DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Norton 2019 ONOCT 12

Date: 2019-03-05

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

Andrew David Norton, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANDREW DAVID NORTON (REGISTRATION #520942)

PANEL: Tom Potter, Chair

Diane Ballantyne, OCT

Marlène Marwah

HEARD: February 22, 2019

Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung Law Clerk

Vanora Simpson of Goldblatt Partners LLP, for Andrew David Norton

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 February 22, 2019 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated January 12, 2018 (Exhibit 1) was served on Andrew David Norton (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for February 22, 2019.

The Member was in attendance for the hearing and had 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) he signed or issued a document in his professional capacity that he knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);¹

(b) he failed to comply with the Ontario College of Teachers Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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 an act or omission 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);

(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:

Andrew David Norton is a member of the Ontario College of Teachers (the “College”). 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 Ottawa-Carleton District School Board (the “Board”) as an occasional teacher, and taught at various schools for the Board.
The Member began working for the Board as an Occasional Teacher on October 22, 2007.

Requirement to Remain in Good Standing:

Section 21 of the College’s by-laws sets out the requirements relating to annual membership fees. Section 21.01 requires every member to pay an annual membership fee. Section 21.03 prescribes January 1st as the due date for the annual membership fee.
Section 21.05 requires the Registrar to notify every member whose fees have not been paid within 35 days after the due date, of the date on which the Member will be considered in default of payment. Section 21.06 states that a member who has not paid his or her membership fee within 60 days following the Registrar’s notification will be considered in default of payment. Attached hereto and marked as Exhibit “B” are excerpts from the College’s by-laws.
Section 24 of the Ontario College of Teachers Act authorizes the Registrar’s power to suspend a member’s certificate of qualification and registration for failure to pay fees or provide information as prescribed or required by the College’s by-laws, after providing the member with two months’ notice of the default and intention to suspend. Attached hereto and marked as Exhibit “C” are excerpts from the Ontario College of Teachers Act.

Membership History:

The Member was granted a Certificate of Qualification and Registration (“certificate”) under the Act on July 31, 2007.
On or about April 30, 2008 the College suspended the Member’s certificate for non-payment of his 2008 annual membership fee. The Member’s status returned to good standing effective November 20, 2008 upon payment of his membership and reinstatement fees. Attached hereto and marked as Exhibit “D” is a copy of the “Status” and “Payment” screens relating to the Member in the College’s New Registry System.
On or about April 30, 2009 the College suspended the Member for non-payment of his 2009 annual membership fee. The Member’s status returned to good standing effective February 5, 2010 upon payment of his membership and reinstatement fees. Attached hereto and marked as Exhibit “D” is a copy of the “Status” and “Payment” screens relating to the Member in the College’s New Registry System.
In April 2011 the Member paid his 2011 annual membership fee. In April 2012 the Member paid his 2012 annual membership fee. Attached hereto and marked as Exhibit “E” is a copy of the “Interactions” screen relating to the Member in the College’s New Registry System.
The invoice for the College’s 2013 membership fee was emailed to the Member on or about February 13, 2013. On or about March 20, 2013 the College emailed the Member a reminder to pay his annual membership fee by April 15, 2013 followed by a letter mailed to the address on file for the Member on April 3, 2013 to remind him to pay his annual membership fee by April 15, 2013. A final reminder to pay his membership fee was emailed to the Member on April 10, 2013. Attached hereto and marked as Exhibit “F” is a copy of the “Action History” screen relating to the Member in the College’s New Registry System for those dates.
By email dated May 1, 2013 the College notified the Member that his certificate had been suspended for non-payment of fees, effective May 5, 2013.
The Member’s certificate remained suspended from May 5, 2013 until February 13, 2015.

Teaching While Suspended:

