Ontario College of Teachers v. De Santis, 2021 ONOCT 82

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v DeSantis 2021 ONOCT 82

Date: 2021-08-11

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 Elisabetta Teresa De Santis, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS – and – ELISABETTA TERESA DE SANTIS (REGISTRATION #429783)

PANEL: Hanno Weinberger, Chair Rachelle Coleman Emile Ramlochan

HEARD: August 5, 2021

Ava Arbuck, for the Ontario College of Teachers Christopher Perri and Kaley Duff, for Elisabetta Teresa De Santis 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 August 5, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Elisabetta Teresa De Santis (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of the 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 31, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Elisabetta Teresa De Santis 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);²

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

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

(f) she failed to comply with the Act or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(g) 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);

(h) 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);

(i) 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. Elisabetta Teresa De Santis 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 Toronto Catholic District School Board (the “Board”) as an occasional teacher. The Member had been employed by the Board as an occasional teacher since approximately 1999, working daily and long term occasional assignments as a[XXX]teacher.

March and April, 2012:

3. On March 22, 2012, the Member taught Grade [XXX] students at [XXX] School in Toronto. On April 26, 2012, the Member taught a class of [XXX] students [XXX] at [XXX] School in Toronto. As a result of concerns raised by the administration on both occasions regarding the Member’s interactions with staff and with students, the Board identified for the Member areas of concern requiring improvement. Attached hereto and marked as Exhibit “B” and Exhibit “C” are copies of the Board’s letters to the Member dated May 10 and May 31, 2012.

April 2013:

4. On April 3, 2013, when the Member was working as an occasional teacher at [XXX] School in Toronto, the Member:

(a) failed to supervise and engage with students in her class, and sat with her back facing her students as she engaged in personal pursuits on the classroom computer during class time;

(b) failed to acknowledge her conduct outlined in (a) above to the Principal, despite knowing the Principal attended the Member’s classroom because the Member’s students were noisy and observed the Member on the computer with her back facing the students;

(c) said to the Principal words to the effect of, “why are you bothering me, stop now”, when she met with the Principal at the Principal’s request regarding her lack of engagement and supervision of students.

5. By letter dated October 18, 2013, the Board identified for the Member areas of concern requiring improvement, including the importance of “facing and monitoring the students” in the classroom instead of “engaging in personal pursuits”, and its expectation that “all her communications with colleagues and superordinates be respectful and appropriate”, finding that “the manner in which she spoke to the principal was not acceptable behaviour”. The Board “highly recommended” that the Member complete approved training in the area of anger management and that she communicate with her union representatives regarding other workshops that may assist her. Finally, the Board reminded the Member that it had seen similar complaints previously and cautioned her that further complaints would result in additional disciplinary action. Attached hereto and marked as Exhibit “D” is a copy of the Principal’s letter to the Board dated April 3, 2013, and a copy of the Board’s letter to the Member dated October 18, 2013.

2014-2015:

6. On October 6, 2014, when the Member was working as an occasional teacher at [XXX] School in Toronto, the Member:

(a) voiced her frustration to staff and school administration when there were complaints about her late arrival that morning;

(b) told a junior placement student teacher in her class that the Principal was a “terrible Principal”.

7. By letter dated November 20, 2014, the Board reminded the Member of her “duty and responsibility as a teacher that when [she is] on a daily assignment at a school that [she] conduct [herself] in a professional manner with staff, students and with the principal”, and that if she has “any concerns or difference of opinions [she is] to address those matters in a private area with the school principal in confidence”. The Board advised the Member of its expectation “that in future assignments [she would] follow these recommendations as stipulated”. Attached as Exhibit “E” is a copy of the Board’s letter to the Member dated November 20, 2014.

8. Between October 2014 and June 2015 while working as a long term occasional teacher at [XXX] School in Willowdale, the Member demonstrated an inability to develop good working relationships with colleagues, superordinates, students and parents when she:

(a) was confrontational and raised her voice with a colleague who passed on a message from the Principal, and did not apologize to her colleague when counselled to do so by her Principal;

(b) often called upon colleagues to manage her students, instead of dealing with student issues herself;

(c) was inflexible and complained to the Principal and other staff when her schedule was changed and when the Principal asked her to cover other teachers’ planning time;

(d) continued to use cursive writing instead of printing on the blackboard in class after she had been counselled by her Principal to switch to printing because parents advised that their children were unable to read the Member’s cursive writing; and,

(e) punished a student who failed to show up for a detention by imposing an additional five-day detention, despite having been counselled by her Principal to use a different approach.

Board Discipline:

9. By letter dated September 30, 2015, the Board advised the Member that for reasons related to her professional conduct, her employment was terminated effective immediately and her name would be permanently removed from its occasional teachers’ roster. Attached hereto and marked as Exhibit “F” is a copy of the Board’s termination letter to the Member dated September 30, 2015.

