Ontario College of Teachers v. Kwedi, 2022 ONOCT 100

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kwedi 2022 ONOCT 100

Date: 2022-10-15

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

Justin Élamè Kwedi, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

–and –

JUSTIN ÉLAMÈ KWEDI (REGISTRATION #534961)

PANEL: Myrna Tulandi, Chair Sarah Choudhury Alain Martel, OCT

HEARD: October 12, 2022

Christine Lonsdale, for the Ontario College of Teachers Justin Élamè Kwedi, 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on October 12, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Justin Élamè Kwedi (the “Member”) was present at the hearing and 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 May 25, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:

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

(b) he failed to comply with the Act or the regulations or the by-laws, specifically section 32¹ of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(c) 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);

(d) 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); and

(e) he 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. Justin Élamè Kwedi is a member of the Ontario College of Teachers. 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 as an occasional supply teacher by the Conseil des écoles catholiques du Centre-Est (the “Board”).

December 2018 Incidents

3. On December 4 and 5, 2018, the Member was assigned as a supply teacher at the École [XXX] in [XXX], Ontario.

4. On December 4, 2018, while teaching a Grade [XXX] class, the Member failed to adequately supervise students when he fell asleep in class.

5. On December 5, 2018, while teaching a [XXX] class, the Member failed to adequately supervise students when he fell asleep in class.

May 2019 Incident

6. On May 16, 2019, the Member was assigned to a Grade [XXX] class at the École [XXX] in Ottawa, Ontario, as a supply teacher. Student 1 was a student in the class.

7. On May 16, 2019, the Member failed to adequately supervise students and ensure the safety and well-being of students under his care. At the beginning of first period, the Member pointed out that Student 1 was presenting signs of drowsiness and sent him to the bathroom. Student 1 needed to be accompanied by other students because he was having trouble walking.

8. The Member did not intervene at the end of first period, when Student 1’s situation was deteriorating and other students in the class had laid Student 1 on the floor of the classroom. The Member stopped other students in the class from going to get help for Student 1. He blocked the door and the students had to get around him to get out and seek help.

9. When the administrative assistant arrived, the Member still had not intervened. Student 1’s eyes were open, but he could not answer questions and was breathing rapidly.

10. The Member did not call the office, stating that the phone was not working, which wasn’t true, as the administrative assistant was able to use it to place the school in secure mode. She also called an ambulance, which brought Student 1 to the hospital. Student 1 had suffered from a [XXX] which required that he be hospitalized for four days.

11. Students in the class filmed Student 1’s medical emergency without the Member’s knowledge, and following the incident, the video was shared with a hundred people on a social medial site.

September 2019 Incident

12. On September 19, 2019, the Member was assigned to teach a Grade [XXX] class at the École [XXX] in Ottawa, Ontario.

13. On September 19, 2019, the Member failed to adequately supervise students under his care when he left the schoolyard before the arrival of the on-duty teacher at the end of the day.

Disciplinary Records

14. Attached hereto and marked as Appendix “B” is a disciplinary letter from the vice-principal of the École [XXX] that the Member received on February 25, 2019, following the incidents that occurred on December 4 and 5, 2018.

15. Attached hereto and marked as Appendix “C” is a disciplinary letter from the vice-principal of the École [XXX] that the Member received on June 10, 2019, following the incident that occurred on May 16, 2019. The Member also received a seven-day suspension.

16. Attached hereto and marked as Appendix “D” is a disciplinary letter from the Board that the Member received on October 30, 2019, regarding the incident that occurred on September 19, 2019. The Member also received a 15-day suspension.

GUILTY PLEA

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

18. The Member acknowledges that the Admitted Facts described above constitute conduct that is professional misconduct and admits to the allegations of professional misconduct against him, being more specifically breaches of Ontario Regulation 437/97, subsections 1(11), 1(14), 1(15), 1(18) and 1(19).

19. The Member declares 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 Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty 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 the official publication of the College;

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

(f) he understands and acknowledges that he is executing this document voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

20. 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 October 12, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(11), 1(14), 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 16 of the Agreed Statement of Facts and Guilty Plea. He acknowledged, and the Panel accepts, that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that on more than one occasion, the Member failed in his duty to supervise students, resulting in dire consequences in the case of Student 1.

8The Member failed to supervise adequately a person who was under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11). The Admitted Facts demonstrate that in December 2018, the Member fell asleep twice in class, which obviously prevented him from adequately supervising the students placed in his care. In September 2019, the Member left the schoolyard without waiting for a colleague to take over for him, leaving students unsupervised. Furthermore, the Admitted Facts establish that earlier that same year, in May 2019, the Member had failed to intervene when a student showed signs of drowsiness at the beginning of a period and whose condition had deteriorated by the end of the period. Worse still, he prevented other students from seeking help and did not call the office to report the situation. Teachers have a duty to supervise their students, which encompasses the obligation to always be vigilant to prevent any incident that could jeopardize students’ safety as well as the obligation to act; failing to act after having witnessed a problematic situation amounts to failure to actively supervise.

