DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
PENALTY 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
Nancy Fernandes, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
NANCY FERNANDES (REGISTRATION #203966)
PANEL: Marie-Claude Yaacov, Chair Claudia Patenaude-Daniels, OCT Wes Vickers, OCT
HEARD: February 25, 2019
Stephanie Sugar of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk
Nancy Fernandes, self-represented
Rebecca Durcan 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.
A Notice of Hearing (Exhibit 1) dated March 12, 2013, was served on Nancy Fernandes (the “Member”) requesting her presence on March 18, 2013 to set a date for hearing, and specifying the allegations. The hearing was subsequently set to, and did, commence on August 30, 2017 before a panel of the Discipline Committee (the “Committee”) at the Ontario College of Teachers (the “College”). The hearing continued on August 31, 2017 and December 12, 2017. A decision with respect to finding was rendered on June 11, 2018, with reasons reported at Ontario College of Teachers v. Fernandes, 2018 ONOCT 31. The Committee’s finding that the Member engaged in professional misconduct and its reasons are set out in that decision.
The penalty phase of the hearing was originally scheduled for November 26, 2018. On that day, the Committee decided that it was not satisfied that the Member had been properly served. As a result, the penalty hearing reconvened on February 25, 2019.
The Member did not attend the penalty phase of the hearing on February 25, 2019 and did not have legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the penalty to be imposed.
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 20), 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 to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street 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 that the Registrar suspend the Certificate of Qualification and Registration of the Member for a period of 5 months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;
direct that the Registrar 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) if the Member returns to teaching, 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 ethical practice, subject to the following conditions;
(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Joint Submission on Penalty document made an exhibit 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.
(iii) The course (or courses) shall be completed no more than three months before commencing or returning to a Teaching Position.
(b) within thirty (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.
PENALTY DECISION
In an oral decision rendered on February 25, 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 penalty proposed by the parties is also within a reasonable range, based on the following cases presented by College Counsel: Ontario College of Teachers v. Towler, 2015 ONOCT 79; Ontario College of Teachers v. Manga, 2017 ONOCT 48; and Ontario College of Teachers v. Glazer, 2018 ONOCT 37.
The Committee finds that the Member’s inappropriate and discriminatory comments warrant a reprimand by her peers. 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 suspending the Certificate of Qualification and Registration of the Member for a period of five months is proportionate to the misconduct committed by the Member. The Member’s conduct involved inappropriate, discriminatory treatment of a student based on his sexual orientation and led to profound anguish for that student. The Member’s conduct led to the student being “outed” to his peers and family at a time that was not of the student’s choosing. This unprofessional and abusive behaviour is unacceptable. The duration of the suspension is also appropriate given that it is within a reasonable range as established by other similar cases before the College’s Discipline Committee cited by College Counsel. Finally, recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that it is reasonable to order that the Member successfully complete the course of instruction regarding classroom management and ethical practice before she returns to teaching. The coursework will serve a rehabilitative function by reminding the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students should she return to teaching.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: March 4, 2019
Marie-Claude Yaacov Chair, Discipline Panel
Claudia Patenaude-Daniels, OCT Member, Discipline Panel
Wes Vickers, OCT Member, Discipline Panel