DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Pogossian 2019 ONOCT 115
DECISION, REASONS FOR DECISION AND ORDER
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
Nina Pogossian, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
NINA POGOSSIAN (REGISTRATION #428585)
PANEL: Mary Ellen Gucciardi, OCT, Chair Ann Ciaschini, OCT Marlène Marwah
HEARD: October 25, 2019
Charlotte-Anne Malischewski, for the Ontario College of Teachers Sheilagh Turkington, for Nina Pogossian 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 October 25, 2019 at the Ontario College of Teachers (the “College”).
2Nina Pogossian (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 December 8, 2017 (Exhibit 1) are as follows:
IT IS ALLEGED that Nina Pogossian 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 abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) 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);
(e) 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
(f) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. STATEMENT OF UNCONTESTED FACTS
5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:
Nina Pogossian 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.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”).
During the 2015-2016 academic year, the Member was the [XXX] teacher at the School.
On June 22, 2016, kindergarten students were returning to their classroom after a [XXX] class. As the students were filing into the classroom, Student A reversed direction in line and headed back through the door, pushing past Student B, a smaller and younger student who was losing his balance. The Member physically intervened between Student A and Student B by grabbing Student A. The Member scolded Student A, saying "Don't push." While scolding the Student the Member held both of Student A’s arms and shook her.
On or about November 4, 2016, the Member was suspended for three instructional days and administratively transferred to another school as a result of the incident. Attached at (Exhibit “B”) is a copy of the discipline letter from the principal of the school, Susan Adaskin, to the Member
PLEA OF NO CONTEST
By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1 to 5 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against her being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 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 Uncontested Facts being presented to the Discipline Committee;
(c) she understands that by pleading no contest 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 Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct.
(e) 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;
(f) she understands that any agreement between counsel for the College and herself with respect to the penalty proposed does not bind the Discipline Committee;
(g) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct
D. DECISION
6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of College Counsel, the Panel rendered an oral decision on October 25, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).
E. REASONS FOR DECISION
7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 5 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member grabbed Student A by the arms and scolded her.
8The scolding, grabbing and shaking of Student A by the Member constitutes physical and psychological or emotional abuse. Through her conduct towards Student A, the Member also failed to maintain the standards of the profession, which, among other things, provide that members are expected to demonstrate their commitment to students’ well-being.
9Further the Member contravened subsection 264(1) of the Education Act by failing to act as an appropriate role model. The Member breached appropriate teacher-student boundaries when she grabbed Student A by both arms and shook her. Her conduct demonstrated a lack of professional judgment and was disgraceful, dishonourable, unprofessional and unbecoming of a member.
F. PENALTY DECISION
10The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 25, 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 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 and anger management, subject to the following conditions;
(i) the Member will provide to the course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders 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
11The 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 decision of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Thompson, 2017 ONOCT 49.
12The Panel considered the Member’s circumstances in comparison to the case provided. The aggravating factors in the Member’s case are: the Member’s conduct was directed at a kindergarten student, Student A; her conduct was physically abusive; and, the Member had been previously disciplined by her Board for similar misconduct in the past. In terms of mitigating factors, the Member admitted her misconduct, saving the time and expense of a contested hearing, and has not been the subject of discipline proceedings at the College in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
13The Panel finds that the Member’s inappropriate conduct warrants a reprimand by her peers, which is significant for any member of the profession to receive. Members are expected to serve as role models for students, which the Member failed to do by scolding Student A as she grabbed her by the arms are shook her. The Member’s aggressive interaction with Student A was unacceptable. Teachers are expected to maintain their composure with students at all times and to provide a safe learning environment. The Member failed to meet these expectations. 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.
14The Panel finds that the course of instruction regarding classroom management and anger management will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students.
15The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: November 13, 2019
Mary Ellen Gucciardi, OCT Chair, Discipline Panel
Ann Ciaschini, OCT Member, Discipline Panel
Marlène Marwah Member, Discipline Panel