DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Kuder 2021 ONOCT 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
Gail Audrey Kuder, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
GAIL AUDREY KUDER (REGISTRATION #255943)
PANEL: Stéphane Vallée, OCT, Chair Élaine Legault Nancy Saunders, OCT
HEARD: December 3, 2020 and December 21, 2020
Danielle Miller, for the Ontario College of Teachers Patricia D’Heureux, for Gail Audrey Kuder 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 December 3, 2020 and December 21, 2020, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Gail Audrey Kuder (the “Member”) attended the hearing on the merits 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 April 23, 2018 (Exhibit 1) are as follows:
IT IS ALLEGED that Gail Audrey Kuder 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 abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);2
(d) she failed to comply with the Act or the regulations or 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 members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);3 and
(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:
Gail Audrey Kuder 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.
At all material times, the Member was employed by the Upper Grand District School Board (the “Board”) as an occasional teacher.
On or about June 23, 2015, the Member was working at [XXX] School (the “School”) in Guelph, Ontario, as a supply teacher.
At all material times during the 2014-2015 school year, Student 1 was a female student in Grade [XXX] at the School.
On or about June 23, 2015, as Student 1 stood outside with her classmates lining up to enter the School, one of her male classmates dared her to hit him. Student 1 hit him, and when he said it didn’t hurt, she hit him again.
The other boys joined in and started hitting and kicking Student 1, and she responded in kind. According to the students, they were laughing and joking around with each other.
The Member who had exited the portable classroom last to ensure that all of the students had exited, noticed what appeared to be a three-on-one fight break out as she approached the students. The Member, who was concerned for immediate student safety, didn’t say anything, reached out and grabbed the neck of Student 1’s sweatshirt from behind and pulled Student 1 by the neck of her sweatshirt, away from the reach of the other students.
The Member’s actions frightened Student 1. She had not seen or heard the Member approach, and unexpectedly felt her sweatshirt choking her as she was pulled away by the Member. The Member states that she did not intend to harm the student and was not aware that her action had caused the Student to feel choked.
Student 1 pulled free and ran into the School, where she hid because she was frightened of the Member. Student 1 would not come out until a familiar Educational Assistant came to speak with her.
Family and Children's Services Investigation
- This incident was reported to the Family and Children’s Services of Guelph and Wellington County (“FACS”) and they did not verify any related protection concerns. The conclusion of the FACS investigation was as follows, as stated in the outcome letter dated September 9, 2015, which was also copied to the school board and is attached hereto and marked as Exhibit “B”:
“…Based on all of the information gathered within this investigation, we do not believe that Gail’s interactions with the student within the classroom were the result of an intention to cause harm to the student or that they resulted in any excessive or inappropriate physical force. In addition, it does not appear that Gail physically intervened as a purpose of discipline, but more as she believed the situation required immediate action.”
Board Investigation
When asked by the administration on the day of the incident to explain what happened, the Member said she became upset because she felt a fist fight was breaking out and she was worried for Student 1’s safety, so she took Student 1 by her hood and pulled her backwards.
During a second interview with the administration, the Member stated that Student 1 was acting like “like a banshee”, and acknowledged that she “was unaware that the other students were equally physical with [Student 1]”.
The Member resigned from the Board, effective August 28, 2015.
Prior Conduct History
- On October 27, 2015, the Investigation Committee considered a complaint regarding the Member’s interactions with a student in February 2014, while she was teaching for the Board. After reviewing the materials in relation to the matter, the Committee admonished the Member in writing “…to avoid inappropriate physical contact with students, and to employ appropriate classroom management strategies to promote a safe learning environment”. Attached hereto and marked as Exhibit “C” is a copy of the Investigation Committee’s Decision and Reasons and Admonishment, dated October 27, 2015.
PLEA OF NO CONTEST
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”).
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(7.1), 1(14), 1(15), 1(18) [unprofessional], 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 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 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.
