Ontario College of Teachers v. Okafor, 2022 ONOCT 109

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Okafor 2022 ONOCT 109

Date: 2022-10-21

DECISION ON FINDING AND REASONS FOR DECISION

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

Loretto Ifeoma Okafor, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

LORETTO IFEOMA OKAFOR (REGISTRATION #461729)

PANEL: Irene Dembek, OCT, Chair John Hamilton, OCT Marlène Marwah

HEARD: February 27-28, 2020; June 14-16, 2021; August 9-10 and 19, 2021; October 8 and 15, 2021; February 10 and 16, 2022; and May 3, 2022

Stephanie Sugar and Noam Uri, for the Ontario College of Teachers

Jack Brown, Amin Nur, Kirsty Niglas-Collins, Christopher Reid, and Angela Zhu (Student-at-Law), for Loretto Ifeoma Okafor

Erica Richler, 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.

Pursuant to subsection 32.1(1) of the Ontario College of Teachers Act, 1996, the Discipline Committee further ordered that no person shall publish the identity of or any information that could disclose the identity of Student 1.

1This proceeding was heard before a panel of the Discipline Committee (the “Panel”) beginning in person on February 27, 2020 at the Ontario College of Teachers (the “College”). The proceedings continued on February 28, 2020; June 14-16, 2021; August 9-10 and 19, 2021; October 8 and 15, 2021; February 10 and 16, 2022; and May 3, 2022. The appearances from June 14, 2021 onward were heard electronically in accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (“Rules of Procedure”). Loretto Ifeoma Okafor (the “Member”) attended the hearing in full and had legal representation throughout the proceedings.

2At the outset, College Counsel brought a motion pursuant to Rule 5.05(4)(b) of the Rules of Procedure requesting that the two Notices of Hearing dated October 18, 2018 (Exhibit 1) and December 4, 2019 (Exhibit 2) issued against the Member be heard together. With the consent of the parties, pursuant to section 9.1(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, the Panel agreed to proceed with a single hearing to address all of the allegations of professional misconduct set out in the two Notices of Hearing.

3At the conclusion of the hearing on May 3, 2022, the Panel reserved its decision. For the reasons that follow, the Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18), and 1(19).

A. PUBLICATION ban

4The 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.

5During the hearing, College Counsel requested, and the Member consented to, a publication ban to prevent the disclosure of the identity of Student 1 who was a witness at the hearing and the subject of evidence at the hearing. Student 1 was under 18 years old at the time of the events. However, the subsection 32.1(3) publication ban does not apply to him, as he was over 18 years old at the time of the hearing. College Counsel submitted that it would be appropriate to order a publication ban with respect to Student 1 as he is a young man with exceptionalities. The Panel accepted this submission and ordered a publication ban pursuant to section 32.1(1) of the Act, whereby no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. THE ALLEGATIONS

6The allegations against the Member in the first Notice of Hearing dated October 18, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Loretto Ifeoma Okafor is guilty of professional misconduct and [sic] 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);

(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 an act or 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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Loretto Ifeoma Okafor is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board as a teacher at [XXX] School (the “School”) in Toronto, Ontario.

3. At all material times, Person A was a male Educational Assistant and Person D was a female Educational Assistant at the School.

4. At all material times, Person B and Person C were female teachers at the School.

5. At all material times, the Student was a female [XXX] student in the Member’s class.

6. On or about March 5, 2014, the Member:

(a) pointed her finger at Person A;

(b) yelled at Person A;

(c) told Person A, “You think you can do whatever you want but you can’t”;

(d) told Person A, “Don’t even talk to me”;

(e) told Person A, “You have to be in my class”;

(f) told Person A, “Who are these people telling you to go; I don’t care who’s telling you to go. You need to be here in my class”.

7. On or about June 23, 2014, the Member:

(a) yelled at Person B;

(b) used an aggressive tone during an interaction with Person B;

(c) made negative and/or disparaging statements to Person B about students in her class;

(d) told Person B, “Look what I have to deal with. This is not a [XXX] classroom. Look at who I am teaching”;

(e) told Person B, “Look at this girl, I don’t know her name, she does not even know how to identify numbers. What am I supposed to do with her”.

8. On or about December 11, 2015¹, the Member:

(a) used a disrespectful and/or unprofessional tone in her interaction with Person C;

(b) exhibited an aggressive demeanour towards Person C;

(c) spoke at a volume which was excessively loud to Person C;

(d) raised her arm with fingers extended and/or pointed in Person C’s direction.

9. Between September 2016 and October 2016, the Member told the Student words to the effect that, “If you don’t stop biting your arm, I’ll cut it off and make soup with it”.

10. On or about September 30, 2016, the Member yelled at and/or used an excessively loud voice with the Student in the presence of other staff, students and/or visitors at the [XXX].

11. In October 2016, the Member:

(a) yelled at and/or used an excessively loud voice to express her displeasure with Person D’s performance in the presence of other staff and/or students;

(b) commented on the care provided by Person D to a student and/or students in an inappropriate manner.

7The allegations against the Member in the second Notice of Hearing dated December 4, 2019 (Exhibit 2) are as follows:

IT IS ALLEGED that Loretto Ifeoma Okafor 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);

(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);

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

(e) 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);²

(f) 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);

(g) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Loretto Ifeoma Okafor is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board as a teacher at [XXX] School in Toronto, Ontario.

3. At all material times, Student 1 was a male [XXX] student at the School.

4. On or about May 3, 2018, the Member:

(a) hit Student 1, when he attempted to take a [XXX] folder from the Member’s desk;

(b) hit Student 1, after Student 1 pulled or attempted to pull at the Member’s earbuds;

(c) taunted Student 1 and/or said words to the effect of:

(i) “Just try it, I’m going to call the police”;

(ii) “Hit me, I dare you”;

(iii) “Don’t touch me. If you hit me, I’ll hit you”.

C. THE MEMBER’S PLEA

8The Member denied the allegations set out in the two Notices of Hearing.

D. THE EVIDENCE

9At the outset of the hearing, College Counsel requested that the Panel order that the witnesses in this matter (other than the Member) be excluded from the hearing until called to give evidence, in accordance with Rule 13.12 of the Rules of Procedure. After confirming the Member’s consent, the Panel granted the College’s request.

10The parties presented oral and documentary evidence during the course of the hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary of the parties’ evidence.

(1) The College’s Witnesses

11The College called nine witnesses: (1) Jennifer Elaine Morgan, an educational assistant at the School who witnessed the events on March 5, 2014; (2) Elizabeth Walker, a special needs assistant in the Member’s classroom who had witnessed the events in December 2015; (3) Person C, an Assistant Curriculum Leader at the School at the time of the events in December 2015 and May 2018; (4) Person B, an Assistant Curriculum Leader at the School at the time of the events in 2014 and 2015; (5) Person D, an educational assistant in the Member’s classroom at the time of the events in October 2016; (6) Saverio Zupo, the principal of the School who investigated the events occurring between 2014 and 2016; (7) Tehmina Gaffar, an educational assistant in the Member’s classroom in May 2018; (8) John Joseph Paul Stephenson, the vice-principal at the School who attended the Member’s classroom in May 2018; and (9) Brian Wilson, the Toronto District School Board Investigator who conducted the investigation into the Member’s conduct in May 2018.

(a) Jennifer Elaine Morgan

12Ms. Morgan is an educational assistant at the School and has worked at the School since 2005. She worked in the Member’s class for brief periods but was never assigned to the Member’s class. Ms. Morgan testified about the events she witnessed on March 5, 2014. She recalled the Member pointed her finger and yelled at Person A in the presence of other staff and students. Ms. Morgan testified about the report she made of the incident to Mr. Zupo (Exhibit 3). She explained to the Panel that, although she had reported that there were additional support staff in the Member’s classroom at the time of the incident, she does not now recall seeing them. She otherwise affirmed the accuracy of her report.

(b) Elizabeth Walker

13Ms. Walker has been a special needs assistant for the past 15 years and has worked at the School as a special needs assistant since 2015. Ms. Walker worked with and supported several students in the Member’s class during the 2015-2016 and 2016-2017 academic years. Ms. Walker spoke to the events occurring on December 11, 2015, wherein she witnessed the Member yelling at Person C in the presence of other staff and student; and to the Member’s conduct (i.e., yelling at and making inappropriate comments) toward the Student between September and October 2016. Ms. Walker also testified about the reports she made to the administration about these incidents (Exhibit 4 and Exhibit 5).

(c) Person C

14At the time of the hearing, Person C was a vice-principal at a secondary school for students with special needs. The College called Person C to testify regarding events she observed involving the Member on several occasions, while she was a teacher at the School. The College further sought to qualify her as a participant expert on the standards of the teaching profession, and in particular, the standards required of teachers working with students with special needs. The Member opposed the qualification of Person C as a participant expert.

(i) Analysis Regarding Expert Witness Evidence

15Expert evidence is admissible in matters requiring specialized knowledge. According to College Counsel, Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”) requires the Panel to receive expert evidence on the standards of the profession, unless the Member’s conduct is so egregious (e.g., in the case of physical or sexual abuse) that it is self-evidently misconduct.

16A participant expert is a particular kind of expert witness who is permitted to provide opinion evidence to the Panel in certain circumstances. In qualifying a witness as a participant expert, the Panel must first determine whether the expert opinion itself is admissible. Then, the Panel must determine whether the witness is properly qualified as a participant expert.

17The legal test to determine whether expert opinion is admissible was established in the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (“Mohan”) and R. v. Abbey, 2009 ONCA 624 (“Abbey”). In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 (“White Burgess”), the Supreme Court of Canada further clarified the two-step legal test for the admissibility of expert evidence. First, as a threshold requirement, the Panel must determine whether the tendered expert evidence is relevant, necessary, whether there is a rule that would exclude the evidence, and whether the expert witness is properly qualified. Second, if these threshold requirements are met, the Panel must balance the potential risks of admitting the expert evidence with the benefits of admitting it in the particular case at hand.

18The legal test to determine whether an expert is properly qualified as a participant expert is outlined in Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”). The Panel must determine whether the expert’s opinion is based on their own observation of or participation in the events at issue in the hearing and if the expert formed their opinion as part of the ordinary exercise of their skills, knowledge, training and experience while observing or participating in the events at issue. If the expert’s opinion was based on their own observation or participation and they formed their opinion as part of the ordinary exercise of their skills, training, and experience, then they are properly qualified as a participant expert.

19The Panel found that the evidence that Person C would provide was relevant and that expert evidence about the standards of the profession is necessary in this matter, as per Novick. The conduct at issue is not of a nature that is so notorious and obviously contrary to the standards such that expert opinion is not required. However, having reviewed the Registered Member Information for Person C (Exhibit 6) and her Curriculum Vitae (Exhibit 15), the Panel declined to qualify Person C as a participant expert on the basis that her unique experience at the time of her participation in the events did not properly qualify her as an expert on the standards of the teaching profession, and in particular, the standards required of teachers working with students with special needs.

20Specifically, the Panel considered that while she had been a member of the College since 1992, when she started at the School in 2005, she was part of the School’s nutrition and family studies program. In this role, she spent approximately half of her time in the kitchen teaching students kitchen skills and half of her time in the classroom. She worked in the classroom for approximately eight months starting in February 2012, and in a co-op position during the 2013-2014 school year but became an Assistant Curriculum Leader (“ACL”) for Guidance starting in 2014. She taught only one class in 2014-2015 and exclusively worked in Guidance (not a teaching capacity) from 2015 until her departure from the School in 2018. Accordingly, the Panel was not satisfied that Person C, having largely worked outside of the classroom setting, had developed sufficient expertise about dealing with students in a traditional classroom, such that she would have been able to form an expert opinion on the standards of the teaching profession, and in particular, the standards required of teachers working with students with special needs, at the time of her participation in the relevant events in question.

(ii) Evidence of Person C

21Person C was permitted to testify as to the facts relating to her interaction with the Member on December 11, 2015 and her report of the incident to Mr. Zupo (Exhibit 7). Person C was also permitted to testify as to the facts of the incident involving the Member and Student 1 that occurred on May 3, 2018 and her documentation of that incident (Exhibit 8).

(d) Person B

22College Counsel provided the Panel with Person B’s Curriculum Vitae (Exhibit 10) and tendered her as an expert witness, and more specifically, as a participant expert regarding the standards of the teaching profession, and the standards of teachers working with students with special needs. Member’s Counsel objected to her qualification as an expert.

