Citation: Ontario College of Teachers v Balan 2021 ONOCT 124

Date: 2021-10-29

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

Marie-Gabrielle Balan, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARIE-GABRIELLE BALAN (REGISTRATION #482970)

PANEL: Marlène Marwah, Chair

Élaine Legault

Alain Martel, OCT

HEARD: October 26, 2021

Charlotte-Anne Malischewski, for the Ontario College of Teachers

Marie-Gabrielle Balan, representing herself

Renée Kopp, 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.

1On October 26, 2021, Counsel for the Ontario College of Teachers (the "College") brought a motion to seek leave from a panel of the Discipline Committee (the "Panel") to withdraw the allegations against Marie-Gabrielle Balan (the "Member") set out in the Notice of Hearing dated August 17, 2020 (Exhibit 3 in French and Exhibit 4 in English). Pursuant to Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, the proceeding was held electronically.

2The Member attended the hearing but did not have legal representation. Olivier Adrien provided her with personal support during the hearing. Interpretation services were also provided as needed, to translate into French the portions of the hearing that took place in English.

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. UNDERTAKING AND ACKNOWLEDGEMENT

4Counsel for the College advised the Panel that an agreement had been reached between the parties to withdraw the allegations against the Member set out in the Notice of Hearing dated August 17, 2020 in exchange for her Undertaking and Acknowledgement of September 8, 2021 (Exhibit 7), in which she undertook to abide by the following terms, conditions or limitations:

(a) I undertake, with the approval of the Registrar, through the New Teacher Induction Program, to enrol within a specified time in an Additional Qualification or Additional Basic Qualification course that covers classroom management, lesson planning and student assessment and evaluation;

(b) within 30 days of completion of the course outlined above, I undertake to provide the Registrar with written proof that I have successfully completed said course.

At least 30 days after my return to a teaching position, I undertake to inform the College Registrar of the date of my return to a teaching position, the name of my employer and the nature of my position.
Once I resume a teaching position, I undertake to take all reasonable steps to have my employer conduct two appraisals of my performance within 24 months following my return to a teaching position. I undertake to provide the Registrar with satisfactory proof that I have taken such steps. I undertake to provide the Registrar with a copy of the teacher appraisal report within 30 days after each appraisal. If my employer is unable or unwilling to conduct such appraisal, I undertake to notify the Registrar in writing immediately.
I understand that non-compliance with this Undertaking and Acknowledgement may constitute professional misconduct. If I fail to comply with any one of the terms of this Undertaking and Acknowledgement, the College shall be free to initiate proceedings for non-compliance with the Undertaking and Acknowledgement, or re-initiate these proceedings.
I acknowledge that the following notation will appear on the public register of the College:

"On September 8, 2021, the Member signed an Undertaking and Acknowledgement imposing terms, conditions or limitations on her Certificate of Qualification and Registration. All disciplinary decisions are available on the College website."

I acknowledge and understand that the decisions of the Discipline Committee are available on the College website.
I acknowledge and understand the scope, intent and effect of signing the Undertaking and Acknowledgement, and am signing this document voluntarily and unequivocally.

C. DECISION

5On October 26, 2021, after hearing the submissions by the parties, the Panel granted the College permission to withdraw the allegations against the Member set out in the Notice of Hearing dated August 17, 2020 in exchange for her Undertaking and Acknowledgement of September 8, 2021.

D. REASONS FOR DeCISION

6The Panel has jurisdiction to make the order requested pursuant to Rule 13.13 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. Counsel for the College explained why she was seeking to withdraw the allegations of professional misconduct and/or incompetence and the Member agreed with the submissions. The College is required to assess and reassess the merits of all proceedings. In this case, the supplementary documentation received by College Counsel shed a different light on the facts as a whole. As a result, it would be very difficult to prove the allegations of incompetence and the outcome of a hearing would be unsure. Cases of incompetence are very challenging to prove and are generally handled correctively rather than punitively. In the great majority of decisions, the penalty is twofold: first, the member is required to enrol in a course and second, the member is required to submit satisfactory teacher performance appraisals to the College. The Member’s Undertaking includes these measures (Exhibit 7). Prior to filling or resuming a teaching position, the Member’s terms, conditions or limitations include enrolling in an Additional Qualification or Additional Basic Qualification course to address her teaching deficiencies. When the Member returns to the classroom, her teacher performance will undergo two appraisals in the ensuing 24 months, in order to supervise her teaching practice and ensure that her competencies meet the appropriate threshold.

7The Panel accepts the submissions of College Counsel and finds that the withdrawal of the Notice of Hearing in exchange for the Member’s Undertaking and Acknowledgement is reasonable and appropriate in the circumstances. It is not in the public interest to expend tribunal resources to proceed with a matter in which the College has no reasonable prospect of obtaining a finding of professional misconduct and/or incompetence. Moreover, the Member’s Undertaking, which includes conditions similar to those that a discipline panel would probably have ordered had it made a finding of incompetence following a hearing, protects the public interest.

October 29, 2021

Marlène Marwah

Chair, Discipline Panel