DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Lim 2020 ONOCT 184
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
Siew Kee Rosa Lim, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
SIEW KEE ROSA LIM (REGISTRATION #211972)
PANEL: Rebecca Forte, OCT, Chair John Cammarata Sara Nouini, OCT
HEARD: September 11, 2020
Charlotte-Anne Malischewski and Kathryn McChesney, for the Ontario College of Teachers Heather Ann McConnell, for Siew Kee Rosa Lim 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 September 11, 2020 at the Ontario College of Teachers (the “College”). With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, this matter proceeded by way of an electronic hearing.
2Siew Kee Rosa Lim (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.
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 March 18, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Siew Kee Rosa Lim 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);1
(b) she abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(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);
(e) 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);2
(f) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(g) 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);
(h) 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);
(i) 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:
Siew Kee Rosa Lim 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 an occasional teacher.
On February 9, 2015 while working as a supply teacher at [XXX]School the Member left inappropriate notes for the classroom teacher containing the following comments:
(a) “All the grade [XXX] are very sick, unpleasant, very nasty at heart. They will grow up to be like the Ghomechi [sic] cases”;
(b) “I am a pracmatist [sic] and know what these kids are capable of no matter what.”
Attached hereto and marked as Exhibit “B” is a copy of an email from the classroom teacher setting out day plans. The handwritten notes on the document were made by the Member and left for the classroom teacher.
On November 9, 2016 while working as a supply teacher at [XXX] School the Member was approached by a student who was concerned the Member might have marked him absent. The Member hit the student on his hand with the pointy edge of the attendance binder. This caused a red mark on the student’s hand. The Member then threw the attendance folder to the ground and told the student to pick it up.
On November 9, 2016 while working as a supply teacher at [XXX]School the Member made the following inappropriate comments to students:
(a) “get the shit out of here”;
(b) “I’m glad by the time you grow up I won’t have to be around to deal with you.”
As a result of the Member’s conduct on November 9, 2016 the Principal of [XXX] School issued a disciplinary letter to the Member. Attached hereto and marked as Exhibit “C” is a copy of the April 20, 2017 letter.
On January 26, 2017, while working as a supply teacher at [XXX] School the Member distressed several students by yelling at them and they started crying. The Member also referred to one student as “that Black boy”.
During the same assignment, the Member was approached by a grade [XXX] student who asked to go to the washroom. The Member did not allow that student to go to the washroom. Another student injured their thumb and asked for permission to attend the office to get ice for the injury. The Member also did not allow the student to go to the office.
During the same assignment, the Member asked about a specific student and said words to the effect of “who is that boy in the red shirt, the one who is…” and made a gesture with her hands indicating that the student was overweight.
As a result of the Member’s conduct on January 26, 2017 the Principal of [XXX] School issued a disciplinary letter to the Member. Attached hereto and marked as Exhibit “D” is a copy of the April 4, 2017 letter.
On June 16, 2017, while working as a supply teacher at [XXX] School the Member approached a parent volunteer and a student who were looking for the student’s lost sweater in the gym change room and told them that they should not be in the change room. The student told the Member that they were looking for her lost sweater. The Member replied by telling the student that she shouldn’t be wearing expensive clothing. The parent volunteer told the Member that it was not appropriate to speak to the student that way to which the Member replied “Mind your own business. Let me do my job.”
On June 30, 2017 a meeting was scheduled at [XXX] School between the Member, the Member’s union representative and school administration to discuss the June 16, 2017 incident. The meeting was cancelled by the Vice-Principal that morning. The Member’s union representative emailed the Member to advise her of this. The Member did not receive this message and attended the school. When approached by the Vice-Principal and two staff members who advised that the meeting had been cancelled, the Member turned to one of the staff members and said “she’s incompetent [referring to the Vice-Principal] and I shouldn’t even be called for this meeting.”
The Vice-Principal asked the Member to leave the School. The Member refused to leave the school and insisted that her travel costs had to be paid. The Vice-Principal said she was going to call the police to remove the Member to which the Member replied “Go ahead”.
Eventually the Member left with one of the staff members. The Vice-Principal followed to lock the door behind the Member. While leaving the school, the Member shouted “you [referring to the Vice-Principal] are a disgrace to the Chinese population. I hope you go out in handcuffs. You should be stabbed to death.”
On October 26, 2017 the Member was terminated from her position with the Board. Attached hereto and marked as Exhibit “E” is a copy of the October 26, 2017 termination letter from the Executive Superintendent, Employee Services at the Board to the Member.
The Member’s Federation filed a grievance dated November 6, 2017 which was referred to arbitration, and alleged the termination was without just cause. The grievance was resolved, the Board rescinded the Member’s termination, and the Member resigned effective October 26, 2017.