(i) Analysis Regarding Expert Witness Evidence

23After having considered the criteria set out in Mohan and in Westerhof, and Person B’s Registered Member Information (Exhibit 9) and Curriculum Vitae (Exhibit 10), the Panel decided to qualify Person B as a participant expert in this matter relating to the standards of the profession and the standards for dealing with students with special needs. The Panel determined that expert evidence on these standards was relevant to and necessary for the Panel’s determination of whether the Member breached subsection 1(5) of Ontario Regulation 437/97. The conduct at issue is not of a nature that is so notorious and obviously contrary to the standards such that expert opinion is not required.

24The Panel was satisfied that Person B had the special skill, knowledge, training, or experience at the time of the events to be properly qualified as an expert. Person B has been a member of the College since 2002 and was a classroom teacher at a private school and a public high school prior to joining the School in 2013. She testified that she had significant experience working with students with special needs and IEPs. At the time of the events in question, she was the ACL for three portfolios at the School: (1) [XXX] (the stream in which the Member taught), (2) Physical Disabilities, and (3) the Deaf and Hard of Hearing program. In that role, she was responsible for, among other things, developing student IEPs with the School’s teachers, and developing the curriculum for students. She also had teaching responsibilities. The Panel was satisfied that Person B’s background provided her with expertise on the standards expected of members of the profession, and the standards expected of teachers working with students with special needs. The Panel was also satisfied that Person B had formed her expert opinion evidence in the course of observing or participating in the events in question. Finally, the Panel was of the opinion that the probative value of Person B’s evidence would be greater than any prejudicial effect of her testimony.

(ii) Evidence of Person B

25Person B gave evidence about her interaction with the Member on June 23, 2014. Person B testified that she reported the June 23, 2014 incident (Exhibit 11) and spoke with Mr. Zupo about the events. She spoke with the Member about the incident as well. The Member apologized to her for raising her voice and requested that she and Person B deal with the matter in an amicable manner. Person B emailed the Member written confirmation of their resolution (Exhibit 12 and 13).

26Person B also testified about the Member’s interaction with Person C on December 11, 2015. Person B testified that she spoke with Mr. Zupo about this incident and also wrote an email to him about the incident (Exhibit 14). Person B was presented with Mr. Zupo’s notes (Exhibit 22) and testified that they were an accurate record of what she reported to him.

27It was Person B’s opinion that the Member had breached the standards and practices expected of teachers working with students with special needs on both of these occasions.

(e) Person D

28At the time of the hearing, Person D was an educational assistant at a special education school. Prior to that, she was an educational assistant at the School for approximately three years starting in 2016. She was assigned to the Member’s class at one point for approximately one and a half to two months before she was transferred to another class. She testified about two particular interactions with the Member in which the Member yelled at her in a loud, stern, demanding or condescending voice in the presence of students or other staff. Person D testified that she reported these incidents to the vice-principal at the time (Exhibit 16).

(f) Mr. Saverio Zupo

29At the time of the events in question below, Mr. Zupo was the principal at the School, having joined the School in 2012. Mr. Zupo was a science and math teacher for approximately ten years before becoming an administrator, and he had worked with students with IEPs as a teacher. Mr. Zupo gave evidence regarding several incidents involving the Member, and his practices in requesting incident reports from staff and investigating issues at the School. He testified about the meetings he had with the Member regarding each of the incidents where the Member was provided with an opportunity to respond to what the other staff said had happened (“OTR meetings”). Mr. Zupo also testified about the resulting discipline against the Member on each occasion.

(g) Ms. Tehmina Gaffar

30At the time of the hearing, Ms. Gaffar was a Level K Educational Assistant, who provides intensive support to students with high and severe needs. Ms. Gaffar was also a Level K Educational Assistant in the Member’s class from September 2017 through May 2018. She testified about the events on May 3, 2018 involving the Member and Student 1. Ms. Gaffar identified two separate incidents occurring that day. She testified that she heard Student 1 and the Member talking loudly with each other that morning and Student 1 saying “ouch, you hit me”. Later that day, she witnessed a concerning altercation between the Member and Student 1. Ms. Gaffar adopted vice-principal Stephenson’s notes of her account of this incident (Exhibit 31) and also affirmed that Investigator Wilson’s notes reflect her recollection of the incident (Exhibit 35).³

(h) Mr. John Joseph Paul Stephenson

31At the time of the hearing, Mr. Stephenson was a vice-principal at Bowmanville High School. Mr. Stephenson was also the vice-principal of the School in May 2018, having started at the School in 2017. Mr. Stephenson received his teaching certificate in 2006 and taught for seven years before becoming an administrator in 2014. Mr. Stephenson testified about what he witnessed when he attended the Member’s classroom on May 3, 2018. Mr. Stephenson testified that he provided a report of the incident to the Board’s investigator, Mr. Wilson, in an email on June 27, 2018 (Exhibit 34).

(i) Mr. Brian Wilson

32Mr. Wilson has been an investigator in the Employee Services offices of the Board for the past 15 years. Prior to this role, he worked with Toronto Police Services for 25 years, in various positions, including four years as an investigator of allegations of child abuse and sexual assault. As an investigator for the Board, Mr. Wilson is assigned to investigate matters within schools, generally for more serious matters involving the police and the Children’s Aid Society, or where there are allegations of bias and an independent investigator is required.

33Mr. Wilson was assigned to investigate the May 3, 2018 incident involving the Member and Student 1. He testified about the steps he undertook in investigating the matter, including his decision not to interview Student 1. After his investigation, Mr. Wilson prepared an investigation report for the Board (Exhibit 35, “Investigation Report”).

34Member’s Counsel objected to the admission of the Investigation Report into evidence. Member’s Counsel acknowledged that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) allows the Panel to consider hearsay evidence but submitted that it would be unfair to the Member to admit the Investigation Report because Mr. Wilson had not observed the events he described in his report, which contained hearsay evidence from other individuals. Member’s Counsel reminded the Panel that the Member is owed a high degree of procedural fairness in accordance with the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. In addition, Member’s Counsel submitted that the investigation report did not meet requirements for the business records exception to admitting hearsay evidence, as set out in the Evidence Act, R.S.O. 1990, c. 23 (“Evidence Act”) and R. v. Felderhof, 2005 ONCJ 406 (“Felderhof”).

35College Counsel disagreed that admitting the investigation report would be unfair to the Member. College Counsel noted that Mr. Wilson’s opinion of what occurred was not being admitted for the truth of its contents. Further, College Counsel submitted that the Investigation Report met the criteria for admissibility set out in Felderhof, as it was created in the course of Mr. Wilson’s business duties and the staff’s duty to participate in and cooperate with Board investigations. College Counsel submitted that the fact that a record contains hearsay does not affect the characterization of a record as a business record or its admissibility (but goes to the question of weight to be given to the evidence), per Parliament et al v. Conley and Part, 2019 ONSC 2951.

36The Panel determined that the Investigation Report prepared by Mr. Wilson should be admitted into evidence under the business records exception to the hearsay rule. In particular, the Panel considered subsection 35(2) of the Evidence Act,⁴ and the factors for admissibility set out in Felderhof, and was satisfied that the Investigation Report (including its appendices) was indeed a business record admissible under this exception. The Investigation Report was a record of the events occurring on May 3, 2018, made in the usual and ordinary course of the business of independent Board investigations, within a reasonable time after the incident in question. While it contains hearsay, the drafter of the report (Mr. Wilson) and the individuals he interviewed were acting in the usual and ordinary business of Board investigations. Mr. Wilson testified that teachers are obligated to cooperate with Board investigations and may face discipline if they fail to cooperate. The Panel was satisfied that the concern that the Investigation Report contains hearsay could appropriately be dealt with by determining the appropriate weight to give to the report at the end of the hearing.

37However, the Panel recognizes College Counsel’s submissions that the Investigation Report was not being submitted as opinion evidence and determined that it would therefore be unduly prejudicial to the Member to admit the conclusions of Mr. Wilson within the report. As such, the Panel ordered that the section entitled “Conclusions”, found at pages 11-15 of the report, be excised from the Investigation Report. The “Conclusions” section was not considered by the Panel.

(2) The Member’s Witnesses

38The Member testified at the hearing and called two other witnesses: (1) Student 1, who was allegedly hit and taunted by the Member in 2018; and (2) Dr. Paul Carr, who was tendered as an expert witness.

(a) The Member

39At the time of the hearing, the Member was a secondary school teacher at Central Etobicoke High School. She obtained both a Bachelor’s and Master’s degree in Education in Nigeria and taught at a College of Education in Nigeria for 10 years before coming to Canada in 2002. She received her Certificate of Qualification and Registration on June 18, 2003, and has qualifications in special education. She taught at the School from 2004 until 2018, mostly in the [XXX] stream.

40The Member testified that she was initially well-supported at the School and that her difficulties began once Mr. Zupo joined the School. She testified that she believed Mr. Zupo was targeting her based on her race and that a perception was created at the School that she always yells. The Member testified that she had not seen and was not familiar with the Board’s policy on Respectful Learning and Working Environments which was referred to in her discipline letters. She maintained that she did not disrespect her students or colleagues but treated everyone fairly and tried to work with others as a team. She understands that as a member of the College, she is bound by the Ethical Standards for the Teaching Profession and acknowledges that the ethical standard of “Respect” includes understanding and appreciating the perspective of others. The Member attributed the miscommunications in the events in question to cultural differences.

41The Member spoke to each of the incidents alleged against her. She attributed the manner in which she spoke to her cultural background. The Member acknowledged that she speaks loudly and that her accent makes it difficult for some people to understand what she says. She denied yelling at others and testified that she did not intend to disrespect others. She testified that she approaches others with good intentions but cannot control other peoples’ reactions to her. She denied making the comments about and the conduct towards students alleged in the two Notices of Hearing. She also acknowledged using her hands when speaking but denied pointing her finger at others. The Member also spoke to the discipline she received and the grievances she filed with the Board (Exhibit 37, Exhibit 38 and Exhibit 41).

(b) Student 1

42At the time of hearing, Student 1 was [XXX] years old. He is [XXX] and attended the School between 20[XXX] and 20[XXX]. He testified that he had the Member as a teacher on several occasions in 20[XXX], 20[XXX], and in 20[XXX]-20[XXX]. Student 1 denied that the Member hit him on May 3, 2018 and testified that he had hit her that day. He spoke to the apology letter that he wrote to the Member (Exhibit 33) and stated that when he wrote that he had been “beat up”, what he meant was that the Member had taken away his computer privileges for not listening to her. Student 1 testified that he got along with the Member, she was his favourite teacher, the only teacher he cared about in school, that he misses her very much, and that he is frustrated that he got her fired.

(c) Dr. Paul R. Carr

43Member’s Counsel reviewed the Curriculum Vitae of Dr. Carr (Exhibit 47) and tendered him as an expert on racism and anti-racism in education, and racism and anti-racism in the Member’s case. The College objected to him being qualified as an expert.

(i) Analysis Regarding Expert Witness Evidence

44As established by the Supreme Court of Canada in Mohan, whether an expert’s evidence will be admitted depends first on a consideration of four threshold factors: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert. White Burgess added to the analysis that to be properly qualified, an expert should be fair, objective and non-partisan; that is, an expert’s opinion should not change regardless of which party retained them. After considering whether a tendered expert meets the threshold requirements, the adjudicator is required to conduct a second analysis as to probative value and risk of prejudice by admitting the expert evidence: Abbey.

45The Panel accepted Dr. Carr as an expert on racism and anti-racism in education generally but declined to accept him as an expert on racism and anti-racism regarding the investigation and discipline of the Member. The Panel accepted that Dr. Carr’s opinion on racism and anti-racism in education was relevant and helpful in making its determination in this matter. It was also the Panel’s opinion that Dr. Carr was a properly qualified expert to provide such testimony and there was no rule requiring his exclusion as an expert witness.

46At the time of the hearing, Dr. Carr was a professor at the Université du Québec en Outaouais, teaching, among other things, the sociology of education. Over the past 30 years, he has taught, spoken about, and written on the subject of race, institutional culture, systemic racism, and education. He has taught many courses on race and ethnicity, diversity in education, and the sociology of education. Among other qualifications, Dr. Carr has a Master’s degree and a Doctorate of Education. His doctorate is about the institutional culture and anti-racism in the Toronto District School Board (“TDSB”). He studied the differential perspectives of white and racialized teachers and the impact of race on teachers’ experiences.

47However, Dr. Carr has not worked as a teacher or administrator in Ontario, has not worked in the TDSB, and has not been involved in any TDSB investigations or discipline of teachers. The Panel was not satisfied that Dr. Carr had knowledge of how TDSB’s policies are applied in the course of a TDSB discipline investigation.

48Moreover, the Panel found that Dr. Carr’s analysis of the Member’s case was of a general and limited nature, and to a certain extent one-sided. Dr. Carr had access to and analyzed the correspondence with the Board and the Union about the Member’s grievances but did not look at the Board’s equity policies or human resources policies from the material time in preparing his opinion. He was asked to opine about the extent to which racism and systemic racism would impact a woman like the Member, and he spoke with the Member for one hour in order to form his opinion; but he did not speak with any other staff at the School. He testified that he does not know the racial backgrounds of the individuals involved in this case and that he did not review performance evaluations or comparative information for the Member in order determine how she was treated compared to other teachers.

49Therefore, the Panel was not satisfied that Dr. Carr would be able to speak to whether racism had played a role in investigations and discipline of the Member. Dr. Carr was allowed to testify about racism and anti-racism in the education setting generally, but not with respect to the investigation and discipline of the Member.

(ii) Dr. Carr’s Evidence

50Dr. Carr explained that race is socially constructed and is one part of someone’s identity. Society is built on a platform of racism, among other forms of discrimination. There are many different types of racism (e.g., individual, systemic, institutional) which can directly or indirectly, and consciously or unwittingly promote, sustain, and benefit certain races. Institutional racism includes overt racism in an organization that everyone knows but no one addresses (e.g., discriminatory hiring processes). Systemic racism refers to laws, and the normalized unequal distribution of rewards or access to services to different groups. Often, racism is not overt. Unconscious or unwitting racism is not articulated but could include not celebrating or appreciating certain groups.

51According to Dr. Carr, racism exists for all groups. People’s lived experience is a good barometer of racism and while all racialized people deal with racism at a certain level, not everyone experiences racism in the same way. Anti-Black racism is particularly severe and can manifest in each category of racism. For example, at an individual level, a person who is Black may be followed in a grocery store or stopped by the police because they are Black. There is a concept of “whiteness”, which Dr. Carr explained as white people being considered superior and privileged in all portions of society, including education.

52Approximately 55% of students in Toronto are racially diverse but only 10-15% of teachers in North America are not white. While this does not mean that non-white teachers cannot engage functionally, at a larger, institutional and systemic level, there are fewer minorities in programming or administration or acting at the superintendent level. It may be that one who is part of a racialized community wants to contribute positively to the school environment and to engage with parents but, as a result of their marginalized position, that may be difficult as they may not be supported in doing so. Education is highly political and anti-racist education is interested in representation, power and outcomes.

53It was Dr. Carr’s opinion that the Toronto District School Board is a unique setting to study issues of racism. It is progressive and dynamic, being the largest school board in Ontario, in one of the most multicultural cities in the world, with many social justice initiatives, community workers developing anti-racism initiatives, and support systems in place. The Board has a strong research office and is a good place to study issues of racism. However, there is also a lot of turbulence, and racism does exist within education. It is difficult to determine to what degree racism and anti-Black racism exist because there are not measures in place to assess that issue.

E. SUBMISSIONS OF COLLEGE COUNSEL

54College Counsel submitted that the witnesses called to testify on behalf of the College were credible, reliable, and the evidence they presented proves each of the allegations of professional misconduct on a balance of probabilities. As such, the Panel should find that the Member engaged in professional misconduct as alleged.

55College Counsel acknowledged that racism is an issue in Canada that influences interactions with others but argued that the Member has failed to adduce evidence that the allegations of misconduct, investigation of her actions, and discipline by the Board were a result of racism. College Counsel submitted that the Member’s conduct is serious and objectively, professional misconduct. College Counsel reminded the Panel that they qualified Person B as an expert on the standards of the profession and submitted that Person B’s evidence on the content of the standards of the profession should guide the Panel in assessing all of the incidents alleged in the two Notices of Hearing.

56College Counsel presented the Panel with several cases in support of the College’s position that the Member’s conduct constitutes profession misconduct: Ontario College of Teachers v. Armstrong, 2019 ONOCT 48 (“Armstrong”); Ontario College of Teachers v. Campbell, 2022 ONOCT 6 (“Campbell”); Ontario College of Teachers v. DeSantis, 2021 ONOCT 82 (“De Santis”); Ontario College of Teachers v. Glazer, 2018 ONOCT 37 (“Glazer”); Ontario College of Teachers v. Nolis, 2019 ONOCT 129 (“Nolis”); Ontario College of Teachers v. Reid, 2021 ONOCT 126 (“Reid”); Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15 (“Vandenberg”); Ontario College of Teachers v. Weglarz, 2019 ONOCT 95 (“Weglarz”); and Ontario College of Teachers v. White, 2017 ONOCT 26 (“White”).

F. SUBMISSIONS OF MEMBER’s COUNSEL

57Member’s Counsel argued that the College had failed to meet its burden to prove the allegations of professional misconduct against the Member. Member’s Counsel asked the Panel to make an adverse inference from the fact that Person A did not testify at the hearing. In addition, Member’s Counsel submitted that the College has not proven that the Member has breached any professional standards. It was the Member’s opinion that, while yelling at a coworker is regrettable, it does not amount to professional misconduct.

58The Member also submitted that the Panel should not rely on Person B’s evidence on the standards generally and that her opinion must be confined to the incidents she participated in. Moreover, Member’s Counsel argued that Person B’s opinions were flawed as she was not qualified as an expert in anti-Black racism. Further, Member’s Counsel submitted that the Investigation Report was deeply flawed and resulted in discipline against the Member without a proper evidentiary basis.

59Generally, Member’s Counsel submitted that the College’s case relies upon an application of the standards of the profession in a way that does not take into consideration the effects of systemic racism in education. The Member is a Black woman from Nigeria, with an accent that is difficult to understand. She is passionate and loud, confident and assertive. According to Member’s Counsel, she fits a particular stereotype about Black individuals, which led to a narrative about the Member at the School as a disrespectful individual. She was held to a different standard as a racialized woman and would not have come before the Discipline Committee but for anti-Black racism.

G. ADVICE OF INDEPENDENT LEGAL COUNSEL

60Independent Legal Counsel (“ILC”) reminded the Panel of the burden of proof applicable to discipline proceedings and the factors that can be considered in making credibility assessments. ILC advised that it is within the Panel’s discretion to draw an adverse inference from the lack of evidence from Person A but that such a determination should be made with caution. ILC noted that several of the exhibits contain hearsay evidence but advised that the Panel can consider the truth of the contents of those documents and determine their weight as the Panel deems appropriate, pursuant to subsection 15(1)(b) of the SPPA.

61ILC advised that Novick requires expert evidence on the standards of the profession unless the underlying conduct is so egregious and clearly offside that it is self-evidently misconduct. Person B was qualified as a participant expert. Her expert opinion was formed in the course of and on the basis of her observation of, or participation in, particular events. Therefore, the Panel’s reliance on her opinion should be limited to its determination of whether the Member breached the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97, or the standards for individuals teaching students with special needs in those particular instances. ILC also reminded the Panel that the allegation that the Member breached the ethical standards of the profession contrary to subsection 1(14) of Ontario Regulation 437/97 does not typically require expert evidence.

62ILC reminded the Panel that Dr. Carr was qualified to provide limited evidence on racism and anti-Black racism, and that anti-Black racism is recognized and acknowledged by the College to exist in Canada. The Panel is not being asked to make a finding that racism exists, but rather, may consider whether anti-Black racism played a role in what happened, whether it affects the witnesses’ credibility, and ultimately whether it is relevant to the Panel’s determination of whether the Member has engaged in professional misconduct as alleged in the Notices of Hearing.

H. DECISION ON FINDING

63The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities. This means that first, the College must prove that the conduct alleged in the two Notices of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such conduct constitutes professional misconduct.

64Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel finds that the College has proven the facts alleged except particulars 6(c) and 9 in Exhibit 1, and that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

I. REASONS FOR DECISION

65The Panel has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notices of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notices of Hearing.

66In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding how much of each witness’ evidence to accept, the Panel can rely on logic, common sense, and experience, but has also considered the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence (see: Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC)). The Panel has also approached its analysis of the witnesses and their evidence with caution, keeping in mind Dr. Carr’s evidence on the existence and pervasive effects of anti-Black racism in Canada and the education system.

67The Panel notes that it closely considered the credibility and evidence of Mr. Zupo, given the Member’s suggestions that Mr. Zupo had been targeting her. Mr. Zupo testified that he tried to be objective in his investigation of these incidents and that he investigated them in the same manner as complaints about other teachers and staff at the School. He testified that he has had exposure to issues relating to equity, diversity, and inclusion, and has received training related to management, the Human Rights Code, and addressing conflicts in the workplace, including gendered and racialized conflict. He agreed that the Member spoke with a pronounced Nigerian accent. He observed at the time of the incidents that most of the individuals who expressed concerns about the Member were white staff. Mr. Zupo testified that he had consulted the Board’s Employee Equity Policy but that he did not consult the Board’s Human Rights Office for guidance or assistance with his investigation of the Member. He testified that he spoke with Black colleagues at the School to better understand cultural differences that might be influencing the Member’s interactions with her colleagues, namely, Ms. Louise Tedoldi, a teacher from Africa; and vice-principal, Ms. Christine Lee, who was Jamaican and involved in the incidents with Person A and Person B. Mr. Zupo also explained that he made efforts to be objective in his investigation by using a 10-point scale to assess the Member’s speaking volume during the incidents (with 0 being a whisper, 7-8 being yelling, and 10 being somebody screaming as loud as they can). Mr. Zupo also considered other factors like the Member’s tone, body language, facial expressions, and gestures, as well as how the individuals in question were made to feel by the Member’s actions. The Panel accepted Mr. Zupo’s testimony on these points and found that the evidence did not demonstrate that he targeted the Member because of her race or that Mr. Zupo’s investigation was otherwise tainted by anti-Black racism.

68Additionally, the Panel heard evidence that Mr. Zupo had lied to a conservation officer in relation to an ice-fishing incident. Mr. Zupo pled guilty to and paid a fine in connection with this incident. He admitted this was contrary to the ethical standards of the profession. According to Member’s Counsel, this raised questions about Mr. Zupo’s credibility as a witness. However, the Panel does not agree that this prior incident influences Mr. Zupo’s credibility in this hearing. This was a minor incident that took place on or around July 10, 2009, before Mr. Zupo became a principal. There was no evidence that Mr. Zupo was dishonest since that time.

69The Panel also notes that it had concerns about both the Member’s and Student 1’s testimonies. These concerns will be discussed in more detail below with respect to each particular finding. In short, the Panel found that the Member clearly has an interest in the outcome of this hearing, and her testimony was unclear at times and contained significant inconsistencies. The Panel was also concerned about inconsistencies in Student 1’s testimony, and the possibility that he may have been influenced by the presence of his parents while he testified, as well as by his fondness for the Member.

(1) Factual Findings

Notice of Hearing Dated October 18, 2018 (Exhibit 1)

(a) Particular 6 – March 5, 2014 Events Regarding Person A

70The Panel finds that the College has proven all of the facts alleged in this particular, except particular 6(c), on a balance of probabilities. While Person A did not himself testify at the hearing, the Panel heard from Ms. Morgan, who witnessed the events on March 5, 2014, Mr. Zupo who investigated this matter, and the Member herself.

(i) College’s Evidence

Ms. Morgan

71Ms. Morgan testified that, on March 5, 2014, she was in the hallway across from the Member’s classroom helping a student get ready for a class trip, and observed the Member’s interactions with Person A, who was standing in the doorway of the Member’s classroom. According to Ms. Morgan, the Member pointed her finger at Person A, yelled at (that is, used a very loud, aggressive, and angry tone with) Person A in front of staff and students, and made the following statements: “don’t even talk to me”; and “who are these people who are telling you to go?”. Ms. Morgan’s written account of the exchange, which was made the same day the events occurred, noted that the Member also said to Person A: “you have to be in my class” and “I don’t care who’s telling you to go. You need to be here in my class”, or words to that effect (Exhibit 3). Ms. Morgan testified that the exchange between the Member and Person A lasted approximately five minutes and that the Member’s actions made the students observing the exchange upset. In particular, the student whom Ms. Morgan was helping became extremely emotional, terrified, upset and frozen. Ms. Morgan herself was made to feel upset and disheartened by the Member’s actions toward Person A. Ms. Morgan testified that she had tried to comfort Person A during the school trip as he was distressed for the remainder of the afternoon because of this exchange.

Mr. Zupo

72Mr. Zupo testified that Person A had come to his office upset about the Member’s actions toward him on March 5, 2014. Mr. Zupo described Person A as appearing to be “shaken up”, “distraught”, and unsure whether he could continue with the day. Eventually, Person A decided that he would assist on the field trip but indicated he did not want to go back to the Member’s class.

73Mr. Zupo also testified about his OTR meeting with the Member regarding the events in question. Mr. Zupo testified that the Member acknowledged that she was unhappy that Person A left her class but that she denied yelling at Person A. It was Mr. Zupo’s opinion that the Member did not think she had done anything wrong. She said that she spoke loudly as a result of her cultural background. Mr. Zupo testified that the issue of Person A leaving the Member’s class was a concern that had come up before.

(ii) Member’s Evidence

74The Member testified that 2014 had been the first time she had worked with Person A. She described Person A as a lovely person and testified that they related well and that she had a good relationship with him. The only issue they had was that Person A was assigned to a particular student and would take this assigned student to the gym or the field without telling the Member in advance, which would result in the Member having to correct the morning attendance sheet she submitted to the school office. The Member testified that she asked Person A to notify her that the student was present before doing so but he did not do so. Additionally, the Member noted that Person A was often absent after lunch because Mr. Zupo would periodically assign him to other tasks without notifying the Member and so the other educational assistants would have to care for Person A’s student. The Member raised the issue with Mr. Zupo and also asked Person A to inform her when Mr. Zupo reassigned him.

75With respect to the March 5, 2014 events at issue, the Member testified that the student that Person A was usually assigned to was absent, and so she wanted his assistance with another student in the class who was not responding well to the presence of a supply staff member that day. Person A advised the Member that he was going on a field trip per Mr. Zupo’s instructions. The Member became upset because she was not made aware of this in advance. She denied making the particular statements alleged by Ms. Morgan and denied pointing her finger at Person A but testified that she asked Person A to stay and told him to “come back, you are in my class, if something happened, you are in this class” or words to that effect. According to the Member, Person A told her to “deal with it” and walked away.

76The Member testified that while it was noisy in the hallway at the time, she did not yell at Person A. Ms. Morgan may have perceived her to be yelling, but that is because the Member speaks loudly, and it has become a narrative at the School that the Member yells. The Member testified that she was disciplined for this incident and the incident involving Person B on June 23, 2014, and subsequently grieved this discipline. The matter was settled in December 2015 (Exhibit 37).

(iii) Panel’s Findings

77On the whole, the Panel preferred the evidence of Ms. Morgan and Mr. Zupo over that of the Member. The College witnesses were credible, clear, and consistent in the material details of their evidence. The Panel has no reason to believe that Ms. Morgan fabricated evidence. Her testimony during the hearing was consistent with her contemporaneous report to Mr. Zupo about these events on all material details and Ms. Morgan was upfront about details that she could not recall. The Panel did not find evidence suggesting that Ms. Morgan would have been motivated or influenced by anti-Black racism in her account of these events. She testified that the School community was diverse, that she had no difficulty understanding the Member’s accent, that she does not focus on her colleagues’ race, and that the Member is not the only Nigerian individual with whom she has worked.

78Similarly, the Panel has not been presented with evidence that Mr. Zupo was racially motivated or treated the Member unfairly in his investigation and eventual discipline of the Member in relation to these events. Mr. Zupo was upfront about having a prior history with Person A and acknowledged he had a professional working relationship with Person A at the time of the events in question. The Panel accepts Mr. Zupo’s testimony that he followed the same investigation processes in this instance as he does in all other investigations and that he determined the investigation was required because the incident occurred in the presence of staff and students, and because multiple persons reported the incident to him.

79Further, while the Member denied the particular facts alleged against her, the Panel notes that the Member acknowledged in her testimony that she became upset after learning that Person A was going on a field trip at the request of Mr. Zupo and would not be in her class that day. The Member testified that it was a recurring issue and a big stress for her when Person A was not in attendance in her class. She acknowledged that she may not have been using a “bedroom” or “indoor voice” to address Person A, as it was loud in the crowded hallway, and music was playing at the time. The Member also acknowledged that Ms. Morgan might have thought she was yelling but attributed this to her (the Member’s) generally loud voice.

80The Panel finds that the Member’s testimony on these details is not contradictory to Ms. Morgan’s account that the Member had actually yelled at Person A when she learned that he would be going on a field trip that day. It is unlikely that Person A would have otherwise become so upset after the exchange with the Member, and the Panel accepts the consistent testimony of Ms. Morgan and Mr. Zupo that Person A appeared distressed, distraught, or shaken up that afternoon.

81The Panel is therefore satisfied that the College has established on a balance of probabilities that the Member pointed her finger at Person A [particular 6(a)]; yelled at Person A [particular 6(b)]; told Person A, “Don’t even talk to me” [particular 6(d)]; told Person A, “You have to be in my class” [particular 6(e)]; and told Person A, “Who are these people telling you to go; I don’t care who’s telling you to go. You need to be here in my class” [particular 6(f)].

82The Panel did not hear evidence from any of the witnesses during the hearing, or in their respective written accounts of events, to support the allegation that the Member told Person A, “You think you can do whatever you want but you can’t” [particular 6(c)]. Accordingly, the College has not proven this particular on a balance of probabilities.

(b) Particular 7 – June 23, 2014 Events Regarding Person B

83The Panel heard evidence from Person B, Mr. Zupo, and the Member about the events occurring on June 23, 2014 and finds that the College has proven these allegations on a balance of probabilities.

(i) College’s Evidence

Person B

84Person B testified that, on June 23, 2014, she approached the Member to discuss a request by a parent regarding the programming needs of a particular student. The Member became visibly upset when she learned that the student would be placed in her class the next academic year. The Member told Person B it would be irresponsible to do so, in part, because of safety concerns and she expressed feeling targeted and that she was being punished by the School’s administration because of her race. Person B testified that the Member started yelling for several minutes in the presence of students and made several disparaging comments about her students’ abilities. Person B testified that she felt uncomfortable when the Member screamed at her, noting that people do not feel safe when they are being screamed at. She further testified that some of the students witnessing the exchange appeared uncomfortable.

85Person B informed the Member she would make a report to the administration, spoke with vice-principal, Ms. Christine Lee, about the events, and provided a written report to Mr. Zupo. Person B’s written report states that the Member screamed at her and made the following disparaging statements about her students: “Look what I have to deal with. This is not a [XXX] classroom. Look at who I am teaching. It is not possible to do my job under these conditions”; and “Look at this girl, I don’t know her name, she does not even know who [sic] to identify numbers. What am I supposed to do with her…” (Exhibit 11). During her cross-examination, when asked about the statement made by the Member that “[t]his is not a [XXX] classroom”, Person B disagreed with the suggestion of Member’s Counsel that the comment was made with respect to the adequacy of the size of the Member’s classroom. Person B testified that she understood the Member to have meant that students were not being placed in the appropriate stream at the school and that she felt it was difficult to do her job because she was being given students with higher needs.

86Person B testified that she and the Member resolved the issue amicably, with the Member later apologizing for raising her voice, and that she sent emails to the Member, at the Member’s request, to confirm their amicable resolution (Exhibit 12 and 13).

Mr. Zupo

87Mr. Zupo testified that Person B reported the Member had yelled at her and made several inappropriate remarks about students in her classroom. Person B reported that these incidents occurred in the Member’s classroom, in the presence of students and support staff. In his notes of his meeting with Person B on June 24, 2014 (Exhibit 19), Mr. Zupo noted that Person B reported the Member “yelling” and “waving her finger” and saying “look what I have to deal with” while referring to students. Mr. Zupo met with the Member, her union representative, and vice-principal Ms. Lee in October 2014 to discuss the incident. The Member denied yelling, screaming, and making the statements alleged by Person B, and suggested that Person B had also raised her voice.

88Mr. Zupo met with Person B again on October 16, 2014 after meeting with the Member. Person B maintained that the Member was “speaking loudly, yelling or screaming”, her “tone was aggressive”, and the Member was “very visibly angry” and made the disparaging remarks recorded in her earlier report of the incident (Exhibit 22). The Member was disciplined for this incident (Exhibit 23).

89Mr. Zupo testified that he was upset to hear that the Member felt racially targeted by him. Mr. Zupo believed he had a good working relationship with the Member and had even attended the Member’s wedding. He denied targeting her and testified that he followed board policy and procedures during the investigation of this matter.

(ii) Member’s Evidence

90The Member testified that she had an excellent relationship with Person B and denied yelling at Person B. The Member testified that while she was confused to learn that a particular student would be in her class the next year, she was not unhappy with that decision and did not say that it would be irresponsible to put the student in her class. The Member testified that it was not unusual for students who were having problems with other teachers, to be put in her class. The Member did express to Person B that she felt her classroom was too small and that she was unhappy about the treatment she felt she was receiving, which she perceived to be racially motivated. However, she did not yell or scream at Person B, and Person B did not tell her to stop yelling at her. The Member testified that she spoke with Person B after the incident, explained to Person B that she was not yelling at her and apologized that Person B felt that she was yelling at her. The Member testified that she would not have yelled at Person B as she was seeking her assistance in asking Mr. Zupo for a larger classroom. The Member denied making disparaging remarks about students and testified she would never do so. She testified that she refers to the students at the School as “angels” and “innocent kids”. She values her work and believes that God purposefully made each child the way they are. With respect to the allegation that she had said “look what I have to deal with”, the Member said this comment was made with respect to her class being too small for her students and not about her students. The Member denied asking Person B to email Mr. Zupo about their amicable resolution. The Member also testified that she grieved the discipline she received in connection with these events (Exhibit 37).

(iii) Panel’s Findings

91The Panel has carefully considered all the evidence before it and prefers the evidence of Person B and Mr. Zupo over that of the Member. Both of the College witnesses were credible, clear, and consistent in their evidence. The Panel did not find evidence that either witness was motivated by anti-Black racism or that they had reason to fabricate their evidence. In particular, both Person B and the Member testified that they worked to resolve this incident amicably, and the Member herself testified that she had a good relationship with Person B. Given this evidence, the Panel finds no reason to conclude that Person B would make and maintain unfounded allegations against the Member. Similarly, Mr. Zupo testified that he thought he had a good working rapport with the Member. He also testified that he had consulted with vice-principal Ms. Lee (to whom Person B initially reported the incident) with respect to this incident. The Panel is of the view that the attendance of vice-principal Ms. Lee, who Mr. Zupo testified is Jamaican and Black, at the Member’s OTR meeting makes it less likely that this investigation was tainted by racism.

92The Panel has considered as well, that the Member did not deny expressing frustrations to Person B about her perceived differential treatment at the school, and that she did not deny saying something to the effect of “look what I have to deal with”. However, the Panel is not satisfied that the Member’s frustrations and comment in question were about wanting a larger classroom. Person B was clear and unshaken in her testimony that she understood the comments were about the students’ challenges and her contemporaneous notes of the incident do not refer to any concerns about classroom size (Exhibit 11). The Panel finds it more likely than not that the Member was trying to provide an account or explanation of the exchange that was more favourable to her (i.e., that it was about wanting a larger classroom).

93Moreover, the Member admitted that she apologized to Person B for having made Person B feel like she was being yelled at. The Panel is of the view that this supports a finding that, in expressing frustrations to Person B, the Member used an aggressive tone with and yelled at Person B.

94The Panel is therefore satisfied that the College has proven all of the allegations in Particular 7 of Exhibit 1 on a balance of probabilities, namely that the Member: yelled at Person B [particular 7(a)]; used an aggressive tone during the interaction with Person B [particular 7(b)]; made negative and/or disparaging statements to Person B about students in her class [particular 7(c)]; told Person B, “Look what I have to deal with. This is not a [XXX] classroom. Look at who I am teaching” [particular 7(d)]; and told Person B, “Look at this girl, I don’t know her name, she does not even know how to identify numbers. What am I supposed to do with her” [particular 7(e)].

(c) Particular 8 – December 11, 2015 Events Regarding Person C

95The Panel heard evidence from Ms. Walker, Person C, Person B, Mr. Zupo, and the Member about the events occurring on December 11, 2015 and found that the College proved these allegations on a balance of probabilities.

(i) College’s Evidence

Ms. Walker

96Ms. Walker testified that the School had a fire drill on December 11, 2015, during which she was asked by the Member to find a student who had separated from the rest of the class. Ms. Walker found the student but was asked by the vice-principal to bring the student inside as the student was becoming aggressive. Ms. Walker therefore sat with the student on a bench in the hallway by the front door of the School, trying to calm the student down, until her father came to pick her up from School. At some point near the start of the lunch hour, the Member approached her in the hallway, annoyed, and asked why Ms. Walker was not back in the Member’s class. Ms. Walker directed the Member to Person C for an explanation as Person C had given Ms. Walker some direction on what to do with the student. Person C was in the hallway at the time, helping students get ready to leave for an off-site program. It was busy in the hallway and Ms. Walker was unable to hear exactly what the Member said to Person C but observed the Member to be angry. Ms. Walker testified that she heard the Member yell at Person C for one or two minutes, wanting to know why Ms. Walker was not yet back in the Member’s classroom.

