DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Von Eppinghoven 2020 ONOCT 139
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
Elizabeth Marie Von Eppinghoven, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ELIZABETH MARIE VON EPPINGHOVEN (REGISTRATION #101450)
PANEL: Diane Ballantyne, OCT, Chair Shanlee Linton, OCT Tom Potter
HEARD: December 16, 2019
Stephanie Sugar and Vincent DeMarco, for the Ontario College of Teachers
Patricia D’Heureux, for Elizabeth Marie Von Eppinghoven
Julie Maciura, 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 December 16, 2019 at the Ontario College of Teachers (the “College”).
2Elizabeth Marie Von Eppinghoven (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 September 12, 2018 (Exhibit 1) are as follows:
IT IS ALLEGED that the Elizabeth Marie Von Eppinghoven 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) she abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);1
(d) 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);
(e) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(f) 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);
(g) 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);2
(h) 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:
Elizabeth Marie von Eppinghoven 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 teacher at [XXX] School (the “School”).
At all material times, Student 1 was a male Grade [XXX] student in the Member’s class.
On or about May 18, 2016, the Member left her grade [X] class and left School property to go to Tim Horton’s to purchase Timbits for her class. A student teacher was left alone with the class. While the Member was out, the student teacher wrote Student 1’s name on the board for having tossed a pencil at another student. The Member was absent from the class for approximately 10-15 minutes.
When the Member returned from Tim Horton’s and learned about why Student 1’s name was on the board, the Member raised her voice and asked Student 1 about his action having been inappropriate. The Member asked Student 1 words to the effect of: “Would you like it if something was thrown at you?”
The Member then threw a book in the direction of Student 1. The book hit Student 1 on the arm, however, Member did not intend to hit Student 1.
On or about May 20, 2016, Student 1 spoke about the May 18, 2016 incident to the School’s resource teacher, at which time he relayed that during the incident the book had hit him on the arm. The resource teacher reported what Student 1 had told her to the School Principal. The Principal followed reporting protocols, and subsequently started an investigation. In the course of the investigation, Student 1, the student teacher, the resource teacher and four other students were interviewed. The student teacher and two of the four student witnesses corroborated that the Member had thrown a book at Student 1.
On or about June 22, 2016, the Member received a letter of expectation from the School Principal, noting that it had been substantiated that the Member threw a book at a student. The Member was required to attend anger management counselling and a classroom management workshop. Attached hereto and marked as Exhibit “B” is a copy of the School Principal’s June 22, 2016 letter of expectation to the Member.
The Member continues to teach at the School.
Disciplinary History with the College
On October 12, 2011, the Member received a letter of expectation from the Board following two September 2011 incidents in which the Member threw chalk at students. The Member was advised that such behaviour was unacceptable.
In December 2016, the College’s Discipline Committee found the Member guilty of professional misconduct with respect to the two September 2011 incidents in which the Member threw chalk at students, and made inappropriate comments. The Member received a reprimand and was ordered to complete a course of instruction regarding professional boundaries. Attached hereto and marked as Exhibit “C” is a copy of the January 3, 2017 Decision, Reasons for Decision and Order of the College’s Discipline Committee.
PLEA OF NO CONTEST
By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(11), 1(14), 1(15), 1(18-unprofessional), and 1(19).
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 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’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 the parties 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.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose 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 contest3, 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 allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.2) of Ontario Regulation 437/97, be withdrawn. With respect to paragraph (g) of the Notice of Hearing, namely that the Member contravened 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 subsection 1(7.2) allegation was being sought because there were no facts in the Statement of Uncontested Facts supporting this allegation. College Counsel stated that the Panel was being asked to find the Member’s conduct unprofessional only, under subsection 1(18), because her conduct did not rise to the serious level of disgraceful and dishonourable conduct. 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 December 16, 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(11), 1(14), 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 11 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 that the Member engaged in inappropriate and unprofessional behaviour.
9The Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. Among other things, the Ethical Standards for the Teaching Profession provide that members are expected to “express their commitment to students’ well being and learning through positive influence, professional judgment and empathy in practice.” The Member threw a book at a student and the book hit the student. This behaviour demonstrated a lack of professional judgment and a disregard for the ethical standard of “care”.