9The Admitted Facts demonstrate that the Member failed to comply with the Act, or regulations or by-laws, contrary to Ontario Regulation 437/97, subsection 1(14). Specifically, the Member failed to uphold the ethical standards of the teaching profession, as set out in paragraph 26.02² of the College’s by-laws. In their practice of the teaching profession, members must be compassionate and ensure the well-being of their students by using sound professional judgment and caring for others (Ethical Standard of Care). Further, they must act with honesty, be trustworthy and behave ethically (Ethical Standard of Integrity). Members are expected to support the emotional well-being and cognitive development of students (Ethical Standard of Respect), and finally, they must be open-minded and seek to build trust in their relationships, especially those with students and colleagues (Ethical Standard of Trust).

10It is clear to the Panel that the Member failed in his ethical obligations with respect to the incident involving Student 1. His refusal to intervene in the situation and to show genuine concern for Student 1’s health demonstrates a blatant lack of empathy, total disregard for the student’s well-being and an absence of compassion. According to the Admitted Facts, the Member also failed in his duty of integrity when he lied about the classroom phone not working to explain why he had not called the office. He broke the bond of trust he had with his students and the rest of the teaching staff by outright blocking the door to prevent students from seeking help.

11The Member failed to comply with subsection 264(1) of the Education Act, contrary to the provisions of Ontario Regulation 437/97, subsection 1(15). Paragraph (a) of this provision states, in part, that teachers must "teach diligently and faithfully", a duty in which the Member clearly failed when he fell asleep in class. Furthermore, paragraph (c) of this provision requires that teachers be positive and principled role models; the Member failed in this duty as well by behaving in a disgraceful manner when one of his students was clearly in distress.

12The 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 Panel finds it particularly shameful that he allowed the situation involving Student 1 to escalate to the point where Student 1 had to be taken to the hospital by ambulance, where he remained for four days. This incident casts great doubt on the Member’s moral fitness. In addition, he engaged in dishonourable conduct when he lied about the phone not working, presumably to cover up or excuse his failure to act. The Member was responsible for looking out for the physical and psychological well-being of his students, and in this particular incident, it is evident that he did not fulfill that obligation. Further, the Member failed to carry out his professional duties when he fell asleep in class, a behaviour that undeniably shows a lack of professionalism.

13Finally, the Member's conduct, as described above, is unbecoming of a member, contrary to the provisions of Ontario Regulation 437/97, subsection 1(19); his behaviour has tarnished the reputation of the teaching profession and has undermined the trust that members of the public, and especially parents, have in teachers.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 12, 2022, 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 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, 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 five months commencing on the 15th calendar day following the date of the Oral Decision and the Order of the Discipline Committee relating to this matter. If the Oral 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 this order, the Member shall enroll in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management, with a focus on the supervision and safety of students, subject to the following conditions:

(i) The Member will provide to the 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 on this matter, and the Decision and Reasons of the Discipline Committee;

(ii) Upon review of the documents, 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.

b) Within 30 days of completion of the course outlined above, the Member shall provide to the Registrar written proof 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

15The 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.³ The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Wabo, 2021 ONOCT 121, Ontario College of Teachers v. Kaiser, 2021 ONOCT 18 and Ontario College of Teachers v. Black, 2020 ONOCT 152.

16The Panel considered the Member’s circumstances in comparison to the cases provided. In these incidents, the members in question were also given a reprimand and a four-month suspension and were required to complete a course on class management, excepting the Wabo case in which a five-month suspension was ordered. The Panel relied heavily on the Wabo case to validate the proposed penalty. In the latter case, the member in question had allowed a student to be sexually assaulted in class by a group of students and had refused to intervene. While the Panel recognizes that the case at hand does not involve sexual assault, the Admitted Facts demonstrate a comparable refusal to intervene or report an incident, as well as the same disregard for the physical and emotional wellbeing of a student and lack of empathy on the Member’s part.

17The aggravating factors in the Member’s case include that his failure to adequately supervise students occurred on more than one occasion, and more importantly, had dire consequences in the case of Student 1. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing and students who are minors from having to testify. The Panel also took into consideration that the Member has no previous disciplinary history with the College. After weighing these factors, the Panel accepts that the penalty proposed by the parties would not bring the administration of the discipline process into disrepute.

18The Panel finds that the Member's failure to carry out his professional obligations as a teacher on more than one occasion warrants a reprimand. Members are expected to lead by example and act as positive role models for students so that they may learn how to properly behave in society and treat others. 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.

18Given the serious nature of the Member's misconduct in the case of Student 1, the Panel finds that a five-month suspension is reasonable and appropriate in the circumstances. 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 the kind of misconduct the Member exhibited is unacceptable. As per the parties' Joint Submission, the Member's Certificate of Qualification and Registration will be suspended effective October 27, 2022, 15 days after the Panel rendered its Decision and Order.

19The Panel is confident that the classroom management course, which will focus on student safety and supervision, will assist in the rehabilitation of the Member. The course will remind the Member of his obligations as a teacher and will help him to make better decisions when performing his professional duties.

20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1On January 20, 2022, the College's by-laws were amended. Section 32 of the by-laws has been re-numbered as section 26.
2. 2Formerly section 32.02.
3. 3See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.