DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Barwinski 2019 ONOCT 58
Date: 2019-07-10
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
Cheri Lee Barwinski, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
CHERI LEE BARWINSKI (REGISTRATION #265862)
PANEL: Irene Dembek, OCT, Chair Jonathan Rose Vicki Shannon, OCT
HEARD: July 8, 2019
Ava Arbuck and Nicholas Fitz of McCarthy Tétrault LLP, for Ontario College of Teachers
Anna MacDonald and Michelle Sun of Ontario Principals’ Council, for Cheri Lee Barwinski
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.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 8, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated September 5, 2018 (Exhibit 1) was served on Cheri Lee Barwinski (the “Member”), inviting her to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for July 8, 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 Cheri Lee Barwinski is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (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 failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);
(c) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(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);
(f) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);
(g) she failed to comply with the member’s duties under the Child, Youth and Family Services Act, contrary to Ontario Regulation 437/97, subsection 1(27).
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:
Cheri Lee Barwinski 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 Hamilton-Wentworth District School Board (the “Board”) as a Principal at [XXX] School (the “School”) during the 2015 – 2016 academic year.
On or about May 2, 2016 the Member:
(a) failed to take appropriate steps to investigate concerns about potential abuse of a [XXX] student reported to her by School staff;
(b) misinterpreted comments from her Supervisory Officer leading her to discourage staff from reporting concerns of potential physical abuse to the Children’s Aid Society; and
(c) failed to take steps to ensure staff reported their concerns about the welfare of a student were reported to the Children’s Aid Society.
- On or about January 16, 2017, the Member was disciplined by the Board and reassigned to the role of Vice Principal. Following a grievance, the Board retroactively reinstated the Member to the role of Principal from January 16 to June 30, 2017, and the Member voluntarily resigned her employment as Vice Principal from the Board effective August 31, 2017.
GUILTY PLEA
By this document,1 the Member admits the truth of the facts and exhibits referred to in the paragraphs 1 to 4 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(11), 1(14), 1(15), 1(18), 1(19), and 1(27).
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 with the advice of legal counsel.
- In light of the Admitted Facts and 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.
DECISION
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on July 8, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11), 1(14), 1(15), 1(18), 1(19) and 1(27).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 4 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11), 1(14), 1(15), 1(18), 1(19) and 1(27).
Paragraphs 3 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 3 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11).
Paragraphs 3 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14).
Paragraphs 3 and 6 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 that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 3 and 6 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 disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 3 and 6 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).
Paragraphs 3 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the member’s duties under the Child, Youth and Family Services Act, contrary to Ontario Regulation 437/97, subsection 1(27).
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”);
direct the Registrar 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 120 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 the obligation to report on potential abuse, subject to the following conditions;
(i) the Member will provide to the 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, 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.
(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.
PENALTY DECISION
In an oral decision rendered on July 8, 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. Quaglia, 2018 ONOCT 17 and Ontario College of Teachers v. Tallevi, 2011 ONOCT 33.
The Committee finds that the Member’s failure to take steps to investigate concerns about the potential abuse of a [XXX] student, and discouraging staff from reporting the concerns of potential abuse to the Children’s Aid Society, warrants a reprimand by her peers. School principals must fulfil the role and responsibilities entrusted to them and be role models for teachers. They are expected to know and to fulfill their duties under the Child, Youth and Family Services Act. The Member should have shown better professional judgment and set an example for teachers under her supervision by reporting the concerns of potential physical abuse to the Children’s Aid Society as explained in the Professional Advisory regarding the Duty to Report (Exhibit 4). As leaders in their school communities, principals are responsible for the safety of all students. If they have reasonable grounds to suspect the physical abuse of children (among other types of abuse or harm), they must immediately report the suspicion to the Children’s Aid Society. The duty to report extends to any person who performs professional duties with respect to children. 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 the required course of instruction regarding the obligation to report on potential abuse will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a member of the teaching profession and will help her to make better decisions in the future.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principles of serving and protecting the public interest.
Date: July 10, 2019
______________________________
Irene Dembek, OCT
Chair, Discipline Panel
______________________________
Jonathan Rose
Member, Discipline Panel
______________________________
Vicki Shannon, OCT
Member, Discipline Panel