Ontario College of Teachers v. Winer, 2021 ONOCT 30

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Winer 2021 ONOCT 30

Date: 2021-03-04

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

Derek Martin Winer, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DEREK MARTIN WINER (REGISTRATION #495352)

PANEL: Mary Ellen Gucciardi, OCT, Chair John Cammarata Wanda Percival

HEARD: February 26, 2021

COUNSEL: Andrew Matheson and Noam Uri, for the Ontario College of Teachers Sheilagh Turkington, for Derek Martin Winer 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on February 26, 2021 in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Derek Martin Winer (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 February 15, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Derek Martin Winer is guilty of professional misconduct and/or is incompetent as defined in the Act in that:

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

(b) he failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

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

(d) 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 including Regulation 298, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) 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);²

(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);

(g) he displayed a lack of knowledge, skill or judgment and/or disregard the welfare of his students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

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. Derek Martin Winer 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 Hamilton-Wentworth District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Hamilton, Ontario. The Member obtained his qualifications in Special Education, Parts 1, 2 and Specialist, between 2008 and 2012.

3. The Member was new to the School in September 2014. At all material times during the 2014-2015 school year, the Member taught [XXX] classes at the School. He was assisted by two Education Assistants (“EAs”). One of the EAs was familiar with most of the Member’s students, having assisted the same class the previous year.

4. The [XXX] class was taught by a colleague, who was also assisted by two EAs. The [XXX] classrooms were separated by a third room that included a [XXX], accessed by both classes.

5. At the outset of the 2014-2015 school year, the Member’s class consisted of [XXX] male students. Within a few weeks a [XXX] male student joined the Member’s class, and in January 2015, a [XXX] male student joined the Member’s class. At all material times, the Member’s students were between [XXX] and [XXX] years of age.

6. The Member failed to provide adequate and structured classroom programming for his students from the onset of the school year. At the outset of the 2014-2015 school year, the Member permitted his students to enjoy free choice all day. His students chose to wander around the classroom, the [XXX] room, the [XXX] room, or to spend time on classroom iPads. The Member conducted assessments of the students and very gradually started the students on independent stations. Some independent learning was only implemented in the late fall. In the third week, the EAs started a morning routine that included Oh Canada, which the Member eventually took over responsibility for running.

7. The Member chose which students he worked with one-on-one and did not work consistently with any of them as he ought to have done. Three students in particular received very little time with the Member, usually 5-10 minutes. It was difficult for the EAs to follow the Member’s schedule when there was nothing posted except his preparation in the event that a substitute teacher was required.

8. The Member inaccurately portrayed to parents classroom activities, student progress and failed to advise parents of any emotional or physical outbursts that the students experienced. The Member often indicated that a student simply had a “good day” even where there had been behavioural issues. For such days, however, the notes of the EA reported students were having meltdowns and exhibiting [XXX] behaviour. This was contrary to the Member’s obligation to keep records in keeping with his professional obligations and contrary to the Member’s obligation to accurately reflect a student’s progress in his communication to parents.

9. The Member failed to communicate with behavioural therapists who were inquiring on the progress of students and to coordinate development programs.

10. On a number of occasions the Member not only failed to assist staff during student behavioural outbursts, but would condone this behaviour by telling the student that he was a “good boy.” The Member’s positive reinforcement of negative behaviours escalated situations within the class resulting in physical injury (bruises and a torn shirt to one EA) and placing the well-being of staff in jeopardy.

11. The Member demonstrated preferential treatment to [XXX] students. The Member would spend more one on one teaching time with [XXX] students. One student became accustomed to this attention and, when a new student joined the class in January 2015 and the Member focused more attention on that new student, causing the first student to feel ignored. This led to classroom outbursts by students that were disruptive and not properly addressed by the Member.

12. The Member permitted a student to call him “daddy” in class, believing this was an abstract expression by the student, as opposed to a reference by the student to him as father figure. Other staff were uncomfortable with this interaction and attempted to address the issue with the student.

13. The Member wrote the following comment on a draft progress report, the student “is developing an awareness of how placing his hands around the throat of peers must be accepted first, and must be gentle at all times”. The Principal reviewed the draft progress report and expressed concerns regarding the Member’s comment, which the Member revised.

14. The Member’s classroom was equipped with iPads for students to use, including as a reward for good behaviour in class. During September 2014, whenever a student asked the Member if he could watch the show “Robot Chicken” on the iPad, the Member agreed and permitted the student to watch the show. The Member was not familiar with the show and did not review its contents prior to granting the student permission to watch it. “Robot Chicken” is a cartoon for adults, containing adult themes and humour inappropriate for students of the age being taught by the Member.

15. Once the content of the show was brought to the Member’s attention, he no longer permitted the student to watch it. However, because the student liked the song that accompanied the credits, the Member allowed the student to watch the opening and closing credits, so that the Student could hear the song.

16. The Member did not consistently use the [XXX] with students as he ought to have done.

17. As set out in the paragraphs above, the Member’s classroom management skills, his curriculum knowledge and delivery failed to meet the standards expected of a teacher.

18. The Board reassigned the Member home with pay pending investigation, effective February 10, 2015. The Member resigned from his employment with the Board, effective June 30, 2015.

Prior Discipline:

19. On December 8, 2015, the Discipline Committee found the Member guilty of professional misconduct and ordered a reprimand, and terms, conditions or limitations on his Certificate of Qualification and Registration consisting of coursework. Attached hereto and marked as Exhibit “B” is a copy of the Discipline Committee’s Decision, Reasons for Decision and Order dated December 15, 2015.

GUILTY PLEA

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

21. 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(10), 1(14), 1(15), 1(18) as pertains to unprofessional, and 1(19). The Member hereby admits and pleads guilty to the allegation of incompetence in that he displayed a lack of knowledge, skill or judgement that demonstrates that his certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Ontario College of Teachers Act, 1996.

22. 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.

23. 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 [sic].³

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. 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). College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought because it duplicated the allegation of subsection 1(14) misconduct. College Counsel also requested that the Panel find the Member’s conduct was unprofessional only (and not disgraceful or dishonourable) because the admitted facts only support a finding of conduct that is unprofessional. 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 February 26, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(10), 1(14), 1(15), 1(18) [unprofessional only] and 1(19). The Panel also finds that the Member’s conduct meets the definition of incompetence at subsection 30(3) of the Act, in that he has displayed in his professional responsibilities a lack of knowledge, skill or judgment that demonstrates that his certificate should be made subject to terms, conditions or limitations.

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 19 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct and incompetence against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above, and incompetence in accordance with the definition set out at subsection 30(3) of the Act.

9The Admitted Facts demonstrate that the Member contravened subsection 1(10) of Ontario Regulation 437/97 by failing to maintain accurate records about student activities and to document significant student behaviour incidents in class. The Member often recorded that students had a “good day”, when the records of EAs assisting in the classroom indicated that students had emotional or physical outbursts. As a result, student progress was inaccurately portrayed and parents were not advised of emotional or behavioural issues, such as when students were exhibiting [XXX] behaviour. It was the Member’s responsibility to accurately record student activities and behaviour in the classroom, and the Member failed to meet this professional obligation.

10The Admitted Facts demonstrate that the Member failed to comply with the College’s by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97, by breaching the Ethical Standards for the Teaching Profession set out at section 32.02 of the by-laws. Among other things, members are expected to demonstrate their commitment to students’ well-being and learning through professional judgment (“Care”) and to embody fairness, openness and honesty (“Trust”). The Member demonstrated a lack of care when he failed to deliver adequate and structured programming to his students, did not work individually with all students on a regular basis, and when he neglected to communicate student progress or needs to behavioural therapists and parents. The Member also failed to embody fairness when he demonstrated preferential treatment by working more often with [XXX] students. The Member ought to have consistently implemented programming, worked one-on-one with all his students and communicated student needs to colleagues and parents. As such, his actions were contrary to the Ethical Standards.

11The Member contravened subsection 1(15) of Ontario Regulation 437/97, by failing to comply with section 264(1) of the Education Act. This section sets out the duties of a teacher and provides, at subsections 264(1)(a) and (d), that teachers are expected to teach diligently and faithfully the classes that are assigned to them and to assist in developing cooperation and coordination of efforts among staff. The Admitted Facts demonstrate that the Member displayed a lack of diligence and faithful execution in his teaching duties by failing to provide adequate and structured classroom programming for his students during the 2014-2015 school year. For example, the Member left students to wander around their classrooms or to spend time on iPads during instructional time. Moreover, the Member failed to assist in developing cooperation among staff when, on several occasions, he failed to assist staff during student behavioural outbursts and reinforced negative student behaviours. In one instance, the Member contributed to the escalation of negative student behaviour which resulted in the physical injury of an EA. The Member’s poor classroom management and uncooperative approach with colleagues jeopardized the well-being of staff and students, which is at odds with the Member’s duties as a teacher.

