DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Keith Fordyce Hutton, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
KEITH FORDYCE HUTTON (REGISTRATION #182428)
PANEL: Rebecca Forte, OCT, Chair Josée Landriault, OCT Élaine Legault
HEARD: April 16, 2021
Christine Lonsdale and Noam Uri, for the Ontario College of Teachers Jack Brown, for Keith Fordyce Hutton Erica Richler, 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 April 16, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Keith Fordyce Hutton (the “Member”) did not attend the hearing but had legal representation attend on his behalf. 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 7, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Keith Fordyce Hutton is guilty of professional misconduct 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, 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); and
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
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:
Keith Fordyce Hutton 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 Simcoe County District School Board (the “Board”) as a [XXX] Department Chair and teacher at [XXX] School [XXX], formerly known as [XXX] School [XXX], in [XXX], Ontario.
At all material times, Person A was a female teacher at [XXX].
During the 2016-2017 academic year the Member used previous copies of unreleased EQAO assessments in preparation of two practice tests, which were distributed to students. The practice questions the Member gave his students were direct copies of EQAO assessments from 2015 and 2016. The practice tests were complete EQAO assessments and both contained field test questions which EQAO intended to use in future tests.
During the 2016-2017, academic year the Member had advised Person A that he had practice material available in his office for Grade [XXX]. The Member told Person A that she could use this material with her students in preparation for the upcoming EQAO assessment. He did not disclose to Person A that the material was anything other than practice material. On or about March 10, 2017, Person A picked up the assessments from the Member’s desk and photocopied them for her students. The material Person A photocopied and used with her students were previously unreleased copies of EQAO assessments.
The Board investigation concluded that the 2017 administration of the Grade [XXX] Assessment of [XXX] (Academic Level) was compromised. As a result of the irregularities that occurred prior to the administration of the EQAO assessment, EQAO was unable to confirm the results for two administrations of the Grade [XXX] Academic [XXX] assessment for January and June 2016 for [XXX], and two administrations of the Grade [XXX] Academic [XXX]assessment for January and June 2017 for [XXX].
Following the Board’s investigation of the Member’s conduct, the Member recovered and destroyed all photocopies of the EQAO assessment distributed to students.
On or about April 13, 2017 the Board issued a letter of discipline to the Member and suspended him without pay for five days. The Board removed the Member from the [XXX] Department Chair position at [XXX] and discontinued his Position of Responsibility allowance. Attached hereto and marked as Exhibit “B” is a copy of the Board’s Discipline Letter.
The Member has retired and does not intend to return to teaching.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
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) and 1(19).
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.
- 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.
D. DECISION
6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as it is duplicative of the allegation of subsection 1(14) and as a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea. The Panel granted this request.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on April 16, 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) and 1(19).
E. REASONS FOR DECISION
8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above.
9The Admitted Facts demonstrate that the Member failed to keep records as required by his professional duties, contrary to subsection 1(10) of Ontario Regulation 437/97. In his position as [XXX] Department Chair, the Member was required to maintain the confidentiality of EQAO test documents and to ensure that the documents were not released to students. The Member failed to do so by distributing copies of unreleased EQAO assessments to his students as practice material and to a colleague for use in her class as practice material. As a result of the Member’s actions, the 2016 and 2017 administration of the Grade [XXX] EQAO Assessment of [XXX] was compromised and EQAO was unable to confirm the results for certain students at [XXX] and [XXX].
10The Member breached subsection 1(14) of Ontario Regulation 437/97, by failing to meet the expectation of “integrity” codified in the Ethical Standards for the Teaching Profession at section 32 of the Bylaws of the Ontario College of Teachers. The standard of “integrity” expects that members exercise honesty and reliability in their professional commitments and responsibilities. The Member failed to behave with integrity by using previous copies of unreleased EQAO assessments as practice material. The Member had an obligation to maintain the confidentiality of the test to ensure the integrity of the assessment, which he failed to do by his misconduct.
11The Member failed to comply with subsection 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. Members are required to set a proper example for students and to exemplify the virtues set out in subsection 264(1)(c) of the Education Act. By releasing confidential copies of EQAO assessments, the Member failed to exemplify these virtues and acted in a way that showed poor professional judgment. His conduct was at odds with his duties as a member of the profession.
12The Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. By releasing EQAO assessments to use as practice material, the Member did not act diligently and was unprofessional in failing to maintain the confidentiality standards required by the EQAO.
13Similarly, the Member’s conduct was unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. It undermined the reputation of the teaching profession and of the EQAO assessment tool. The Member’s conduct violated the trust that the public places in members to assess students’ academic performance accurately and honestly.
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 April 16, 2021, 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;
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:
(a) at least 30 days before the Member occupies a teaching position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions;
(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within thirty (30) days of his 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. Vellinga, 2018 ONOCT 10, Ontario College of Teachers v. Debich, 2018 ONOCT 8, and Ontario College of Teachers v. Allarde, 2019 ONOCT 65.
16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is that the Member was in a Position of Responsibility as the [XXX] Department Chair. In this leadership position, he had a heightened responsibility to set an example and act with integrity and professionalism, which he failed to do by his misconduct. In terms of mitigating factors, the Member admitted the misconduct, saving the time and expense of a contested hearing and has not been the subject of discipline proceedings in his long teaching career. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
17The Panel finds that the Member’s misconduct warrants a reprimand by his 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.
18Given the nature and severity of the Member’s misconduct, the Panel finds that a three-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in the cases is about dishonesty and a lack of professionalism related to the administration of EQAO testing, and is of a similar underlying nature to the Member’s misconduct. As such, the cases confirm that a three-month suspension falls within an appropriate range of penalties. 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 May 1, 2021, which is 15 days after the Panel’s Oral Decision and Order.
19The Panel finds that the course of instruction regarding professional ethics is intended to assist in the rehabilitation of the Member. If the Member returns to teaching, the coursework will remind the Member of his obligations as a teacher and is intended to assist him to make ethical decisions in his choice of teaching materials.
20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: April 16, 2021
Rebecca Forte, OCT Chair, Discipline Panel
Josée Landriault, OCT Member, Discipline Panel
Élaine Legault Member, Discipline Panel