DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Kuvear Persaud Balbahadur, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
KUVEAR PERSAUD BALBAHADUR (REGISTRATION #205943)
PANEL: John Hamilton, OCT, Chair Jonathan Rose Vicki Shannon, OCT
HEARD: February 11, 2019
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk Kirsty Niglas-Collins of KNC Law, for Kuvear Persaud Balbahadur 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 11, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated March 23, 2017 (Exhibit 1) was served on Kuvear Persaud Balbahadur (the “Member”), requesting his presence on April 26, 2017 to set a date for hearing and specifying the allegations. The hearing was subsequently set for February 11, 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 failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) 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);
(c) he 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);
(d) 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:
Kuvear Persaud Balbahadur 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 Toronto District School Board (the “Board”) as a [XXX] teacher at [XXX] (the “School”) in Scarborough, Ontario.
In the 2014-2015 academic year, Student 1 was a Grade [XXX] female student at the School, in two of the Member’s Grade [XXX] [XXX] classes.
On or about January 20, 2015, Student 1 reported to the School Principal and Vice-Principal inappropriate conduct by the Member. Student 1 reported that the Member showed her favoritism and had made inappropriate comments which made her uncomfortable.
During a school assembly in December 2014, a video was shown of a comedy skit in which the Member stated that Student 1 was his favourite student. This skit was written by students with the input of other teachers.
On a [XXX] test, the Member included a bonus question that said “Who is [the Member]’s favourite student?” Student 1 did not answer the question. The Member filled in the answer, stating “It is [Student 1] and has been for a while. You are very beautiful.” The Member attempted to erase his comment but it remained legible when the test was returned to Student 1. Attached hereto and marked as Exhibit “B” is a copy of the test.
around Christmas 2014, the Member gave Student 1 a [XXX] that contained chocolates and a $50 Indigo gift card. Student 1 returned the $50 gift card to the Member because she felt uncomfortable. The [XXX] was a [XXX] kept on the Member’s desk which contained gifts originally from students to the Member. The Member was unaware that such a high value gift card was in the [XXX].
In the first term marks for the academic year 2014-2015, the Member gave Student 1 a mark of 97% in [XXX]. Student 1 believed that her work did not justify such a mark.
Student 1 also perceived the Member as giving her opportunities to improve her marks by:
a. Giving Student 1 the correct answers to questions she had answered incorrectly on a test or tests;
b. Offering Student 1 an opportunity to rewrite a test or tests;
c. After a test had been written and marked, providing to Student 1 a blank test sheet to fill in the correct answers;
d. Giving Student 1 the equation needed to complete a [XXX] assignment.
The Member acknowledges the above conduct in paragraph 9, but denies that it was different from the way he treated other students.
Following Student 1’s report in January 2015, the Board conducted an investigation. At the conclusion of the investigation, the Member received a letter of reprimand, was suspended without pay for a period of three days, and directed to address his professional development needs with respect to the parameters that define appropriate interactions between teachers and students. Attached hereto and marked as Exhibit “C” is a copy of the October 26, 2015 letter of reprimand from the School Principal to the Member.
The Member’s suspension from the Board was later reduced to one day. The Member continues to teach at the School.
The Ontario College of Teachers has established ethical standards and standards of practice for the teaching profession. The Member’s conduct contravened those standards, a copy of which is attached hereto and marked as Exhibit “D”.
GUILTY PLEA
By this document1, the Member admits the truth of the facts and exhibits referred to in the paragraphs 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 him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18), 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 pleading guilty to the allegations, he is waiving the right to require the College to otherwise 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 does not bind the Discipline Committee;
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 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 February 11, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 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(5), 1(15), 1(18) and 1(19).
Paragraphs 5-8 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 5-8 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 5-9 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 5-9 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).
In paragraph 10 of the Agreed Statement of Fact and Guilty Plea, the Member claims that, in relation to the conduct described in paragraph 9 of the Agreed Statement of Fact, he treated all students in the same manner as Student 1. Although at first blush this may appear to negate a finding of professional misconduct in relation to the conduct described in paragraph 9, the member ought to have known that the conduct in paragraph 9, in combination with the conduct described in paragraphs 5–8, would have the inevitable consequence of making Student 1 uncomfortable.
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 St. 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 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 a 120 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary violations, subject to the following conditions;
(i) the Member will provide to a course provider 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 provider 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 provider 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 his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider:
(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 11, 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 analogous cases presented by College Counsel: Ontario College of Teachers v. Roe, 2017 ONOCT 46 and Ontario College of Teachers v. Kpodjie, 2018 ONOCT 50.
The Committee finds that the Member’s unacceptable and unprofessional conduct warrants a reprimand by his peers. Amongst other things, the Member told Student 1 she was his “favourite” and that she was “beautiful”. He gave her an inappropriate gift and openly showed favouritism toward her which made her feel uncomfortable. Members of the profession are expected to act as role models for students and must maintain appropriate boundaries with students at all times. Teachers are also expected to create a safe environment in which students can learn and develop. The Member failed to meet these expectations when he had inappropriate interactions with Student 1 and made comments to her which made her feel uneasy. The reprimand will allow the Committee to directly address its concerns with the Member and will therefore 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 course of instruction regarding boundary violations will assist in the rehabilitation of the Member. The course work will remind the Member of his obligations as a teacher and will help him to 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.
Date: February 20, 2019
John Hamilton, OCT
Chair, Discipline Panel
Jonathan Rose
Member, Discipline Panel
Vicki Shannon, OCT
Member, Discipline Panel