Ontario College of Teachers v. Leon, 2020 ONOCT 136

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Leon 2020 ONOCT 136

Date: 2020-02-10

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

Jennifer Allyson Leon, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JENNIFER ALLYSON LEON (REGISTRATION #490731)

PANEL: Jonathan Rose, Chair Ann Ciaschini, OCT Irene Dembek, OCT

HEARD: January 30, 2020

Stephanie Sugar, for the Ontario College of Teachers Joshua Phillips, for Jennifer Allyson Leon 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 January 30, 2020 at the Ontario College of Teachers (the “College”).

2Jennifer Allyson Leon (the “Member”) did not attend the hearing but 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.

3Two Notices of Hearing dated April 23, 2018 (Exhibit 1) and April 26, 2018 (Exhibit 2) were served on the Member, specifying the allegations and requesting her presence on a date to be determined for the hearing. The hearing with respect to the allegations set out in Exhibit 1 and Exhibit 2 was subsequently set for January 30, 2020. With the consent of the parties, pursuant to section 9.1(1)(a) of the Statutory Powers Procedure Act, R.S.O 1990, c. S. 22, the Panel agreed to proceed with a single hearing to address the allegations set out in the two Notices of Hearing, given that the two matters dealt with the same or similar questions of fact and law.

A. PUBLICATION ban

4The 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

5The allegations against the Member in the Notice of Hearing dated April 23, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Jennifer Allyson Leon is guilty of professional misconduct and/or is incompetent 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);¹

(b) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);²

(c) she abused a students or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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 an act or 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);

(g) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

(h) she displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of her students of a nature or extent that demonstrates that the Member is either unfit to carry out her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.³

6The allegations against the Member in the Notice of Hearing dated April 26, 2018 (Exhibit 2) ⁴ are as follows:

IT IS ALLEGED that Jennifer Allyson Leon 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);⁵

(b) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);⁶

(c) she abused a students or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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 an act or 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); and

(g) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

C. AGREED STATEMENT OF FACTS

7College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. Jennifer Allyson Leon 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 respecting the Member.

2. At all material times, the Member was employed by the Ministry of Education – Provincial Schools Authority (the “PSA”) as an elementary teacher at [XXX] School for the Deaf (the “School”), a residential and day-school serving deaf and hard-of-hearing students in [XXX], Ontario.

3. The Member is a member of the deaf community and is fluent in English and American Sign Language. Members of the deaf community rely upon their hands and use physical contact to communicate and to get each other’s attention. The Member acknowledges that despite this fact, she could have been gentler in her approach to her students.

2015-2016:

4. During the 2015-2016 academic year, the Member was a [XXX] teacher at the School.

5. At all material times, Student 1 was a non-verbal female student and Student 2 was a male student in the Member’s [XXX] class. The Member’s class consisted of four students in total.

6. On or about June 10, 2016, a teacher assigned to assist the Member in her class reported concerns regarding the Member’s conduct towards Student 1 and Student 2.

7. The Member:

(a) often exhibited anger and frustration towards Student 1 and Student 2;

(b) was rough and abrasive with Student 1 and Student 2;

8. Upon completion of its investigation, the PSA concluded the Member’s conduct towards Student 1 and Student 2 was inappropriate, and suspended the Member’s employment for five days without pay, from October 3 to October 7, 2016. Attached hereto and marked as Exhibit “B” is a copy of the discipline letter from the Executive Director of the Provincial Schools Branch dated September 30, 2016.

2016-2017:

9. During the 2016-2017 academic year, the Member was a [XXX] teacher at the School.

10. At all material times, Student 3 was a male student in the Member’s class.

11. On or about November 28, 2016, students from the Member’s class went outside for recess. For safety reasons, teachers at the School require students to hold onto to a chain of different coloured foam rings when they go outside. On this day, Student 3 did not accept the coloured ring the Member gave him, and wanted to hold the purple ring instead.

12. The Member would not give Student 3 the purple ring. Student 3 refused to go out with the other students for recess and sat on a bench in the hallway. The Member tapped Student 3 with the purple ring to get his attention, and as Student 3 stood up and reached out for the ring, the Member pulled it out of his reach. Student 3 sat back down on the bench and refused to move. This incident was captured on security video footage.

13. Later that day, while teaching a lesson, the Member saw Student 3 lean forward and bump his head on a table. She asked Student 3 if he was okay, and he indicated he was okay. The Member did not attend further to Student 3, and continued her lesson. Student 3 wandered off to the other side of the room. Another teacher present approached the Member, agitated that the Member had not assisted Student 3, who was crying and complaining of a “hurt head”. The Member told the teacher the student was fine, and turned back to her lesson. Later, she saw that Student 3 was with the other teacher, so she did not interfere.

14. On or about November 29, 2016, Student 3 was climbing on a cubby in the hallway. The Member took hold of Student 3’s shoulders or arms. As she brought him down from the cubby, Student 3 made himself limp in her arms. She let go of him and he collapsed on the floor. This incident was captured on security video footage.

15. The Halton Children’s Aid Society investigated and verified “concerns regarding physical force and/or maltreatment towards a child” on November 28 and 29, 2016. Attached hereto and marked as Exhibit “C” is a copy of the letter from the Halton Children’s Aid Society to the Member dated February 6, 2017.

16. The Member acknowledged to the PSA that she made mistakes and regretted her actions with Student 3, but stated that she did not intend to hurt Student 3.

17. The PSA concluded that the Member engaged in inappropriate conduct including aggressive physical conduct, and by doing so she did not ensure the health and safety of vulnerable students in her care. The PSA terminated the Member’s employment, effective March 15, 2017. Attached hereto and marked as Exhibit “D” is a copy of the letter of termination dated March 15, 2017.

