Ontario College of Teachers v Buswa 2020 ONOCT 192

Date: 2020-10-22

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

Katherine Linda Buswa, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KATHERINE LINDA BUSWA (REGISTRATION #523574)

PANEL: Diane Ballantyne, OCT, Chair

Shanlee Linton, OCT

Jonathan Rose

HEARD: June 8, 2020

Christine Lonsdale and Steven Chadwick, for the Ontario College of Teachers

No one appearing for Katherine Linda Buswa

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 June 8, 2020 at the Ontario College of Teachers (the “College”). 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.

2Katherine Linda Buswa (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Steven Chadwick (Exhibit 2) sworn on June 2, 2020 to show that the Member had been informed of the allegations against her, the time and date of the hearing, as well as the penalty being sought by the College. In this affidavit, Mr. Chadwick, a lawyer with McCarthy Tétrault LLP, outlines his communications with the Member and provides proof of service of all required documents.

4College Counsel submitted that according to Rule 2.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”) service of any notice or documents is effective when made in accordance with the Ontario College of Teachers Act, 1996 (the “Act”) or the College’s bylaws. College Counsel took the Panel to Section 9.09 of the College’s bylaws, which provides that service of any notice to be given or document to be served can be effected in a number of ways, including by personal delivery, by regular mail, or by email to the last known address of the person being served.

5The Notice of Hearing, issued on June 13, 2019 (Exhibit 1), the Disclosure Brief and a copy of the Rules were served personally on the Member on July 3, 2019 to her last known address on file with the College. The Affidavit of Service of the process server, sworn on July 4, 2019 (Exhibit C), advised that the person served at that address identified herself as the Member. Following her personal acceptance of these documents, the Member did not respond to any further correspondence from College Counsel.

6The set date hearing proceeded without the Member on January 21, 2020 and the matter was scheduled for a hearing on June 8, 2020 (Exhibit J).

7Between February 27, 2020 and May 29, 2020 College Counsel submitted six additional letters served by a combination of regular mail and email to the Member’s last known addresses on file with the College. A letter on April 21, 2020 put the Member on notice that the College would be seeking its costs for the hearing (Exhibits O and P), a letter on May 13, 2020 advised the Member that the College would also be making arrangements for the hearing to proceed electronically (Exhibits Q and R). Finally, a letter on May 29, 2020 advised the Member of College Counsel’s plan in respect of witnesses and provided her with supplementary disclosure and hearing documents in advance of the hearing (Exhibits U and V).

8Based on the submissions of College Counsel and the affidavit provided, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents, was aware of the penalty and costs being sought by the College, and was aware of the date, time and venue of the hearing. There is no evidence that College Counsel’s numerous communications via letter and email were undelivered. The Member did not object to holding the hearing electronically. The Member’s failure to respond to College Counsel’s numerous attempts to contact her does not negate that she was made aware of the hearing and of the opportunity to participate. The Member’s decision not to respond or attend does not prevent the Panel from proceeding with this hearing.

9The Panel finds that the Member had reasonable notice of the allegations and the penalty and costs being sought by the College, and reasonable notice of the time, date and electronic format of the hearing. After delaying the start of the hearing by 25 minutes to give the Member a further opportunity to attend, the Panel heard this matter in the absence of the Member.

A. PUBLICATION ban

10The Panel ordered a publication ban pursuant to subsection 32.1(3) of 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. OVERVIEW

11The College alleges that in November 2015 and in November and December 2016, the Member came to School while under the influence of alcohol; left students unsupervised on at least one occasion; inappropriately requested a student’s help to carry boxes off school property; and attempted to organize an unauthorized student concert practice while she was on medical leave.

12The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel finds that the Member engaged in professional misconduct. The Member contravened subsections 1(5), 1(15) and 1(19) of Ontario Regulation 437/97. The Panel did not find that the Member contravened subsections 1(7.2), 1(8), 1(11), 1(14) and 1(18) of Ontario Regulation 437/97.

C. THE ALLEGATIONS

13The allegations against the Member in the Notice of Hearing dated June 13, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Katherine Linda Buswa 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) she practiced or purported to practice the profession while under the influence of any substance or while adversely affected by any dysfunction,

(i) which the member knew or ought to have known impaired the member’s ability to practice, and

(ii) in respect of which treatment has previously been recommended, ordered or prescribed but the member has failed to follow the treatment, contrary to Ontario Regulation 437/97, subsection 1(8);

(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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

The Member is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Moose Factory Island District Area School Board as a teacher at Ministik School (the "School") in Moose Factory, Ontario.
In or about November 2016¹, the Member left her class without supervision on one or more occasions.
In or about November 2016, the Member attended at the School for work when she was under the influence of alcohol and/or had been consuming alcohol.
On or about November 30, 2016, the Member asked a male student² to carry a box and/or boxes to her home.
In or about December 2016, the Member suggested that students should attend a concert practice at a local community centre without authorization and/or while she was absent from work on medical leave.

D. THE MEMBER’S PLEA

14As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

E. THE EVIDENCE

15The College called the principal of Moose Factory Ministic School to testify at the hearing and entered a Brief of Documents (Exhibit 3) into evidence to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary of the College’s evidence.

(1) Qualification of Principal Jennifer Marie Knight-Blackned as a Participant Expert

16College Counsel asked the Panel to qualify Jennifer Marie Knight-Blackned (“Principal Knight-Blackned”) as a participant expert in relation to the supervision of teachers and the performance of their duties as teachers, in accordance with the requirements of Westerhof v. Gee Estate.³ The Panel qualified Principal Knight-Blackned as a participant expert in accordance with the Westerhof decision because her credentials demonstrate she has the special skill, knowledge, training and experience to give opinion evidence based on her observation of or participation in the events at issue.⁴

17Principal Knight-Blackned was certified as a teacher in 2004, with qualifications in primary, junior and intermediate divisions. Subsequently she obtained additional qualifications in special education and in integration of information and computer technology in instruction. She completed Part 1 of her principal’s qualification in April 2015 and Part 2 in May 2017. Principal Knight-Blackned had the opportunity to observe the Member’s performance of her teaching duties on numerous occasions as part of the ordinary exercise of her duties and testified that she had a good recollection of the events at issue.

18Accordingly, the Panel finds that Principal Knight-Blackned is qualified to give evidence as a participant expert in relation to the supervision of teachers and the performance of their duties as teachers.

(2) Oral Testimony of Principal Knight-Blackned

19Principal Knight-Blackned met the Member in August 2014 while serving on the hiring committee that selected her for a long-term occasional teacher position at the School. She testified that as acting principal, she was the Member’s direct supervisor during the 2014 – 2015 school year. Principal Knight-Blackned continued to supervise the Member after assuming the role of principal on a permanent basis in April 2015.

20Principal Knight-Blackned testified that in August 2015 the Member was hired to teach a Grade 4/5 class in a permanent position. During that school year, the Member was absent from work or on sick leave for a total of 108 days. She worked a total of 74.5 days of the 194 days between January 18, 2016 and July 1, 2016. The Member returned to the classroom in August 2016 but took sick leave again for eight out of the first 15 days of the 2016-2017 school year (Exhibit 3: Tab 3).

21Principal Knight-Blackned testified that there were issues with the Member’s teaching performance during 2015 and 2016 that were unrelated to the Member’s absences. Principal Knight-Blackned testified about two occurrences involving Member’s supervision of students: on November 19 and 24, 2015 when the Member, left her students under the supervision of an Educational Assistant (“EA”) during instructional time. She also testified that the following school year on the morning of November 29, 2016, the Member arrived at school under the influence of alcohol. The Member was sent home. As she was leaving school premises, she ran into Student 1, who was on his way home for a scheduled break from class and asked him to help her carry some boxes to her home a few blocks away. Student 1 reluctantly helped the Member carry her things, though he said it made him feel “uncomfortable” and that he could smell alcohol on the Member while he was walking beside her.

22The Member subsequently did not return to work and on December 8, 2016 notified the School that she would be taking medical leave. On December 13, 2020, the Member published a Facebook post announcing that she had made arrangements for Christmas concert practice for her students to take place on three consecutive weekdays at a youth centre. The School had no knowledge that the Member had planned an offsite extra-curricular activity.

F. SUBMISSIONS OF COLLEGE COUNSEL

23College Counsel submitted that the evidence presented to the Panel proves the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel reviewed the relevant evidence with the Panel in relation to the various heads of misconduct alleged in the Notice of Hearing. College Counsel further submitted that the witness’s testimony was straightforward, honest and clear and that her oral evidence was credible, reliable and consistent with the documentary evidence of contemporaneous meeting notes, emails to personnel, and memos created with Principal Knight-Blackned’s direct input (Exhibit 3).

24Regarding the allegations that the Member breached subsection 1(5) and subsection 1(14) of Ontario Regulation 437/97, College Counsel indicated that the Panel should make a finding under one of these two heads of misconduct, but not under both. She explained that if a finding were made under subsection 1(5) (i.e. that the Member failed to maintain the standards of the profession) and subsection 1(14) (i.e. that the Member breached section 32 of the College’s bylaws, which codify the Ethical Standards for the Teaching Profession by way of regulation) it would amount to making the same finding twice. College Counsel submitted that it would be most appropriate to make a finding under subsection 1(5) because the Panel has accepted Principal Knight-Blackned as a participant expert to give testimony of her knowledge and application of the standards of the profession, as is generally required to make a finding under this head of misconduct. Her testimony highlighted how she supervised and evaluated the Member’s actions against the ethical standards of care, trust and integrity.