97Ms. Walker testified that the Member’s voice during the exchange was excessively loud, beyond the level of the Member’s normal voice, which is generally louder than other teachers’ voices. Ms. Walker testified that Person C was upset by the interaction. Ms. Walker felt badly about the Member’s conduct toward Person C. Ms. Walker apologized to Person C for the Member’s yelling. Ms. Walker was surprised at why the Member was annoyed as it was evident Ms. Walker was still attending to the student who had gone missing during the fire drill. Ms. Walker disagreed with the suggestion that the Member did not come to see her but had merely come to seek help and advice from Person C. Ms. Walker was upset and stressed by the situation, which she thought could have been resolved in a better way. Ms. Walker emailed Mr. Zupo about these events approximately a week later. Ms. Walker also spoke with Mr. Zupo about the incident. In her email, she wrote that she perceived the Member to have yelled at Person C (Exhibit 4).

Person C

98Person C testified that she was organizing students in the hallway in front of the School’s main doors to leave to participate in a program that took place outside the School, when the Member approached her. The Member came down the hallway and loudly asked her why Ms. Walker was in the hallway, why Person C had taken Ms. Walker out of the classroom, and also said that she (the Member) could not function with just one educational assistant. Person C was confused because she did not know at the time why Ms. Walker had been in the hallway. Person C testified that the Member’s voice was raised, and that the Member was angry and frustrated during this exchange. Person C was embarrassed that the Member was yelling at her in front of her peers and students and told the Member not to yell. The Member said she was not yelling. Person C told the Member she was getting her students ready to leave and left with her students for their outing. Person C recalled that one or two students asked why the Member was angry and she felt embarrassed by this.

99Person C subsequently documented this incident in an email to Mr. Zupo (Exhibit 7) at the advice of Mr. Zupo and vice-principal Ms. Koehn. Her email notes that the Member had raised her arm toward Person C. Person C then met with Mr. Zupo to discuss the incident. Mr. Zupo took notes at that meeting. During the hearing, Person C was presented with and confirmed that Mr. Zupo’s notes were consistent with what she told him during the meeting. Person C testified that she emailed the Member about the incident. The Member then came to see Person C and “basically apologized”. The Member told Person C that she did not think she was yelling and that she talks in a loud voice because of her culture. Person C did not have many interactions with the Member but recalls at least one other time when the Member raised her voice.

Person B

100Person B testified that she was with Person C getting students ready for the outing, when the Member approached Person C. The Member seemed upset, pointed directly at Person C, and yelled at her about taking Ms. Walker away from her class. The Member did this in the presence of other students and staff in the hallway. Person B testified that the Member’s voice was raised and her tone was angry and that the exchange lasted several minutes. Person B said that she was made uncomfortable by the exchange, that students appeared uncomfortable, and that Person C seemed frustrated. Person C told the Member she did not appreciate the manner in which she was being spoken to. Person B sent a written report of the incident to Mr. Zupo in an email on December 16, 2015 (Exhibit 14), noting the Member’s tone toward Person C was “accusatory” and “aggressive in nature”.

Mr. Zupo

101Mr. Zupo testified that Person C spoke with him in his office regarding the events of December 11, 2015. Mr. Zupo stated that Person C appeared visibly upset in their meeting. Person C reported that the Member pointed her finger at her and yelled in an aggressive manner, while standing close to her. Mr. Zupo asked Person C to document this incident and met with Person C to follow-up with her on her report. His notes from this follow-up meeting indicate that Person C reported the Member had used an “accusatory” tone and Person C had asked the Member to stop yelling at her (Exhibit 25). Mr. Zupo also interviewed Person B, Ms. Walker, and another teacher who was present during the incident, and two students who had witnessed the incident. Mr. Zupo also testified that he spoke with Ms. Louise Tedoldi, a Black teacher from Africa, for insight about cultural issues that might be at play and learned that there is a distinction between speaking loudly and aggressively raising one’s voice or yelling.

102Mr. Zupo interviewed the Member about the events and made notes about the Member’s responses to his questions during the OTR meeting (Exhibit 26). The Member shared that she was angry that Ms. Walker was not in her classroom. It had not been communicated to her why Ms. Walker was not in her classroom or where Ms. Walker was. The Member admitted to Mr. Zupo that she had thought it was Person C’s fault that Ms. Walker was removed from the classroom. The Member denied pointing her finger at Person C and told Mr. Zupo that she had been carrying things at the time. The Member also denied yelling at Person C but advised that it was her culture to speak loudly and she did not feel she was yelling or had done anything wrong.

103After discussing the results of the investigation with employee services, the Member was disciplined in accordance with the Board’s progressive discipline process (Exhibit 30). Mr. Zupo was not aware that the Member grieved this discipline, and he did not know the results of the grievance. Mr. Zupo also testified that he met with the Member and Person C and attempted mediation with them at the Member’s request.

(ii) Member’s Evidence

104The Member testified that she was in the hallway to check her mailbox at lunchtime after the fire drill on December 11, 2015. She saw Ms. Walker in the hallway with the student who had gone missing during the fire drill. Ms. Walker apologized to the Member for not returning to class and advised the Member that the vice-principal had wanted her (Ms. Walker) to stay with the student. The Member testified that other staff, including Person C and Person B were also present in the hallway at the time and that she ran to Person C to speak to her about how things changed since the student was placed in her class. The Member testified that she asked for Person C’s help regarding Ms. Walker working one-on-one with the student and leaving the Member with one educational assistant to assist with the rest of the class. On this particular day, the other educational assistant was absent and the Member had to conduct her class without any educational assistants supporting her.

105The Member testified that she did not accuse Person C of taking Ms. Walker away from the classroom; the Member had asked Ms. Walker to find the student during the fire drill. The Member testified that Person C told her she was yelling and that she in turn explained she was not yelling at Person C, but rather was asking Person C for help with the situation and apologized for Person C feeling that way. The Member testified that she was not frustrated when she was speaking with Person C and that she would not have yelled or been aggressive toward Person C. Person C was the only individual at the School who had helped her and she was grateful for the assistance Person C provided in getting her a larger classroom. The Member testified that she talks with her hands, but denied raising her arms or pointing at Person C. She also denied that Person C told her to stop yelling, explaining that if Person C had told her to stop yelling, the Member would have stopped and begged her forgiveness. The Member testified that she did not have ongoing tensions with Person C following this interaction.

106According to the Member, she subsequently met with Mr. Zupo for an OTR meeting, tried to explain what had happened, and asked for an opportunity to talk with her staff but was not provided with that opportunity. She was disciplined and grieved that discipline. That grievance was settled in January 2018 (Exhibit 38).

(iii) Panel’s Findings

107The Panel finds that the College’s witnesses were credible and reliable. They were clear in their testimony and consistent in their accounts of the Member’s interaction with Person C and with the notes that they made relatively contemporaneously to the event in question. Ms. Walker was upfront about not being able to recall exactly what she heard the Member say to Person C. The Panel did not find evidence to suggest the witnesses were biased in their accounts, particularly with respect to concerns of anti-Black racism. As noted in the Panel’s findings on particular 7, the Panel is satisfied that Person B had a good relationship with the Member and would not be motivated to fabricate evidence against the Member. Additionally, there was no evidence to suggest that Person C and the Member had a negative relationship such that Person C would fabricate or exaggerate her evidence. Rather, the Member testified that Person C provided her with assistance in getting a larger classroom. Finally, Mr. Zupo testified that the decision to discipline the Member was made after consultation with employee services and that he spoke with Ms. Louise Tedoldi, a Black colleague from Africa to gain insight about cultural factors that might be influencing the Member’s conduct.

108The Panel has considered the Member’s testimony that she did not yell at Person C because she was grateful for the assistance Person C provided her in getting a larger classroom, and that she had approached Person C in the hallway to ask for assistance with not having enough support in her class. The Panel has also considered the Member’s explanation that she was not yelling at Person C but speaks loudly as a result of her cultural background. The Panel acknowledges that the Member may generally speak loudly as a result of her cultural background. However, the Panel was persuaded by Ms. Walker’s evidence that the Member used a volume that was louder than what is normal for the Member. Ms. Walker was an educational assistant in the Member’s classroom and would have been familiar with the Member’s regular speaking volume. Further, according to Ms. Walker, Person B, and Mr. Zupo, the effect of the Member’s conduct was that Person C was made visibly upset by their interaction. As well, Person B was made to feel uncomfortable and Ms. Walker was upset and stressed by what she observed. Given the consistency of the evidence of the College’s witnesses about their observations of the Member and the negative impact of the Member’s conduct, the Panel finds that it is more likely than not that the Member’s conduct (i.e., the tone, volume, and gestures used by the Member) was aggressive, angry, and accusatory and not merely due to cultural differences in communication styles.

109The Panel therefore is satisfied that the College has proven on a balance of probabilities all of the allegations in Particular 8 of Exhibit 1, namely that the Member: used a disrespectful and/or unprofessional tone in her interaction with Person C [particular 8(a)]; exhibited an aggressive demeanour towards her [particular 8(b)]; spoke at a volume which was excessively loud to her [particular 8(c)]; and raised her arm with fingers extended and/or pointed in Person C’s direction [particular 8(d)].

(d) Particular 9 – Between September 2016 and October 2016, the Member told the Student words to the effect that, “If you don’t stop biting your arm, I’ll cut it off and make soup with it”

110The Panel heard from Ms. Walker, Mr. Zupo, and the Member regarding this incident and does not find that the College proved this allegation on a balance of probabilities.

(i) College’s Evidence

Ms. Walker

111Ms. Walker testified that she heard the Member make the comment “If you don’t stop biting your arm, I’m gonna cut if off and make soup with it” when the Student engaged in self-harming behaviour. However, Ms. Walker could not recall a particular incident when this happened. Ms. Walker testified that the comments about cutting off the Student’s arm and making soup with it were not consistent with the strategies in place to help the Student. She testified that she felt that the Member did not give appropriate direction on how to deal with the Student. Rather than the Member making such comments, Ms. Walker testified that the Member and her staff should have worked together as a team to come up with strategies for dealing with the Student’s self-harming behaviour. During cross-examination, Ms. Walker disagreed with the suggestion that the Member made a different comment that helped the Student stop her self-harming behaviour.

Mr. Zupo

112Mr. Zupo testified that he met with the Member regarding several concerns about her conduct. His notes from their meeting on December 19, 2016 (Exhibit 29) indicate that the Member acknowledged telling the Student in the past that if she does not stop biting her arm, the Member would cut it off and make soup with it. When asked about the particular school year in question, the Member said she would tell the Student, “if you bite your arm I will make soup” (or words to that effect) anytime the Student engaged in biting behaviour. The Member told Mr. Zupo that this was a strategy she used in class to curb the Student’s biting behaviour, that the Student’s mother was aware this strategy was being used, and that it had led to a reduction in the frequency with which the Student engaged in this self-harming behaviour. The Member received a discipline letter from the Board in relation to this inappropriate comment, among other things (Exhibit 30).

(ii) Member’s Evidence

113The Member admitted that she did make a comment regarding the Student’s arm biting but denied making the statement “if you don’t stop biting your arms, I’ll cut it off and make soup with it”. Rather, the Member testified that she said, “if you keep biting and your hand falls off, we’ll make soup” and “remember, if you bite your hand, it will fall off and Ms. O will make soup”. The Member testified that the reference to making soup with the Student’s hand was not meant to threaten Student but was a joke and was a technique she developed and used, in her discretion with respect to classroom management, to reduce the Student’s biting behaviour even before Ms. Walker had joined the class. The Member testified that the Student’s mother was aware she relied on this strategy and that the educational assistants in the class would also use this strategy. The Member acknowledged the strategy was not outlined in the Student’s safety plan (Exhibit 45) or the Student’s IEP but testified that safety plans are working documents and that IEPs may not include every piece of information about a student.

(iii) Panel’s Findings

114The Panel finds that the College’s witnesses were credible, reliable, clear and consistent in their testimonies, whereas there were some inconsistencies in the Member’s recollection of the relevant chronology of events, which raised some concerns about the Member’s credibility. In particular, the Member testified that 2015-2016 was the first school year that the Student was in her class. She also testified that the “soup” technique was in place before Ms. Walker had joined her class. However, Ms. Walker testified that she was a special needs assistant for the Member’s class during the 2015-2016 and 2016-2017 academic years. The Member was unable to provide clear responses when cross-examined on this point and said that she did not recall the dates in question but reiterated that the strategy had been in place before Ms. Walker joined her class. The Member also stated she was under the impression that Ms. Walker saw that the strategy worked well with the Student and would not likely have reported it to administration. Regardless of the Member’s inability to recall the chronology of events, the Member admitted at her OTR meeting and at the hearing that she made comments to the Student about making soup with the Student’s arm whenever the Student engaged in self-harming behaviour.

