practice for the Teaching Profession, copies of which are attached hereto and marked as Appendix “C”.

EQAO Investigation and Decision

18. The EQAO confirmed irregularities during the March 2016 administration of the OSSLT at the School and that the Member was involved in the inappropriate administration of the test. On or about May 26, 2016, the EQAO advised the Board that the School’s results could not be reliably reported and that it would be withholding the School’s 2015-2016 OSSLT results. Attached hereto and marked as Appendix “D” is a letter from the EQAO to the School dated May 26, 2016, to this effect.

Board Decision

19. On June 13, 2016, the Board suspended the Member without pay for a period of ten days for his involvement in inappropriately administering the 2016 OSSLT at the School. Attached hereto and marked as Appendix “E” is a discipline letter from the Board to the Member dated June 13, 2016.

GUILTY PLEA

20. By this document,¹ the Member admits the truth of the facts and appendices referred to in paragraphs 1-19 above (the “Admitted Facts”).

21. 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(11), 1(15), 1(18) and 1(19).

22. 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 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 his counsel and counsel for the College with respect to the penalty does not bind the Discipline Committee; and

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

23. 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

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on December 11, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11), 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 19 of the Agreed Statement of Facts and Guilty Plea and admitted 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(11), 1(15), 1(18) and 1(19).

Paragraphs 7 and 14-19 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 7 and 14-19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to adequately supervise a person placed under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11).

Paragraphs 7, 12 and 14-19of 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 7 and 14-19 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 7 and 14-19 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:

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 that the fact of the reprimand be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar of the Ontario College of Teachers (the “Registrar”) to suspend the Certificate of Qualification and Registration of the Member for a period of one month from the date of the Committee’s order and that the fact of the suspension 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) within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction in ethical practice, including ethical decision-making and conduct and any labour relations issues as they relate to this matter. The course shall be pre-approved by the Registrar and be subject to the following conditions:

(i) the Member will provide to a course practitioner 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; and

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate 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 December 11, 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. Vellinga, 2018 ONOCT 10; Ontario College of Teachers v. Maranda, 2017 ONOCT 24 and Ontario College of Teachers v. Debich, 2018 ONOCT 8.

The Committee finds that the Member’s involvement in the improper administration of the March 2016 OSSLT warrants a reprimand by his peers. While the Member was following the instructions of his Principal, his conduct was contrary to the EQAO rules as set out in the EQAO Administration Guide, a copy of which was provided to the Member prior to the test. The Member’s conduct is not excused simply because he was following his Principal’s instructions. The Member was responsible for his actions and should not have compromised his professional integrity by following the misguided directions of his Principal. As a result of his involvement in the improper administration of the OSSLT, the EQAO withheld the results of 21 students, whose tests were determined to have been compromised. Accordingly, the Member’s complicity in the testing irregularities had a negative impact on students and the School community. 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 one‑month suspension is reasonable and appropriate under the circumstances. The duration of the suspension is within the range of acceptable outcomes, based on similar cases before the Discipline Committee. Members must fulfil the roles and responsibilities that are entrusted to them and be role models for students by behaving ethically and with integrity. The suspension will act as a specific deterrent to the Member and it will hold him accountable for his actions. Recording the fact of the suspension on the Register will serve as a general deterrent by reminding other members of the profession that such behaviour is not tolerated.

The Committee finds that the course of instruction regarding ethical practice will assist in the rehabilitation of the Member. The course will address ethical decision-making and conduct, and any labour relation issues as they relate to this matter. It will remind the Member of his ethical obligations and will help him to make better decisions in his professional practice in the future.

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

Date: December 28, 2018

Jonathan Rose

Chair, Discipline Panel

Vicki Shannon, OCT

Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel

Footnotes

1. 1For the purposes of paragraphs 20 and 22, this “document” refers to the Agreed Statement of Facts and Guilty Plea.