25College Counsel submitted that for a finding of psychological or emotional abuse under subsection 1(7.2), the College relied on Principal Knight-Blackned’s evidence that Student 1, who helped the Member carry boxes to her home, felt “uncomfortable” during his interaction with the Member.

26Regarding evidence in support of subsection 1(8), College Counsel submitted that the Member did not deny that on November 29, 2016 she arrived at school under the influence of alcohol, but that the degree of alcohol consumption (i.e. whether the Member “was drunk” or merely “under the influence”) is not relevant to establish that the Member was practicing under the influence of a substance that impairs a teacher’s ability to teach. Based on Principal Knight-Blackned’s testimony and the Member’s statement, she asked the Panel to draw the inference that the Member should have known that alcohol was impairing and that she ought not to have practised her profession while under the influence of alcohol.

27In response to a question from Independent Legal Counsel about the College’s evidence for part (ii) under subsection 1(8) (i.e., “in respect of which treatment has previously been recommended, ordered or prescribed but the member has failed to follow the treatment”), College Counsel submitted that the College has limited information regarding the medical status of the Member. The medical note of December 8, 2016 faxed to the School from the local hospital, provides no diagnosis about any medical condition or dysfunction and does not indicate whether the Member was prescribed any treatment after she was sent home on November 29 with alcohol on her breath (Exhibit 3, Tab 8).

28Regarding subsection 1(11) (i.e. failing to supervise adequately a person who is under the professional supervision of the member) College Counsel submitted that a finding under this head of misconduct was supported by the evidence that the Member left her class unattended when she went down to the office on November 19 and when Principal Knight-Blackned arrived in her classroom on November 29 while the Member was not there.

29Regarding the Member’s failure to comply with subsection 264(1) of the Education Act, College Counsel submitted that a finding under this head of misconduct was supported by several behaviours: the Member’s failure to attend to her supervision duties; the Member’s poor role modeling to students by arriving to school after drinking alcohol; and not following School procedures regarding extra-curricular activities.

30For a finding under subsection 1(18) College Counsel submitted that when the Member attended at the School while under the influence of alcohol the Member’s conduct was both disgraceful and unprofessional. In not following the process for scheduling extra-curricular activities, the Member’s actions were also unprofessional.

31Similarly, College Counsel submitted that the same conduct supports a finding under subsection 1(19), underlining that the Member’s behavior had an adverse impact on the teaching profession, particularly in the Moose Factory community, and that her actions jeopardized the trust that the public places in teachers.

G. MEMBER’S SUBMISSIONS

32As the Member chose not to participate in the hearing, no evidence was presented in her defence.

H. INDEPENDENT LEGAL COUNSEL’S ADVICE

33Independent Legal Counsel advised that in order to make a finding under subsection 1(8) there has to be evidence to satisfy both parts of the allegation. Subsection 1(8) of Ontario Regulation 437/97 provides that it is professional misconduct to:

[Practise] or [purport] to practise the profession while under the influence of any substance or while adversely affected by any dysfunction,

(i) which the member knew or ought to have known impaired the member’s ability to practise, and

(ii) in respect of which treatment has previously been recommended, ordered or prescribed but the member has failed to follow the treatment.

Independent Legal Counsel advised, and College Counsel agreed, that without sufficient evidence about part (ii) it would be a legal error for the Panel to make a finding under subsection 1(8).

34Independent Legal Counsel also advised the Panel that without sufficient evidence of an underlying medical condition or incapacity with respect to the Member, this matter is properly before the Discipline Committee.

I. DECISION ON FINDING

(1) Onus and standard of proof

35The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

(2) Decision

36Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on June 8, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15) and 1(19) of Ontario Regulation 437/97. The Panel did not find that the Member contravened subsections 1(7.2), 1(8), 1(11), 1(14) and 1(18) of Ontario Regulation 437/97.

J. REASONS FOR DECISION

37The Panel carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

38Overall, the Panel found Principal Knight-Blackned to be a credible witness and gives significant weight to her testimony about the Member’s conduct during the incidents in question. Her testimony was plausible and consistent with contemporaneous documents that were created in the ordinary course of investigations into concerns about the Member’s behaviour. The Panel generally accepts her testimony as truthful and found that it could reasonably be relied upon.

39The Panel notes that hearsay evidence is permitted under subsection 15(1) of the Statutory Powers Procedure Act, Revised Statutes of Ontario 1990, chapter S.22, provided it is relevant to the subject matter of the proceeding. Accordingly, the documentary evidence including Principal Knight-Blackned’s notes of her interview with Student 1, and the observations of the Educational Assistant (EA) that she recorded in her notes were admitted as relevant to the allegations.

40In making the factual findings set out below, the Panel considered both the oral and documentary evidence in relation to the November 2015 and November and December 2016 incidents described above. The College’s evidence was not contradicted given the Member’s failure to participate in this hearing.

(1) Factual Findings

(a) The Panel does not find that, in or about November 2015, the Member left her class without supervision on one or more occasions

41Principal Knight-Blackned testified regarding the Member’s alleged supervision issues on November 19 and November 24, 2015. She reported that the Member left her classroom during instructional time to go to the office on November 19, leaving her class with the EA. On November 24, while coming up to the Member’s classroom to pick up a student who had been acting out, the Principal found that the Member had left her class in the care of the EA a second time. She recalled telling the Member to contact the office from her classroom intercom phone if she needed support, rather than coming down to the office personally. She indicated that it was inappropriate for a teacher to leave the classroom during instructional time because it was the Member’s role to ensure the safety and security of her students. Furthermore, leaving the classroom compromised student instruction and assessment. Following in-person conversations about these incidents, on November 26 the Principal wrote a memo to the Member indicating that it was the School’s policy that the EA “may only supervise a whole class in the event of an emergency" (Exhibit 3, TAB 4).

42Though the evidence demonstrates that the Member received a verbal warning on two occasions that she departed from the classroom during instructional time, in both instances the Principal’s evidence was that the Member’s class was being supervised by the EA. The Panel received no evidence about the circumstances surrounding the Member’s departures from the classroom. The Panel declines to find that the Member left her class without supervision on these two occasions when students were being monitored by the EA.

(b) In or about November 2016, the Member attended at the School for work when she was under the influence of alcohol and/or had been consuming alcohol

43The Panel finds that there is reliable and sufficient evidence to show that on the morning of November 29, 2016 the Member attended for work after she had been consuming alcohol. That morning, an EA alerted Principal Knight-Blackned that she could smell alcohol on the Member as teachers and EAs were lining students up to come into the School for class. Principal Knight-Blackned went to investigate with Special Education Resource Teacher, Colin Quesnel after another teacher had already taken the Member’s students into the school.

44Upon entering the Member’s class, the Principal testified that the room was dark with the shades drawn, which was unusual. While conversing with the Member she noted that the Member was “slurring her words” and “speaking very slowly”. She recalled that the Member seemed unable to focus. Principal Knight-Blackned asked the Member whether there was something that she needed to tell her. The Member looked confused. Then the Principal proceeded to ask the Member if she had been drinking alcohol before coming to school, to which the Member did not reply. Principal Knight-Blackned testified that she could smell alcohol on the Member’s breath when she moved in closer. The Principal also recorded in her notes from a December 2, 2016 interview with Student 1, the student who helped the Member carry boxes home, that he too smelled alcohol when he was walking beside her.

45On December 15, 2016, Principal Knight-Blackned met with the Member to discuss the incidents on November 29, 2016. According to the Principal’s meeting notes, the Member insisted “I was not drunk” when asked to confirm that she had come to the school after having consumed alcohol, but ultimately she did not deny that she was “under the influence of alcohol”.

46The Panel therefore finds that Principal Knight-Blackned’s testimony and the observations that she recorded from two other witnesses – an EA and Student 1 – are reliable and sufficient evidence that the Member arrived at school on the morning of November 29, 2016 under the influence of alcohol.

(c) On or about November 30, 2016 the Member asked a male student to carry a box and/or boxes to her home

47The Panel finds that on November 29, 2016 the Member asked Student 1 to carry boxes to her home. Principal Knight-Blackned testified that after receiving a verbal report from Student 1’s [XXX] (and Grade [XXX] teacher at the School) she inspected the School’s camera footage from the building exterior (the footage had since been erased) which showed Student 1 stopping and turning to speak to the Member at about 10:12 a.m. At 10:14 a.m. the Principal testified that Student 1 and the Member were seen on camera again, walking in the direction of the Member’s house, carrying boxes (Exhibit 3, Tab 6).

48Principal Knight-Blackned’s notes from a December 2, 2016 interview with Student 1 corroborate that the Member had called out to him as he was walking towards his home, and that she had asked for his help to carry boxes to her house. The Principal’s notes recorded that Student 1 said he felt “uncomfortable” because he did not know the Member. She also noted that he did not want to help the Member, but he felt like he needed to since she was a teacher. He carried the Member’s boxes part way and then turned back to go home. As they were walking, the Member asked him how he liked school and whether he was the Grade [XXX]. He also told Principal Knight-Blackned that he had slipped on ice and fell to his side at one point, but that he “feels better” (Exhibit 3, Tab 7).

