Citation: Ontario College of Teachers v James 2021 ONOCT 75

Date: 2021-07-19

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

Shawn David Alan James, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

SHAWN DAVID ALAN JAMES (REGISTRATION #594443)

PANEL: Stéphane Vallée, OCT, Chair

Rachelle Coleman

Alain Martel, OCT

HEARD: July 19, 2021

Ava Arbuck, for the Ontario College of Teachers

Sheilagh Turkington, for Shawn David Alan James

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 July 19, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Shawn David Alan James (the “Member”) did not attend the hearing but had 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 June 30, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Shawn David Alan James 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);²

(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);³

(d) he displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his/her students of a nature or extent that demonstrates that the Member is unfit to carry out his/her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

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:

Shawn James 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 Durham District School Board (the “Board”) as a teacher at David Bouchard Public School (the “School”) in Oshawa, Ontario.
In the academic year 2017-2018, the Member obtained a permanent position with the Board and was assigned as a Grade 1/2 French Immersion teacher at the School. The Member found this assignment to be challenging because of the high level of behavioural issues among the class.
In or about March 2018, the Member had a Teacher Performance Appraisal under the New Teacher Induction Program (“NTIP”) which resulted in a “Development Needed” overall rating. Areas for development included the need for clear learning targets, an improved assessment system, differentiating individual learning needs, a greater variety of instructional methods, better communication of expectations, feedback for improvement and more structured, purposeful planning to improve classroom management.
On or about April 27, 2018, an Enrichment Plan was prepared for the Member that included guided observations of other classrooms, short term and long range planning based on specific curriculum expectations, developing and sustaining classroom management techniques and appropriate assessment protocols. The Principal [sic] also set up weekly meetings with the Member to review his day plans. Attached hereto and marked as Exhibit “B” is a copy of the Summative Report Form for New Teachers and as Exhibit “C” a copy of the Enrichment Plan for New Teachers.
In or about June 2018, the Member underwent a second Teacher Performance Appraisal (“TPA”). The Member received an overall “Unsatisfactory” rating. Areas of concern included:

(a) the failure to use appropriate assessment strategies, particularly at the primary level;

(b) the lack of understanding of the Ontario curriculum expectations;

(c) the lack of proper lesson planning with structured, intentional and purposeful curriculum-based activities, as well as the use of a variety of instructional strategies;

(d) ineffective communication with parents;

(e) inadequate classroom management skills necessary to provide an environment conducive to learning.

Attached hereto and marked as Exhibit “D” is a copy of the Summative Report From [sic] for New Teachers.

Following the second performance appraisal, the Board created an Improvement Plan for the Member which included the assignment of a mentor, a guided observation of two classrooms followed by the implementation of strategies observed and further professional development. Attached hereto and marked as Exhibit “E” is the Improvement Plan dated June 27, 2018.
The Member’s third TPA took place in December 2018, and he received another overall “Unsatisfactory” rating. Many of the same concerns cited in the previous TPAs were again noted in this Appraisal, including:

(a) a lack of instructional strategies that effectively enhance and support student learning;

(b) a lack of differentiated instruction to address individual learning needs;

(d) a failure to articulate learning goals and success criteria to reinforce learning;

(e) a lack of understanding of the Ontario curriculum;

(f) a failure to effectively assess student progress or align assessment strategies with learning objectives;

(g) ineffective communication with parents;

(h) a lack of skill in effectively managing the classroom.

Attached hereto and marked as Exhibit “F” is a copy of the Summative Report Form for New Teachers.

Upon hearing that his third TPA would be an unsatisfactory rating, the Member began accessing paid sick leave on or about December 17, 2018.
On or about March 31, 2019, the Member resigned from the Board.

PLEA OF NO CONTEST

By this document, the Member does not contest the accuracy of the allegations and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby pleads no contest to the allegation of incompetence, as defined in subsection 30(3) of the Ontario College of Teachers Act, 1996, in that he has displayed a lack of knowledge, skill or judgement or disregard for the welfare of a student of a nature or extent that demonstrates that his Certificate should be made subject to terms, conditions or limitations.
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 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 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 terms and conditions proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

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 civil, criminal or administrative proceeding.
In light of the Statement of Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member to be incompetent as that term is defined in subsection 30(3) of the Ontario College of Teachers Act, 1996.

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(10) and 1(15) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw these allegations was being sought because the evidence does not support a finding of professional misconduct. 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 July 19, 2021 finding the Member incompetent as defined in subsection 30(3) of the Act, in that he displayed in his professional responsibilities a lack of knowledge, skill or judgment or disregard for the welfare of a student of a nature or extent that demonstrates that the member is unfit to continue to carry out his professional responsibilities or that a certificate held by the Member under this Act should be made subject to terms, conditions or limitations.