115While the evidence suggests the Member made comments about making soup with the Student’s arm with some regularity, the Panel did not receive evidence from any of the witnesses that the Member made a ‘soup comment’ specifically between September 2016 and October 2016. Ms. Walker was not able to recall a specific incident in the material time frame. Mr. Zupo similarly did not refer to a particular incident when he spoke with the Member about this comment. He asked the Member during the OTR in December 2016 whether she had made the soup comment that school year (i.e., starting September 2016), but the Member could not say with certainty whether she had (Exhibit 29), and the Board’s discipline letter did not make specific reference to when in the school year the Member had made the soup comments. Absent any evidence of specific incidents between September 2016 and October 2016, the Panel does not find that the College has proven on a balance of probabilities that, between September 2016 and October 2016, the Member told the Student words to the effect that, “If you don’t stop biting your arm, I’ll cut it off and make soup with it” [particular 9].

(e) Particular 10 – the Member yelled at or used an excessively loud voice with the Student at the [XXX]

116The Panel heard evidence from Ms. Walker, Mr. Zupo, and the Member regarding the events that occurred at the [XXX] and found that the College proved this allegation on a balance of probabilities.

(i) College’s Evidence

Ms. Walker

117Ms. Walker testified that the School went on a trip to [XXX] on September 30, 2016. On that day, she was responsible for helping the Student in the Member’s class. Ms. Walker had been working with the Student for approximately a year by this time and was aware that the Student would scream and engage in self-harm by biting her forearm when she was anxious or agitated or when she did not want to do things.

118Ms. Walker and her class watched a dog show at the [XXX]. There were approximately 50 people watching the dog show. Ms. Walker was standing behind the Student, and the Member was seated with other students off to Ms. Walker’s right side. The dogs were not particularly loud, but the children attending the show were cheering and clapping excitedly. At some point, the Student started to scream and make noises, which indicated to Ms. Walker that the Student would soon start to harm herself. Ms. Walker tried to go to the Student but got pushed down and fell. Ms. Walker heard the Member yelling at the Student, telling her in a very loud voice to stop biting her arm. Ms. Walker testified that the Member’s yelling seemed to worsen the situation. The Student did not stop biting her arm until Ms. Walker came and was able to calm her down. Ms. Walker then took the Student to the St. John Ambulance bus on the premises to attend to the Student’s arm.

119Ms. Walker testified that she was made uncomfortable by the incident because yelling, in general, escalates the Student’s behaviour and is contrary to the safety plan that was put in place for the Student. Ms. Walker explained that the Student’s safety plan suggests talking in a calm voice and using minimal words to de-escalate the Student’s self-harming behaviour (Exhibit 45). During cross-examination Ms. Walker agreed that the Member was responsible for dealing with student issues, that it would have been problematic if the Member had not responded to the Student, and that it was reasonable in the circumstances for the Member to have yelled. However, Ms. Walker testified that it would have been preferable had she (Ms. Walker) been allowed to deal with the Student, as she was standing closely behind her, and for the Member to have avoided using a raised voice. Ms. Walker documented the [XXX] incident (Exhibit 5) after the vice-principal, Ms. Koehn, asked her about the incident and if there were other incidents that Ms. Walker observed which made her uncomfortable.

Mr. Zupo

120Mr. Zupo testified that he received a report from Ms. Walker about the events at [XXX]. He spoke with the Member about the incident and his notes from that meeting indicate the Member said she was far away from the Student when she spoke to her, that she was firm in telling the Student to stop biting her arm, but denied yelling at the Student. The Member did, however, acknowledge that others may have perceived her to be yelling (Exhibit 29). The Member received discipline from her Board in relation to this incident (Exhibit 30).

(ii) Member’s Evidence

121The Member testified that she had assigned Ms. Walker to assist the Student at the class trip to the [XXX]. During the trip, when the Student started biting her hand, she held onto the Student and reassured her, in a firm manner, that she (the Student) was okay. During her examination in chief, the Member testified that she, Ms. Walker and the Student were all sitting at the front of the field to watch the dog show. Later, during cross-examination, Member was presented with Mr. Zupo’s notes of her OTR meeting where she indicated she had been far from the Student at the [XXX] (Exhibit 29). The Member testified that the notes were incorrect, and she did not say that the Student had been far away. The Member testified that she was sitting with the Student, and Ms. Walker had been far away during the dog show, and that Ms. Walker fell while trying to find her way through the crowd to the Student. By the time Ms. Walker arrived, the Member had been able to calm the Student down, and gave the Student to Ms. Walker, who took her to a First Aid station. The Member denied yelling at the Student or using an excessively loud voice, although it was noisy around them. The Member stated that she had no reason to yell at the Student for her disability. The Member grieved the discipline she received in relation to this incident (Exhibit 38).

(iii) Panel’s Findings

122Overall, the Panel finds that Ms. Walker and Mr. Zupo were credible, clear, and consistent in their evidence. The Panel did not find evidence that either witness was motivated by anti-Black racism or that they had reason to fabricate their evidence. Ms. Walker was upfront about details she could not recall, including whether she had worked with other Black staff at the School. Ms. Walker was also upfront about feeling unsupported by the Member with respect to how she and the other staff were to deal with the Student. The Panel does not consider this latter statement to negatively impact Ms. Walker’s credibility. There was nothing to suggest that Ms. Walker had an interest in the outcome of the hearing. Similarly, the Panel notes that Mr. Zupo was upfront about the steps he had taken in his investigation and admitted he did not recall whether he had raised the issue of how loud it had been at the [XXX] at the time of the incident.

123Having considered all of the evidence before it, the Panel prefers the evidence of the College witnesses. The Panel has come to this conclusion in light of the following inconsistency in the Member’s testimony. The Member first testified that she sat with Ms. Walker and the Student at the front of the field where the dog show took place. However, in the course of recounting what happened when the Student started biting her hand, and during cross-examination, the Member changed her version of events and said that Ms. Walker had actually been far away from the Student. The Member was asked about Mr. Zupo’s notes of the OTR which recorded the Member as having said, “When I spoke to [the Student] I was far away” (Exhibit 29). The Member denied saying this during the OTR meeting. The Panel is satisfied that Mr. Zupo’s notes are accurate and considering that the Member had assigned Ms. Walker to assist the Student at the [XXX], the Panel finds it more likely than not that Ms. Walker was close to the Student at the time of the incident.

124The Member also testified that she was firm when she spoke with the Student but did not yell at her. Mr. Zupo’s notes of the OTR meeting recorded the Member saying she used her “normal”, “every day” tone with the Student, and told the Student to stop biting “like [she] usually tell[s] her”. When asked whether it was possible that others could have perceived her to be yelling at the Student, the Member acknowledged that others perceive her to be yelling when she talks. In this instance, however, the Panel is finds that it is more likely than not that the Member did yell or use and excessively loud voice with the Student. As discussed with respect to particular 9 regarding the soup comments, Ms. Walker had been an educational assistant in the Member’s class in the 2015-2016 school year, as well as at the time of the [XXX]. The Panel is satisfied that Ms. Walker would have been familiar with the Member’s everyday voice and was in a good position to distinguish the Member’s normal voice from yelling. The Panel is of the view that if the Member’s account was correct it is unlikely that Ms. Walker would have reported this incident to the administration, maintained at the hearing that the Member was yelling that day, or testified that the Member’s actions were contrary to the Student’s safety plan. Ms. Walker has no incentive to fabricate allegations against the Member.

125The Panel is therefore satisfied that the College has proven on a balance of probabilities that on or about September 30, 2016, the Member yelled at and/or used an excessively loud voice with the Student in the presence of other staff, students and/or visitors at the [XXX] [particular 10].

(f) Particular 11– October 2016 Regarding Person D

126The Panel heard evidence from Person D, Mr. Zupo, and the Member about the allegations that the Member yelled at and/or used an excessively loud voice to express her displeasure with Person D’s performance in the presence of other staff and/or students, and inappropriately commented on the care Person D provided to a student. The Panel found that the College proved these allegations on a balance of probabilities.

(i) College’s Evidence

Person D

127Person D testified about two incidents involving the Member. The first event was with respect to a student who lived in a [XXX] and the School’s breakfast program. Person D was responsible for helping this student to get on and off his school bus. The School expected students to be in class by 8:55 a.m., and the Member took attendance at the beginning of class. However, the student’s bus was often late and the student would not be able to participate in the breakfast program as scheduled.

128Person D testified that it was not against School policy to give the student food, and she had originally given the student food in the Member’s classroom. However, the Member expressed that the student should not eat in front of the other students in the class. As such, Person D would take the student to the cafeteria upon his arrival before taking him to the Member’s class. Person D testified that there was not much in the way of programming at the beginning of the morning and the student would miss between two and five minutes of class time when he ate breakfast in the cafeteria. She was aware that the Member’s preference was for the student to come directly to class and recalled that someone (she could not recall whom) warned her not to let the Member see her allowing the student to eat in the cafeteria. Person D was not aware that the student’s late arrival would disrupt the attendance process, though she was aware that teachers would have to speak with administration to revise attendances.

129On one occasion, the Member was standing outside the open door of her classroom and saw Person D and the student in the cafeteria (which is directly across from her classroom). The Member yelled at them to come to class. Person D testified that the Member sounded angry, and used a loud, stern, and demanding voice. Person D testified that there were students inside the Member’s classroom at the time. Person D acknowledged that the classroom was generally noisy but disagreed with the suggestion that the Member had to yell because, according to Person D’s testimony, the classroom was not loud at the relevant time. The students in the classroom were non-verbal and the Member was standing in the doorway outside her classroom when she yelled at Person D. The interaction lasted three or four minutes. Person D testified that she liked the Member and did not want to get the Member in trouble. She hoped to speak with the Member again and eventually work out a way for the student to get some food. Person D did not initially report this incident to anyone, but later outlined the incident in an email to vice-principal, Ms. Koehn. In that email, Person D wrote that the Member said to her, “I know what you are doing with [the student] with the food and you know that is not right” (Exhibit 16).

130The second incident involved a student who wore [XXX] on his legs and required the assistance of a [XXX]. Person D testified that staff would generally push the student in his [XXX] to the gym or would guide and support him as he walked with his [XXX] to the gym because he was unable to walk by himself. On one occasion, the Member saw Person D pushing this student to the gym in his [XXX] and yelled at Person D in a loud, very stern, and condescending voice, asking, “What are you doing? Why are you pushing him? He needs to walk”. Person D testified that the Member used a voice that was louder than her normal volume. Person D told the Member “okay” and left with the student. Person B, who had been talking with the Member and who had observed the exchange, later asked if Person D was okay. Person B told Person D that she had spoken with the Member about the exchange and that she believed the Member had been unprofessional. Person B advised Person D to speak to administration about the incident, but Person D did not do so immediately. Person D eventually reported this incident, among other concerns, in her email to Ms. Koehn on November 7, 2016 (Exhibit 16).

131Person D testified that she was made to feel like a child on both occasions by the Member’s yelling. She described feeling “not good”, small, and demeaned. Person D testified that the Member’s conduct had created a negative working environment for her that prompted her to start looking for another job. Person D did not feel like an equal team member, particularly when the Member said that she (the Member) was a teacher and therefore knew better.

Mr. Zupo

132Mr. Zupo testified that Ms. Koehn had forwarded him a copy of Person D’s November 2016 email regarding concerns over the Member’s conduct (Exhibit 28). He asked staff to document the incidents and met with them. He met with the Member as well, to discuss the incidents in question. Mr. Zupo’s notes from his meetings with the Member (Exhibit 29) record the Member as stating that she did not raise her voice at Person D and did not use an angry tone with Person D when addressing the breakfast issue. The Member also denied the incident regarding the student with [XXX]. After consulting with the Superintendent and employee services, it was decided that the Member would be disciplined (Exhibit 30).

(ii) Member’s Evidence

133With respect to the breakfast incident, the Member testified that she saw Person D through the door of her class, sitting with a student who was eating in the atrium outside of the cafeteria. The Member opened the door of the classroom and told Person D to bring the student to class, which Person D did. She raised her voice so that Person D could hear her but does not consider herself to have yelled. The Member denied expressing displeasure at Person D and testified that Person D gave no indication that she was upset and they did not talk about the exchange afterward.

134The Member explained that she allowed her students to eat their snack in class and that she had arranged for her educational assistants to bring breakfast from the kitchen to be eaten in her classroom. Person D was aware of this practice. She also testified that she had told Person D that she should bring the student from his bus to the classroom, so that the Member would know that he has arrived at School.

135With respect to the incident in which Person D pushed a student in his [XXX], the Member testified that she told Person D to stop pushing the student but denied using an angry or condescending tone toward Person D. The Member testified that she does not communicate with staff in that way as she views them as part of a team. The Member grieved the discipline she received in relation to these incidents (Exhibit 38).

(iii) Panel’s Findings

136The Panel prefers the evidence of Person D and Mr. Zupo over that of the Member. Both of the College witnesses were credible, clear, and consistent in the material details of their evidence. The Panel did not find evidence that either witness was motivated by anti-Black racism or that they had reason to fabricate their evidence. Person D testified that she has worked with several Black teachers and the Member is not the first Nigerian individual with whom she has worked. Person D testified that she had a good working relationship with the staff at school, including the Member. The Member herself testified that she never had an issue with Person D. Person D was upfront about details she could not recall, including, whether she had read the IEP for the student from the [XXX] or if the student with the [XXX] was expected to wear his [XXX] and walk throughout the day. She was also upfront about feeling unsupported by the Member in her class and in testifying that she had wanted to be transferred out of the Member’s class. The Panel does not consider Person D’s credibility to have been compromised by these sentiments. Person D ultimately did move to another class and there was nothing to suggest that Person D had an interest in the outcome of the hearing.

137The Panel notes that the Member admitted raising her voice to address Person D and the student in the atrium of the School, to get them to come to class. However, she seemed to suggest that she had not acted inappropriately because Person D did not give any indication that she was upset. The Panel finds that the Member’s admission that she raised her voice is not inconsistent with the Person’s D’s evidence of the volume of the Member’s voice and that it is not persuasive to rely on the Member’s testimony that Person D did not appear upset by the exchange. The Panel is of the view that it is reasonable that Person D did not indicate that she was upset at the time and that one’s outward demeanor may not reflect one’s internal emotional state. There could be several reasons why Person D may not have wanted to show her emotions in front of the Member and the student she was with. Person D testified, however, that she felt demeaned by the Member’s conduct. Person D was clear that that the Member appeared angry, and used a loud, stern, and demanding voice at her, and that the Member did not have a reason to yell given the classroom was not loud at the relevant time. The Panel is satisfied that the Member yelled or used an excessively loud voice to address Person D.

138Further, Person D’s report of the incident notes that the Member told Person D, “I know what you are doing with [the student] with the food and you know that is not right” (Exhibit 16). The Panel heard from the Member that she had a preferred procedure for giving her students breakfast. Person D testified that she was aware of this procedure, and that someone warned her not to let the Member see her allowing the student to eat in the cafeteria. The Panel accepts that Person D’s notes are accurate and that the Member made a statement that expressed displeasure with Person D not following the preferred procedure for breakfast. Considering Person D’s evidence of the tone used by the Member and that Person D was made to feel small and demeaned, the Panel is of the opinion that the Member expressed her comments about the care that Person D was providing, in an inappropriate manner.

139With respect to the incident involving the student in the [XXX], the Panel notes that Mr. Zupo’s notes of the OTR indicate that the Member denied the incident, saying “Nothing like this occurred” (Exhibit 29). However, the Member acknowledged at the hearing that there was an incident when she told Person D to stop pushing the student in his [XXX]. The Member denied using an angry or condescending tone with Person D. The Panel did not hear evidence to doubt the accuracy of Mr. Zupo’s notes and finds the inconsistency between the Member’s denial at OTR and her testimony at the hearing reduces the Member’s credibility. On the other hand, Person D was consistent in her report of events to Ms. Koehn and during the hearing that the Member had yelled at her, and addressed her in a stern voice, asking, in the presence of other staff and the student, “What are you doing? Why are you pushing him? He needs to walk”. Having considered Person D’s clear and concise testimony that she was made to feel ‘not good’, small, and demeaned on this occasion, the Panel finds that the College has proven on a balance of probabilities that the Member yelled at or used an excessively loud voice to express her displeasure Person D’s performance with the student in the [XXX] and commented about the care Person D provided to this student in an inappropriate manner.

140The Panel notes that Person D did not specifically confirm whether the events she testified about occurred in October 2016. However, Mr. Zupo’s notes from his OTR meeting with the Member and the subsequent discipline letter relating to these events (Exhibit 30) record them as having occurred in October 2016 and the Member did not dispute this.

141Having considered all the evidence, the Panel finds that the College has proven, on a balance of probabilities that in October 2016, that the Member yelled at and/or used an excessively loud voice to express her displeasure with Person D’s performance in the presence of other staff and/or students; and commented on the care provided by Person D to a student and/or students in an inappropriate manner [particular 11].

Notice of Hearing Dated December 4, 2019 (Exhibit 2)

(a) Particular 4 – May 3, 2018 – Regarding Student 1

142The Panel heard from several witnesses about the allegations that the Member hit and taunted Student 1. The College presented evidence from Ms. Gaffar, Person C, Mr. Stephenson, and Mr. Wilson. The Panel also heard from the Member and Student 1. The Panel found that the College proved these allegations on a balance of probabilities.

(i) College’s Evidence

Ms. Gaffar

143Ms. Gaffar testified that on the morning of May 3, 2018, she was assisting students in their classroom and heard the Member and Student 1 talking loudly with each other by the Member’s desk. She looked at the Member, and the Member said that Student 1 wanted to fix the mistakes he had made on his [XXX] sheets, but the Member did not want to give them to him because she was not able to assist him at that time. Ms. Gaffar saw Student 1’s [XXX] folder on the Member’s desk and noticed that Student 1 was trying to get his folder. Ms. Gaffar returned to working with the other students but then heard Student 1 say a little later, “ouch-you hit me”. Ms. Gaffar testified that Student 1 does not usually say statements like this and said she knew it was Student 1 who made that comment because it was a male voice, Student 1 and the Member were the only individuals in the area where the sound came from, and the other male students in the class were quiet and not as verbal as Student 1. Ms. Gaffar did not see the Member hit Student 1. She did not ask Student 1 or the Member if the Member had actually hit Student 1, but asked Student 1 if he was okay. Student 1 said he was okay, so Ms. Gaffar continued working with the other students.

144Later that day, the class attended a concert in the School auditorium. Ms. Gaffar sat some ways away from the Member but observed that the Member became upset at the end of the concert, when a student went up on stage to give the performers a thank you note. Ms. Gaffar later learned that the music teacher had wanted Student 1 to give the thank you note to the performers and that Student 1 was supposed to have taken a half hour for lunch and then go to the music teacher who would guide him on what to do at the end of the performance. However, Student 1 did not go to the music teacher, and instead went to the library to use a computer.

145Ms. Gaffar testified that Student 1 tapped the Member on her shoulder at the end of the concert, and she told him, “don’t touch me”. Student 1 tried to get the Member’s attention on their way back to class and the Member continued to tell him not to touch her. Ms. Gaffar testified that it was not unusual for Student 1 to tap the Member on the shoulder; that was his way of getting someone’s attention.

146Ms. Gaffar testified that things started to escalate once they returned to the to the classroom. Student 1 started getting really upset when the Member told him not to touch her. Both the Member and Student 1 were speaking very loudly. Student 1 started biting himself and walking back and forth. Ms. Gaffar said that she could see he was getting restless and angry and thought his behaviour seemed threatening. She became concerned that he might hurt himself or others.

147At some point, the Member told Student 1 words to the effect of, “don’t hit me. If you hit me, I’ll hit you. I’ll call the cops on you and I’ll call your mom”. Ms. Gaffar testified that Student 1 then tried to grab the wires of the headphones that the Member was wearing at the time. When he did this, the Member hit Student 1 on the shoulder with her hand and Student 1, in turn, hit the Member on her arm. Ms. Gaffar does not think they hit each other very hard. The Member and Student 1 (whom Ms. Gaffar described as being a [XXX], [XXX] boy) were both standing at the time and were both stable even after they hit each other. The Member said loudly that she was going to call the police.

148Ms. Gaffar stepped out of the classroom and told another educational assistant who was in the hallway to call the principal or a vice-principal because they needed help in the classroom. The Member did not call the office for assistance. When Ms. Gaffar returned to the classroom, the Member was speaking to the police. Shortly thereafter, a vice-principal, the principal, and the ACL for Guidance came to the classroom. A staff member took Student 1 out of the classroom while the vice-principal and the principal spoke with the Member. The classroom became calm once Student 1 left. It was nearly the end of the school day by this point, so Ms. Gaffar took the remaining students out to the hallway a little earlier than usual to get them ready to go home. Ms. Gaffar is not sure what happened afterwards between the Member and Student 1.

149The day after this exchange, Ms. Gaffar was called into the principal’s office to describe what had happened. The vice-principal was present and typed notes of this discussion. Ms. Gaffar was presented with these notes during the hearing and confirmed that they were an accurate record of what she told the principal (Exhibit 31). Ms. Gaffar was not asked to document the incident but made notes of her own accord for her records. She did not speak to anyone else about the incident except the Board investigator, Mr. Wilson. Ms. Gaffar affirmed that the investigator’s notes reflect her recollection of the incident (Exhibit 35).

150Ms. Gaffar testified that the exchange was upsetting to both herself and the other students in the Member’s class. One of the students started biting herself and another was hiding behind Ms. Gaffar and another educational assistant. Ms. Gaffar testified that she was aware that Student 1 had a history of being violent toward staff, but did not observe any such behaviour herself and was not aware of the details of any of these incidents. Ms. Gaffar testified that the Member did not take any steps during the exchange to de-escalate Student 1’s behaviour. Rather, the Member’s behaviour (i.e., speaking in a very loud voice and her choice of words) provoked Student 1 and was not consistent with Student 1’s safety plan, which indicated that Student 1 should be given space or be moved to a calmer spot when triggered.

Person C

151Person C testified that on May 3, 2018, she was asked by the vice-principal to accompany him to the Member’s classroom. She could not recall who called the administration for assistance. When they got to the classroom, the Member and Student 1 were engaged in a verbal confrontation and Person C could hear the Member from the door. The Member was standing almost face to face with Student 1, had her cell phone in her hand and was saying she was going to call the police. Student 1 was upset and crying and asking the Member not to do so. Person C and the vice-principal had Student 1 sit, quickly calmed him down, and asked the Member if she was okay. The Member said she was okay but indicated that she wanted to call the police.

152As the Member started to recount what had happened, Student 1 started getting upset and approached the Member. The Member started saying “hit me, hit me – I’ll call the police”. Person C thought the Member’s tone of voice was antagonizing, as the Member provoked Student 1 to “just try it”. Person C recalled the Member had said that she wanted to call the police to teach Student 1 a lesson. Person C observed Student 1 hit the Member on the arm. Person C heard the Member say she would call the police and she then did so. Student 1 was then taken to a different classroom; he was not restrained and left the classroom voluntarily and under his own power. The principal eventually came to the classroom. Person C went to check on Student 1 and saw that he was writing in his journal in the other classroom. Person C then went back to her office and documented the incident (Exhibit 8). Person C recounted in her incident report that the Member repeatedly asked Student 1 not touch her.

153Person C testified that she was aware that Student 1 had engaged in violent behaviour in the past and acknowledged that Student 1 is a [XXX] and [XXX] individual, and [XXX] than the Member. Person C testified that Student 1 appeared agitated, but she was not afraid of him during the incident.

154Person C was presented with the suggestion that Student 1 might have hit the Member prior to Person C arriving at the classroom. Person C maintained that even if that were the case, the Member’s confrontation of the student was inappropriate and avoidable. Person C testified that the typical procedure when a student tries to hit a staff member is to try non-physical interventions, like stepping back from the student. Person C noted that it is not difficult to manage Student 1’s behaviour. Student 1 is able to calm down relatively quickly with appropriate prompts, or if removed from a triggering situation, or if re-directed to write in his journal. Further, Person C suggested the Member could have removed herself from the room, since there was another educational assistant, in addition to the vice-principal and herself who were present. Person C testified that the tone and volume used by the Member during the exchange with Student 1 were inconsistent with Student 1’s safety plan.

Mr. Stephenson

155Mr. Stephenson was the vice-principal who attended the Member’s classroom in response to a call for assistance that day. He did not recall who called the office but said that the administration would get calls for assistance on at least a daily basis. He asked Person C to accompany him to the Member’s classroom. Mr. Stephenson testified that he regularly asks a guidance counsellor familiar with students’ safety plans to accompany him on calls for assistance.