49The Panel finds that Principal Knight-Blackned’s oral testimony and the notes she recorded of the interview with Student 1 are reliable and sufficient evidence that the Member asked a male student to help her carry boxes to her home.

(d) On or about December 2016, the Member suggested that students should attend a concert practice at a local community centre without authorization and/or while she was absent from work on medical leave

50The Panel finds that this allegation is made out on the evidence. Principal Knight-Blackned testified that a teacher took a picture of a post that the Member had published on Facebook on December 13, 2016 while on sick leave. The post announced that she had made arrangements to meet her students at a youth centre for a Christmas concert practice on three consecutive weekdays after school. Under the caption “feeling excited”, the post contained an unauthorized message that instructed parents to contact the School to request a bus route change so that their children could be dropped off at the youth centre located 30-40 minutes away from the School (Exhibit 3: Tab 9).

51After the Member was sent home from work with alcohol on her breath on November 29, 2016, she did not report back to work or attend a meeting that Principal Knight-Blackned had requested with her via email for the following day (Exhibit 3, Tab 5). Principal Knight-Blackned testified that she had made several unsuccessful attempts to meet with the Member on subsequent days. The Member indicated via email that she was sick from November 30 to December 6. On December 8, 2016 Principal Knight-Blackned received a faxed letter from the local hospital advising that the Member would be taking medical leave from December 6 to December 20, 2016, but the letter did not contain any information about a diagnosis or any details about the Member’s condition (Exhibit 3, Tab 8). Principal Knight-Blackned testified that the School had no knowledge that the Member had planned an off-site extra-curricular activity, since she had not followed any of the required steps to obtain school approval for the event. Staff intervened to have the Member take down the post and to ensure that no buses were re-routed to drop students off at the youth centre.

52When the Member finally attended a December 15, 2016 meeting requested by the School’s administration, she admitted to arranging concert practice on her own without any authorization from the School and admitted that her actions were in poor judgment. The Member apologized and explained that she did it despite being on medical leave because she felt obligated to prepare the students for their concert (Exhibit 3, Tab 11).

53Based on Principal Knight-Blackned’s oral testimony and notes from a meeting with the Member, the Panel finds that the Member made arrangements for students to attend concert practice at a local community centre without school authorization and while she was absent from work on medical leave.

(2) Legal Conclusions

The Member engaged in professional misconduct

54The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct under the following subsections of Ontario Regulation 437/97. The Member failed to maintain the standards of the profession, contrary to subsection 1(5); she failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15); and, she engaged in conduct unbecoming a member, contrary to subsection 1(19). The Panel did not find that the Member breached subsections 1(7.2), 1(8), 1(11), 1(14) and 1(18) of Ontario Regulation 437/97.

(a) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

55The Panel relied on the evidence of Principal Knight-Blackned, who was qualified as a participant expert in relation to the supervision of teachers and the performance of their duties as teachers to find that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Principal testified that the Member’s conduct did not uphold the Ethical Standards for the Teaching Profession, specifically the standards of care, trust, and integrity.

56Teachers are expected to demonstrate care by expressing their commitment to students’ well-being through positive influence, professional judgment and empathy in practice. The Member failed to uphold the standard of “Care” by arriving to School under the influence of alcohol. On the morning of November 29, 2016, the Member had trouble verbally communicating with Principal Knight-Blackned. She appeared confused and her classroom was not ready for the school day. The Member was incapable of performing her teaching duties that morning and was sent home. As she was leaving school premises, she called out to Student 1 to help her carry boxes to her home two blocks away. Student 1 was on his way home for his daily snack break when the Member made her request. Interrupting Student 1’s school routine and taking him off school property to assist the Member with her personal belongings demonstrates poor professional judgment. The Member’s actions also failed to prioritize the well-being of Student 1, who was put in the uncomfortable position to interact with the Member while she smelled of alcohol.

57Teachers must also demonstrate the ethical standards of “Integrity” and “Trust” by executing their professional commitments and responsibilities with honesty and reliability, among other things. The Member failed to demonstrate honesty and reliability when she organized to meet students outside of school for concert practice during her sick leave without the knowledge or permission of Principal Knight-Blackned. The Member circumvented all the necessary steps for approving extra-curricular activities at her School, including risk-assessments to ensure that an activity is appropriate and safe for students. Her actions undermined her trustworthiness in ensuring the safety and security of students in the eyes of her colleagues and the students’ parents and guardians. If the Member was suffering from any health issues that precluded her from abiding by her professional responsibilities then it was incumbent on her to take steps to address those issues.

(b) The Panel did not find that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)

58College Counsel argued that when the Member asked Student 1 to help her carry boxes home on the morning of November 29, 2016, her conduct was psychologically or emotionally abusive to the student. The Panel considered Student 1’s report and Principal Knight-Blackned’s testimony but concluded that there was insufficient evidence to permit such an inference to be drawn.

