Discipline Committee of the Ontario College of Teachers
DECISION ON PENALTY, 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
Gail Louise Hall, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
GAIL LOUISE HALL (REGISTRATION #210463)
PANEL: Vicki Shannon, OCT, Chair Godwin Ifedi Sara Nouini, OCT
HEARD: March 21, 2019
Counsel: Jason Bennett and Fiona Wang for Ontario College of Teachers Gail Louise Hall, self-represented Julie Maciura 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 November 24, 2016, was served on Gail Louise Hall (the “Member”) requesting her presence on December 5, 2016 to set a date for hearing, and specifying the allegations. The hearing was subsequently set to, and did, commence on February 14, 2018 before a panel of the Discipline Committee (the “Committee”) at the Ontario College of Teachers (the “College”). The hearing continued on February 15, 2018.
A decision with respect to finding was rendered on October 25, 2018, with reasons reported at Ontario College of Teachers v. Hall, 2018 ONOCT 55. The Committee’s finding that the Member engaged in professional misconduct and its reasons are set out in that decision.
The Committee reconvened on March 21, 2019 to hear submissions with respect to penalty. The Member did not attend the penalty phase of the hearing and did not have legal representation.
Counsel for the College filed an affidavit to show that the Member had been informed of the allegations against her, the time and date of the hearing, as well as the penalty being sought by the College. In the Affidavit of Tatiana Tkatch (Exhibit 13) sworn on March 20, 2019, Ms. Tkatch, a law clerk with the College, outlines the correspondence sent to the Member and provides proof of service of all required documents. The Member has had no communication with the College. Documents mailed to her have been returned marked “Refused” and “Moved”. The College engaged a skip tracing firm, which advised on March 7, 2019, that the Member was reachable at the address on file with the College and to which the College’s correspondence in this matter had been sent.
College Counsel submitted that the service provisions in s. 52(1) of the Ontario College of Teachers Act, 1996 (the “Act”), r. 2.03 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee (the “Rules”), and ss. 9-12 of the College’s Bylaws, were met in this case.
Based on the affidavit evidence and College Counsel’s submissions, the Committee was satisfied that the Member had been properly served all relevant documents and was made aware of the time and date of the hearing and the penalty being sought by the College. The commencement of the hearing was delayed by approximately 30 minutes from the time it was scheduled to begin. The Member did not appear. The Committee therefore heard this matter in the absence of the Member.
PENALTY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel highlighted the key findings and aggravating circumstances in this case. After hearing from nine witnesses in person in a two-day hearing, and receiving affidavits from two further witnesses, this Committee made 17 findings of fact underpinning its conclusion that the Member committed professional misconduct.
College Counsel submitted that the purpose of any penalty order made by the Committee is to protect students, to maintain public trust in the teaching profession, to act as both a specific deterrent to the Member and a general deterrent to other members of the profession, to assist in the rehabilitation of the Member, to enhance the transparency of the discipline process and to protect the public interest. College Counsel highlighted that protection of the public interest and deterrence are of particular importance in this case.
College Counsel noted that the Committee has the discretion to order a penalty that it considers appropriate in the circumstances of this case, but presented a Draft Order on Penalty (Exhibit 15) and submitted that the Committee’s order ought to include the following elements:
- a reprimand;
- a suspension of six months in duration; and
- terms, conditions or limitations which would restrict the Member from returning to the teaching profession until she successfully completes courses regarding: (a) classroom management; and (b) anger management.
College Counsel presented three cases to demonstrate that the penalty sought by the College falls within a range of acceptable outcomes: Ontario College of Teachers v. Chéry, 2016 ONOCT 73; Ontario College of Teachers v. Gray, 2017 ONOCT 104; and Ontario College of Teachers v. Mate, 2018 ONOCT 65. College Counsel argued that these cases involve similar circumstances to the Member’s case and that the penalties were similar to those sought by the College. The penalties ordered in these cases all included six month suspensions, reprimands, and coursework.
College Counsel emphasized that the Member’s misconduct involved many Grade [XXX] students over the course of several years. Her conduct had a serious negative psychological impact on several students. Students reported that they were frightened, scared or embarrassed by the Member. At least one student received counselling, as he started bedwetting following an abusive interaction with the Member. The student’s doctor diagnosed post-traumatic stress disorder (PTSD) with its roots in the abuse encountered with the Member. College Counsel submitted that the penalty and remedial protections sought were appropriate in this case given the seriousness of the Member’s misconduct.
PENALTY DECISION
The Committee rendered an oral decision on March 21, 2019, in which it made the following order as to penalty:
The Member is directed to appear before the Committee within 90 days of the date of the Decision on Penalty, Reasons for Decision and Order of the Discipline 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”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six months commencing on the 15th calendar day following the date of the Oral Decision and Order on Penalty of the Discipline Committee relating to this matter, 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, and the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:
(a) Prior to returning to teaching or any position for which a Certificate of Qualification and Registration is required, 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 a course of instruction pre-approved by the Registrar regarding anger management, subject to the following conditions;
(i) the Member will provide to a course provider(s) approved by the Registrar, a copy of both the Decision on Finding and Reasons for Decision and the Decision on Penalty, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course provider(s) will provide to the Registrar, for approval, a syllabus for each proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider(s) shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member; and
(iii) The courses shall be completed no more than three (3) months before the Member returns to teaching or any position for which a Certificate of Qualification and Registration is required.
(b) within thirty (30) days of her completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider(s):
(i) stating that the Member has successfully completed each course and reporting on the progress of the Member with respect to addressing the outlined goals of each course.
REASONS FOR PENALTY DECISION
The Committee has the discretion to order a penalty that it finds appropriate in the circumstances of this case, in accordance with its powers set out at subsections 30(4) and 30(5) of the Act. The Committee carefully considered the submissions of the parties with respect to penalty and reviewed the relevant jurisprudence provided. The order set out above satisfies the penalty objectives of specific and general deterrence, rehabilitation, transparency, and protection of the public interest. The order is proportionate to the Member’s misconduct and in line with the Committee’s factual findings and legal conclusions, which are set out in the Committee’s Decision on Finding and Reasons for Decision dated October 25, 2018. It also falls within a range of acceptable outcomes, based on the prior decisions of the Discipline Committee presented by College Counsel.
Reprimand
The Committee finds that the Member’s pattern of inappropriate behaviour warrants a reprimand by her peers. On a number of occasions over a period of several years, the Member used inappropriate physical force with multiple young students. The Committee heard evidence that the Member’s use of force caused significant trauma and fear for the students. She also repeatedly made inappropriate, demeaning comments to students, including insulting their work, asking a student if he was a baby and needed his diaper changed, and berating them for not following instructions or listening. The Member also did not allow a student to get ice from the office after the student fell and hit her head.
Members of the teaching profession are expected to promote safe and supportive learning environments and to model appropriate and respectful behaviour. The Member’s conduct fell well-short of meeting these expectations, and the Committee was deeply concerned about the level of animosity the Member showed to many students. The reprimand will allow the Committee to directly address its concerns with the Member. It serves 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.
Suspension
The Committee finds that a six-month suspension of the Member’s Certificate of Qualification and Registration is reasonable and appropriate, given her serious and repeated misconduct in this case. Both the imposition of a suspension and the six-month length are consistent with the cases presented by College Counsel. All three cases – Chéry, Gray and Mate – involved conduct and findings that bear strong similarity to this case. While every case before the Committee presents its own unique factors and the imposition of penalty ought to be an individualized exercise, the Committee is satisfied that a six-month suspension is consistent with the established precedents, is proportionate, and will serve the principles of specific and general deterrence in this case.
In reaching this conclusion, the Committee placed significant emphasis on the young age of the students who were the victims of the Member’s abuse. The Committee found that the Member physically, verbally and emotionally abused many Grade [XXX] students. The physical abuse included shaking and pushing students. The verbal and emotional abuse included demeaning comments and conduct directed at students. The Committee heard evidence that this physical intervention and the Member’s verbal abuse caused a number of students to have a very negative first experience at school. The Member’s abuse directly led to students living in fear of going to school, bedwetting, needing therapy and being diagnosed with PTSD. It cannot be overemphasized that this conduct is antithetical to the role of a teacher in early school experiences for young students. The Committee considered the severity of this abuse, the severity of the consequences for the students involved and the lengthy period of time over which the abuse occurred in concluding that suspension is an appropriate penalty.
It is of paramount importance in this case that the Committee send a clear message to both the Member and the profession that the kind of conduct in which the Member engaged is completely unacceptable and will not be tolerated by this Committee and the teaching profession.
Coursework
The Committee finds that the courses of instruction regarding classroom management and anger management will assist in the rehabilitation of the Member, should she ever return to a teaching position. It is essential that the Member understand the dimensions of her obligations and responsibilities to students before she returns to teaching. The Member must gain the tools to help regulate her anger and her frustration so that they do not manifest in the physical, verbal or emotional abuse of young students.
The Member must accept that members of the teaching profession hold a unique position of trust and authority, and that her conduct had lasting effects for the students she abused. The coursework ordered will be tailored to the member’s specific misconduct in this case and her particular needs for remediation. It will address the Member’s repeated shortcomings in classroom management and anger management, remind her of her obligations to students, and help her make better decisions in any future interactions with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
COSTS SUBMISSIONS OF COLLEGE COUNSEL
The College sought an order for costs payable by the Member to the College pursuant to s. 30(5) at paragraph 4 of the Act. College Counsel submitted a bill of costs setting out disbursements of $1,715.34 claimed by the College. The disbursements incurred relate to costs of service of the Member and witnesses, as well as witness attendance fees. The bill of costs does not set out a quantum of legal fees claimed by the College. Instead, College Counsel points to r. 16.05(3) and Tariff A of the Rules. Read together, r. 16.05(3) and Tariff A provide that the College need not provide evidence of the costs of a day of hearing (including the fee of College Counsel, Independent Legal Counsel, and court reporter) if the amount claimed is equal to or less than $10,000 per day of hearing.
College Counsel highlighted that the goal of costs orders is the fair allocation of costs incurred. They are not intended to be an additional penalty; rather, they are compensatory in nature. The possibility of a costs order at the end of a hearing encourages cooperation and engagement in the process in accordance with the Discipline Committee’s Rules by both parties during the hearing process itself. Compliant members of the College should not have to bear, through their licensing fees, the full financial cost of disciplining non-compliant members, particularly when the latter put forward no defence at all.
College Counsel referred to three decisions in support of the request for costs against the Member. In Ontario College of Teachers v. Williamson, 2017 ONOCT 20, costs of $10,839 were ordered against a member who failed to communicate with the College during a discipline proceeding. Similar orders were made in Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56 (costs order of $7,500) [“Chong Yen #1”] and Ontario College of Teachers v. Chong Yen, 2018 ONOCT 68 (costs order of $10,000) [“Chong Yen #2”].
College Counsel submitted that costs were only sought for the two days of the hearing on finding, and none were sought for the third day arguing the appropriate penalty (i.e. March 21, 2019). He submitted that the Tariff A amount for a two day hearing would be $20,000. However, the College was seeking a costs order of $10,000 to $15,000 plus disbursements ($11,715.34 to $16,715.34).
College Counsel submitted that several factors justified a cost award higher than that ordered in the two Chong Yen decisions referred to above. First, the Member in this case had completely failed to correspond with the College, whereas there was some communication in the Chong Yen #1 matter. This matter involved nine live witnesses having to travel to the College in Toronto to testify, whereas there were fewer witnesses inconvenienced in Chong Yen #1. College Counsel highlighted that the students involved in this case had to recall unpleasant memories in a stressful process. He said that had the Member participated in the process, some matters might have been resolved by an agreement or the number of witnesses might have been reduced.
COSTS DECISION
The Committee rendered an oral decision on March 21, 2019, in which it ordered the Member to pay costs of this matter to the College fixed in the amount of $12,000, inclusive of disbursements, which must be paid within 120 days of the date of the order.
REASONS FOR COSTS DECISION
The Committee is empowered by s. 30(5) at paragraph 4 of the Act to order costs payable by a member to the College where it has found that member guilty of professional misconduct. Equally, costs can be ordered payable by the College to the Member where the Committee is of the opinion that the commencement of the proceeding was unwarranted pursuant to s. 30(9).
Rule 16 of the Rules creates the procedure applicable where costs are sought by either party. Pursuant to r. 16.05(3), where the College requests costs, no evidence of the cost of a day of hearing need be provided if the amount claimed is equal to or less than the amount set out in Tariff A. Tariff A is currently set at $10,000. The amount claimed by the College is less than $10,000 per day and therefore the College is not required by the Rules to provide evidence of its costs of convening and litigating this matter.
This Committee does not have much jurisprudence on costs. A review of Williamson and Chong Yen #1 (reasons have not yet been released in Chong Yen #2) reveal the following factors to be considered:
Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.
Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.
Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.
Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.
The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor.
In the specific context of this case, the Committee found that it is just and appropriate to order costs against the Member in the amount of $12,000. The Committee considered the following factors relevant:
The Member completely refused to participate in the proceeding or cooperate with College Counsel on any matter. The particular facts of this case differentiate it from Chong Yen #1, where the Member had contact with the College as recently as the day before the hearing, advising that he would not be attending the hearing.
This matter involved significant expense of time and inconvenience for nine witnesses who travelled to the hearing. A number of the witnesses were young students who recounted what were evidently traumatic memories, occasioned by the Member’s misconduct. The number of witnesses in this case was higher than the number of witnesses in Chong Yen #1.
The findings stage of this matter proceeded over two days, and it was of moderate complexity.
If the Member had participated in this matter, it is possible that the parties might have agreed on some matters and conserved Committee resources. For example, agreement might have been reached about the evidence of some of the witnesses, reducing the number of witnesses who were required to travel to the hearing and testify in person. The Committee is cognizant that the College always bears the burden of proof in the discipline process.
Throughout the prosecution, the College advised the Member in correspondence, which has been deemed to have been served on her, that it would be seeking costs if it was successful in obtaining findings of professional misconduct.
The quantum of $12,000 is within the range proposed by College counsel and less than the amount prescribed by Tariff A as requiring evidence of the fees incurred.
In the circumstances, the Committee was satisfied that an order of costs payable by the Member to the College was just and appropriate.
Date: April 17, 2019
Vicki Shannon, OCT Chair, Discipline Panel
Godwin Ifedi Member, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel