DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Clark 2021 ONOCT 04

Date: 2021-01-04

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

Kandis Denise Clark, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KANDIS DENISE CLARK (REGISTRATION #198479)

PANEL: Sara Nouini, OCT, Chair John Cammarata Richard Filion

HEARD: December 3, 2020 and December 18, 2020

Jason Bennett, for the Ontario College of Teachers Kandis Denise Clark, self-represented 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 December 3, 2020 and December 18, 2020, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Kandis Denise Clark (the “Member”) attended the hearing on the merits on December 18, 2020 and was self-represented. 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 October 16, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Kandis Denise Clark 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);

(b) she signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(c) 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);

(d) 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);

(e) she 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:

1. Kandis Denise Clark is a member of the Ontario College of Teachers (the “College”). Attached hereto and marked as Appendix “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 York Region District School Board (the “Board”) as a Community Class and Special Education Teacher at Greensborough Public School (the “School”) in Markham, Ontario.

Fraudulent Benefits Claims

3. Between April 28, 2016 and October 27, 2016, the Member submitted unsubstantiated health benefit claims to the Board’s benefits provider for healthcare services purportedly received by the Member.

4. The total amount claimed by the Member was $2,229.84. Specifically, the Member submitted the following unsubstantiated claims:

(a) $499.84 for massage therapy services not rendered between April 28, 2016 and July 21, 2016;

(b) $375.00 for chiropractic services not rendered between September 1, 2016 and October 27, 2016;

(c) $485.00 for physiotherapy services not rendered between April 28, 2016 and June 13, 2016; and

(d) $870.00 for physiotherapy services not rendered between June 27, 2016 and September 7, 2016.

5. On March 7, 2017, the Board issued a letter of discipline to the Member and suspended her for one week without pay in connection with the Member’s fraudulent health benefit claims. The Board also authorized the benefits provider to reclaim the amount it had paid to the Member for the fraudulent claims from legitimate claims submitted by the Member. Attached hereto and marked as Appendix “B” is a copy of the Board’s March 7, 2017 letter.

Inappropriate Social Media Posts

6. Between September 19, 2018 and October 19, 2018, the Member, a result of her neglect or failure to monitor her personal Facebook account, permitted a person or persons to post inappropriate comments to her account, including:

(a) on or about September 19, 2018 a post that read, “Share if you think the burka should be banned in Canada!”;

(b) on or about October 7, 2018 a post that read, “JUSTICE BEALE BARS WIFE OF ALLEGED TERRORIST FROM ENTERING HIS COURT FROM WEARING A NIQAB. LIKE AND SHARE IF YOU AGREE THE NIQAB AND BURQA SHOULD BE BANNED FROM ALL PUBLIC AREAS AS A SECURITY RISK”; and

(c) on or about October 19, 2018 a post that read, “France & the Netherlands BAN the burqa on security grounds. SHARE if you think Canada should do the same!”

7. The inappropriate social media posts were visible to the community at large during the period in question, including current and former staff member [sic] of the School, and were clearly associated with the name ‘Kandis Clark’ in all instances.

8. If the Member were to testify at a hearing of this matter, she would state that someone unknown to her hacked her Facebook account and made the inappropriate posts without her knowledge or authorization. The Member would also testify that she removed the offensive content as soon as it was brought to her attention. The Member would also acknowledge that she was then, and continues to be, responsible for all content posted to her social media accounts and that she ought to have taken greater care to monitor her Facebook account during the period in question.

9. On April 9, 2019, the Board issued a written reprimand to the Member in connection with the inappropriate social media posts and required the Member to complete an equity and inclusivity course at the Member’s expense. Attached hereto and marked as Appendix “C” is a copy of the Board’s April 9, 2019 letter.

10. In its April 9, 2019 disciplinary letter, the Board stated, “…we have made the determination that you had content on your social media account that was in conflict with your position as a teacher with the….Board and the expectations and standards set out by the Ontario College of Teachers…While you have the right to your opinions, when engaging in social media use, as the user you are responsible for the message content and the manner in which it is accessed and shared by the social media provider.”

GUILTY PLEA

11. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-10 above (the “Admitted Facts”).

12. The Member hereby acknowledges that the Admitted Facts at paragraphs 3, 4, 6 and 7 constitute conduct that is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(12), 1(15), 1(18) and 1(19).

13. 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 Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) 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;

(e) she understands that any agreement between her and counsel for the College with respect to the penalty does not bind the Discipline Committee; and

(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or the opportunity to have obtained legal advice.

14. In light of the Admitted Facts and circumstances and the plea of guilt, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on December 18, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(12), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts at paragraphs 3, 4, 6 and 7 of the Agreed Statement of Facts and Guilty Plea constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member submitted unsubstantiated health benefit claims to the Board’s benefits provider for healthcare services purportedly received by the Member. She also permitted inappropriate comments to be posted on her personal Facebook account, as a result of her failure to monitor that account.

8The Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. In particular, the Member breached the Ethical Standards of the Teaching Profession. The ethical standard of “integrity” provides that members are expected to conduct themselves with “honesty, reliability and moral action.” The Member did the opposite. She submitted a series of unsubstantiated health benefit claims to the Board’s benefits provider for healthcare services purportedly received by the Member. The total amount claimed was $2,229.84. This dishonest conduct demonstrated a lack of integrity. Furthermore, in accordance with the ethical standard of “respect”, members are expected to model respect for cultural values, social justice, freedom and democracy, among other values. By permitting racially and culturally insensitive comments to be posted on her Facebook account, the Member allowed disrespectful comments to be spread to the community at large. As a member of the teaching profession, the Member was expected to be a positive role model for all students, and she ought to have taken greater care to monitor the content of the social media accounts for which she was responsible.

9The Member signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false, improper or misleading statement, contrary to subsection 1(12) of Ontario Regulation 437/97. The Member submitted unsubstantiated health benefit claims to the Board’s benefits provider. Following its investigation, the Board’s benefits provider found, and the Member confirmed, that the receipts she had submitted were fraudulent (see Exhibit 2 at Appendix B).

10The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) of the Education Act provides that teachers are required to inculcate by precept and example respect for religion and the highest regard for many virtues including truth, justice and loyalty. Essentially, teachers must serve as positive role models and upstanding members of their communities. Through her dishonest behaviour in relation to her employer’s health benefits provider, and by allowing offensive content to be posted on her Facebook account, the Member acted contrary to her duties as a teacher.

11The Panel finds that the Member’s conduct is disgraceful, dishonourable, or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. It was disgraceful and dishonorable for the Member to defraud her Board’s benefits provider, and it was unprofessional for the Member to allow culturally and racially insensitive comments to be posted on her Facebook accounts. Teachers hold a unique position of trust in society and, by virtue of their important role in their communities, they must conduct themselves appropriately both inside and outside of the classroom.

12The Panel finds that the Member’s deceitful conduct, as described above, is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is eroded when members of the profession engage in dishonest activities.

F. PENALTY DECISION

13The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on December 18, 2020, 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 electronic hearing of this matter to receive a reprimand, which will be delivered electronically, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar of the Ontario College of Teachers is directed to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions and limitations is to be recorded on the Register until such time as they are fulfilled:

(a) within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course of instruction in ethical standards for the teaching profession with a focus on the responsible use of electronic communication and social media. The course shall be pre-approved by the Registrar and be 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, Reasons for Decision and Order of the Discipline Committee; and

(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; and

(b) within 30 days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course practitioner 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

14The 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. Sadaka, 2019 ONOCT 60, Ontario College of Teachers v. McDonald, 2019 LNONCTD 98, Ontario College of Teachers v. Villeneuve Mason, 2019 ONOCT 54 and Ontario College of Teachers v. Cosentino-Galloro, 2019 ONOCT 4.

15The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel disagrees with College Counsel’s submission that there were no aggravating factors in this case. The Panel finds that the repeated nature of the Member’s fraudulent conduct is an aggravating factor, as is the fact that the racially and culturally insensitive posts on the member’s Facebook account were visible to a wide audience. In terms of mitigating factors, the Member removed the offensive content as soon as it was brought to her attention, and she admitted her misconduct, which saved the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

16The Panel finds that the Member’s inappropriate conduct warrants a reprimand by her peers. Members of the teaching profession hold a unique position of trust and authority, and they are expected to serve as positive role models. By making fraudulent health benefits claim and permitting offensive content to be posted on her Facebook page, the Member tarnished the reputation of the teaching profession. 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.

17The Panel notes that the Member was required by the Board to complete an equity and inclusivity course in connection with the inappropriate social media post, which the Member has yet to complete. The Panel therefore finds the course of instruction in ethical standards for the teaching profession with a focus on the responsible use of electronic communication and social media 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.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.