DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Hundal 2021 ONOCT 39

Date: 2021-05-14

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

Rajbir Kaur Hundal, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RAJBIR KAUR HUNDAL (REGISTRATION #106041)

PANEL: Nicola Powadiuk, OCT, Chair Ben Drory Gary Pieters, OCT

HEARD: May 12, 2021

Eli Mogil and Noam Uri, for the Ontario College of Teachers Jack Brown, for Rajbir Kaur Hundal 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 May 12, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Rajbir Kaur Hundal (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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated July 8, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that the Rajbir Kaur Hundal 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);

(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);

(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:

1. Rajbir Kaur Hundal 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.

Conduct

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] Institute (the “School”), in Toronto, Ontario.

3. At all material times, Student 1 was a [XXX] year-old male student in the Member’s [XXX] class.

4. On or about June 13, 2017, Student 1 was in the Member’s [XXX] class. Near the end of the class Student 1 and the Member became involved in a verbal confrontation. Student 1 attempted to leave the classroom before the bell. The Member stood in the doorway to block Student 1. When Student 1 tried to go under the Member’s arm, the Member lowered her arm and held Student 1 in a headlock. When the School bell rang the Member released Student 1. Student 1 was not hurt but was very uncomfortable in the headlock.

5. At the end of the class, Student 1 reported the incident to the Vice-Principal. The Board commenced an investigation. Toronto Police Service were notified, but elected not to press charges against the Member.

6. On or about April 4, 2018, the Board terminated the Member’s employment. On or about April 30, 2018, the Board and the Member entered into Minutes of Settlement. The Board rescinded its termination of the Member’s employment and accepted the Member’s resignation. The Member has since retired from the Board and does not intend to return to teaching. Attached hereto and marked as Exhibit “B” is a copy of the Minutes of Settlement.

Prior History

7. On July 28, 2016, the Member was issued a reminder from the Investigation Committee to avoid any inappropriate physical contact with students, with respect to a May 2015 incident. The Board issued the Member a letter of discipline and a 3-day suspension.

8. On December 1, 2017, the Member received an admonishment from the Investigation Committee, with respect to incidents in February and March 2016. It was alleged that in February and March 2016 the Member engaged in inappropriate physical contact with students. The Board issued the Member a 20-day suspension in respect of these incidents. The Member was administratively transferred from [XXX] School to [XXX] Institute.

PLEA OF NO CONTEST

9. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1-8 above (the “Uncontested Facts”).

10. 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(7.2), 1(14), 1(15), 1(18) and 1(19).

11. 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.

12. 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.

13. 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 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 in the context of the parties’ agreement and to avoid any duplication by proceeding under both subsections 1(5) and 1(14). The Panel granted this request.

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 May 12, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 8 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. The Uncontested Facts demonstrate that the Member physically and psychologically or emotionally abused a student.

9The Panel finds that the Member physically abused Student 1, contrary to subsection 1(7.1) of Ontario Regulation 437/97, when she blocked a doorway and then put Student 1 in a headlock to prevent him from leaving her classroom. The Member’s unnecessary use of physical force against the student is unacceptable. The Panel also places weight on the fact that the Member did not contest that her contact with the student amounts to physical abuse.

10The Panel finds that the Member psychologically or emotionally abused Student 1, contrary to subsection 1(7.2) of Ontario Regulation 437/97. While the Member’s actions did not physically harm Student 1, the headlock made Student 1 very uncomfortable, and he reported the incident to the Vice-Principal after class. Reasonably, being physically restrained in a rough manner by a teacher who is in a position of trust would have a negative psychological or emotional effect on a student. The Panel also gives weight to the fact that the Member did not contest that her conduct amounts to psychological or emotional abuse of a student.

11The Member failed to comply with the Act, regulations or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 32 of the College’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. The ethical standard of “care” encourages members to “express their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice”. The Member defied this standard by using unnecessary physical force against Student 1. The Panel also finds that the Member’s conduct failed to demonstrate the ethical standard of “respect”, which encourages members to “honour human dignity, emotional wellness and cognitive development” when, following a verbal confrontation, she physically restrained Student 1 such that he felt very uncomfortable. Finally, the ethical standard of “trust” prescribes that members’ relationships with students are based on trust, which the Member undermined by engaging in a verbal and physical confrontation with a student whom she was entrusted to keep safe. The Panel further notes that the Member did not contest that her behaviour fell below the standards of the profession.

12The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Members of the teaching profession hold a unique position of trust and authority. They are required to act as positive role models and to maintain proper order and discipline as described at subsections 264(1)(c) and (e) of the Education Act. By escalating a verbal altercation with Student 1, physically blocking his passage, and then physically restraining Student 1 in a headlock, the Member failed to use appropriate discipline and de-escalation strategies to maintain proper order and discipline in her classroom. These actions may have also put Student 1 at risk of bodily injury. By her physical aggression toward Student 1, the Member failed to fulfil the fundamental duties of a teacher and set a negative example to students who witnessed her behaviour in class.

13The Panel finds that the Member’s conduct is disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to exercise good judgment in their interactions with students. Having received prior warnings about physical contact with students, the Member should have known better than to use physical force to prevent a student from leaving her class following a verbal altercation. The Member has pled no contest to meeting all three terms, and her aggressive and reactive behaviour demonstrates moral and professional failings that can be properly characterized as disgraceful, dishonourable and unprofessional.

14Finally, the Member’s conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The reputation of the teaching profession and the trust that parents, students and the public place in teachers is diminished when teachers physically and psychologically or emotionally abuse students.

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 May 12, 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 nine (9) 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;

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

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. MacAdam, 2019 ONOCT 3, Ontario College of Teachers v. Armstrong, 2019 ONOCT 49, Ontario College of Teachers v. Davidson, 2020 ONOCT 169, Ontario College of Teachers v. Black, 2020 ONOCT 152, Ontario College of Teachers v. Datoo, 2020 ONOCT 146, and Ontario College of Teachers v. Green-Johnson, 2018 ONOCT 30.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel took note of several aggravating factors. First, the aggressive nature of the Member’s physical contact with the student. Second, the Member’s misconduct was not an isolated incident – it formed part of a concerning pattern of inappropriate physical interventions with students. Third, prior to the conduct at issue in this case, the Member was disciplined and transferred to another school by her Board after incidents involving inappropriate physical contact with students. In parallel, the Member was issued a reminder by the College’s Investigation Committee to avoid inappropriate physical contact with students. Despite these warnings, the Member continued to make inappropriate physical contact with students. In terms of mitigating factors, the Member did not contest her misconduct which allowed the matter to proceed on consensus, saving the time and expense of a contested hearing. Member’s Counsel also submitted that the Member voluntarily signed an undertaking to not seek employment where a Certificate of Qualification and Registration is required pending the outcome of this hearing (signed on February 7, 2019, see Exhibit 2, at Tab A), which ensured that there would be no further interactions between the Member and any vulnerable students. However, while this factor serves the goal of public protection, the Panel considers it neither aggravating nor mitigating on this penalty. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s misconduct as described above, warrants a reprimand by her peers. Members of the profession are expected to foster a safe and supportive learning environment and to model respectful behaviour for students, including when students are not complying with a teacher’s directives. Members cannot use physical force to discipline or redirect students. The Panel is concerned that the Member escalated the confrontation with Student 1 and resorted to aggressive physical contact with the student (a headlock). 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 repeated nature and severity of the Member’s misconduct, the Panel finds that a nine-month suspension is reasonable and appropriate. While the caselaw presented by the parties established a range of suspensions of up to six months for conduct involving inappropriate physical contact with students, the Panel accepts the parties’ joint submission that the circumstances of the Member’s case should attract a longer suspension. The present case is distinguished by the type of physical contact and the Member’s history of similar physical interventions with students, despite warnings to her. The Member’s history of repeated physical contact with students is a significant aggravating factor that attracts a more severe penalty in this case than in the caselaw presented. The cases presented, involving physical abuse that led to suspensions of up to six months, did not involve members whose misconduct continued following warnings from their school boards and the College. The suspension will serve as a specific deterrent to the Member, should she return to the teaching profession, and as a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable and will attract a serious penalty. In accordance with the parties’ joint submission, the Member’s suspension will begin on May 27, 2021, which is 15 days after the Panel’s Oral Decision and Order.

20The Panel finds that, prior to commencing a teaching position or any position for which a Certificate of Qualification and Registration is required, the course of instruction regarding boundaries and boundary violation issues will assist in the rehabilitation of the Member. The coursework will remind the Member of her fundamental obligations as a teacher and will help her to implement positive conflict resolution and de-escalation strategies in any future interactions with students.

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.