59The Panel heard evidence that the Grade [XXX] student was asked to help the Member carry boxes off school property. This request made Student 1 feel “uncomfortable”. The Panel finds that it was inappropriate for the Member to ask Student 1 to help her carry her boxed belongings. While the Panel considered that crossing paths with a teacher who had just been sent home for coming to work with alcohol on her breath would be an uncomfortable and inappropriate interaction for a student to have with a member of the teaching profession, it does not find that this conduct rises to the level of psychological or emotional abuse of the student.

60By Student 1’s account, he did not know the Member personally, but he recognized her as a teacher from his school when she asked him for assistance. Though Student 1 noted the smell of alcohol on the Member while he helped carry her boxed belongings, they had a conversation about whether he enjoyed school. There was no evidence that the Member asked inappropriate questions or that she made inappropriate comments to Student 1.

61While the Panel makes no subsection 1(7.2) finding in relation to the Member’s conduct, it did find that the Member’s behaviour is relevant to subsection 1(5), and that her interaction with Student 1 failed to meet the standards of the profession.

(c) The Panel did not find that the Member practiced or purported to practice the profession while under the influence of any substance or while adversely affected by any dysfunction, (i) which the member knew or ought to have known impaired the member’s ability to practice, and (ii) in respect of which treatment has previously been recommended, ordered or prescribed but the member has failed to follow the treatment, contrary to Ontario Regulation 437/97, subsection 1(8);

62The Panel agrees with the advice of Independent Legal Counsel that in order to make a finding under subsection 1(8) there has to be evidence to satisfy both part (i) and part (ii) of that allegation. As the Panel heard no evidence regarding the second element of this head of misconduct (i.e., that the Member failed to follow prescribed treatment), the Panel makes no subsection 1(8) finding of misconduct in relation to the Member’s arrival in her classroom on November 29, 2016 under the influence of alcohol.

(d) The Panel did not find that the Member failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11)

63The Panel received no evidence regarding the circumstances that prompted the Member to depart from the classroom on two occasions in November 2016. Therefore, the Panel could not ascertain whether it was appropriate for the Member to temporarily delegate supervision of the students to the EA. The Panel could not rule out that the Member sought the EA’s supervision support because she was responding to an emergency situation, which would have been acceptable and within the role and responsibilities of the EA in the classroom. The Panel therefore does not find that, on a balance of probabilities, the Member failed to adequately supervise students who were under her professional supervision.

64Regarding the incident where the Member arrived at School under the influence of alcohol, though she could not have adequately supervised students in those circumstances, the Member was sent home before she was in a position to supervise her Grade [XXX] class. Therefore, the Panel makes no subsection 1(11) finding related to this event.

(e) The Panel does not find that the Member failed to comply with the Act, the regulations or the by-laws, contrary to subsection 1(14)

65The Panel agrees with College Counsel’s submission that a subsection 1(14) finding would be duplicative of the evidence and finding already made under subsection 1(5). The Panel therefore makes no finding under subsection 1(14).

(f) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15)

66The Panel finds that the Member failed to comply with the duties of a teacher as set out in subsection 264(1) of the Education Act. These aspects of the duties of a teacher are the most relevant in this case: section 264(1)(c) which provides that teachers are to “inculcate by precept and example […] the highest regard for truth […] loyalty […] sobriety […] temperance and all other virtues”. The Member arrived at school after having consumed alcohol on the morning of November 29, 2016 which does not exemplify sobriety and temperance. While the Member was sent home for being under the influence of alcohol before assuming her teaching duties for the day, arriving at school under the influence of alcohol clearly sets a negative example for students. The Member was slurring her words and unable to focus on conversation with Principal Knight-Blackned. When students were expected to arrive for the start of their lesson, the classroom lights were off and the curtains were still drawn, which failed to provide an appropriate classroom atmosphere.

67The Member also failed to act as an appropriate role model when she made unauthorized extra-curricular plans for her students during her sick leave. She did not follow her employer’s rules for the planning and approval of extra-curricular events and announced her plans to parents on Facebook without the School’s knowledge. The Member’s failure to follow school rules set a negative example for students. If the Member was suffering from any health issues that precluded her from abiding by her professional responsibilities then it was incumbent on her to take steps to address those issues.

(g) The Panel does not find 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)

68A chronology of events submitted into evidence (Exhibit 3, Tab 3) shows that the Member had used 108 days of sick leave between January 2016 and July 2016, but no explanation was put forward about these absences. Principal Knight-Blackned testified that she believed the Member’s conduct was unrelated to her absences; however, she did not recall why the Member had been absent so many times during the six-month period before the events of November 29 and December 13, 2016. Although there was no direct evidence presented on the Member’s medical condition, the Panel infers from the number of sick days taken over a relatively short period that the Member experienced difficulties that interfered with her ability to work.

69The Member did not cooperate with the discipline process and did not put forward any medical evidence during her meetings with the School’s administration or to the Discipline Committee about the presence of any extenuating circumstances to her behaviour, such as a medical condition or illness. While Member is best positioned to put those pieces together, she has chosen not to do that in this proceeding. However, Principal Knight-Blackned’s testimony does not convince the Panel that medical issues were not a factor in the events described above. No good explanation was provided to explain why the Member took so many sick days if there was not, in fact, a medical issue that may have had an effect on the Member’s conduct in this case. This ambiguity in the evidence precludes the Panel from making inferences about the Member’s moral fitness (disgraceful conduct) and culpability in failing to discharge all her professional responsibilities (unprofessional conduct). The Panel therefore declines to make a finding under subsection 1(18).

(h) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

70The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession, contrary to subsection 1(19) of Ontario Regulation 437/97. Arriving to school under the influence of alcohol undermines the reputation of the profession, as teachers are trusted to care for the safety and well-being of students. Furthermore, when a member of the teaching profession fails to follow school procedures that are in place to keep students safe, such as those required to organize and schedule extra-curricular activities, there is an adverse impact on the reputation of the teaching profession as a whole. The Member’s decision to attend school under the influence of alcohol and to schedule an extra-curricular event without permission, undermined the trust and respect accorded to the teaching profession by parents, students and the public.

K. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

71College Counsel asked the Panel to order a reprimand, coursework, and a two-month suspension. In addition, College Counsel requested an order that, prior to resuming or beginning any teaching position, the Member undergo an assessment by a physician acceptable to the Registrar and provide a copy of that assessment to the College. College Counsel requested the physician’s assessment of the Member before she returns to the classroom. Though there is currently no medical evidence before the Panel, College Counsel submitted that if a medical issue were related to the Member’s misconduct, it would be in the public interest for the Panel to assure itself that the Member is able to work in a teaching position without putting students at risk of harm.

72College Counsel indicated that the Member is entitled to contest the allegations made against her, but the fact that the Member has been completely uncooperative during the discipline process and that she has not participated in the College’s proceedings can be considered an aggravating factor in this case. The mitigating circumstances are that the Member has no prior disciplinary history and that there may be an underlying medical condition as a dimension to the Member’s conduct, but with insufficient evidence to inform the Panel’s findings.

73College Counsel presented the following two decisions to support that a reprimand, coursework, suspension (in the range of one-to-two months), and a medical report order is appropriate and falls within the range of penalties ordered for similar misconduct in the past. First, Ontario College of Teachers v. Laforge, 2019 ONOCT 43, which was decided on agreement with a joint submission on penalty that included a reprimand, a one-month suspension, and coursework. In Laforge, the member’s ongoing medical issues were addressed with an undertaking and acknowledgment that the member not teach before receiving medical clearance to do so. Given that in the present case the Member has not been responsive, there was no opportunity to propose an undertaking to the Member. Under these circumstances, College Counsel submitted that ordering the condition that the Member be examined by a medical professional before she resumes teaching is analogous.

74Second, College Counsel referred the Panel to Ontario College of Teachers v. Boote, 2018 ONOCT 45, which was also decided on agreement and included a joint submission on penalty with a two-month suspension and coursework tailored to the Member’s misconduct.

L. PENALTY DECISION

75On June 8, 2020 the Panel made the following order as to penalty:

The Member is directed to appear before the Committee within 120 days of the date of the Committee’s Decision, Reasons for Decision and Order, to receive a reprimand which will be delivered by videoconference 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 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 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 professional ethics, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Decision, Reasons for Decision and Order;

(ii) upon review of the Decision, Reasons for Decision and Order, 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;

(c) prior to the Member resuming or beginning any Teaching Position, the Member shall undergo an assessment by a physician acceptable to the Registrar (the “Physician”) and the Member shall provide to the Registrar, in a form satisfactory to the Registrar, a written report from the Physician:

(i) confirming that the Physician, as the author of the opinion, has reviewed a copy of the Decision, Reasons for Decision and Order of the Discipline Committee related to the matter;

(ii) confirming that in the opinion of the Physician, the Member is able to work in a Teaching Position without risk of adverse consequences to students or others;

(iii) setting out the opinion of the Physician with respect to any steps, be it modified work, monitoring or treatments required to be in place in order to permit the Member to successfully work in a Teaching Position and to ensure that the public is protected; and

(iv) addressing any other questions or issues that the Registrar may require.

M. REASONS FOR PENALTY

76In arriving at its decision with respect to penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was mindful of the guiding principles that penalty orders should address, including specific and general deterrence, public protection and remediation or rehabilitation of the Member. The Panel also recognizes the principle that like cases should be treated alike. The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel found that the Member’s case involves less serious misconduct than the cases submitted by College Counsel in support of a penalty that includes a suspension.

77The Panel notes the Member’s lack of participation in the discipline process and her failure to appear at this hearing to provide her version of events. In terms of mitigating factors, the Panel gives weight to the factor that the Member may be experiencing challenges in her teaching practice related to a medical condition or illness based on the very high number of absences from teaching in 2016. Altogether, the Member’s absences accounted for more than 60 percent of the school year. Given the possibility of a medical situation related to the Member’s misconduct, but no evidence to rule out the possibility of medical issues, the Panel agrees that it is in the public interest to require that the Member provide the Registrar with a medical report detailing that she is able to resume her duties as a teacher before returning to the classroom.

78The decisions provided by College Counsel demonstrate that a reprimand and coursework are appropriate in this case. 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 course of instruction on professional ethics will assist in the Member’s rehabilitation should she return to teaching. It will remind her about her professional responsibilities and help her make better decisions in cooperation with her school’s administration.

79The Panel finds that a suspension is not warranted in this case. The Panel disagrees with College Counsel’s submissions that the two decisions submitted are proportionate with this case. In Boote (two month suspension), there were several aggravating factors not present in the Member’s case. In Boote, the member’s conduct involved serious boundary violations where the member condoned and encouraged alcohol use among students while on a field trip, putting students at significant risk of harm. The member purchased alcohol for students and drank it with them in a hotel room. The member also kept alcohol hidden for students and was dishonest with her school about student alcohol use. In addition, the member allowed students to take a taxi to a store on their own and left students unchaperoned in a hotel while meeting friends for dinner. The Member’s misconduct in this case is considerably less serious. It does not involve serious boundary and supervision violations or alcohol consumption with students. In this case, only one incident with the Member involved a direct interaction with a student (the box-carrying incident with Student 1).

80In Laforge (one month suspension), the member’s misconduct involved repeated incidents over several years and multiple remediation attempts by the school’s administration while the member struggled with documented medical difficulties involving alcohol use. That member’s conduct was also more serious and included admissions to verbal, physical and psychological or emotional abuse of students. In the Member’s case there was no finding of abuse of students. Furthermore, there were a high number of absences preceding the Member’s misconduct where medical issues may have played a role in behaviour that occurred during a three-week period, which is further mitigating.

81Given the possibility of medical issues in the context of a significant number of absences from teaching, the Panel determined that a suspension would not be an effective deterrent to the Member against repeating her behaviour. In light of the circumstances of this case, the Panel finds it inappropriate to remediate the Member’s misconduct with a suspension.

N. COSTS SUBMISSIONS OF COLLEGE COUNSEL

82College Counsel requested costs of the proceeding in the amount of $5,000 under Rule 16 and in accordance with Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practice Committee. College Counsel relied on Ontario College of Teachers v. Hall, 2019 ONOCT 20 for the factors relevant to the Panel’s consideration of College Counsel’s request for a costs order.

O. Decision on Costs

83On June 8, 2020 the Panel made the following order as to costs:

The Member shall pay the College costs of the proceeding in the amount of $5,000 within 120 days of the date of this Order.

P. reasons for costs

84In accordance with paragraph 4 of subsection 30(5) of the Act, Rule 16 and the factors in the Hall decision, the Panel finds it appropriate to make a costs award in this proceeding.

85Rule 16.05(3) of the Rules provides that the College need not prove the cost or expense of a hearing day if the request is equal to or less than the amount set out in Tariff A of $10,000 per day. College Counsel requested $5,000 in accordance with Tariff A in the anticipation that the hearing would last half a day.

86The Panel recognizes that a costs award is compensatory rather than punitive in nature. However, the Member’s failure to cooperate during the disciplinary process is relevant. The Member did not respond to College Counsel’s numerous communications. Despite being advised of the right to defend herself and put the College to its burden of proof, the Member failed to engage in any way with the disciplinary process in disregard for the authority of the Discipline Committee. The Member’s failure to engage with the disciplinary process has lengthened the duration and increased the expense of the proceedings. The College was required to call Principal Knight-Blackned as a witness and to prepare to prove its case over the course of a full-day hearing.

87However, the Panel also gave weight to the factor of the relative success of the parties in apportioning costs. During the full-day hearing, the College was only successful in proving three of seven allegations against the Member, which weighed into the Panel’s decision to order half of the Tariff A amount for a full day’s hearing.

88The Panel finds the amount of $5,000 to be appropriate.

Date: October 22, 2020

Diane Ballantyne, OCT

Chair, Discipline Panel