Ontario College of Teachers v. Vanderburg, 2021 ONOCT 52

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Vanderburg 2021 ONOCT 52

Date: 2021-06-04

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

Joan M. Vanderburg, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOAN M. VANDERBURG (REGISTRATION #388058)

PANEL: Stéphane Vallée, OCT, Chair Anne Resnick Linda Staudt, OCT

HEARD: May 18, 2021

Nicholas Fitz and Danielle Miller, for the Ontario College of Teachers Jack Brown, for Joan M. Vanderburg 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on May 18, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Joan M. Vanderburg (the “Member”) did not attend the hearing but had legal representation attend on her 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 June 18, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Joan M. Vanderburg 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(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); and

(g) 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. Joan M. Vanderburg is a member of the Ontario College of Teachers. Attached 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 Waterloo Region District School Board (the “Board”) as a teacher at [XXX]School (the “School”) in Cambridge, Ontario.

3. During the 2017-2018 academic year, the Member was the Grade [XXX] teacher of a female student (“Student 1”) and the Grade [XXX] teacher of two male students (“Student 2” and “Student 3”) at the School.

2016-2017 Academic Year

Conduct in [XXX] Class

4. Between September and December 2016, the Member made inappropriate comments to students with respect to shooting herself, shooting other people, killing people, and suicide. She specifically told one male student, “I’m going to shoot myself”. This comment was made in a loud manner and was said within the hearing of other students in the Member’s class. The Member’s comments negatively impacted the well-being of her students and caused one particular student emotional distress.

5. The Member met with the School administration on November 22, 2016 for the purpose of discussing the above comments. During this meeting, the Member told the principal and vice principal that she was a “serial killer”.

Board Discipline

6. The Member was issued a letter of discipline dated December 15, 2016. The Member was suspended for two days and required to complete a classroom management course. Attached as Exhibit “B” is a copy of the Board’s letter to the Member.

Classroom Management Course

7. The Member completed a classroom management course through the OSSTF on January 25, 2017. It involved scenarios addressing sensitivity to one’s choice of words and the importance of keeping students on task. A teacher’s responsibilities with respect to both of these areas was strongly stressed. Attached as Exhibit “C” is a copy of a letter from the OSSTF confirming same, dated January 27, 2017.

2017-2018 Academic Year

Conduct in [XXX] Class

8. Between September and December 2017, the Member made inappropriate and disparaging comments to Student 1. On one occasion, the Member told Student 1 that her [XXX] work was “not as bad” as it had been earlier that semester. Student 1 felt shocked, upset, and embarrassed by this comment as it was made in front of the class.

9. On November 29 or 30, 2017, the Member gave Student 1 positive feedback on her [XXX] work and asked Student 1 what her secret was. When Student 1 explained that her father had been working with her and was a positive influence, the Member replied, “Your dad is not the teacher. Your dad is not right.” Student 1 was very upset by this comment and believed the Member’s intent was to bully and shame her.

10. The Member made a variety of other inappropriate and disparaging comments to students in her class between September and December 2017, including:

(a) “figure it out”, when a student asked for assistance;

(b) “you are trying to get attention here because you don’t get any at home”, when a student was talking;

(c) “look it up”, when a student asked what “prolong” or “prolonged” meant;

(d) calling students “dork” or “you dorks”.

Conduct in [XXX] Class

11. Between September and December 2017, the Member repeatedly referred to Student 2 as “meatball” or “you little meatball” in front of his peers. Student 2 was upset by the Member’s use of this term and told the principal that while he had once tolerated it, his patience was now gone as his classmates had also started calling him “meatball”.

12. The Member would often refer to her students as a type of food. She frequently referred to Student 3 a “sausage”.

Board Discipline

13. The Member was issued a letter of discipline dated February 1, 2018. The Member was originally suspended without pay for 5 days. This discipline was grieved and on March 9, 2018, the Member was issued a revised letter of discipline reflecting a suspension of four days. Attached as Exhibit “D” is a copy of the Board’s revised letter of discipline to the Member.

Prior History

14. The Member was found guilty of professional misconduct by a panel of the Discipline Committee on October 15, 2018 for, among other things, referring to the recently-deceased principal as a “nut who committed suicide”. The Member’s comments about suicide and death were upsetting to students and made at least one student cry. Attached as Exhibit “E” is a copy of the Decision, Reasons for Decision and Order of the Discipline Committee, dated October 15, 2018.

Retirement

15. The Member retired her membership with the Ontario College of Teachers effective March 28, 2019.

GUILTY PLEA

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

17. The Member hereby acknowledges that the Admitted Facts constitute conduct which 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(7), 1(7.2), 1(14), 1(15), 1(18), and 1(19).

18. 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 otherwise 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 proposed does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the benefit of legal counsel.

19. 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 a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea. College Counsel further submitted that the conduct in this case is better captured by subsection 1(14) of Ontario Regulation 437/97 rather than subsection 1(5). The Panel granted the request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on May 18, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 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 15 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 constitute professional misconduct under the headings of misconduct set out above.

9The Panel finds that the Member verbally abused students. She made a number of inappropriate comments to students about shooting herself, shooting other people, killing people, and suicide. Additionally, the Member called her students “dorks”, referred to Student 2 as a “meatball” and frequently referred to Student 3 as a “sausage”. Referring to students using this kind of derogatory language is unprofessional, inappropriate, humiliating, and amounts to verbal abuse of students. Members of the profession must address students with respect and refrain from calling students by derogatory names.