18. All of the discipline imposed by the PSA was grieved by the Member’s Federation, OSSTF. The grievances were eventually resolved to the satisfaction of the parties.

GUILTY PLEA

19. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs above (the “Admitted Facts”).

20. 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(7.2), 1(14), 1(15), 1(18), and 1(19).

21. 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 this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

22. 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.

D. DECISION

8Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (h) of the Notice of Hearing dated April 23, 2018 (Exhibit 1), namely that the Member contravened subsections 1(5) and 1(7.1) of Ontario Regulation 437/97, and that the Member is incompetent as defined in the Act, be withdrawn. College Counsel also requested that the allegations of professional misconduct outlined in paragraphs (a) and (b) of the Notice of Hearing dated April 26, 2018 (Exhibit 2), namely that the Member contravened subsections 1(5) and 1(7.1) of Ontario Regulation 437/97, be withdrawn. The Committee understands that College Counsel sought to withdraw the subsection 1(5) allegations in both Notices of Hearing because they duplicated the subsection 1(14) allegation. College Counsel sought to withdraw the subsection 1(7.1) allegations because the evidence does not support a finding of physical abuse.College Counsel sought to withdraw the incompetence allegation because the facts did not concern the Member’s knowledge and skills to teach, but specific instances of the Member’s conduct toward students. The Panel granted these requests.

9Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on January 30, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 18 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above.

11The Member psychologically or emotionally abused Student 3, a [XXX] student, contrary to subsection 1(7.2) of Ontario Regulation 437/97. Student 3 wanted to hold onto a purple ring rather than another coloured ring, which the students did for safety when exiting the school for recess. The Member approached Student 3, who was sitting on a bench in the hallway. She tapped him with the purple ring to get his attention. When Student 3 stood up to reach for the ring, the Member pulled it away from him, whereupon Student 3 sat back down. Taunting or belittling a student is an inappropriate form of discipline that constitutes emotional abuse. The fact that the Member “often exhibited anger and frustration” toward Student 1 and Student 2 is also evidence of emotional abuse.

12The Admitted Facts demonstrate that the Member’s conduct is contrary to subsection 1(14) of Ontario Regulation 437/97. The way that the Member communicated with students did not meet the ethical standard of “Care” as articulated under section 32 of the College’s by-laws. In particular, the Member demonstrated a lack of empathy for students by “often exhibit[ing] anger and frustration” toward Student 1 and Student 2 and by being “rough and abrasive” with Student 1 and Student 2. Similarly, the Member’s aggressive conduct toward Student 3 showed a lack of care and compassion. As members of the deaf community, the Member and her students use sign language and often rely on physical contact as a means of communication with one another. However, the Member’s aggressive manner when communicating with Student 1, Student 2 and Student 3 fell below the ethical standard of “Care” expected of a member of the teaching profession.

13The Member’s conduct contravenes subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Teachers hold a unique position of trust and authority. They must model appropriate behaviour for students and encourage students in the pursuit of learning. By exhibiting “anger and frustration” towards Student 1 and Student 2 and by being “rough and abrasive” with Student 1 and Student 2, the Member failed to act as a role model for young students. Young students look to their teacher to learn appropriate, non-aggressive communication skills. The Panel further finds that the Member’s aggressive behaviour toward young students would discourage students and interfere with their learning.

14The Member’s conduct is unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member’s aggressive communication with Student 1 and Student 2, and her emotionally abusive conduct toward Student 3, demonstrates her failure to act in the best interest of students and to ensure their safety.

15Finally, the Member’s conduct is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97, in that it violates the trust that parents, students and the public place in teachers, and undermines the reputation of the teaching profession.

F. PENALTY DECISION

16The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on January 30, 2020 the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee, on a date to be arranged by the Member within 90 days of the date of the 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 W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one month commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;

3. The Registrar is directed 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) prior to commencing or resuming a teaching 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 anger management and classroom management subject to the following conditions:

(i) the Member will provide to a 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) following 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 which:

(i) confirms that the Member has successfully completed the course and reports on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

17The 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 finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes based specifically on the following prior decisions of the Discipline Committee presented by the parties: Ontario College of Teachers v. Vanderberg, 2018 ONOCT 15, and Ontario College of Teachers v. Ivanova, 2014 ONOCT 49.

18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case include the vulnerability of young [XXX]-aged students and their exceptionalities as deaf students. The Member had also been previously disciplined by the Provincial Schools Authority for similar misconduct. In terms of mitigating factors, the Member admitted her misconduct and participated in the discipline process. By coming to an agreement with the College, the Member saved the time and expense of a contested hearing and prevented students from having to testify. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s inappropriate conduct warrants a reprimand by her peers. Members are expected to serve as role models for students, which the Member failed to do by demonstrating aggressive communication and insufficient care when managing a classroom of [XXX]-aged students with exceptionalities. 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.

20Given the repeated nature of the Member’s misconduct, and the fact that she committed similar misconduct shortly after being disciplined by the Provincial Schools Authority, the Panel finds that a one-month suspension is reasonable and appropriate. While the cases presented by the parties are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.

21The Panel finds that the courses of instruction regarding anger management and classroom management will assist in the rehabilitation of the Member. The coursework will assist the Member in managing her reactions to students, remind the Member of her obligations as a teacher, and help her make better decisions in any future interactions with students.

22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3Allegation withdrawn at College Counsel’s request.
4. 4“Student 1” in the Notice of Hearing dated April 28, 2018 (Exhibit 2) is referred to as “Student 3” in the Agreed Statement of Facts and Guilty Plea (Exhibit 3) below.
5. 5Allegation withdrawn at College Counsel’s request.
6. 6Allegation withdrawn at College Counsel’s request.