Ontario College of Teachers v Lebert 2020 ONOCT 203

Date: 2020-11-23

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

Jana Lebert, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JANA LEBERT (REGISTRATION #431044)

PANEL: Nicola Powadiuk, OCT, Chair

Marlène Marwah

Nancy Saunders, OCT

HEARD: November 23, 2020

Jordan Stone, for the Ontario College of Teachers

Jana Lebert, self-represented

Erica Richler, 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 23, 2020, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Jana Lebert (the “Member”) attended the hearing and did not have 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 June 11, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that the Jana Lebert is guilty of professional misconduct as defined in the Act in that:

(a) she committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

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

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

At all material times, Jana Lebert was a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Halton District School Board (the “Board”) as a teacher at McKenzie-Smith Bennett Public School in Acton, Ontario.
Between 2015 and 2019, the Member took a number of extended medical leaves. To support her requests for medical leave, the Member provided the Board with medical reports from various physicians.
In approximately January 2019, the Board initiated an investigation to determine whether the Member’s requests for medical leave were legitimate and genuine. The Board contacted several physicians to confirm whether they had authored the medical reports used by the Member to obtain medical leave.
The physician who purportedly authorized medical reports on behalf of the Member dated April 24, 2017, May 19, 2017, May 16, 2018, and December 6, 2018 confirmed that he did not author or sign those reports. These medical reports were falsified by the Member and provided to the Board by the Member.
The physician who purportedly authorized a medical report on behalf of the Member dated January 30, 2019 confirmed that the Member was not his patient and that he had not authored the report. This medical report was falsified by the Member and provided to the Board by the Member.
On February 20, 2019, the Member resigned from her employment with the Board effective as of February 13, 2019.

GUILTY PLEA

By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-7 above (the “Admitted Facts”).
The Member hereby acknowledges that paragraphs 3-6 of the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her being more particularly breaches of Ontario Regulation 437/97 subsections 1(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 Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to 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 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 or having had the opportunity to obtain legal advice.

In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on November 23, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 7 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in falsification of medical reports over a period of several years in order to take a number of extended medical leaves.

8The Panel finds that the Member’s actions are disgraceful, dishonourable, and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The Member knowingly and repeatedly falsified medical reports from physicians for her own benefit. She was permitted to take a number of extended medical leaves as a result. As leaders and role models in their school communities, it is unacceptable for members of the profession to engage in this type of conduct. The Member’s misconduct involved dishonesty towards her employer, and is therefore properly characterized as disgraceful, dishonourable, and unprofessional.

9The Panel finds that the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The Member’s misconduct is an example of behaviour that seriously undermines the reputation of the teaching profession. The public places a great deal of trust in members of the profession, and the Member demonstrated a serious breach of this trust by her actions.

F. PENALTY DECISION

10The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 23, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which may be delivered electronically or in person, 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 three months commencing on the 15th calendar day following the date of the Oral Decision and the 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 1st and August 1st, the suspension will commence on September 1st; and
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions, or limitations is to be recorded on the Register until such time as they are fulfilled:

(a) prior to commencing or resuming any teaching position in Ontario (including in a private school) or any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete, at her own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:

(i) the Member shall provide to the course practitioner approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

(b) within 30 days of her completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a written certificate or 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

11The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Panel 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. Johnson, 2019 ONOCT 23 (“Johnson”), Ontario College of Teachers v. Callaghan, 2013 ONOCT 11, and Ontario College of Teachers v. Roloson, 2018 ONOCT 60.

12The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is that the Member’s misconduct was repeated over several years. In terms of mitigating factors, the Member admitted her misconduct, showing insight into her behaviour and saving the time and expense of a contested hearing. Additionally, the Member 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.

13The Panel finds that the Member’s repeated inappropriate conduct warrants a reprimand by her peers. 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.

14Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the Panel finds that the facts in Johnson are most similar to this matter and as such, it is particularly helpful in confirming that a three-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 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 December 8, 2020, which is 15 days after the Panel’s Oral Decision and Order.

15The Panel finds that the course of instruction regarding professional ethics is intended to 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 leave requests from her employers.

16The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: November 23, 2020

Nicola Powadiuk, OCT

Chair, Discipline Panel