Ontario College of Teachers v. Edeniyere, 2021 ONOCT 129

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Edeniyere 2021 ONOCT 129

Date: 2021-11-03

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

Rita Esevogho Edeniyere, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RITA ESEVOGHO EDENIYERE (REGISTRATION #461160)

PANEL: Irene Dembek, OCT, Chair Andrew Glenny Yasser Leheta, OCT

HEARD: November 2, 2021

Ava Arbuck and Linette King, for the Ontario College of Teachers Kaley Duff, for Rita Esevogho Edeniyere 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 2, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Rita Esevogho Edeniyere (the “Member”) attended the hearing and 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 January 20, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Rita Esevogho Edeniyere is guilty of professional misconduct as defined in the Act in that:

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

(b) she released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

(c) she falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

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

(e) 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);

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

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

C. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Rita Esevogho Edeniyere 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 during Semester 1 of the 2018-2019 school year, the Member was employed by the Dufferin-Peel Catholic District School Board (the “Board”) as a full-time, long-term occasional teacher at [XXX] School (the “School”) and taught Grade [XXX] and Grade [XXX].

3. At all material times during the 2018-2019 school year, Student 1 and Student 2 were female students in the Member’s Grade [XXX] class at the School.

Assessment Materials Prepared by Student 1 and Student 2

4. In September and October 2018, the Member instructed Student 1 and Student 2 to prepare tests, quizzes, assignments and activities (hereafter collectively referred to as “assessment materials”) to be used to assess other students in the Member’s Grade [XXX] and Grade [XXX] classes at the School.

5. The Member provided Student 1 and Student 2 with instructions, her rough notes, and a textbook from which they were to prepare the assessment materials. The Member instructed both students to create the assessment materials on the School’s computer using the Member’s Board account, but to save the materials on a USB key instead of on the computer’s hard drive.

6. The Member instructed Student 1 and Student 2 to create the assessment materials during their Grade [XXX] class, instead of participating in instructional time or completing their own work during class. They also organized the Member’s class materials and binders, at the Member’s request, during instructional time instead of completing their own work during class.

7. On at least one occasion, the Member asked Student 2 to work on preparing assessment materials during Student 2’s lunch.

8. The Member instructed Student 1 not to tell anyone that she had been asked to complete assessment materials at the Member’s request.

9. The Member gave Student 1 access to her Board employee password and login information. She provided Student 1 with marks for students in both [XXX] classes, and asked Student 1 to record those marks onto the computer for her. As a result, Student 1 had access to other students’ marks.

10. On or about October 31, 2018, Student 1 approached her Guidance Counsellor regarding the duties the Member asked her to perform in class because she did not feel comfortable working on the Member’s assessment materials. Student 1 reported that if she was absent or unable to complete the Member’s requests, the Member asked Student 2 to work on the assessment materials instead.

False Marks

11. As recorded on the printout of student grades for the Member’s Grade [XXX] class, each student completed eleven assessment tasks between September 8 and October 31, 2018. The Member submitted these marks into Markbook, the Board’s software program in which teachers enter and calculate student marks. Attached hereto and marked as Exhibit “B” is a copy of the Member’s Summary of Grades for all students in her Grade [XXX] class, dated November 2, 2018.

12. Included in the summary of grades for the Member’s Grade [XXX] class were eleven marks the Member submitted for work completed by Student 1 and Student 2 between September 8 and October 31, 2018. However, Student 1 wrote only one Grade [XXX] test with her class during this timeframe, and did not complete any assignments or quizzes during the month of October, as she was working on the Member’s assessment materials instead.

Board Discipline

13. The Board investigated and discussed its concerns with the Member on November 5, 2018. The Board concluded that the Member’s responses to the allegations were contrary to the information provided by staff and students, and determined that the Member’s actions “constitute[d] gross misconduct” and “called into question the authenticity of pupil achievement, assessment and reporting and have also compromised the privacy of student information”. The Board reminded the Member that similar concerns had been brought to its attention on two previous occasions, yet the Member continued “to demonstrate concerning behaviours”.