10. The Member successfully grieved her termination. After a lengthy arbitration hearing, the arbitrator released a decision dated December 15, 2017, concluding that although the Member had engaged in much of the conduct in the paragraphs above, terminating the Member’s employment had been premature and excessive because the Board had not followed the well-established principles of progressive discipline. The arbitrator substituted a one-year suspension, and concluded that payment in lieu of reinstatement would be the best outcome for all concerned because the Member had “so undermined the employment relationship”.

11. The arbitrator drew a number of conclusions regarding the Member’s conduct based on the evidence at the arbitration hearing, including the following:

(a) in relation to the Member’s conduct at [XXX], the Member was “highly unprofessional and treated school staff, including the Principal, in an aggressive and callous manner” and, “the bullying and abusive way the [Member] treated her colleagues at [XXX] was inexcusable and inconsistent with her professional obligations as a teacher. It is behaviour that would be problematic in any workplace, but which is unacceptable in an environment such as a school. The fact that [the Member] denies the essential details of her outburst and shifts the blame on others for provoking her only compounds the misconduct”;

(b) in relation to her conduct at [XXX], the Member “demonstrated that she was knowledgeable in[XXX], but that she was lacking in the other qualities required of a teacher, such as…, the ability to work with peers and principals, classroom management skills, and the ability to build good relationships with students”;

(c) in relation to her conduct at [XXX], the Member “was not engaged and supervising [her students], and that was not appropriate” and, “the contents of the negative report on the incidents at [XXX] on April 3, 2013 were proven”; and,

(d) “the issue at the heart of the [Member’s] disciplinary problem is her inability or refusal to comply with the basic requirements of her job, including… maintaining respectful interpersonal relationships, and fulfilling her classroom management obligations”.

Prior History with the College:

12. On December 9, 2014, the Discipline Committee found the Member guilty of professional misconduct for using inappropriate language when questioning an [XXX] old student [XXX]. The Discipline Committee ordered a reprimand, successful completion of coursework on classroom management and sensitivity to students [XXX], and publication with the Member’s name. Attached hereto and marked as Exhibit “G” is a copy of the Discipline Committee’s Decision, Reasons for Decision and Order dated December 15, 2014.

PLEA OF NO CONTEST

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

14. 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(7.2), 1(11), 1(14), 1(15), 1(18), 1(19).

15. 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.

16. 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.

17. 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 allegations of professional misconduct outlined in paragraphs (a) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(7.1) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought to avoid duplication with a finding under subsection 1(14). The Panel’s permission to withdraw the subsection 1(7.1) allegation was being sought because the Uncontested Facts do not support a finding of physical abuse. 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 August 5, 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(11), 1(14), 1(15), 1(18), 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 12 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.

9The Panel finds that the Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. The Member’s Board confirmed, based on the concerns of administrators at [XXX] School and [XXX] School, that the way the Member spoke to students needed improvement. The Panel accepts College Counsel’s submission that the verbal interactions that the Member had with students at these schools support a finding of verbal abuse (see Exhibit 2, Tab B and Tab C). The Panel further relies on the fact that the Member did not contest that the way she spoke to students amounts to verbal abuse.

10The Panel finds that the Member psychologically or emotionally abused students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Uncontested Facts demonstrate that the Member continued to use cursive writing instead of printing on the blackboard in class despite knowing that her style of writing was illegible to some students. The Panel finds that the Member’s disregard of her students’ learning needs would reasonably create a stressful and frustrating situation for elementary school students and create a barrier to learning, which constitutes psychological or emotional abuse. In another incident at a different school, after being asked by a principal to use a different approach to student discipline, the Member imposed a five-day detention on a student who failed to appear for a single detention. College Counsel submitted that this incident also supports a finding that the Member psychologically or emotionally abused students. The Panel agrees that the Member’s imposition of this punishment on the student was disproportionate and excessive, and thereby abusive. The Panel further relies on the fact that the Member did not contest that her conduct constitutes psychological or emotional abuse of students.

11The Uncontested Facts demonstrate that the Member contravened subsection 1(11) of Ontario Regulation 437/97, by failing to adequately supervise students at [XXX] School. During instructional time, the Member sat with her back turned to her class and used a computer for personal ends. The Panel finds that the Member’s disengaged and inattentive behaviour demonstrated inadequate supervision that could have led to safety concerns and potential injury to students under the Member’s care.

