DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Khoshnoudian 2021 ONOCT 118

Date: 2021-10-22

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

Fariborz Khoshnoudian, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

FARIBORZ KHOSHNOUDIAN (REGISTRATION #618048)

PANEL: Jonathan Rose, Chair

Jessica Saffran Reimers, OCT

Kimberley Westfall-Connor

HEARD: October 18, 2021

Ava Arbuck for the Ontario College of Teachers

Vanora Simpson, for Fariborz Khoshnoudian

Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 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 October 18, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Fariborz Khoshnoudian (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 16, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that Fariborz Khoshnoudian is guilty of professional misconduct as defined in the Act in that:

(a) he provided false information or documents to the College or any other person with respect to the member’s professional qualifications, contrary to Ontario Regulation 437/97, subsection 1(1);¹

(b) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);²

(c) he signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(d) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

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

(f) he 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);

(g) he engaged in conduct unbecoming of 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:

1. Fariborz Khoshnoudian 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.

2. At all material times, the Member was the owner and the Principal of the [XXX] (the “School”) located in [XXX], Ontario.

Education Quality and Accountability Office Testing

3. As the Principal of the School, the Member is responsible for the administration of the Education Quality and Accountability Office (“EQAO”) testing at the School including the administration of the Ontario Secondary School Literacy Test (“OSSLT”).

4. The rules regarding the administration of the OSSLT are set out in the EQAO’s How to Administer the OSSLT (the “Administration Guide”). The Administration Guide is attached as Exhibit “B”.

5. The Administration Guide summarizes the role of the Principal and/or invigilator during the administration of the OSSLT. Specifically, Principals are responsible for ensuring that:

• They and the teachers administering the test have read the Administration Guide and board direction/policy;

• All students eligible for the test are accounted for in the Student Data Collection (“SDC”) system, including those writing with accommodations or a special provision, and those deferred, exempted or planning to fulfill the literacy requirement through the Ontario Secondary School Literacy Course (“OSSLC”);

• Any student receiving accommodation that requires an Individual Education Plan (“IEP”) has an IEP that outlines the accommodations that are necessary for and consistent with regular classroom assessment practices used for the student. The accommodation must be consistent with the permitted accommodations in this guide. The student must normally receive the accommodation for all forms of assessment, including summative assessments;

• Complete and accurate information is provided to EQAO through the SDC system for each student to write the test, including those writing with accommodations or a special provision, and those deferred, exempted or planning to fulfill the literacy requirement through the OSSLC;

• Complete and appropriate test materials are ordered for each student, using the EQAO SDC system, including, if necessary, additional materials required after receipt of the initial shipment;

• All materials necessary for the preparation for and administration of the test are provided to all participating teachers and support staff;

• All teachers and other personnel (e.g. scribes, principals themselves) participating in, preparing for and administering the test having received training and follow the year’s edition of the Administration Guide;

• All test materials are kept secure prior to, during and after the administration;

• The locations and conditions for writing the test allow each student to work independently of every other student and conform to EQAO requirements as defined in the Administration Guide;

• There is no deviation from EQAO guidelines and instructions without explicit written direction from the relevant supervisory officer and EQAO’s Chief Assessment Officer;

• Any breach or suspected breach of security is reported to EQAO immediately.

6. In addition, the Member confirmed that he had read and accepted the professional responsibilities involved in participating in EQAO assessments, and agreed to follow all procedures specified in the Administration Guide to ensure the fair and consistent administration of assessments. Attached hereto and marked as Exhibit “C” is a copy of the confirmation that the Member completed.

Events on March [XXX], 2019 – Administration of the OSSLT

7. On March [XXX], 2019, the OSSLT was scheduled to be administered at the School.

8. The Member could not be present as an invigilator at the School on this day so he contacted a former student of the School, who was also a tutor at the time (“Person A”) in the latter part of March 2019 and asked if he could be an invigilator of the OSSLT on March [XXX], 2019. Person A agreed. Person A had served as an invigilator for previous EQAO assessments at the School. EQAO rules permitted Person A to serve as an invigilator even through he is not a certified teacher.

