DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation : Ontario College of Teachers v Buyamba 2021 ONOCT 07

Date: 2021-01-24

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

Musualuendu Buyamba, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MUSUALUENDU BUYAMBA (REGISTRATION #424668)

PANEL: Stéphane Vallée, OCT, Chair Josée Landriault, OCT Élaine Legault

HEARD: December 3, 2020 and January 19, 2021

Caroline Humphrey and Christine Lonsdale, for the Ontario College of Teachers Musualuendu Buyamba, self-represented Renée Kopp, 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.

1In accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, this electronic proceeding was held before a panel of the Discipline Committee (the “Panel”) on December 3, 2020 and January 19, 2021 at the Ontario College of Teachers (the “College”).

2Musualuendu Buyamba (the “Member”) attended the hearing but did not have legal representation. 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 19, 2019 (Exhibit 1) are as follows:

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

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)²;

(e) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11)³;

(f) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(g) 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);

(h) 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);

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

C. STATEMENT OF UNCONTESTED FACTS

5Counsel for the College presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:

1. Musualuendu Buyamba 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 Conseil scolaire Viamonde (the “Board”) as an occasional teacher at [XXX] (the “School”) in Oakville, Ontario.

3. On February 16, 2017, the Member was teaching a Grade [XXX] class at the School. Students 1, 2 and 3 were students in this Grade [XXX] class.

4. When the Member struck the interactive whiteboard (“IWB”), a student told the Member that the IWB was delicate and he should be careful with it. The Member raised his voice in replying to the student.

5. Subsequently, the Member had an inappropriate exchange with Student 1. Attached hereto and marked as Exhibit “B” is a copy of the summary by the principal of the School concerning this exchange.

6. At the end of the teaching period, the students were supposed to leave for recess. The Member touched Student 2 on the head and touched Student 3. Attached hereto and marked as Exhibit “C” are copies of the reports by Students 2 and 3.

Prior History with the Board

7. In April 2016, the Board suspended the Member for one day without pay in relation to an incident involving physical contact with a student. Attached hereto and marked as Exhibit “D” is a copy of the Board’s letter concerning the incident. In May 2016, the Board suspended the Member for 15 days without pay in relation to an incident involving supervision and classroom management. Attached hereto and marked as Exhibit “E” is a copy of the Board’s letter concerning the incident. On September 14, 2017, the Investigation Committee issued an admonishment to the Member to express its concerns relative to these incidents.

Board

8. In response to the incidents of February 16, 2017, the Board dismissed the Member. Attached hereto and marked as Exhibit “F” are copies of the Board’s letters to the Member dated March 1 and March 27, 2017.

PLEA OF NO CONTEST

9. By this document, the Member does not contest the truth of the facts and exhibits referred to in the paragraphs above (the "Uncontested Facts").

10. The Member hereby acknowledges that the Uncontested Facts described above constitute professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(14), 1(15), 1(18) and 1(19).

11. The Member states that:

(a) he understands fully the nature of the allegations of professional misconduct against him;

(b) he understands that, by signing this document, he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that, by pleading no contest to the allegations, he is waiving the right to require the College to 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 Pour parler profession/ Professionally Speaking, the official publication of the College;

(e) he understands that any agreement between the College and the Member with respect to the penalty does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally and having had the opportunity to obtain 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 and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Act, 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 described above and the plea of no contest, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (d) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(7.2) and 1(11) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that permission was being sought from the Panel to withdraw allegation 1(5) because it duplicated allegation 1(14), and to withdraw allegation 1(11) because of insufficient evidence. After the Panel had asked the parties to explain the evidence in support of the finding of a breach of subsection 1(7.2), the parties discussed the matter and, ultimately, the College asked the Panel to withdraw this allegation because of insufficient evidence. The Panel granted these requests.

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 January 19, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the truth of the facts and exhibits referred to in paragraphs 1 to 8 of the Statement of Uncontested Facts and Plea of No Contest. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above.

9The Uncontested Facts demonstrate that the Member abused students verbally, contrary to Ontario Regulation 437/97, subsection 1(7). The Member asked Student 1 “Are you stupid, or what?” and shouted at Student 2 (Exhibit 2, Exhibit “B”). He also raised his voice when replying to a concern expressed by another student. The Panel agrees that making inappropriate remarks, shouting and raising one’s voice to young students constitute verbal abuse.

10The Member abused students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1), when he struck Student 2 on the head and struck Student 3 on the lower back (Exhibit 2, Exhibit “C”). Teachers are prohibited from using unnecessary physical force against students. Members of the teaching profession are expected to provide students with a safe learning environment.

11The Uncontested Facts demonstrate that the Member failed to comply with the Act, or the regulations, or the bylaws, contrary to Ontario Regulation 437/97, subsection 1(14). He failed to observe the ethical standards for the teaching profession, which are set out in section 32.02 of the College Bylaws. The standards include a requirement for members to express their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice (“Care”). The Member failed in this duty when he intervened physically with Student 2 and Student 3, and made inappropriate remarks to young students (“Are you stupid, or what?”). His conduct shows poor professional judgment and was unnecessarily aggressive and discouraging to his young students.

12The Member failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15). One requirement of this provision in the Act is that teachers “encourage the pupils in the pursuit of learning” and that they act as a role model. The Member failed in this duty when he made inappropriate and disrespectful remarks to a student concerning the classroom whiteboard (the IWB). Teachers must behave professionally and respectfully at all times.

13The Member 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). The Member’s inappropriate behaviour and remarks to the students under his supervision showed poor professional judgment and a lack of professionalism.

14Similarly, the Member’s conduct as described above was unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19), in that it undermined the reputation of the teaching profession.

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 January 19, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, or electronically, and the fact of the reprimand is to be recorded on the Register.

2. The Registrar is directed to suspend the Member’s Certificate of Qualification and Registration for a period of four months, as of the 15th calendar day following the oral decision of the Discipline Committee in this matter, and the fact of the suspension is to be recorded on the Register.

3. The Registrar is directed to impose the following conditions or restrictions on the Member’s Certificate of Qualification and Registration, which will be recorded on the Register:

(a) Prior to accepting any 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 classroom management, 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 Plea⁴ 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 in 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 said course and the course goals;

(b) Within 30 days following 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

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 College Counsel: Ontario College of Teachers v. Green-Johnson, 2018 ONOCT 30, Ontario College of Teachers v. Manga, 2017 ONOCT 48 and Ontario College of Teachers v. Towler, 2015 ONOCT 79.

17The Panel considered the circumstances in this matter in comparison to the cases provided. Aggravating factors in the Member’s case are that his serious classroom management deficiencies were repeated on a number of occasions and involved a number of students, and the fact that his conduct failed to improve, notwithstanding previous warnings and disciplinary measures imposed by his Board for physical contact with a student. In terms of mitigating factors, the Member admitted his professional 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.

18The Panel finds that the Member warrants a reprimand by his peers for his inappropriate conduct on numerous occasions despite his employer’s warnings. In the practice of their profession, members are expected to express their commitment to students’ well-being and avoid shouting at or having physical contact with students. 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 is important because it will serve as a general deterrent to other members of the profession.

19In view of the serious and repeated nature of the Member’s conduct, the Panel finds that a four-month suspension is reasonable and appropriate. While the cases presented are factually distinct in some ways from this matter, the underlying nature of the professional misconduct is similar and confirms that a suspension of the Member’s certificate is warranted. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making it clear that such professional misconduct is unacceptable. In accordance with the parties’ Joint Submission on Penalty, the Member’s Certificate of Qualification and Registration will be suspended effective February 3, 2021, that is, 15 days after the Panel’s decision and order.

20The Panel considers that the course on classroom management will contribute to the Member’s rehabilitation process, should he return to teaching. It will remind him of his obligations as a teacher and help him to make better decisions in his 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.

January 24, 2021

Stéphane Vallée, OCT Chair, Discipline Panel

Josée Landriault, OCT Member, Discipline Panel

Élaine Legault Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3Allegation withdrawn at the request of College Counsel.
4. 4The Panel’s understanding is that the documents at issue were the Statement of Uncontested Facts and Plea of No Contest, based on Exhibit 2 and the submissions of the parties introduced at the hearing.