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(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) 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 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 counsel for the College and herself with respect to the penalty proposed does not bind the Discipline Committee;
(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 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, 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 (a) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(11) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegations was being sought as a by-product of negotiations in the adversarial process that resulted in the Statement of Uncontested Facts and Plea of No Contest. College Counsel further submitted that subsection 1(5) was being withdrawn since proceeding under both subsections 1(5) and 1(14) would be duplicative and the College has chosen to proceed under subsection 1(14) only. The Panel granted the request for the reasons submitted by College Counsel.
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 September 11, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).
E. REASONS FOR DECISION
8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 17 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 was verbally and physically abusive to students, and that she behaved inappropriately towards students and colleagues on several occasions.
9The Panel finds that the Member abused students verbally. During her teaching assignments, the Member yelled at several students and made abusive comments to students such as “get the shit out of here” and “I’m glad that by the time you grow up I won’t have to be around to deal with you”. Yelling at students and making inappropriate comments to students constitutes verbal abuse by the Member.
10The Panel finds that the Member physically abused a student. On November 9, 2016, the Member hit a student on his hand with a binder. This was an entirely inappropriate reaction to the student asking a question. Members of the profession are expected to conduct themselves in a composed and professional manner and they must not resort to the inappropriate use of physical force against students.
11The Panel finds that the Member abused students psychologically or emotionally. Yelling at students and refusing students the opportunity to use the bathroom or to go to the office to treat an injury amount to psychological or emotional abuse. In fact, during these incidents on January 26, 2017, some of the students were distressed and started crying as a result of the Member’s yelling. Teachers hold a position of trust and authority in the classroom and are expected to conduct themselves in a way that fosters the well-being of students. The Member repeatedly fell short of meeting this expectation by her psychological or emotional abuse of students.
12The Panel finds that the Member failed to comply with the Act or the regulations or the bylaws. The Member’s conduct was contrary to the bylaws of the College, which include the Ethical Standards for the Teaching Profession at Bylaw 32.02. The standard of “Care” requires members to express their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice. By yelling at students, making inappropriate comments to students, and by using profanity in the presence of students the Member failed to maintain the ethical standard of “Care”.
13The Panel finds that the Member failed to comply with subsection 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. In particular, the section requires members to be positive role models for students and to encourage pupils in the pursuit of learning. By repeatedly making inappropriate comments to students, yelling and swearing in the presence of students, and making students cry, the Member failed to encourage her pupils in the pursuit of learning and to model respectful behaviour for her students.
14The Panel finds that the Member’s behaviour was disgraceful, dishonourable and unprofessional. Making disrespectful remarks and shouting at members of the administration, and making comments such as “you should be stabbed to death” to a Vice- Principal demonstrate the Member’s lack of professional judgment. Members of the teaching profession are expected to behave in a respectful manner towards members of the school community at all times. Overall, the Member engaged in a concerning pattern of inappropriate conduct towards students and other members of the school community and did not improve her behaviour after receiving disciplinary letters from the Board.
15Similarly, the Panel finds that the Member’s conduct was unbecoming a member in that it undermined the reputation of the teaching profession and the trust that students and the public place in members of the profession.
F. PENALTY Decision
16The parties agreed to an Amended Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on September 11, 2020, the Panel accepted the Amended Joint Submission on Penalty and made the following order:
The Member is directed to receive a written reprimand, 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 six months 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;
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 is to be recorded on the Register until such time as they are fulfilled:
(a) Prior to commencing or resuming any teaching position or any position for which a Certificate of Qualification and Registration (a “Teaching Position”) is required, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, anger management and cultural sensitivity subject to the following conditions:
(i) the Member will 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 and Reasons 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.
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 Amended 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. Labbé, 2018 ONOCT 39, Ontario College of Teachers v. MacAdam, 2019 ONOCT 3, Ontario College of Teachers v. Armstrong, 2019 ONOCT 49 and Ontario College of Teachers v. Robinson, 2020 ONOCT 161.
18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the numerous incidents of misconduct at more than one school, and the fact that the Member continued her misconduct despite being disciplined by the Board. In terms of mitigating factors, the Member did not contest the misconduct, saving the time and expense of a contested hearing, and she has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
19The Panel finds that the Member’s repeated inappropriate conduct, despite warnings from the Board, warrants a reprimand by her peers. Members are expected to serve as role models for students, which the Member failed to do by engaging in verbal, physical, and psychological or emotional abuse of her students. 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. The Panel agrees with the submissions of the parties that the Member should receive the reprimand in writing due to her lack of access to technology and her inability to attend at the offices of the College in person due to COVID-19.
20Given the nature and severity of the Member’s conduct, the Panel finds that a six-month suspension is reasonable and within the appropriate range. 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 six-month 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 it clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on September 26, 2020.
21The Panel finds that the course of instruction regarding professional ethics, anger management and cultural sensitivity is intended to assist in the rehabilitation of the Member. If the Member returns to a teaching position, the coursework will remind her of her obligations as a teacher and will help her to make better decisions in any future interactions with students and other members of the school community.
22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: September 22, 2020
Rebecca Forte, OCT Chair, Discipline Panel
John Cammarata Member, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel