Ontario College of Teachers v Donaldson 2019 ONOCT 114

Date: 2019-11-19

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

Lillian Eileen Donaldson, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

LILLIAN EILEEN DONALDSON (REGISTRATION #443592)

PANEL: Jonathan Rose, Chair

Shanlee Linton, OCT

Stéphane Vallée, OCT

HEARD: November 12, 2019

Ava Arbuck and Kathryn McChesney, for the Ontario College of Teachers

Jack Brown, for Lillian Eileen Donaldson

Rebecca Durcan, 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 12, 2019 at the Ontario College of Teachers (the “College”).

2Lillian Eileen Donaldson (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated April 10, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Lillian Eilieen Donaldson is guilty of professional misconduct as defined in 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);

(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 Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);²

(f) 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);

(g) 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);³ and

(h) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

Lillian Eileen Donaldson 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.
At all material times, the Member was employed by the Halton District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Oakville, Ontario. She began employment with the Board in September 2001.
During the 2016-2017 academic year, Student 1 was a male student in Grade [XXX] at the School, and a student in the Member’s second semester Grade [XXX] [XXX] class. Student 1 was concerned about maintaining high marks and taking advanced classes.

Inappropriate Comments and Conduct directed at Student 1:

The Member was aware that Student 1 was concerned about his marks. Her practice was to call students up to her desk individually to learn their marks. On one occasion during her Grade [XXX] [XXX] class, she noticed that as students returned to their seats from her desk, Student 1 asked them what mark they received. The Member wanted Student 1 to experience how uncomfortable she believed he made his classmates feel by asking or knowing their mark, so she told the class that Student 1 got a mark of “52, no wait, it’s 25”, and laughed. She assumed students understood she was joking because they knew that Student 1 was smart and would not receive a mark as low as either 52 or 25. However, Student 1 felt upset by the Member’s comment in front of others.
On another occasion, the Member granted one student an extension on an assignment because she knew he would be absent from School during class preparation time. When that student returned to class, Student 1 needled him about the extension he had received. The Member wanted to “put the issue to rest”, so she told Student 1 that the student in question had an [XXX]. Her comment to Student 1 was overheard by the student in question and at least one other student, who understood it to be a reference to having a “learning disability”. The Member apologized to the student for divulging personal information, but explained it was necessary to do so to make a point.
On one occasion, as the Member taught a lesson using a power point presentation, she noticed that Student 1 was taking pictures of her power point slides on his computer. When Student 1 continued to take pictures of her slides despite her asking him to stop, she called him a “nerd” in front of others to give him a “wake up call” to put his computer away and pay attention in class.
Student 1 often asked the Member questions during her lessons. On one occasion when Student 1 interrupted the Member’s lesson with a question, the Member raised her voice at Student 1 in response, stating that he was “splitting hairs”. As she did so, she physically tugged or pulled out a strand or two of her hair and, according to Student 1 and those seated near him, approached his desk, and left it on his desk. Student 1 and other students reported being startled at her conduct.
After the incident, the Member approached one of the students from the class to discuss the incident because she wanted his perspective on what happened. She advised the student that she took issue with Student 1’s report that she “threw” her hair at him, and believed that the student agreed with her account that she “put” her hair on Student 1’s desk.
Other inappropriate comments by the Member to or about Student 1 included telling the class that if she had a child like Student 1, she would drive him to the Grand Canyon and leave him there.
The Member acknowledged she was often frustrated with Student 1 for asking questions that disrupted her flow in class, and acknowledged that she often raised her voice at Student 1, explaining it was necessary to do so to get his attention.

Board Investigation:

On April 27, 2017, the Member approached the Vice Principal, upset that Student 1 told her in class that he had been keeping track of her comments and that she could be suspended from work like she had been the previous year. She understood his comment to be a reference to her suspension in 2016 for inappropriate comments to students. The Vice Principal advised the Member to follow up with Student 1’s parents.
The Vice Principal spoke with Student 1 and his mother that day, who reported that the Member often made “inappropriate comments” in class that Student 1 felt were directed at him. They stated they were worried that the Member may lower Student 1’s marks if he complained. The following morning, Student 1 and his mother met with the Vice Principal. They apologized to the Vice Principal for Student 1’s inappropriate comment to the Member, explained it was the result of Student 1’s ongoing frustration with the Member’s comments and conduct, and provided a list of comments by the Member that Student 1 had made note of on his phone during the semester. Student 1 said that he was “sick of being picked on and centered out” by the Member.
The Board initiated an investigation and appointed an internal investigator on May 2, 2017. The investigator interviewed the Member and four students who were seated near Student 1 in the Member’s classroom. The students confirmed witnessing the conduct and comments referred to above, as well as the fact that the Member singled out Student 1 and treated him differently, including the fact that the Member would “lose it” and “yell” at Student 1.
Three students disclosed that on occasion the Member spoke positively in class about her gambling experiences. The Member acknowledges she talked about gambling in the context of teaching the [XXX].
On May 5, 2017, during the currency of the investigation, the Vice Principal contacted the investigator to advise that another issue had arisen between the Member and Student 1, as a result of Student 1’s mother emailing the Member the previous evening to request that Student 1 be exempt from writing a test that morning and be permitted to write it on Monday instead. The Member expressed to the Vice Principal her frustration with this request. The Vice Principal instructed the Member to direct Student 1 to the Vice Principal’s office if he came to class and was not prepared to write the test. However, when Student 1 did not show up to the Member’s class, the Member left her classroom to seek him out. She found him in the library and sent him to see the Vice Principal. The Vice Principal and the Member discussed alternative, more positive solutions she could have used to resolve the issue with Student 1 that morning. The Member later reported these solutions as her own to the investigator.
The Board investigator did not accept the Member’s version of events for a variety of reasons, and concluded, based on a balance of probabilities, that Student 1’s complaints had been substantiated. Attached hereto and marked as Exhibit “B” is a copy of the Investigator’s Report, dated May 30, 2017. Attached hereto and marked as Exhibit “C” is a copy of the Investigator’s Letter to the Member, dated June 27, 2017.
By letter dated June 27, 2017, the Board disciplined the Member for her inappropriate behaviour and comments to Student 1 by suspending the Member for ten days without pay. This discipline was grieved and ultimately reduced to five days without pay. In addition, the Board required the Member to attend a second boundary training course, as well as classroom management training, to be arranged by the Board. Attached hereto and marked as Exhibit “D” is a copy of the Board’s Discipline Letter to the Member.

Prior Conduct History:

The Member received a formal Letter of Warning from her Board dated November 13, 2015, for inappropriate comments she made publicly to a student in her class, and for emailing a student’s picture to the student’s parents and adding concerning comments. As a result of its concerns, the Board required the Member to participate in a mandatory professional boundary program offered by her Federation, and advised her to avoid similar situations from happening in the future by “choos[ing] [her] words wisely as intent and impact are not always the same thing”, among other suggestions. The Member completed the course on Boundary Issues on December 15, 2015. Attached hereto and marked as Exhibit “E” is a copy of the Board’s Letter of Warning to the Member dated November 13, 2015, and a copy of OSSTF’s letter to the Board dated January 19, 2016, confirming that the Member had completed the course.
The Member received a Discipline Letter from her Board dated May 17, 2016, for making numerous inappropriate comments to students in her class, among other issues. The Board was particularly concerned, given that the Member had recently completed the Boundaries course referred to above. The Board suspended the Member for three days without pay and reported the Member’s conduct to the College. Attached hereto and marked as Exhibit “F” is a copy of the Board’s Discipline Letter to the Member dated May 17, 2016.
On November 22, 2016, a panel of the Investigation Committee at the College cautioned the Member in writing in response to a complaint concerning the events described in paragraph 19. Attached hereto and marked as Exhibit “G” is a copy of the Committee’s Written Caution for the Member, dated November 22, 2016

GUILTY PLEA

By this document, 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 her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(6), 1(7.2), 1(15), 1(18) (unprofessional only), 1(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 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 the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

In light of the Admitted Facts and the 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.

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (c) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(7) and 1(14) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable).

7College Counsel sought the Panel’s permission to withdraw and limit the aforementioned allegations for a number of reasons. With respect to allegation 1(7), College Counsel stated that after assessing the effect of the conduct on Student 1, it was determined that the Member’s conduct was more accurately characterized as psychological or emotional abuse (under subsection 1(7.2)) and not verbal abuse (under subsection 1(7)). College Counsel stated that, under the circumstances of this case, the College was requesting the withdrawal of allegation 1(14) as the College would be relying on the same evidence for a finding of a professional misconduct under subsection 1(5). College Counsel stated that relying on the same evidence for a finding of professional misconduct under subsection 1(5) and 1(14) would be duplicative. With respect to subsection 1(18), College Counsel stated that the Member’s conduct was more accurately characterized as “unprofessional” only and falls short of conduct that is “disgraceful” or “dishonourable”. Further, College Counsel stated that the withdrawal and narrowing of the allegations was a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea.

8The Panel granted these requests, despite its concerns that there was evidence to make a finding of “disgraceful” and “dishonourable” within the Agreed Statement of Facts and Guilty Plea. However, the Panel was mindful that the agreement was predicated on the withdrawal of these portions of subsection 1(18). If the Panel refused to grant the withdrawal, there was a risk that the agreement would fall apart. The Panel also noted that a finding would still be made under subsection 1(18) and that the substantive concerns would also be addressed by making findings in the remaining allegations. Therefore, the withdrawal was reluctantly granted.

9Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on November 12, 2019 finding that the Member engaged in 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).

E. REASONS FOR DECISION

10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 20 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in a pattern of inappropriate comments and conduct directed at Student 1.

11Through her inappropriate comments and conduct, the Member failed to maintain the ethical standards of the profession, specifically those of care, respect and trust, which, among other things, provide that members are expected to demonstrate their commitment to “students’ well-being and learning through positive influence”. The Member failed to meet this expectation when, among other things: she called Student 1 a “nerd”; she made a comment that if Student 1 was her child she would drive him to the Grand Canyon and leave him there; she raised her voice at Student 1; and, she told the class that Student 1 got a mark of “52, no wait, it’s 25”. The Member’s inappropriate comments directed at Student 1 also constitute psychological or emotional abuse, because the comments were insensitive and made Student 1 upset. Student 1 felt singled out in front of his peers, as Student 1 reported that he was “sick of being picked on and centred out”.

12Further, the Member breached subsection 1(6) of Ontario Regulation 437/97, in that she released or disclosed information about a student to a person other than the student or the student’s guardian, when she told Student 1 that another student had an[XXX. This comment was overheard by the student in question and at least one other student, who understood it to mean that the student had a learning disability.

13The Member’s misconduct demonstrates that she contravened subsection 264(1) of the Education Act by repeatedly failing to act as an appropriate role model. Members of the profession are expected to be responsible adults, model good values and behaviour, and play a supportive role for students. The Member failed to meet these expectations when she failed to exercise professional judgment in her interactions with Student 1. The Member’s multiple instances of inappropriate comments and conduct directed at Student 1 represents conduct that was unprofessional and unbecoming of a member.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 12, 2019 the Panel accepted the Joint Submission on Penalty and made the following order:

The Member is directed to 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”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one month, commencing on November 30^th, 2019, and the fact of the suspension is to be recorded on the Register;
The Registrar is directed 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 Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding classroom management with a focus on adolescent development and student sensitivity issues, 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 and Reasons 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 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.

G. REASONS FOR PENALTY DECISION

15The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’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 Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by the parties: Ontario College of Teachers v. Williams, 2016 ONOCT 55, Ontario College of Teachers v Nicolson, 2017 ONOCT 85, Ontario College of Teachers v. Gionest, 2017 ONOCT 92, Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15, Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56, and Ontario College of Teachers v. Georgiopoulos, 2019 ONOCT 37.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case include the repetitive and inappropriate nature of the Member’s misconduct. The Member received discipline from her Board for similar misconduct and was required to take a course of instruction regarding appropriate boundaries. Following the successful completion of her coursework, the Member engaged in similar misconduct. She was subsequently suspended by her Board and received a written caution from the College’s Investigations Committee. Despite these prior warnings and discipline, the Member continued to engage in similar misconduct which led to her appearance before the Discipline Committee. Her repeated inappropriate conduct directed at Student 1 was emotionally abusive. In terms of mitigating factors: the Member admitted her misconduct, saving witnesses from having to testify and also saving the time and expense of a contested hearing; the Member has had no prior history with the Discipline Committee; and, the Member, who remains in the classroom, has had no further disciplinary issues since the date of the misconduct at issue. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s pattern of inappropriate and unprofessional conduct, despite prior warnings from the Board and the College, warrants a reprimand by her peers. Members are expected to serve as role models for students, which the Member failed to do by continually engaging in the inappropriate and unprofessional comments and conduct directed at Student 1. Her misconduct also demonstrates that she failed to promote a safe and supportive learning environment for not only Student 1 but for all of the students in her class. As set out at section 264(1) of the Education Act, it is the duty of a teacher to encourage pupils in the pursuit of learning. The Member did the opposite in this case. The reprimand will allow the Panel 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.

18The course of instruction regarding classroom management with a focus on adolescent development and student sensitivity, is intended to assist in the rehabilitation of the Member. The Panel recognizes that the Member was previously required (by her Board) to take a three-hour course on boundaries and that, following the completion of this course, she continued to engage in similar misconduct. Due to the fact that the prior course was ineffective in rehabilitating the Member, the Panel urges the Registrar to consider that the classroom management course to be taken by the Member be longer than three hours in length. Further, the coursework should provide the Member with strategies to better deal with her frustrations, to resolve conflicts in classroom situations, and to respond appropriately if students initiate conduct that might upset her. The coursework should also review the ethical standards of care, trust, respect and integrity with the Member and remind her of how these standards relate to controlling one’s emotions when interacting with students. The Member must understand that it is unacceptable to use inappropriate language in class or to direct disparaging remarks at students. Members of the profession must maintain their composure, even when dealing with challenging issues in the classroom. By learning effective classroom management strategies, the Panel believes that the Member will be able to interact more appropriately with students moving forward.

19Given the nature and severity of the Member’s conduct, the Panel finds that a one-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The Member’s repeated misconduct warrants a one-month suspension. The Member had received prior discipline from her Board and from the College for similar misconduct in the past. The fact that the Member received: a formal Letter of Warning; a Letter of Expectation; was suspended by her Board on two separate occasions; and, was given a caution by the College’s Investigations Committee, raises serious concerns regarding her professional judgment. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.

20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: November 19, 2019

Jonathan Rose

Chair, Discipline Panel