12The Uncontested Facts demonstrate that the 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 outline the professional and ethical standards of the teaching profession. Among other things, members are to promote and participate in the creation of collaborative, safe and supportive learning communities. The Member failed to do so through her disrespectful and confrontational behaviour with colleagues and superiors at five schools. The Member raised her voice at a colleague passing on a message from the principal at [XXX] School; the Member told a junior placement student teacher in her class at [XXX] School that the principal was “terrible”; and she was indignant when the principal at [XXX] School asked her to discuss issues related to her classroom supervision and engagement with students (“why are you bothering me, stop now”). Members are also required to demonstrate care and commitment to students and student learning. The Member’s conduct fell below this expectation when she used instructional time for personal ends and failed to adequately supervise or engage with her students. Furthermore, she often called upon colleagues to manage student issues for her. The Member also failed to demonstrate a commitment to refining her professional practice through ongoing inquiry, dialogue and reflection. Despite suggestions from her principals and recommendations by her Board, the Member was unable to accept or implement guidance regarding her pattern of unprofessional interactions. By these actions, the Member failed to uphold the standards of practice for the teaching profession.

13The Member failed to comply with the Education Act, contrary to 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. Among their duties, teachers are expected to encourage pupils in the pursuit of learning as described at subsection 264(1)(b). The Member discouraged student learning when she continued to write in cursive rather than print despite knowing that some students could not read her writing. Second, teachers have a duty to set a good example by exhibiting strong moral values, as described at subsection 264(1)(c). The Member failed in this duty when she repeatedly communicated in an aggressive and callous manner at school. Her behaviour was found to be bullying and unacceptable in a learning environment. Third, members have a duty to assist in developing co-operation and coordination of efforts with school staff, as articulated at 264(1)(d). The Member failed to meet this obligation by behaving disrespectfully and unprofessionally with colleagues and superiors. Among other things, the Member complained when her schedule changed and when her principal asked her to cover another teacher’s planning time, she spoke disparagingly about her principals, and she deflected blame to others when issues with her teaching performance were addressed.

14The Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Members of the teaching profession are expected to demonstrate professionalism when communicating with students, colleagues and superiors, which the Member repeatedly failed to do. Her conduct, as described above, demonstrates poor self-control and a lack of commitment to the best interests of students. The Member’s behaviour did not improve even after her Board provided recommendations and reminders to her about professionalism and classroom management. The Member’s failure to recognize her unprofessional behaviour and to implement improvements in her classroom management and interpersonal communication demonstrate a disregard for her professional obligations.

15Similarly, the Member’s conduct is unbecoming a member of the profession contrary to subsection 1(19) of Ontario Regulation 437/97. Teachers must have the maturity and ability to exercise good judgment and self-control in a school setting. They are expected to not only possess these skills but to be able to teach them to students. The Member’s repeated lack of professionalism, as described above, reflects poorly on the Member and on the teaching profession. It discredits the teaching profession as a whole when members are unable to maintain professional working relationships with students, colleagues and superiors.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on August 5, 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 shall 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 three (3) months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter. If the Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1.

3. The Registrar is directed to impose the following, terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 120 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, courses of instruction pre-approved by the Registrar regarding (i) professional ethics, and (ii) classroom management, 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 [sic] 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 [sic] 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 [sic] 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 [sic] and reporting on the progress of the Member with respect to addressing the outlined goals of the course [sic].

G. REASONS FOR PENALTY DECISION

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 College Counsel: Ontario College of Teachers v. Charette, 2018 ONOCT 32, Ontario College of Teachers v. Carle, 2020 ONOCT 135, and Ontario College of Teachers v. Georgiopoulos, 2019 ONOCT 37.

18The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. First, the Member’s misconduct involved repeated incidents of disrespectful behaviour with students, colleagues and superiors at five different schools and continued over the course of multiple school years. Second, the Board brought concerns to the Member’s attention and made recommendations to improve the Member’s teaching practice and professionalism that the Member did not implement. Third, the Member has been the subject of discipline proceedings at the College in December 2014 for similar misconduct. While the Member did not have the benefit of that panel’s decision when she engaged in a significant portion of the misconduct that formed the basis of the complaint in the present case, the Member would have been aware that she was facing allegations of professional misconduct for similar behaviour, given that she was served with a Notice of Hearing dated May 3, 2013 in relation to her prior College discipline hearing. The Panel finds that it is an aggravating factor that the Member continued to engage in similar behaviour that she knew could attract disciplinary consequences. In terms of mitigating factors, the Member did not contest her misconduct and entered into a resolution, saving witnesses from having to testify and 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.

19The Panel finds that the Member’s pattern of inappropriate conduct, despite warnings from her Board, warrants a reprimand. Members are expected to demonstrate their commitment to students, communicate professionally, uphold a collegial work environment, and collaborate with their superiors to provide students with a safe and appropriate learning environment. 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.

20Given the nature of the Member’s conduct, the Panel finds that a three-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 will 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 August 20, 2021, which is 15 days after the Panel’s Oral Decision and Order.

21The Panel finds that courses of instruction regarding (1) professional ethics and (2) classroom management will assist in the rehabilitation of the Member. The coursework is intended to remind the Member of her obligations as a teacher, to help address her professional deficiencies, and to assist her with interpersonal communication skills applicable to interactions with students, colleagues and superiors.

22The 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.
2. 2Allegation withdrawn at College Counsel’s request.