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.
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 allegations of professional misconduct outlined in paragraphs (a) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(5) 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). The Panel’s permission to withdraw subsection 1(5) was sought as the Member’s conduct is more properly captured by subsection 1(14) and proceeding under both subsection 1(5) and 1(14) would be duplicative. The Panel’s permission to withdraw subsection 1(7.2) was sought as there was not sufficient evidence to suggest that the Member’s actions constituted psychological or emotional abuse. The Panel granted these requests.
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 December 21, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(14), 1(15), 1(18) [unprofessional only] and 1(19).
E. REASONS FOR DECISION
8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 14 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. Due to this acknowledgment by the Member, the Panel’s role is not to determine whether the Uncontested Facts would better fit under other heads of misconduct. The Panel is required to place significant weight on the fact that the Member has not contested the finding when making their decision.
9The Panel finds that the Member physically abused a student contrary to subsection 1(7.1) of Ontario Regulation 437/97. In coming to this decision, the Panel relied on the fact that the Member made physical contact with the student in combination with the fact that the Member did not contest that this contact amounts to physical abuse. The Uncontested Facts demonstrate that the Member attempted to break up what she thought was a fight by grabbing the neck of Student 1’s sweatshirt from behind and pulling the neck of her sweatshirt. The Panel recognizes that the Member believed that she was assisting Student 1 by taking this action. However, the Panel agrees with College Counsel’s submission that the Member should have given the students a verbal warning prior to physically interfering. The Member did not give the students an opportunity to stop fighting before grabbing Student 1. The Member’s miscalculation of the situation resulted in Student 1 being surprised by the Member’s actions and caused Student 1 to be frightened of the Member.
10The Member failed to comply with the College’s by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97, by breaching the standards articulated in the Ethical Standards for the Teaching Profession set out at section 32.02 of the by-laws. Teachers are expected to uphold the Ethical Standards by showing commitment to students’ well-being (“Care”). By her physical intervention, the Member failed to show commitment to Student 1’s well-being, which caused Student 1 to feel choked and frightened of the Member. The Member could have and should have first attempted to break up the fight using non-physical means. As such, her actions were contrary to the Ethical Standards.
11The 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 provides that it is the duty of a teacher to maintain proper order and discipline while on the school grounds. By physically intervening with students at play, instead of issuing them a verbal warning, the Member failed to maintain proper order and discipline, which was at odds with her professional obligations under the Education Act.
12The Member’s behaviour is unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member acted unprofessionally by unnecessarily grabbing Student 1 to break up what she thought was a fight, instead of attempting to intervene through other means.
13Additionally, the Member’s conduct was unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. This conduct undermines the reputation of the teaching profession and violates the trust that parents, students and the public place in teachers.
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 December 21, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:
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, or by telephone 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 impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled:
(a) prior to a resuming or commencing a teaching position or any position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries, 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
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. Datoo, 2020 ONOCT 146, Ontario College of Teachers v. Benn, 2019 ONOCT 98, Ontario College of Teachers v. White, 2017 ONOCT 26, and Ontario College of Teachers v. Stodola, 2018 ONOCT 22.
16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in this case is that the Member had previously engaged in inappropriate physical contact with students. There are several mitigating factors in this case. First, the Member’s misconduct involves a very brief incident of physical contact with a student. Second, while the manner in which the Member physically intervened with Student 1 was inappropriate, the Member’s motivation for the conduct – to break up what she thought was a fight – was appropriate. Finally, the Member did not contest the misconduct, saving the time and expense of a contested hearing. After considering these factors, the Panel accepts that the penalty proposed by the parties would not bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.
17The Panel finds that the Member’s 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.
18The Panel finds that the course of instruction regarding professional boundaries will 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 interactions with students.
19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: January 4, 2021
Stéphane Vallée, OCT Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Nancy Saunders, OCT Member, Discipline Panel