DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Pavlovic 2021 ONOCT 31

Date: 2021-04-06

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

Zara Pavlovic, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ZARA PAVLOVIC (REGISTRATION #432528)

PANEL: Tom Potter, Chair Irene Dembek, OCT Jonathan Rose

HEARD: March 30, 2021

Eli Mogil and Kathryn McChesney, for the Ontario College of Teachers Jack Brown, for Zara Pavlovic 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.

The Discipline Committee further ordered a publication ban pursuant to subsection 32.1(1) of the Ontario College of Teachers Act, 1996, regarding the contents of Exhibit 3 and any particulars that would disclose personal and confidential information about the Member’s medical history.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on March 30, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Zara Pavlovic (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of her reprimand as agreed to by the parties. 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.

4Additionally, the Panel made an order preventing publication of the contents of Exhibit 3 and any particulars that would disclose personal and confidential information about the Member’s medical history, pursuant to subsection 32.1(1) of the Act.

B. DECISION ON MOTION

5During the hearing, Member’s Counsel brought a motion on consent requesting a publication ban to prevent the public disclosure of the contents of a medical report detailing the Member’s medical history (Exhibit 3). Having considered the evidence and submissions of the parties as well as the relevant legislation, the Panel accepted the parties’ submissions that the personal and confidential nature of the medical report justifies a departure from the usual practice that the contents of hearing exhibits be made publicly accessible. The Panel granted the Member’s motion on March 30, 2021 and ordered a partial publication ban pursuant to subsection 32.1(1) of the Act, whereby no person shall disclose or publicize the medical information in Exhibit 3 and any particulars that would disclose personal and confidential information about the Member’s medical history.

C. REASONS FOR DECISION ON MOTION

6After reviewing the contents of the medical report submitted to the Panel by the Member, the Panel agreed with the parties’ submission that the document, though material to the Member’s misconduct, contained the Member’s [XXX], which attracts a high privacy interest and should not be made publicly accessible.

7In such circumstances, subsection 32.1(1) of the Act gives the panel the discretion to order a partial publication ban:

32.1(1) In situations under section 32 or 33 in which the Discipline Committee may make an order that the public, including members of the College, be excluded from a hearing, the Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including orders banning the publication or broadcasting of those matters.

8In order to protect the privacy and confidentiality in the Member’s personal medical information, the Panel exercised its discretion to order a partial publication ban pursuant to subsection 32.1(1) of the Act and entered the medical report provided by the Member into evidence as Exhibit 3.

D. THE ALLEGATIONS

9The allegations against the Member in the Notice of Hearing dated September 12, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Zara Pavlovic 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(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); and

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

E. STATEMENT OF UNCONTESTED FACTS

10College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Zara Pavlovic 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”), Hamilton, Ontario.

3. During the 2016 – 2017 academic year, the Member was a teacher at the School.

4. Student 1 and Student 3 were male students and Student 2 a female student of the Member.

5. On or about January 16, 2017 the Member engaged in inappropriate conduct, including but not limited to:

(a) yelled at the School’s Vice-Principal and/or used words to the effect “do what you want with him” in relation to a student;

(b) disposed of Student 1 and/or Student 2’s property without their consent;

(c) told a student and/or students that in China students would be beaten for being disrespectful to their teachers;

(d) discussed Student 1 and Student 3’s academic progress in the presence of other students;

(e) suggested that Student 1 received a grade he had not earned in a previous course;

(f) referred to Student 1 as a “gangster” and/or made disparaging remarks about Student 1;

(g) told Student 3 to “shut-up”;

(h) used words to the effect that “this is bull shit” in the classroom.

6. As a result of the above incidents, the Member was assigned home with pay pending investigation. Attached hereto and marked as Exhibit “B” is a copy of the Board’s correspondence dated February 16, 2017.

7. The Member received a discipline letter and written reprimand from the Board. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter of discipline dated May 29, 2017.