9. Five students took the OSSLT at the School on March [XXX], 2019. Person A was the only invigilator in the test room. Of the five students who were registered to the take OSSLT, no student had an IEP and/or any accommodations assigned to them and none of the students were eligible to have a scribe.

10. The Member submitted the completed test materials to the EQAO. He did not report that a student had suffered an injury during the test or that Person A had scribed a portion of the test for one of the students.

EQAO Investigation

11. During the scoring of the test materials of the students at the School, it was noted that one of the student booklets from the School contained two different types of handwriting, despite the fact that the student did not have an IEP or scribe in place for the test. On April 12, 2019, an Operations Officer wrote to the Member to ask about a test response from one of the student’s at the School. The Operations Officer asked whether a scribe was used for the student’s response, and noted that the student’s data did not indicate that the student had an IEP in place nor was he permitted to use a scribe. Attached hereto and marked as Exhibit “D” is a copy of the email string between the Operations Officer and the Member.

12. The Member eventually spoke to the EQAO Operations Officer on April 25, 2019. At that time, the Member stated that “the student had gone to the bathroom during the test where he had hurt his hand. When he returned to the classroom, he asked the teacher to write his response to Section E”.

13. The EQAO undertook further examination of the student’s test booklet, along with those of other students from the School. Based on that examination it appeared that similar handwriting appeared in at least two of the booklets. Detailed examination of the five student booklets raised a concern about potential collusion.

14. On May 30, 2019, the EQAO contacted the Member again to advise him that the student test results would not be released, pending an investigation into potential collusion. An investigation form was sent to the Member and he was asked to complete and return it.

15. On June 4, 2019, the Member called the EQAO office and left a voicemail which requested the test results for the students. EQAO wrote to the Member and again requested that the investigation form be submitted.

16. On June 6, 2019, the Member telephoned the Program Officer to ask if he could provide information over the phone rather than completing the investigation form. He was informed that the investigation results needed to be provided in writing in the investigation form. Later on June 6, the Member sent an email to EQAO which stated:

I am fariborz khoshnoudian, principal of [XXX]. According your email, I talked two of my students, they didnt [sic] answer clearly to my questions. Since I am math teacher for me is difficult that all their answer can be the same.therefore based on your experience if you believe their result didnt [sic] make sense please follow your policy and your rule.one of the students didnt [sic] come to the school more than one months [sic]. Please kindly let me know when you can send their result?

Attached hereto and marked as Exhibit “E” is a copy of the string of email communications between the EQAO and the Member.

17. The Member failed to complete the investigation form or provide the name of the invigilator despite being requested to do so by the EQAO. As a result, the EQAO proceeded to complete its own investigation. Attached and marked as Exhibit “F” is a copy of the investigation form which is dated June 14, 2019.

18. The EQAO undertook a detailed examination of the test papers of all five students including a computer analysis of matching patterns of student handwriting. The analysis revealed collusion among students and also revealed that internet sources had been used to complete answers in the test booklets, despite the fact that access to the internet was not permitted. In particular:

(a) In at least five of the reading open response questions on the test, multiple students used identical language in answer to the question;

(b) In their responses to at least two questions, more than one student used phrases that were plagiarized from material found on the internet;

(c) In at least one student’s booklet, answers were written in two different handwriting styles;

(d) One of the student’s handwriting styles referred to in paragraph (c) above, was also found in another student’s booklet.

19. As a result of the EQAO’s conclusion that collusion and plagiarism had occurred, the EQAO determined that all students’ results from the School would be withheld. Accordingly, no student test results were reported by the EQAO to the Member or the School. Attached hereto and marked as Exhibit “G” is a copy of the June 2019 email communications form the EQAO to the Member advising him that student results were being withheld.

