DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kaiser 2021 ONOCT 18

Date: 2021-03-02

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

Kimberly Elizabeth Kaiser, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KIMBERLY ELIZABETH KAISER (REGISTRATION #269695)

PANEL: Nicola Powadiuk, OCT, Chair John Cammarata Sara Nouini, OCT

HEARD: February 17, 2021

Kathryn McChesney and Charlotte-Anne Malischewski, for the Ontario College of Teachers

Patricia D’Heureux, for Kimberly Elizabeth Kaiser

Rebecca Durcan, 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 February 17, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Kimberly Elizabeth Kaiser (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.

3An Amended Notice of Hearing dated April 1, 2019 (Exhibit 1) and a Notice of Hearing dated August 6, 2019 (Exhibit 2) were served on the Member, specifying the allegations, and requesting her presence on a date determined for the hearing. The hearing with respect to the allegations set out in both Notices of Hearing was subsequently set for February 17, 2021. With the consent of the parties, pursuant to section 9.1(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, the Panel agreed to proceed with a single hearing to address the allegations of professional misconduct set out in the two Notices of Hearing.

A. PUBLICATION ban

4The 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

5The allegations against the Member in the Amended Notice of Hearing dated April 1, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Kimberly Elizabeth Kaiser is guilty of professional misconduct and/or is incompetent [sic] 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);²

(c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);³ [as amended]

(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);⁴

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

6The allegations against the Member in the Notice of Hearing dated August 6, 2019 (Exhibit 2) are as follows:

IT IS ALLEGED that Kimberly Elizabeth Kaiser 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);⁵

(b) she abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);⁶

(c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);⁷

(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, and specifically section 32 of 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);⁸

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

C. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides the following:

1. Kimberly Elizabeth Kaiser 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 employed by the District School Board of Niagara (the “Board”) as a teacher at [XXX] School (the “School”) in St. Catharines, Ontario.

3. In September 2015, on one occasion, in speaking with a colleague at the School the Member used the term "bullshit" in referring to the School administration.

4. Between September and October 8, 2015 the Member told one or more students to go home and tell their parents about another student’s behaviour in class, which she felt was putting other students at risk of harm, so that parents would call and complain about the student.

5. On June 17, 2016, the Member ran into a parent of a student at the School at a fast food restaurant. The Parent expressed concerns about the experience his daughter had had with the class that year. The Member had not taught his daughter's class since December 2015 and was on leave throughout this time. In response, the Member made the following inappropriate comments to the parent:

(a) She said that the class was a “terrible bunch and no one wanted to teach them for long”;

(b) She said that “there were a lot of disruptions in the class” and;

(c) She said that “it was the kids’ fault that there were several occasional teachers assigned to the class”.

6. On September 7, 2016, at the end of the school day, three [XXX] students that were in the Member’s care went missing after being allowed by the Member to enter the hallway. The Member did not implement the appropriate emergency response to address the situation. One child was found in the parking lot by the child’s parent. The other two students were found alone in the parking lot by another parent who then brought the students into the school. These two students, who were supposed to be on the bus, missed the bus.

7. Between September and October 8, 2016 the Member told a parent “I don’t know how to handle these kids. It’s not like I can hit or spank them”.

8. On September 18, 2017 the Member released a [XXX] student to an unidentified adult who was not the student’s parent or guardian. The student was taken to another teacher who helped determine that the student was supposed to get on the bus.

9. On October 25, 2017 the Member inadvertently left two of her [XXX] students alone outside in an enclosed courtyard for several minutes after the morning break. As a result of this incident the Member received a 3 day suspension. Attached hereto and marked as Exhibit “B” is a copy of the November 8, 2017 discipline letter to the Member.

10. On October 31, 2017 the Member sent two of her [XXX] students together to the School office on their own without supervision. At dismissal time, the location of one of the students could not be determined, and this resulted in a school wide intercom call for a missing student. As a result of this incident the Member received a 5 day suspension. Attached hereto and marked as Exhibit “C” is a copy of the November 13, 2017 discipline letter to the Member.

11. In May 2018, in discussions with other staff members, the Member referred to two students [XXX] as “terrorists” or acting like terrorists, in reference to their behaviour.

12. On May 15, 2018 the Member left her [XXX] class unsupervised for several minutes while she met with a parent in the hallway. Some students in the Member’s [XXX] class were running around and causing a commotion. The teacher in the classroom next door heard the commotion and went with an Early Childhood Educator (“ECE”) to supervise the students. When the teacher and ECE went into the class they noticed that one of the student appeared to have a rash, which the teacher was concerned might be an allergic reaction. In the end, the child was unharmed and there was no evidence that he did have an allergic reaction. In an interview with School administration the Member admitted to leaving her class unsupervised but stated that she believed she had left the door to the classroom open. As a result of this incident the Member received a 7 day suspension. Attached hereto and marked as Exhibit “D” is a copy of the June 6, 2018 discipline letter to the Member.

13. On September 13, 2018, at the end of the school day, the Member and an Educational Assistant did a head count and noticed that one of the Member’s [XXX] students was unaccounted for. When that student’s mother arrived and asked the Member where her son was, the Member said “he’s missing”. The Member had opened the gate to the school courtyard, allowing parents to enter the courtyard prior to conducting the head count. After a short period of time the student was discovered in the courtyard by another Educational Assistant.

14. Directly following this incident the Member met with School administration. The Member was upset following this meeting and went to her classroom. Another ECE was present in the classroom and asked the Member if she was okay. The Member was upset and threw an item to the other side of the room.

15. The Member retired from the Board effective October 31, 2018.

PLEA OF NO CONTEST

16. 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”).

17. 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(11), 1(14), 1(15), 1(18 – unprofessional only) and 1(19).

18. 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 Discipline 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 her and counsel for the College 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.

19. 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.

20. 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

8Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (c) of the Amended Notice of Hearing dated April 1, 2019 (Exhibit 1) and of the Notice of Hearing dated August 6, 2019 (Exhibit 2), namely that the Member contravened subsections 1(5), 1(7) and 1(7.2) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable).

9College Counsel submitted that, in relation to both Notices of Hearing, the Panel’s permission to withdraw the subsection 1(5) allegations was being sought because they were duplicative of the subsection 1(14) allegations. The Panel’s permission to withdraw the subsection 1(7) and 1(7.2) allegations was being sought because the Uncontested Facts do not support a finding under these heads of misconduct. Finally, in relation to the narrowing of the subsection 1(18) allegations, College Counsel submitted that the conduct set out in the Uncontested Facts could properly be characterized as unprofessional, but not as disgraceful or dishonourable. The Panel granted these requests to withdraw or narrow the allegations set out above.

10Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on February 17, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(11), 1(14), 1(15), 1(18) [unprofessional only] and 1(19).

E. REASONS FOR DECISION

11The Member did not contest the facts and exhibits referred to in paragraphs 1 to 15 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.

12The Uncontested Facts demonstrate that the Member contravened subsection 1(11) of Ontario Regulation 437/97 by failing to adequately supervise students, which occurred repeatedly. On one occasion, three [XXX] students in the Member’s care went missing after she allowed them to go into the hallway unsupervised. These children were found in the school parking lot. On a second occasion, the Member released a [XXX] student to an unidentified adult. On a third occasion, the Member inadvertently left two of her [XXX] students outside for several minutes after the morning break. On a fourth occasion, the Member sent two students to the School office without supervision. One of the students went missing, which resulted in a school-wide intercom call for a missing student. On a fifth occasion, the Member left her [XXX] class unsupervised for several minutes while she met with a parent in the hallway. Members of the profession are responsible for the safety of students under their supervision. They must be able to account for the whereabouts of their students during instructional time and release students only to designated persons. By her behaviour, the Member acted contrary to her professional obligation to adequately supervise her students and repeatedly jeopardized their safety, despite having received repeated warnings and progressive discipline from her Board.

13The Uncontested Facts demonstrate that the Member failed to comply with the Act, regulations, or by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. Section 32.02 of the College’s Bylaws requires members to comply with the Ethical Standards for the Teaching Profession. Among other things, members are expected to demonstrate their commitment to students’ well-being and learning through professional judgment (“Care”) and to honour human dignity (“Respect”). The Member failed to demonstrate adequate care when [XXX] students from her classes went missing or unaccounted for while under the Member’s professional supervision. Furthermore, on at least one occasion, the Member failed to implement the appropriate emergency procedure regarding missing students. Members are also expected to demonstrate respect, which the Member failed to do by making inappropriate comments about students to parents, and by using a negative stereotype while discussing the classroom behaviour of two [XXX] students with her colleagues. The Member’s conduct was inconsistent with the Ethical Standards.

14The Member failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. This section sets out the duties of a teacher and, at subsection 264(1)(e), provides that teachers are expected to maintain proper order and discipline in their classroom and while on duty in the school and on the school ground. Through her failure to adequately supervise students, the Member repeatedly failed to maintain proper order with her students. Not only did several of the Member’s student go missing while under her supervision, but the Uncontested Facts show that, on at least one occasion while the Member left her students unsupervised, her class caused such a commotion that the teacher in the room next door had to intervene. By leaving her students unsupervised on multiple occasions, the Member did not maintain proper order in her class or at the school and she jeopardized student safety.

15The Member contravened subsection 1(18) of Ontario Regulation 437/97 by engaging in unprofessional conduct. The Member deflected her classroom management duties by telling one or more students to discuss a classmate’s potentially harmful behaviour with their parents. She made these comments so that parents would call the School to complain about that student. As such, the Member failed to demonstrate professionalism in addressing a classroom management concern. Furthermore, the Member used the term “bullshit” when speaking about the School’s administration with a colleague, she referred to two [XXX] students as “terrorists” (or acting like terrorists) when discussing their behaviour with other staff members, and, on another occasion, she threw an item across the classroom in the presence of an ECE, while she was upset. The Member’s behaviour demonstrates poor professional judgment.

16The Member’s conduct was also unbecoming a member, contrary to subsection 1(19) of Ontario Regulations 437/97. Members of the profession are expected to ensure the safety of students by supervising them adequately. They are also expected to demonstrate professionalism when speaking about students to parents and colleagues. The conduct described above undermines the reputation of the teaching profession. The public’s trust in the teaching profession is eroded when members of the profession speak disparagingly about students and reinforce harmful stereotypes.

F. PENALTY Decision

17The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on February 17, 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 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 four months commencing on the 15^th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register.

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:⁹

(a) prior commencing or resuming any teaching position or any position for which a Certificate of Qualification and Registration (a “Teaching Position”) is required, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding classroom management 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 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

18After the conclusion of the oral hearing, the Panel received additional, joint submissions from the parties on February 19, 2021, requesting that the Panel amend the Joint Submission on Penalty (Exhibit 4) by removing the following words from paragraph 3: “the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled”. The parties jointly requested this amendment to reflect legislative changes to the Act that prevent the removal from the Register of terms, conditions or limitations imposed by the Discipline Committee.¹⁰ Based on these joint submissions, the Panel accepted the amended penalty jointly proposed by the parties.

19The 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 the parties: Ontario College of Teachers v. Antonenko, 2019 ONOCT 79, Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28 and Ontario College of Teachers v. Manga, 2017 ONOCT 48.

20The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. First, there was a pattern of incidents involving inadequate supervision of students that occurred over the course of three academic years. Second, the Member’s conduct did not improve despite warnings and discipline from her employer. Third, the Member repeatedly made inappropriate comments regarding students to parents and colleagues. There are also several mitigating factors. First, though concerns about lapses in the Member’s supervision of students were raised repeatedly by her employer, the lapses in supervision were brief in nature and all students were found on school property and unharmed. Second, none of the Member’s inappropriate comments were made directly to students, so students were not directly impacted. Third, the Member has no prior history of discipline at the College in her 20-year teaching career. Lastly, the Member did not contest her misconduct, saving the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

21The Panel finds that the Member’s concerning pattern of inappropriate conduct, despite warnings from the Board, warrants a reprimand by her peers. Members are expected to ensure that all students are safe while under their professional supervision and to model professionalism in their interactions with members of the school community, including when they speak about students to parents and colleagues. 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.

22Given the serious and repeated nature of the Member’s misconduct, the Panel finds that a four-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 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 March 4, 2021, which is 15 days after the Panel’s Oral Decision and Order.

23The Panel finds that a course of instruction regarding classroom management will assist in the rehabilitation of the Member, should the Member commence or resume any position where a Certificate of Qualification and Registration is required. Prior to returning to teaching, completing this coursework would remind the Member of her obligations as a teacher and would help her to make better decisions regarding student supervision and in her interactions with students, parents and colleagues.

24The 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 College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3Allegation withdrawn at College Counsel’s request.
4. 4Allegation narrowed to unprofessional only (and not disgraceful or dishonourable) at College Counsel’s request.
5. 5Allegation withdrawn at College Counsel’s request.
6. 6Allegation withdrawn at College Counsel’s request.
7. 7Allegation withdrawn at College Counsel’s request.
8. 8Allegation narrowed to unprofessional only (and not disgraceful or dishonourable) at College Counsel’s request.
9. 9As jointly amended by the parties on February 19, 2021, removing the phrase: “the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled.”
10. 10See subsections 23(2.5)(a) and 23(2.8), Ontario College of Teachers Act, S.O. 1996, c. 12, in force December 8, 2020.