14. The Board suspended the Member for five days without pay, terminated her long term occasional contract, and advised her that its response on this occasion was a “final warning”. Attached hereto and marked as Exhibit “C” is a copy of the Board’s November 12, 2018 discipline letter to the Member. The Member’s union has filed a grievance in relation to this matter, which is currently outstanding.

Prior Board Discipline

15. By letter dated September 12, 2018, the Board suspended the Member for one day without pay for her conduct while working as an occasional teacher on various dates in July 2018, having concluded that the Member provided students with her Board password and login information, among other concerns. The Member agreed she would not engage in similar conduct again. Attached hereto and marked as Exhibit “D” is a copy of the Board’s discipline letter to the Member dated September 12, 2018.

16. By letter dated May 19, 2017, the Board advised the Member that it concluded she had “used inappropriate professional practice and conduct and inaccurately reported student progress” in her course. The Board outlined its expectations to the Member, restricted her duties with pay, and required her to provide proof of participation in a Professional Development program or course. Attached hereto and marked as Exhibit “E” is a copy of the Board’s letter to the Member dated May 19, 2017. The Member’s union has filed a grievance in relation to this matter, which is currently outstanding.

PLEA OF NO CONTEST

17. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

18. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against her being more particularly breaches of Ontario Regulation 437/97 subsections 1(6), 1(13), 1(14), 1(15), 1(18), 1(19).

19. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

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

(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;

(d) she understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) she understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including her name, shall be published in the official publication of the College;

(f) she understands that any agreement between counsel for the College and herself with respect to the penalty proposed does not bind the Discipline Committee;

(g) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

20. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

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

D. DECISION

6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as it would be duplicative to pursue both the allegation that the Member had contravened subsection 1(5) and subsection 1(14) of Ontario Regulation 437/97. The Panel granted the request.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 2, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(6), 1(13), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 16 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member relied on Student 1 and Student 2 to prepare assessment materials for [XXX] classes at the School, provided Student 1 with access to other students’ marks, and submitted false marks for Student 1.

9The Member contravened subsection 1(6) of Ontario Regulation 437/97 when she provided Student 1 with the marks for other students in the Member’s Grade [XXX] and Grade [XXX] classes and asked her to record them using the Member’s Board account. Confidentiality is essential. It is professional misconduct to release or disclose information about a student to someone other than a student (or the student’s parent or guardian, if the student is a minor).

10The Uncontested Facts show the Member falsified a record relating to the member’s professional responsibilities, contrary to subsection 1(13) of Ontario Regulation 437/97. The Member entered false marks for Student 1 with respect to work supposedly done between September 8 and October 31, 2018. The Member knew those marks were false and incorrect as Student 1 only completed one [XXX] test with her class during that timeframe. Student 1 did not complete any assignments or quizzes during the month of October because she was performing the assessment duties the Member should have been doing, at the Member’s request.

11The Member failed to comply with the ethical and professional standards set out in section 32 the by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. The ethical standards of “Trust” and “Integrity” speak to the principles of honesty, fairness, and morality expected of members. It was clearly dishonest for the Member to intentionally submit false marks for Student 1. The Member also lacked integrity by encouraging dishonesty and secrecy from Student 1, when she instructed the student not to tell anyone that she (Student 1) had been completing assessment materials at the Member’s request. The Member failed to demonstrate the ethical standards of “Care” and “Respect”, as well as the practice standard “Commitment to Students and Student Learning” when she asked Student 1 and Student 2 to create assessment materials or organize her binders during class time (and in the case of Student 2, also during lunchtime), rather than allowing them to participate in class learning. In doing so, the Member lacked compassion, commitment, interest or insight into Student 1 and Student 2’s learning, wellness, or development. The Member also failed to adhere to the practice standards “Professional Practice”, “Professional Knowledge”, and “Ongoing Professional Learning” which all relate to the Member undertaking continual learning, reflection, and application of her professional knowledge, training and experience (including prior Board discipline), to promote student learning by using appropriate materials concerning pedagogy, assessment and evaluation. The Member is a long-standing member of the College. She should have known that she was responsible for all aspects of learning and assessment in her classes and that she should not have delegated core professional duties to students. The Member’s actions jeopardized the authenticity and validity of the grades for her [XXX] classes. Finally, the Member failed to demonstrate “Leadership in Learning Communities”, as she abused her position of authority over Student 1 and 2 for her own advantage and to the detriment of their learning.