The Member’s Role Regarding the Administration of the OSSLT

20. The Member failed to ensure that complete and accurate information was provided to the EQAO about his students through the SDC system. It was the Member’s responsibility to:

• Account for all students eligible to write the test;

• Order appropriate test materials for each student;

• Record all accommodations and special provisions for the OSSLT;

• Record all exemptions for the primary and junior assessments and for the OSSLT; and

• Record deferrals and enrollment in the Ontario Secondary School Literacy Course for the OSSLT only.

21. In addition, when preparing for the administration of the OSSLT, it was the Member’s responsibility to:

• Make decisions about students participating in the test; and

• Ensure complete and accurate student-level information is provided to the EQAO.

22. The Member failed to ensure the fair and consistent administration of the OSSLT. In particular, he failed to ensure that Person A was aware of all guidelines regarding the administration of the OSSLT.

23. The Member also failed to ensure that the students at the School who wrote the OSSLT did so according to the requirements and guidelines of the EQAO.

24. The Member failed to implement the appropriate measures and/or inform Person A of the appropriate measures to be implemented when administering the OSSLT in accordance with the requirements and guidelines as outlined by the EQAO. Attached hereto and marked as Exhibit “H” is the SDC Guide for Principals, 2019-2020.

25. After the administration of the OSSLT, the Member:

(a) failed to ensure that complete and accurate information was provided to the EQAO through the SDC system for each eligible student in that he failed to report a breach of security regarding the OSSLT to the EQAO and failed to verify assessment-specific information (e.g. accommodations) for each student recorded in the SDC system and make any necessary changes;

(b) in April 2019, failed to investigate a concern or allegations as brought to his attention by the EQAO concerning the administration of the OSSLT;

(c) in or about April to June 2019, failed to readily provide the EQAO with the name of the individual responsible for supervising the OSSLT on March [XXX], 2019 despite being asked to do so on several occasions by the EQAO.

The Member Submitted False Test Results to the Ontario Universities’ Application Centre

26. Despite the fact that no test results were provided by EQAO, the Member submitted information to the Ontario Universities’ Application Centre (“OUAC”) which he purported to be student results from the OSSLT. In fact, the information he submitted was not genuine student results as no such results were ever provided by EQAO. The Member submitted this false information for use by the OUAC when he knew or ought to have known that the OSSLT results for students had been withheld by EQAO as a result of the test administration issues described in paragraph 18 above.

Current Status

27. The Member is currently the Principal of the School.

GUILTY PLEA

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

29. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(12), 1(14), 1(15), 1(18), and 1(19).

30. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he 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 his name, shall be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

31. In light of the Admitted Facts and the 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

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (b) of the Notice of Hearing, namely that the Member contravened subsections 1(1) and 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the request to withdraw the subsection 1(1) allegation was being made because the admitted facts do not support such a finding. The Panel’s permission to withdraw the allegation under subsection 1(5) was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted these requests.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on October 18, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(12), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 27 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He 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 failed to properly administer, investigate, and report the OSSLT that was administered at his school. The Member also made false reports about OSSLT results to the OUAC.

9The Member contravened subsection 1(12) of Ontario Regulation 437/97 when he provided false information, in his professional capacity, to the OUAC which he purported to be student results from the OSSLT. The Member knew or ought to have known that the EQAO had withheld the student results after investigating and concluding that collusion and plagiarism had occurred at the school.

10The Member contravened subsection 1(14) of Ontario Regulation 437/97 by contravening the Ethical Standards for the Teaching Profession, which are set out in section 32 of the Bylaws of the Ontario College of Teachers. The ethical standard of “Trust” embodies fairness, openness and honesty, and is the basis of members’ professional relationships with students, parents or guardians, and the public. The ethical standard of “Integrity” refers to honesty, reliability, and moral action as core values of the teaching profession. The totality of the Member’s conduct shows a complete lack of trustworthiness that jeopardized the reliability and integrity of the provincial testing process. Among other things, the Member: failed to ensure that Person A was aware of and adhered to all the guidelines around the administration of the OSSLT; failed to ensure complete and accurate information was provided to the EQAO after the test was administered; did not cooperate with the EQAO investigation either by failing to complete the investigation form or to provide the invigilator’s name, despite several requests to do so; and reported false information to the OUAC regarding student OSSLT results. Members must carry out their professional duties with honesty and integrity, and the Panel believes that principals, as the main administrators of schools, are especially accountable for behaving ethically and modeling this behaviour as leaders of their school communities. The Member, however, flagrantly and unacceptably breached these standards.

11The Member’s conduct as described above also contravenes subsection 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97 which sets out the duties of a teacher. Subsection 264(1)(c) of the Education Act requires teachers, including principals, to set an example for students and staff alike by acting as positive role models and upholding several enumerated moral values. The Member’s conduct, especially engaging in false reporting to the OUAC, failed to exemplify upright moral character and positive role modelling.

12The Panel finds that the Member’s behaviour was disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member’s conduct regarding the administration of the OSSLT and the EQAO investigation, and his subsequent false reporting of student results to the OUAC, showed a lack of professional judgment and a disregard for his professional duties, jeopardized the integrity of the EQAO provincial testing system, and demonstrated significant ethical and moral shortcomings. The Panel agrees with the parties that the Member’s conduct as outlined in the Admitted Facts is therefore rightfully characterized as disgraceful, dishonourable and unprofessional.

13Similarly, the Panel finds that the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the teaching profession are expected to be stewards of the public trust and to do their upmost to maintain the reputation of the teaching profession. The Member’s lack of diligence in ensuring the integrity and fairness of the OSSLT, and his misreporting to the OUAC, erodes the public’s trust that can be placed in him, his school, and the profession as a whole.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 18, 2021 the Panel accepted the Joint Submission on Penalty as amended during the hearing and made the following order:

1. The Member is directed to appear before the Committee within 14 days of the date of the Decision and Order of the Committee to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of five (5) months commencing on the 15^th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics and the professional responsibilities involved in the administration of the Ontario Secondary School Literacy Test, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision 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 courses³ [sic] to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within thirty (30) days of his completion of the courses [sic] 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

15The 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. Allarde, 2019 ONOCT 65; Ontario College of Teachers v. Curridor, 2014 ONOCT 29; and Ontario College of Teachers v Vellinga, 2018 ONOCT 10.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are that he is the principal of his school and has a heightened responsibility to ensure all protocols around the OSSLT are closely followed. The Member showed lack of appreciation of the impact of his actions, especially when he forwarded false results to the OUAC, thereby jeopardizing the veracity and integrity of the entire provincial testing system. In terms of mitigating factors, the Member admitted his misconduct, and has willingly entered into a resolution with the College, saving witnesses from having to testify and the time and expense of a contested hearing. The Member has not been the subject of discipline proceedings in the past. The Member’s willingness to undertake coursework shows an openness to remediation. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s pattern of inappropriate conduct warrants a reprimand. School principals must fulfil the roles and responsibilities entrusted to them, including the administration of the OSSLT, ethically and with integrity. The Member failed to do so. 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.

18Given the nature and severity of the Member’s misconduct, the Panel finds that a five-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 OSSLT must be administered with the strictest regard for the Administration Guide in order to ensure fairness. The suspension will act as a specific deterrent to the Member as it holds him, the leader and administrator of his school, accountable for his actions. It will also serve as a general deterrent by reminding the profession that such behaviour on the part of a school principal is not tolerated. In accordance with the parties’ joint submission, the Member’s suspension will begin on November 2, 2021, which is 15 days after the Panel’s Decision and Order.

19The Panel finds that the course of instruction regarding professional ethics and the professional responsibilities involved in the administration of the Ontario Secondary School Literacy Test will assist in the rehabilitation and remediation of the Member. The coursework will be tailored to the Member’s specific misconduct in this case. The course will remind the Member of his obligations as an administrator and member of the teaching profession and will help him make better decisions in future administrations of the OSSLT.

20The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principles of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3Based on the parties’ amendments made to the Joint Submission on Penalty during the hearing, the Panel understands that any time the term “courses” appears in this matter, it is a typographical error and should be read as the singular “course”.