10The Member engaged in the physical abuse of a student, thereby contravening subsection 1(7.1) of Ontario Regulation 437/97, when she threw a book at Student 1 and the book hit Student 1 on the arm. It is unacceptable for members of the teaching profession to resort to violence when attempting to discipline students.
11The Member failed to adequately supervise her students, thereby contravening subsection 1(11) of Ontario Regulation 437/97, when she left a student teacher alone with her class for approximately 10-15 minutes to go to Tim Hortons. The Member’s failure to adequately supervise her students put their safety at risk. Members of the profession are expected to provide students with a safe learning environment. The Member failed to meet this expectation.
12The Member contravened subsection 1(14) of Ontario Regulation 437/97 by contravening the codified standards of the profession, which are set out at section 32 of the Bylaws of the Ontario College of Teachers. Leaving the students unsupervised and throwing a book at a student are clearly violations of the trust, respect, integrity and care expected of teachers according to the Ethical Standards for the Teaching Profession.
13The Member contravened 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. Among other things, teachers are expected to “maintain […] proper order and discipline in [their] classroom and while on duty in the school and on the school ground.” It is unacceptable for a teacher to throw a book at a student under any circumstances. The Member acted as a poor role model for students through her behaviour in this case.
14The Member contravened subsection 1(18) of Ontario Regulation 437/97 by engaging in unprofessional conduct. She demonstrated a lack of professional judgment when she left her students alone with the student teacher for 10-15 minutes to go to Tim Hortons. The Member also failed to demonstrate a commitment to Student 1’s physical and emotional well being when she threw a book at him.
15Finally, the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. By throwing a book at a student, the Member undermined the public’s trust in the teaching profession.
F. PENALTY Decision
16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on December 16, 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 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”);
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 Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;
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) 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 effective student discipline, subject to the following conditions;
(i) the Member will provide to a course provider 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 and Reasons 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 her 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.
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 on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Ivanova, 2014 ONOCT 49, Ontario College of Teachers v. Green-Johnson, 2018 ONOCT 30, Ontario College of Teachers v. Page, 2017 ONOCT 95, Ontario College of Teachers v. Clements, 2016 ONOCT 11 and Ontario College of Teachers v. O’Shea, 2017 ONOCT 8.
18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is her prior disciplinary history with her Board and the College for similar misconduct. Member’s Counsel submitted that the College’s prior discipline of the Member was not “true prior discipline” because the College’s prior decision post-dated the Member’s misconduct. She maintained that, accordingly, the Member did not have the opportunity to benefit from the prior discipline order and hence the prior disciplinary history should be given lower weight. The Panel disagrees with this submission. The Member had the Notice of Hearing outlining the prior misconduct in 2013 and was or ought to have been fully aware that her behaviour was problematic. There was no evidence that the Member completed anger management counselling and the classroom management workshop directed by her Board in 2016 in relation to her misconduct.
19In terms of mitigating factors, the Member admitted her misconduct, saving the student from testifying as well as the time and expense of a contested hearing, and she participated in the College’s disciplinary process. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
20The Panel finds that the Member’s inappropriate and unprofessional conduct, despite warnings from the Board and the College, warrants a reprimand by her peers. Members are expected to serve as role models for students, which the Member failed to do by leaving her class inadequately supervised and by throwing a book at Student 1. 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.
21The Panel finds that the course of instruction regarding effective student discipline 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.
22Given the nature and severity of the Member’s conduct, the Panel finds that a one-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The Member’s misconduct was inappropriate and unprofessional. The Member had received prior discipline from her Board and a Notice of Hearing from the College for similar misconduct. Her behaviour raises serious concerns regarding her professional judgment. Members of the profession are expected to create a safe and supportive learning environment for all students and to ensure student safety at all times. The Member failed to meet these expectations. 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.
23The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: January 3, 2020
Diane Ballantyne, OCT Chair, Discipline Panel
Shanlee Linton, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel