Discipline Committee of the Ontario College of Teachers
Ontario College of Teachers v Benn 2019 ONOCT 98
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
Ellie Noreen L. Benn, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ELLIE NOREEN L. BENN (REGISTRATION #101597)
PANEL: Nicola Powadiuk, OCT, Chair Benoît Dussault, OCT Marlène Marwah
HEARD: November 15, 2019
Jean-François Schaan, for the Ontario College of Teachers Sheilagh Turkington, for Ellie Noreen L. Benn Rebecca Durcan, 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.
1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 15, 2019 at the Ontario College of Teachers (the “College”).
2Ellie Noreen L. Benn (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
A. PUBLICATION BAN
3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.
B. THE ALLEGATIONS
4The allegations against the Member in the Notice of Hearing dated August 23, 2017 (Exhibit 1) are as follows:
IT IS ALLEGED that Ellie Noreen L. Benn is guilty of professional misconduct as defined in 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 abused a student, or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);1
(c) she abused a student, or students, physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) she abused a student, or students, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);2
(e) 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);
(f) 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);3 and
(g) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. STATEMENT OF UNCONTESTED FACTS
5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:
Ellie Noreen L. Benn has been at all material times a member of the Ontario College of Teachers. In June 1996, the Member obtained an Ontario Teacher’s Certificate. In May 1997, the Member obtained a Certificate of Qualification and Registration. Attached as Appendix "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 either [XXX] School [XXX] or [XXX] School [XXX], both of which are located in Toronto, Ontario.
At all material times, Students 1, 2 and 3 were male students in the Member's [XXX] [XXX] class at [XXX].
At all material times, Student 4 was a female [XXX] student at [XXX]. The Member did not teach Student 4.
[XXX] Incidents
In or about November 2014, the Member had the [XXX] students sitting on the classroom carpet area for a brief morning routine. Student 1 and Student 2 were being disruptive in class. The Member would recall that their disruptive behaviour included kicking and crawling over other seated students.
The Member asked the students to move to the table that was adjacent to the carpet area. The students moved to the table but they continued to be disruptive. The students were reminded about the classroom rules and expectations but again persisted in disrupting the class.
The Member recalls that Students 1 and 2 were kicking chairs and pushing the table, and that she directed the students to stand behind the table, where they could not do this. As they moved to the spot indicated by the Member, the students pushed and hit each other, again disrupting the class. The Member recalls being concerned that this would escalate and could become a safety issue with one or both of the students.
The Member then told Student 1 and Student 2 to place their hands on their heads as they stood away from the table. From the Member's perspective, this also gave them space to move and to be separate from each other until she could speak to them individually.
Students 1 and 2 complied with this direction. The [XXX] on the carpet was completed with the class and, as students moved to their stations, Student 1 and Student 2 were directed to join the new activities.
A [XXX] in the classroom recalls that the students were standing with their hands on their heads for approximately 5 minutes and that one student looked uncomfortable from holding this posture. The Member recalls the time the students stood with their hands on their heads as being only a few minutes as the carpet time in total was only a planned ten minute activity. As the class transitioned to go to gym period, the Member spoke to Students 1 and 2 away from the rest of the class to again reinforce classroom behaviour expectations.
In or about November 2014, students in the classroom were on the floor for the [XXX]after lunch. The class was being supervised by a lunch time supervisor. As the Member came into the class, she recalls that Student 1 and Student 2 had climbed up on a ledge that ran along the length of the class window. The Member recalls immediately directing and assisting them each off the ledge. As she did, the Member tapped them lightly on the buttocks three times as she said words to the effect of “you need to do what you are supposed to do.” The [XXX] in the room has reported this action as spanking. The Member indicates that she did not intend to spank: she intended to emphasize her direction to the students that they needed to follow verbal direction.
In or about November 2014, the Member's class had transitioned to a [XXX] lesson in the gymnasium that was conducted by a different teacher. This teacher recalls a situation where a male student was sitting on the [XXX]“ during transition time, and where the Member picked up the student and carried him out of the gymnasium. The Member recalls that she brought Students 1 and 2 to the gymnasium on their own, and that during the transition time, Student 3 was not responding to instruction and was running around the classroom. The Member picked up Student 3 under his shoulders and carried him to a nearby bench.
Student 3 told his mother that the way that the Member picked him up was “hard” and that he was hurt near his rib. The Member indicates that she did not intend to hurt the student at all and regrets having intervened in this manner.
On or about November 7, 2014, the Member was assigned home with pay pending the outcome of the Board investigation.
The Children's Aid Society (the “CAS”) was contacted concerning the incidents described above. On January 8, 2015, the CAS advised that the allegations concerning Student 1 and Student 2 were not verified. Attached as Appendix "B" is a copy of the CAS’s letter.
On or about May 7, 2015, the Board issued a letter of discipline to the Member. The Member was administratively transferred from [XXX] to another school. The Member was also required to take anger management counselling and a classroom management workshop and provide proof of completion of these programmes to the Board’s Family and Schools Superintendent by June 28, 2015. The Member was also required to review relevant Board policies and a College professional advisory with the Family and Schools Superintendent or his designate by May 29, 2015. Attached as Appendix "C" is a copy of the Board's May 7, 2015 letter of discipline.
An extension of the deadline for anger management counselling and a classroom management workshop was agreed upon by the workplace parties because the course provider was not immediately available. In or about September 25, 2015, the Member completed five hours of coursework with Nancy Whetter, a provider who has previously been approved by the Registrar of the Ontario College of Teachers. This included Anger Management in view of the Board’s expressed concerns as well as training on strategies for constructive student management. Proof of completion of the course was provided by the course provider on October 15, 2015. Attached as Appendix "D" is a copy of the course provider’s letter to the Member’s federation, confirming that the Member completed the coursework referred to in this paragraph.
[XXX]Incidents
In the 2015-2016 school year, the Member taught Student 4’s younger brother who was in a [XXX] class. Student 4 was a grade [XXX] student at the same school but she was not known by the Member.
In or about September 2015, Student 4 was skipping in the hallway near the Member’s classroom. According to the Member, this portion of the hallway was a restricted area not open to anyone other than those in the [XXX] program or the [XXX]class for students with[XXX].
Upon encountering Student 4 in the restricted area, the Member instructed Student 4 to stop skipping around the hallway and to leave the area. Student 4 continued to skip about. In response, the Member told Student 4 she looked “stupid” doing what she was doing. Student 4 reacted to the Member’s comment, expressing that the Member had called her “stupid.” The Member indicates that she regretted having used the word, apologized for the misunderstanding and tried to clarify that she was saying that what Student 4 was doing looked stupid.
Student 4 reported that, on or about November 17, 2015, she was dropping off her brother to the Member’s classroom. The Member recalls that she encountered Student 4 on her own in the hallway well before the start of classes. The Member asked Student 4 to leave, Student 4 refused and a verbal argument ensued between the Member and Student 4.
Student 4 reported that the Member yelled at her "Are you mad or something? Are you stupid and crazy?" Student 4 also stated that the Member grabbed Student 4 by the arm and escorted her to the hallway. Video surveillance of the hall depicted an argument between the Member and Student 4 but it did not depict any form of assault.
Another teacher was on supervision duty for the area ("the Teacher"). The Teacher reported that, when she arrived, both the Member and Student 4 were in the area using loud voices. The Member approached the Teacher, explaining that Student 4 was refusing to leave and was out of control. The Teacher advised the Member that the Teacher was on duty. The Teacher witnessed the Member tell Student 4 in a yelling voice to go outside. The Teacher witnessed Student 4 yell at the Member and refuse to leave. The Teacher then told the Member that she should go to her classroom and that the Teacher would deal with Student 4. The Member left the area and sought assistance from the vice-principal. Student 4 reported that the Member grabbed Student 4’s arm and pushed her out the door, but the Teacher did not witness the Member put her hands on Student 4.
In an undated letter, the CAS advised the Board that it did not verify the allegation that the Member pushed Student 4. Attached as Appendix "E" is a copy of the CAS’s undated letter.
On or about June 15, 2016, the Board issued a letter of discipline to the Member for inappropriate communication. The Member was required to take anger management counselling through the Board’s Employee Assistance Program. The Member was also required to review relevant Board policies and a College professional advisory with [XXX]administration by September 16, 2016. Attached as Appendix "F" is a copy of the Board’s June 15, 2016 letter of discipline.
The Member subsequently completed a Professional Boundaries course that included a review of her professional responsibilities, provided teacher boundaries training, focussed on professional communications and relationship with students, and included exercises with scenarios involving professional judgment. Proof of completion, dated May 2017, was provided to the Board. Attached as Appendix "G" is a copy of the Member’s certificate of completion for the Professional Boundaries course described in this paragraph, dated May 18, 2017.
The Member has since retired from her employment with the Board effective June 30, 2018.
PLEA OF NO CONTEST
By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-27 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against her, being more particularly:
(a) she failed to maintain the standard of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she abused a student or students, physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) 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);
(d) she 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); and
(e) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
- By signing this document the Member states that:
(a) she understands fully the nature of the allegations against her;
(b) she understands that she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) she understands that, by pleading no contest 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 can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) 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;
(f) she understands that any agreement between her and the College with respect to the penalty does not bind the Discipline Committee; and
(g) she understands and acknowledges that she is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
D. DECISION
6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7) and 1(7.2) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). College Counsel stated that the Panel’s permission to withdraw the allegations was being sought for the following reasons. As it pertains to subsection 1(7) of Ontario Regulation 437/97, College Counsel submitted that the allegations of verbal abuse in the Notice of Hearing were better captured under the other heads of professional misconduct referenced in that document. Regarding subsection 1(7.2) of Ontario Regulation 437/97, College Counsel submitted that not enough evidence was available to support a finding of psychological or emotional abuse. Finally, College Counsel submitted that the alleged misconduct relating to subsection 1(18) of Ontario Regulation 437/97 was unprofessional in nature, but could not properly be characterized as disgraceful or dishonourable. The Panel granted these requests.
7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 15, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15), 1(18) [unprofessional only] and 1(19).
E. REASONS FOR DECISION
8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 27 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate a pattern of concerning interactions between the Member and several students. Among other things, the Member asked students to maintain an uncomfortable physical position for several minutes; she lightly tapped students on the buttocks three times when they were misbehaving (which a colleague reported as spanking); she hurt a student by picking him up and carrying him when he was not responding to instruction; she told a student she looked stupid when the student was skipping in the hallway; and, she yelled at a student. These incidents resulted in Board discipline, as set out in the Uncontested Facts.
9The Member’s problematic behaviour represents a breach of the standards of the profession, specifically those of care, respect and trust. Members are expected to create a safe and supportive learning environment for students and the Member repeatedly failed to meet that expectation. Members are also expected to conduct themselves in a composed and professional manner, without yelling at students or resorting to the inappropriate use of physical force against them, even in challenging circumstances. The Member’s conduct in this case constitutes physical abuse, it was a breach of her duties under section 264(1) of the Education Act, and it was unprofessional and unbecoming a member of the teaching profession.
F. PENALTY DECISION
10The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 15, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to 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”); and
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 is to be recorded on the Register until such time as they are fulfilled:
(a) within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete, at her own expense, coursework of instruction covering boundaries with students and anger management, pre-approved by the Registrar, subject to the following conditions:
(i) the Member shall provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest 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 shall 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; and
(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate 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.
G. REASONS FOR PENALTY DECISION
11The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’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 Panel accepts the parties’ submission that the jointly proposed penalty is reasonable and appropriate in the circumstances of this case.
12The Panel considered the Member’s circumstances. The aggravating factors in the Member’s case are the recurrence of the Member’s behaviour and the fact that incidents related to anger management continued to be reported following the Board’s disciplinary actions and the Member’s administrative transfer to another school in 2015. In terms of mitigating factors, the Member did not contest her misconduct, saving the time and expense of a contested hearing, she has no prior discipline history at the College and she has completed additional counselling and coursework as required by the Board. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
13The Panel finds that the Member’s repeated pattern of inappropriate conduct, despite disciplinary actions from the Board, warrants a reprimand by her peers. Members of the teaching profession are entrusted with the physical well-being of students. They are expected to remain composed and professional when interacting with students, even in challenging circumstances. It is unacceptable for members of the profession to yell at students or to use inappropriate physical force against students when attempting to maintain order and discipline in their classes. In light of her behaviour towards Students 1, 2, 3 and 4, the Member failed to meet these expectations. The reprimand will allow the Panel 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.
14The Panel finds that the courses of instruction regarding boundaries with students and anger management will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students.
15The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: November 19, 2019
Nicola Powadiuk, OCT Chair, Discipline Panel
Benoît Dussault, OCT Member, Discipline Panel
Marlène Marwah Member, Discipline Panel