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 10 of the Statement of Uncontested Facts and Plea of No Contest. He acknowledged and the Panel accepts that the Uncontested Facts constitute incompetence as defined in subsection 30(3) of the Act and demonstrate serious deficiencies in several domains of the Member’s teaching practice.

9The Uncontested Facts demonstrate that the Member was given three performance appraisals as part of the NTIP. The Member received an overall “Development Needed” appraisal rating on his first teacher performance appraisal after a classroom observation on March 8, 2018. Following the first appraisal, the principal implemented an Enrichment Plan For New Teachers, which involved weekly meetings to assist the Member with curriculum expectations, student assessment and classroom management. Subsequently, the Member received a second Teacher Performance Appraisal with an overall “Unsatisfactory” rating after a second classroom observation on June 15, 2018. Following the Member’s “Unsatisfactory” rating, the principal implemented an Improvement Plan for New Teachers. In December 2018, the Member received a third performance appraisal with an “Unsatisfactory” rating.

10The Member experienced difficulty in several fundamental domains of teaching practice, including Commitment to Pupils and Pupil Learning, Professional Knowledge, and Professional Practice. The Member’s performance appraisals reflect concerns about the Member failing to implement lesson plans, failing to communicate lessons effectively to students and failing to implement curriculum and student assessment expectations. After completing professional development and receiving support from his administration, the Member was unable to implement what he learned to improve his competencies.

11The Member did not demonstrate his commitment to pupils and pupil learning. The Member had limited rapport with students during classroom observations. Students did not listen to the Member or follow his directions. In one incident, the Member asked two students to stop using a garbage can as a basketball net, but he only spoke to one of the students and left the other student to continue doing what he wanted, which failed to demonstrate the Member’s commitment to treating all students equitably.

12During the Member’s third evaluation, he provided lesson plans for Grade 1 and 2 French Immersion students in math and language that lacked thought and detail and were not aligned with learning objectives. The Member provided students with low-level tasks that did not demonstrate that he understood the purpose of modifications and accommodations to student learning. He did not assess students consistently and with purpose. Overall, the Member did not demonstrate professional knowledge and an understanding of the Ontario curriculum and assessment expectations.

13With respect to his professional practice, the Member did not develop clear and achievable classroom expectations with students. The resources and activities that he chose were either irrelevant, not representative of equitable practices, or inappropriate for students at their stage of development. Furthermore, the Member did not implement clear classroom rules or routines, which led to a disorderly classroom environment. Overall, the Member did not demonstrate professional knowledge or deploy appropriate teaching practices and classroom management strategies to promote the learning and achievement of his students.

F. PENALTY Decision

14The parties agreed to a Joint Submission on Terms, Conditions or Limitations (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 19, 2021, the Panel accepted the Joint Submission on Terms, Conditions or Limitations and made the following order:

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 or returning to a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall attend, at his own expense, and successfully complete the following course, pre-approved by the Registrar:

(i) an Additional Qualification course or Additional Basic Qualification course which covers curriculum, lesson planning, instructional strategies, assessment of student learning and classroom management;

(ii) within thirty (30) days of his completion of the course referred to at paragraph (a) above, the Member shall provide evidence to the Registrar in writing of his successful completion of same;

(iii) the Member shall, at least fourteen (14) days prior to filling or resuming any Teaching Position, notify the Registrar in writing of his start date and nature of the position, along with the name of his new employer;

(iv) upon the commencement or resumption of his employment, the Member shall take all reasonable steps to have his employer conduct two appraisals of his performance within the first 24-month period, and shall provide the Registrar with acceptable proof that he has taken such steps. The Member shall also provide the Registrar with copies of his performance appraisal reports within thirty (30) days of each appraisal. If the Member’s employer is unable or unwilling to conduct such performance appraisals, the Member shall immediately so notify the Registrar in writing. The employer’s refusal or failure to conduct the appraisal will not, in and of itself, constitute a breach of the terms and conditions on the part of the Member, provided the Member has taken all reasonable steps, as set out above, to facilitate the completion of the appraisals within the two year time period. In the event of the employer’s failure to complete the assessments within the allotted time, the Registrar may, in his discretion, grant an appropriate extension.

G. REASONS FOR PENALTY DECISION

15The Panel accepts the terms, conditions or limitations 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 Terms, Conditions or Limitations falls within a range of acceptable outcomes, based on the following prior decision of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Nakhla, 2020 ONOCT 153.

16The Panel finds that the Additional Qualification or Additional Basic Qualification course that covers curriculum, lesson planning, instructional strategies, assessment of student learning and classroom management will assist the Member in acquiring competencies to improve his teaching practice before resuming a teaching position. It will also focus specifically on the deficiencies identified in his performance appraisals and support the Member’s reintegration into a teaching environment. In addition, if the Member returns to a teaching position, his performance will be assessed twice within a 24-month period by the Member’s employer and monitored by the Registrar.

17The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: July 19, 2021

Stéphane Vallée, OCT

Chair, Discipline Panel