From May 2013 until February 2015 the Member worked 253 assignments for the Board, for a total of 191.55 days, while his certificate was suspended.
In early February 2015 the Board became aware that the Member’s certificate had been suspended since May 2013. A meeting with the Member was requested.
On or about February 13, 2015 the Member called the College for information and clarification about the renewal process, the costs involved, and next steps after having let his membership lapse. He also confirmed his address, which matched the address already on file at the College. Effective that same day, after the Member paid his membership and reinstatement fees, his status returned to good standing. Attached hereto and marked as Exhibit “F” is a copy of the “Action History” screen relating to the Member in the College’s New Registry System.
On February 18, 2015 the Board met with the Member and his representative to discuss the Board’s concerns that he had been accepting teaching assignments for the Board since May 2013 while not in good standing with the College. The Board was concerned that this was the second time it had notified the Member that he had been teaching for the Board while not in good standing with the College for non-payment of fees, the prior occasion having occurred in January 2010. As a result, the Board removed the Member from its Occasional Teacher List, effective February 20, 2015. Attached hereto and marked as Exhibit “G” is a copy of the Board’s letter to the Member dated February 20, 2015.
On or about February 2, 2016 after the Member provided proof of payment of his 2016 College membership fee to the Board, the Board reinstated the Member to its Elementary Occasional Teacher List, effective immediately.
In addition to the reminders mailed and emailed to members of the profession to pay their annual membership fee, the College’s official publication Professionally Speaking, published four times a year, regularly includes reminders to members of the profession to pay their annual membership fee by April 15th to maintain their Ontario Certified Teacher (OCT) status. Attached hereto and marked as Exhibit “H” are excerpts of Professionally Speaking from December 2012, March 2013, December 2014 and March 2015.
The Member acknowledges that it was his responsibility while working as an occasional teacher to pay his fees in order to maintain his certificate in good standing status and preserve his eligibility to teach in an Ontario publicly funded school. He acknowledges that allowing his membership to lapse for an extended period of time by failing to pay appropriate attention to his administrative and financial obligations was careless.

GUILTY PLEA

By this document,² the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 20 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(14), 1(15), 1(18) [unprofessional] 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 admitting 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 the parties with respect to the penalty proposed in this document 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.

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

DECISION

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(12) 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 the parties, the Committee rendered an oral decision on February 22, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 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 20 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(14), 1(15), 1(18) [unprofessional] and 1(19).

Paragraphs 11 to 14 of the Agreed Statement of Facts and Guilty Plea and supporting exhibits demonstrate that the Member failed to comply with the requirements of sections 21.01, 21.03, 21.05 and 21.06 of the Bylaws of the Ontario College of Teachers (Annual Membership Fees), contrary to Ontario Regulation 437/97, subsection 1(14). The Member had been notified by the College through email and letter mail of the College’s annual membership fee payment obligations in order to maintain his eligibility to teach. The Member was also notified by the College of his default of payment, and subsequently, that his Certificate of Qualification and Registration was suspended. Despite his suspended certificate, the Member continued to accept teaching assignments.

Paragraphs 11 to 15 and 17 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 the Act, contrary to Ontario Regulation 437/97, subsection 1(15). Subsection 264(1)(c) of the Education Act provides that it is a teacher’s duty to, among other things, “inculcate by precept and example […] the highest regard for truth.” The Member contravened this provision by accepting numerous teaching assignments while his teaching certificate was suspended.

Paragraphs 11 to 15 and 17 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). Teaching and accepting teaching assignments while not a member in good standing demonstrates a lack of professionalism.

Paragraphs 11 to 15 and 17 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). Teaching and accepting teaching assignments while not a member in good standing reflects poorly on the profession as a whole. The public expects that teachers in Ontario public schools are regulated professionals, and it undermines the trust and confidence placed in members of a regulated profession when unregistered individuals inappropriately accept teaching assignments.

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:

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 the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

PENALTY DECISION

In an oral decision rendered on February 22, 2019 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 parties submitted that there were no analogous cases at the College, or before the Colleges of other self-regulated professions to serve as precedents for the proposed penalty. The parties submitted mitigating and aggravating factors to be considered by the Committee when determining the appropriateness of the proposed penalty. The Committee considered the aggravating factors in this case: that the Member ignored repeated notifications from the College advising him to pay his fees by a certain date; such a lapse had occurred previously and for extended periods of time; the Member continued to teach while his certificate was suspended for non-payment of fees; and the Member’s conduct undermined public confidence in the profession. The Committee considered the mitigating factors: once the conduct at issue was discovered, the Board removed the Member from the Occasional Teacher List for one year; the Member contacted the College immediately to bring his teaching certificate into good standing and the Board has now reinstated the Member on the Occasional Teacher List. The Committee accepts that there was no dishonest or malicious intent on the part of the Member, nor any concerns about the Member’s professional practice as a classroom teacher. The Committee also notes that the Member was cooperative throughout the discipline process and has taken responsibility for his misconduct.

The Committee finds that the Member’s failure to fulfill his administrative and financial obligations warrants a reprimand by his peers. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. In addition, the penalty serves to remind educators of the importance of their membership requirements with the College. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee accepts the parties’ submission that remedial coursework in this case is not warranted. The Committee agrees that the misconduct shows poor professionalism. Nevertheless, the Member’s misconduct falls on the lower end of the spectrum, and it did not directly involve students or the Member’s professional practice.

For these reasons, the Committee is satisfied that the penalty is appropriate in the circumstances and that it meets the objectives of protecting the public from acts of professional misconduct; maintaining high standards of the teaching profession; and preserving public confidence in the teaching profession.

Date: March 5, 2019

Tom Potter,

Chair, Discipline Panel