10The Panel finds that the Member abused students psychologically or emotionally. The Admitted Facts demonstrate that the Member’s comments about shooting and killing other people and herself negatively impacted the well-being of her students and caused one particular student emotional distress. Additionally, the Member made comments about Student 1’s work in front of the class, which caused Student 1 to feel shocked, upset and embarrassed. Teachers hold a position of trust and authority in the classroom and are expected to conduct themselves in a way that fosters the well-being of students. The Member fell short of meeting this expectation by making inappropriate comments that caused students to feel emotional distress, shock, and embarrassment.

11The Panel finds that the Member failed to comply with the Act, regulations, or by-laws. Section 32 of the College by-laws requires members to exhibit Care, Trust, Respect, and Integrity. The Member’s conduct in this case fell short of her obligations to promote the standard of Care, which expects that members express compassion and a commitment to students’ well-being. By making inappropriate and disparaging remarks to students such as “figure it out” or “look it up” in response to requests for assistance, the Member failed to express compassion and failed to comply with this standard.

12The Panel finds that the Member’s verbally and emotionally abusive interactions with students contravene subsection 264(1) of the Education Act, which sets out the duties of a teacher. This provision requires that teachers encourage students in the pursuit of learning and that they act as positive role models. The Member’s conduct toward Student 1, Student 2, and Student 3 demonstrates the opposite. The Member’s inappropriate comments to her students were discouraging and modeled unacceptable ways to communicate with students.

13The Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Making disparaging comments to students and embarrassing a student in front of the class demonstrates the Member’s lack of professional judgment. Members of the teaching profession are expected to behave in a respectful manner towards students at all times. Overall, the Member engaged in a concerning pattern of inappropriate conduct towards her students and did not improve her behaviour after receiving disciplinary letters from the Board.

14Similarly, the Panel finds that the Member’s conduct was unbecoming a member in that it undermined the reputation of the teaching profession and the trust that members of the public place in teachers.

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 18, 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 or by audioconference, 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 eight (8) 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:²

(a) within ninety (90) days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course or courses of instruction pre-approved by the Registrar regarding professional boundaries, classroom management, and sensitivity training in relation to students, 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 or courses 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 or courses 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 or 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 or courses and reporting on the progress of the Member with respect to addressing the outlined goals of the course or courses.

REASONS FOR PENALTY DECISION

16After the conclusion of the oral hearing, the Panel received additional, joint submissions from the parties on May 20, 2021, requesting that the Panel amend the Joint Submission on Penalty (Exhibit 3) by removing the following words from paragraph 3: “the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled”. The parties jointly requested this amendment to reflect legislative changes to the Act that prevent the removal from the Register of terms, conditions or limitations imposed by the Discipline Committee.³ Based on these joint submissions, the Panel accepted the amended penalty jointly proposed by the parties.

17The 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. Lim, 2020 ONOCT 184, Ontario College of Teachers v. Mate, 2018 ONOCT 65, Ontario College of Teachers v. Manga, 2017 ONOCT 48, and Ontario College of Teachers v. Lowrie, 2015 ONOCT 53.

18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the large number of instances of verbal abuse and the fact that the Member had been disciplined by the Board for inappropriately addressing her students in 2016 and she then engaged in similar behaviour in 2017. While it is also an aggravating factor that the Member has been disciplined by the Discipline Committee prior to this hearing the Panel recognizes that the Member did not have the benefit of the Discipline Committee’s prior decision at the time of the misconduct. In terms of mitigating factors, the Member admitted the misconduct, saving the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19Member’s Counsel further submitted that there are additional mitigating factors in this case. First, that the Member is retired and does not intend to return to teaching. Second, the nature of the misconduct, and more specifically that the conduct did not include physical abuse or serious boundary violations. The Panel disagrees with these submissions. The Member’s retirement is neither mitigating nor aggravating; it is simply a neutral factor that the Member retired following the misconduct. The nature of the Member’s conduct is similarly neither mitigating nor aggravating. The Member’s comments were disturbing, embarrassing to students and were entirely inappropriate. It is not a mitigating factor that the Member’s conduct could have been worse in this case. A mitigating factor is a fact about the offence or the offender that lessens the severity of the act or the moral culpability of a member. For example, if the Member had any personal issues that affected her behaviour, or if the Member had taken initiatives to improve her behaviour prior to this hearing, these circumstances might reduce her moral culpability and might thus be considered mitigating factors. Other than the Member’s admission of her misconduct, the Panel does not find any mitigating factors present in this case.

20The Panel finds that the Member’s pattern of inappropriate conduct, despite warnings from the Board, warrants a reprimand by her 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.

21Given the type, severity and repeated nature of the Member’s conduct, the Panel finds that an eight-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 is intended to 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 June 2, 2021, which is 15 days after the Panel’s Oral Decision and Order.

22The Panel finds that the course or courses of instruction regarding professional boundaries, classroom management, and sensitivity training in relation to students will assist in the rehabilitation of the Member. If the Member returns to teaching, the coursework will remind her of her obligations as a teacher and will help her to make better decisions in any future interactions with students.

23The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: June 4, 2021

Stéphane Vallée, OCT Chair, Discipline Panel

Anne Resnick Member, Discipline Panel

Linda Staudt, OCT Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2As jointly amended by the parties on May 20, 2021, removing the phrase: “the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled.”
3. 3See subsections 23(2.5)(a) and 23(2.8), Ontario College of Teachers Act, S.O. 1996, c. 12, in force December 8, 2020.