12The Member failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. Section 264(1)(a) requires members to be diligent and faithful in teaching their assigned classes. This includes the duty to prepare one’s own assessment materials. The Member failed to fulfill her obligation by delegating her professional responsibility to Student 1 and Student 2. Section 264(1)(b) requires members to encourage students in the pursuit of learning. The Member failed to do so when she took Student 1 and Student 2 away from their learning time and class work to instead prepare assessment materials for her. Section 264(1)(c) requires members to set a good example for students by demonstrating, among other things, the highest regard for truth, justice, and industry. The Member did not exemplify these virtues when she entered false marks for Student 1 and delegated her core professional responsibilities to Student 1 and Student 2.

13The Member’s conduct was disgraceful, dishonourable and unprofessional contrary to Ontario Regulation 437/97, subsection 1(18). Her actions were unprofessional in that she showed poor judgment and a disregard for her professional obligations. Her conduct was also dishonest and showed moral failing and can therefore be properly characterized as disgraceful and dishonourable. Not only did she shirk her own professional responsibilities, but the Member then encouraged students to participate in her dishonest assessment practices.

14The Member’s conduct as described above, was unbecoming a member of the teaching profession, contrary to subsection 1(19) of Ontario Regulation 437/97. Members hold a unique position of authority and influence over their students, and are expected to be honest, diligent, and fair in fulfilling their professional obligations. The Member abused her position of authority over Student 1 and Student 2 when she asked them to create assessment materials and when she told Student 1 to enter other students’ marks for her. By delegating her obligations to students, the Member jeopardized the quality and validity of her students’ learning and evaluation. She also shared confidential student information (i.e. their marks) with their peers. The Member’s misconduct has degraded the reputation of the teaching profession.

F. PENALTY Decision

15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 2, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter 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 shall 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 2 (two) months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter. If the Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st;

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 her own expense, a course(s)² [sic] of instruction pre-approved by the Registrar regarding professional ethics and regarding the assessment and evaluation of students, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

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

(b) within thirty (30) days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

16The 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. MacKellar, 2017 ONOCT 76; Ontario College of Teachers v. Opris, 2021 ONOCT 88; Ontario College of Teachers v. Crouse, 2016 ONOCT 99; and Ontario College of Teachers v. Jones, 2017 ONOCT 7.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The mitigating factors in this case are that the Member has entered into a resolution with the College. By doing so, the Member has spared witnesses from having to testify at a hearing. The Member has also saved the parties the time and expense of a contested hearing. The aggravating factor in the Member’s case is that the Member was previously disciplined by her Board for having engaged in similar misconduct but did not subsequently improve her professional practice. After considering these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s inappropriate conduct, despite prior discipline by the Board, warrants a reprimand. Members are expected to fulfill their professional obligations with respect to assessments, evaluations, and confidentiality, with diligence and 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.

19The Panel finds that a two-month suspension is reasonable and appropriate in the circumstances. 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 Member’s failings were egregious and occurred while (and continued after) the Board disciplined her for similar conduct. The suspension will serve as a specific deterrent to the Member and will impress upon her the seriousness of her actions. The suspension will also be a general deterrent to other members of the profession, making clear that the kind of misconduct exhibited by the Member is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on November 17, 2021, which is 15 days after the Panel’s Decision and Order.

20The Panel finds that the course(s) of instruction regarding professional ethics, and the assessment and evaluation of students will assist in the rehabilitation of the Member. The coursework will remind the Member of her ethical and professional obligations as a teacher and will help her perform her duties ethically and honestly in the future.

21The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2While the rest of the parties’ Joint Submission on Penalty refers to a single “course”, the Panel understands that the course practitioner will be given the discretion to determine whether the two topics of (1) professional ethics and (2) the assessment and evaluation of students can be combined into one course or whether the Member will be required to take two separate courses.