12The Member contravened subsection 1(18) of Ontario Regulation 437/97 by committing acts that would reasonably be regarded by members as unprofessional. The Member demonstrated a lack of professional judgment when he permitted a student to call him “daddy” in class and failed to address the student’s perception of the relationship. The Member also demonstrated a disregard for his professional obligations when he allowed a student to watch an inappropriate cartoon for adults in class as a reward for good behaviour without screening the contents of the show first. Teachers are expected to exercise good judgment, which includes ensuring that the content they allow students to consume in the classroom is developmentally appropriate. The Panel accepts College Counsel’s submission that this conduct amounts to unprofessional conduct only.

13The Member’s conduct as described above was also unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. When members fail to address the learning needs of students through inadequate programming, monitoring and classroom management, the public loses trust in the teaching profession.

14Finally, the Admitted Facts demonstrate that the Member’s conduct meets the definition of incompetence set out at subsection 30(3) of the Act, in that he displayed in his professional responsibilities a lack of knowledge, skill or judgment that demonstrates that his certificate should be made subject to terms, conditions or limitations. The Member did not structure student time or spend sufficient time with students individually to meet their learning needs. He also failed to implement appropriate classroom management and neglected to consistently implement appropriate teaching tools to assist students, including the [XXX]. The Member’s assessment and reporting of student activities and learning progress was inaccurate or inappropriate (e.g., a draft progress report comment by the Member suggested that a student should work on being gentle while placing his hands around another student’s throat). The Panel agrees with College Counsel’s submission that, through his conduct, the Member failed to meet the standards of a competent teacher.

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 February 26, 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 two (2) months commencing on the 15th 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. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;

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

(a) Prior to filling or resuming a teaching position or any position that requires a Certificate of Qualification and Registration (a “teaching position”), the Member shall enroll and successfully complete, at his own expense, the following course which has been pre-approved by the Registrar:

(i) an Additional Qualification course or Additional Basic Qualification course that covers curriculum, lesson planning, instructional strategies and assessment of student learning for students with special needs;

(b) Within thirty (30) days following his completion of the course described in (a) above, the Member shall provide the Registrar with proof in writing that he has successfully completed the course.

(c) At least thirty (30) days prior to filling or resuming any teaching position, the Member shall inform the Registrar of the start date of the position, the name of his employer and the nature of the position.

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 the parties: Ontario College of Teachers v. Nakhla, 2020 ONOCT 153 and Ontario College of Teachers v. Leon, 2020 ONOCT 136.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are that the Member’s conduct was of a recurring nature that demonstrated a pattern of deficiencies relating to his teaching, classroom management, record keeping and reporting. Also aggravating is that an EA sustained physical injury when the Member failed to implement appropriate classroom management strategies. Prior to the incidents at issue in this case, the Member also received two letters of discipline from his Board in May 2013, stemming from his inappropriate conduct relating to the supervision of students with special needs and his interactions with colleagues (see Exhibit 2 at Tab B). In terms of mitigating factors, the Member admitted his misconduct, saving student witnesses from having to testify and the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s professional misconduct warrants a reprimand by his peers. Members are expected to teach diligently and to prioritize the learning and well-being of students by demonstrating skill and sensitivity in responding to the needs and exceptionalities of students and in cooperating with colleagues and staff to meet the needs of students. They are also expected to implement classroom management that does not escalate or jeopardized the safety and well-being of students and staff. 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.

19Given the nature and severity of the Member’s conduct, the Panel finds that a two-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 Member’s misconduct is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on March 13, 2021, which is 15 days after the Panel’s Oral Decision and Order.

20The Panel finds that the Additional Qualification or Additional Basic Qualification course on curriculum, lesson planning, instructional strategies and assessment of student learning for students with special needs will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students, including those with exceptionalities or special needs.

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 College Counsel’s request.
2. 2Allegation narrowed to unprofessional conduct only (and not disgraceful or dishonourable) at College Counsel’s request.
3. 3Based on the Member’s guilty plea and the submissions of the parties at the hearing, the Panel understands that there is an omission at paragraph 23. College Counsel and the Member jointly submitted that in addition to a finding of professional misconduct, the Panel should also find the Member incompetent as defined in subsection 30(3) of the Act.