8. On or about February 7, 2017 the Member harassed and intimidated Person A, a colleague, including but not limited to:

(a) spoke to Person A in a loud and/or intimidating fashion;

(b) stated to Person A “she is loud like a dog, but now she is quiet like a snake”;

(c) told to Person A that, “she [the Member] is a single lady with zero kids, has a lot of time on her hands and will harass Person A”;

(d) jumped out of the School’s elevator and yelled at Person A;

(e) searched for person A during an assembly and upon finding Person A stated, “I told you I would find you – no one has called”:

(f) repeatedly called Person A while Person A was teaching her class;

(g) grabbed Person A by the arm and “linked” it with her own and stated “we are going for a walk.”

9. The Board received a complaint from Person A regarding the above incidents. For these incidents the Member received a one day disciplinary suspension without pay. Attached hereto and marked as Exhibit “D” is a copy of the Board’s correspondence dated May 29, 2017.

10. The Member’s trade union, the Ontario Secondary School Teachers’ Federation, grieved both letters of discipline referred to above. The Board and the OSSTF settled the grievances which resulted in the Member receiving a single written warning covering both incidents. The disciplinary suspension was rescinded and the Member was reimbursed one day’s pay. Attached hereto and marked as Exhibit “E” is a copy of the updated letter.

11. In and around this time the Member [XXX] that influenced her behaviour.

12. The Member was facilitated [XXX] by the Board. Attached hereto and marked as Exhibit “F” are copies of the [XXX] dated September 9, 2016, November 25, 2016 and January 30, 2017 regarding the Member.

PLEA OF NO CONTEST

13. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1 to 11 [sic] above (the “Uncontested Facts”).

14. 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(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

15. 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.

16. 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.

17. 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.

F. DECISION

11Counsel 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 sought the Panel’s permission to withdraw the subsection 1(5) allegation because it was duplicative of the subsection 1(14) allegation. The Panel granted this request.

12Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on March 30, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(6), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

G. REASONS FOR DECISION

13The Member did not contest the facts and exhibits referred to in 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.

14The Uncontested Facts demonstrate that the Member released or disclosed information about a student to a person other than the student, contrary to subsection 1(6) of Ontario Regulation 437/97. The Member inappropriately discussed Student 1 and Student 3’s academic progress in the presence of other students, which was in violation of this subsection.

15The Panel finds that the Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97, by making demeaning and derogatory remarks to students, including referring to Student 1 as a “gangster”, telling Student 3 to “shut up” and using vulgar language around students (“this is bullshit”) in the classroom. Berating students with vulgar language or calling students by insulting names is verbally abusive.

16The Panel finds that the Member abused students psychologically or emotionally, contrary to subsection 1(7.2) when she made the slighting remark to a student and/or students that had they been in China, their disrespectful behaviour would attract a beating. When the Member referred to Student 1 as a “gangster”, the student felt that he was being racially stereotyped (see Exhibit 2, Tab C). Given the Member’s position of trust and authority, the Panel accepts College Counsel’s submission that the effect of these comments on students was psychologically or emotionally abusive.

17The Panel finds that the Member failed to comply with the Act, regulations or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97. Section 32.01 of the College’s by-laws prescribes the Standards of Practice for the Teaching Profession. Under the “Commitment to Students and Student Learning” standard, members are expected to treat students equitably and with respect and to be sensitive to factors that influence individual student learning. The Member failed to demonstrate her commitment to treating students equitably and with respect when she dismissed Student 1’s academic abilities by suggesting that he had received a grade in a previous course that he did not earn. Furthermore, she demonstrated a lack of respect when she disposed of Student 1 and/or Student 2’s property without their consent. By these actions, the Member failed to uphold the standards of practice.

18The Member failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97, which sets out the duties of a teacher. As part of their duties, members are expected to inculcate by precept and example the highest regard for a number of virtues set out at subsection 264(1)(c). The Member failed to set a positive example for students when she made demeaning comments to students, dismissed Student 1’s academic abilities, used vulgar language in the classroom and made remarks that were perceived by a student as racist (see Exhibit 2, TAB C). This behaviour toward students was contrary to this duty and to the Member’s obligations as a member of the profession.

19The Panel finds that the Member’s conduct was disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97, when she repeatedly accosted and intimidated a colleague, Person A, and made inappropriate remarks to students. While the terms “disgraceful, dishonourable, or unprofessional” are not legislatively defined, conduct can be characterized as disgraceful when it is so serious that it has the effect of shaming a member and by extension the profession and where it casts doubt on a member’s moral fitness to practice the profession. Though less serious than “disgraceful” conduct, “dishonourable” conduct also has an element of moral failing to it, generally involving acts of dishonesty or deceit. The more knowledge that a member has or ought to have had about the wrongfulness of the conduct at the time it occurs, the more the conduct will tend to be considered “disgraceful” rather than merely “dishonourable”. Conduct characterized as “unprofessional” does not generally entail a moral failing, but involves a disregard for a member’s professional obligations, including the requirement that members demonstrate good judgment. The Member’s harassing behaviour toward Person A is disgraceful and unprofessional. The Member failed to show good judgment and moral behaviour by accosting and harassing her colleague repeatedly, which led to the colleague filing a complaint against the Member with the Board. The Member ought to have known that making intimidating remarks and interacting with a colleague in an intrusive manner was completely unacceptable. Furthermore, the Member’s disparaging remarks about Student 1 and her inappropriate remarks to students about teaching practices in China that relied on negative stereotypes were disgraceful and unprofessional. These types of comments demonstrated the Member’s lack of professional judgment and her insensitivity towards students.

20Similarly, the Member’s interactions with Person A were unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Among other things, the Member jumped out of the School elevator and yelled at Person A; repeatedly called Person A while Person A was teaching a class; and grabbed Person A by the arm and “linked” it with her own. The Member’s outburst with the Vice-Principal was also unbecoming. This behaviour undermined the reputation of the teaching profession and violated the trust that the public places in teachers.

H. PENALTY Decision

21The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 30, 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 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, two courses of instruction pre-approved by the Registrar, one regarding anger management and a separate course regarding communication/classroom management subject to the following conditions:

(i) the Member will provide to a course practitioner(s) 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(s) 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(s) 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 courses 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.

I. REASONS FOR PENALTY DECISION

22The 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. Evans, 2014 ONOCT 38, Ontario College of Teachers v. Bielby, 2018 ONOCT 38, Ontario College of Teachers v. Hutton, 2018 ONOCT 61, Ontario College of Teachers v. Vite, 2020ONOCT 145, and Ontario College of Teachers v. Shweigel,2019 ONOCT 130.

23The 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 misconduct involved multiple incidents and multiple students, though they occurred during a short period of time in January and February of 2017. In terms of mitigating factors, the Panel received a medical report containing [XXX] of the Member (Exhibit 3). This report indicated that at the material time, the Member was [XXX]. The report also established a connection between the Member’s [XXX] and her misconduct. While these [XXX] the Panel finds that the Member’s [XXX] influenced her behaviour during the time at issue in this hearing and is therefore a mitigating factor. Furthermore, the Member did not contest her misconduct, saving the time and expense of a contested hearing and saving witnesses from having to testify in a hearing. Finally, the Member has not been the subject of discipline proceedings in the past and since the incidents of January and February 2017, the Member has taught without further incident. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

24The Panel finds that the Member’s inappropriate conduct warrants a reprimand by her peers. Members are expected to demonstrate a commitment to students through respectful communication, to treat students equitably, and to be aware of how the comments they make may impact students. Members are also expected to communicate professionally with colleagues and to uphold a safe and collegial work environment. 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.

25The Panel finds that the courses of instruction regarding anger management and communication/classroom management 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 develop a sensitivity as to how certain comments may be perceived as racist or stereotyped by her students. The coursework is intended to assist the Member to make better decisions in any future interactions with students and colleagues.

26The 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.