156Mr. Stephenson testified that when he and Person C arrived, they saw the Member and Student 1 near the back corner of the classroom, in an argument. Both individuals were yelling. The Member was yelling at Student 1 not to touch her and that she would be calling the police. Student 1 was pleading with the Member not to call the police. Mr. Stephenson moved Student 1 away and directed him to a chair or a bench approximately 15 feet away, hoping to de-escalate the situation. Mr. Stephenson disagreed with the suggestion that Student 1 moved back to his desk.

157Student 1 was able to sit down and calm down but when the Member continued to say she was going to call the police, Student 1 got up again, crossed the room, and got close to the Member. Mr. Stephenson testified that the Member kept saying “hit me, I dare you”. Mr. Stephenson testified that the Member used a loud voice and spoke quickly when she said to Student 1 “hit me, I dare you”. Mr. Stephenson perceived the Member to be challenging Student 1. Student 1 hit the Member on her upper arm. The Member did not appear to be hurt by the student, as she made no vocal response to the hit and she did not move when Student 1 hit her.

158Mr. Stephenson stepped between the Member and Student 1 and turned Student 1 around. Student 1 was taken quickly out of the classroom. Student 1 was willing and happy to leave. Mr. Stephenson testified that Student 1 was immediately remorseful. Mr. Stephenson said this is typical for Student 1. Student 1 started crying, said that he did not mean to hit the Member and that he wanted to go back to apologize to her. Student 1 was brought to a different room with a Child Youth Worker and a safety monitor.

159At some point, the principal (Ms. Lilian Jovanovic) came and conferred with the Member. The police also eventually arrived. The police were provided with an initial report, and they also spoke with Student 1. Mr. Stephenson looked in on Student 1 when the police were talking with Student 1. He observed Student 1 to be writing something. Mr. Stephenson testified that the Child and Youth Worker who had been with Student 1 later gave him a note which referenced being “beat up” (Exhibit 33). Mr. Stephenson brought this note to the attention of the police and Ms. Jovanovic but the police did not take any action with respect to it.

160The next morning, he and Ms. Jovanovic spoke with Ms. Gaffar about the incident. Mr. Stephenson made notes of what was discussed at that meeting (Exhibit 31). Mr. Stephenson then contacted employee services for guidance on how to procced. Employee services advised Mr. Stephenson to wait for the outcome of the police investigation before starting an internal investigation. The Member was assigned to home pending the investigation. A couple of weeks after the incident, Mr. Stephenson was advised that the police were not going to lay charges respecting the incident. Employee services then advised him that they had assigned an investigator, Brian Wilson, to conduct an internal investigation.

161Mr. Wilson asked Mr. Stephenson some questions by email and by telephone about what had happened (Exhibit 34), and asked Mr. Stephenson to coordinate a meeting with the educational assistants and support staff who had witnessed the incident. Mr. Wilson asked Mr. Stephenson about Student 1 and Mr. Stephenson suggested to Mr. Wilson that Student 1’s recollection of events may not be useful. In his experience, students at the school typically had difficulty recalling events, including timing and sequencing. Mr. Stephenson did not have any other involvement with the investigation but was advised of its outcome. Mr. Stephenson understood that the Member would be disciplined. He does not recall having any further interaction with the Member afterward; she did not return to the School.

162Mr. Stephenson testified that it was inconsistent with Student 1’s safety plan to engage him aggressively or assertively. Rather, Student 1 was to be given space, and removed from other students or staff when triggered. In past occasions where Student 1 had outbursts against staff, they would try to de-escalate his behaviour in accordance with his safety plan. Mr. Stephenson testified that when Student 1 acted out towards staff, there had been an underlying reason for his outbursts and that Student 1 did not spontaneously hit others.

Mr. Wilson

163Mr. Wilson was the Board investigator assigned to investigate the incident involving the Member and Student 1. He contacted Mr. Stephenson in June 2018 and obtained a list of staff whom Mr. Stephenson had interviewed and the witness statements that Mr. Stephenson had relating to the May 3, 2018 incident. Mr. Wilson interviewed four individuals and obtained a statement from Person C as part of his investigation. He took notes during the interviews. He then prepared for and conducted an OTR with the Member in June 2018. Mr. Wilson testified that the Member denied all of the allegations during the OTR.

164Mr. Wilson did not interview Student 1. He explained that whether he conducts student interviews depends on the circumstances of each case, and that he declines to interview students approximately 40% of the time. Mr. Wilson testified that it is rare for him to interview students with exceptionalities. He testified that Mr. Stephenson had advised him that Student 1 was part of a [XXX] class, his communication was limited, and he had become very upset by the incident. In addition, because of the passage of time, Mr. Stephenson doubted whether Student 1 would even remember the incident. Taking these considerations into account, and that he had four adult witnesses he could interview, that it was not Student 1 who had made the allegations against the Member, and that he did not want to upset Student 1 any further, Mr. Wilson decided not to interview Student 1. Mr. Wilson testified that he was also forwarded an email from Student 1 to the Member, apologizing for what had happened and saying that Student 1 had lied to the police about the Member hitting him. Mr. Wilson said he did not give that email much consideration because he was not sure if the email came from Student 1 or his mother (he had spoken with Student’s mother previously and she had expressed similar sentiments as in the email). He believed it was likely that Student 1 was trying to minimize the situation because he liked the Member and did not want to get her in trouble.

165Mr. Wilson prepared his initial report approximately a month after his first OTR with the Member in June 2018. Mr. Wilson met with the Member again on October 5, 2018, at his manager’s request, to confirm whether the Member had made certain alleged statements to Student 1. The Member denied making the statements. Mr. Wilson’s Confidential Investigation Report states that the Member denied saying to Student 1 “just try it” or “hit me I dare you” (Exhibit 35). Mr. Wilson held a third OTR in December 2018 with the Member to investigate the allegation that the Member had punched Student 1 in the arm. Mr. Wilson sent the notes from this December 2018 OTR as an appendix to his Investigation Report. Mr. Wilson testified that he is not involved in determining whether members should be disciplined by the Board.

(ii) Member’s Evidence

The Member

166The Member testified that she had taught Student 1, who is [XXX] and part of the [XXX] stream in 2017-2018. Student 1 was placed in her class, even though it was a class for students in the [XXX] stream, because he was having difficulties with physical aggression in his [XXX] class, and she had taught him previously.

167With respect to the events at issue, the Member explained that she had arranged with the choir director for Student 1 to present the performers with a card or flowers at the end of the concert at the School on May 3, 2018. The day before the concert, the Member excused Student 1 from class in order for him to go and rehearse this. However, Student 1 went to use the computer in the library instead. The Member reminded Student 1 of the rules and expectations regarding his use of computers at the School, and the consequences for using a computer outside of his scheduled computer time (i.e., 15 minutes would be taken off his next computer time).

168The Member then described being in the auditorium for the performance. Student 1 sat close to the Member and tapped her occasionally, asking for his computer time back. The Member told him that they would talk about it when they returned to class and reminded him to keep his hands to himself and not touch others, as there is no physical contact at school. Student 1 continued to tap the Member on the way back to class. Once they returned to the classroom, the Member told Student 1 to go to his seat. He initially complied but then got up and stomped on the Member’s feet. The Member warned him that she would call the office if he did it again. He went back to his seat, then got up and stomped on her feet a second time while she was speaking with the class. The Member called the office and asked for help and for a vice-principal come to her class.

169While she was waiting for administration to arrive, Student 1 tried to grab headphones the Member had on around her neck. The Member took the headphones off and put them on her desk and told Student 1 to go back to his seat. The Member testified that she stood close to the wall because she knew that something was going to happen with Student 1. The vice-principal then came in. Student 1 saw the vice-principal, then ran toward the Member with his fists clenched. The Member told Student 1 she would call the police if he hit her. Student 1 did hit her, on her neck and shoulder with a closed fist, so she called the police.

170The vice-principal and Person C took Student 1 out of the class and the Member went back to her students. Sometime later, the police arrived. The Member only spoke to one police officer that day. The police officer said that Student 1 had written an apology (Exhibit 33) and asked if the Member had beaten Student 1 up as indicated in the apology. The Member told the police officer that she had not hit Student 1.

171The next day, the Member was called into the principal’s office and was assigned to home while they investigated the allegation that she had hit Student 1. The Member was later interviewed by Mr. Wilson on three separate occasions. The Member testified that her union representative presented Mr. Wilson with an email that was forwarded to her by her principal (Exhibit 42). The Member said this email was drafted by Student 1, not his mother (who does not speak English very well). Student 1 writes apologies regularly. At the end of the investigation, the Member was disciplined by the Board (Exhibit 41). She was suspended for 10 days without pay and moved to another school. The Member has grieved this discipline; it has been referred for arbitration.

172The Member acknowledged that Student 1’s physical outbursts are a result of being triggered in some way but denied hitting Student 1. The Member confirmed that Student 1 did try to grab his [XXX] folder from her desk in the morning before the concert, but he never said “ouch” or anything like that. The Member testified that Student 1 was not upset that morning. The Member also denied taunting Student 1 and telling him, “hit me, I dare you” and “if you touch me, I’ll hit you”. The Member testified that she told him she would call the police because she felt unsafe because of Student 1’s conduct.

Student 1

173Student 1 testified that the Member had wanted him to go to choir, but he did not want to. He snuck out and went to the library to use the computer. When he came out of the library, he got in trouble with the Member for not going to choir. Student 1 testified that he became angry at the Member and slapped her in the arm. Student 1 testified that the Member got hurt and the police were called to the school. He testified that he spoke with the police who took notes of what he told them. Student 1 testified that he blamed the incident on the Member and told the police that she had hit him. However, it was actually he who hit her. Student 1 testified that he is very frustrated that he had his favourite teacher fired. She was the only teacher he cared about in school. He got along well with the Member and she helped him with [XXX].

174Student 1 confirmed he wrote an apology to the Member (Exhibit 33). He does not know why he wrote that he got “beat up”. When he wrote that he got “beat up” he meant that the Member punished him for not listening by disallowing him to go to the library and to use the computer. Student 1 testified that the Member did not hit him.

175Student 1 also confirmed that he wrote an email to the Member in June 2018 because missed her so much. He did not mean for the Member to get fired and wanted her to come back. He testified that he wrote the email himself. He lied to the police because he wanted to use the computer instead of going to choir.

176He testified that he spoke with the police again over the phone after the incident and later recanted that statement. Student 1 also said he had spoken with Member’s Counsel prior to the hearing about lying to the police and that Member’s Counsel had told him that he was lying to the police about hitting the Member, but later recanted having ever spoken with Member’s Counsel.

(iii) Panel’s Findings

177The Panel finds that the College’s witnesses were generally clear, credible, and reliable in their testimonies. All the College witnesses were upfront about details they could not recall and did not embellish their accounts. The Panel did not find any evidence to suggest that the College’s witnesses were motivated by or influenced by anti-Black sentiments. Mr. Stephenson was upfront that that he did not receive training apart from professional development courses offered by the board in anti-racism, or Equity, Diversity, and Inclusion and testified that there were several Black staff members at the school at the time, including another teacher. Mr. Wilson further acknowledged that he does not have any credentials with respect to Equity, Diversity and Inclusion. However, the Panel accepts Mr. Wilson’s testimony that he is himself Métis and his background informs the way he approaches investigations, namely with an open mind, taking into account possibilities of bias that may be at play.

178The Panel did, however, have several concerns about both the Member’s testimony and that of Student 1. First, the Panel notes the Member’s testimony was unclear and at times inconsistent. For example, the Member was asked during cross-examination whether Student 1 had kicked her. She testified that Student 1 did not kick her. The Panel notes this is inconsistent with the notes taken by Police Constable Wolfe in the Toronto Police Service General Occurrence Report dated May 3, 2018 (Exhibit 46), which records the Member as saying Student 1 punched and kicked her in the leg. The Member denied making this statement to the police. The Member also testified that Student 1 stomped on her feet twice, but the notes from Mr. Wilson’s Investigation Report (Exhibit 35) record the Member reporting Student 1 stomping on her foot once, and the Member moving her foot to avoid the second stomp.

179With respect to Student 1, the Panel recognizes that it may have been challenging for Student 1 to testify at the hearing and has given careful consideration to Student 1’s testimony. The Panel, however, did not find Student 1’s testimony to be reliable or credible. First, there were several instances during the hearing where the integrity of Student 1’s testimony was compromised by the presence of Student 1’s parents, who were present to provide support to Student 1 but appeared to be prompting him, as they could be heard speaking to Student 1 during his testimony and telling him what to say at times. In addition, the Panel noted several inconsistencies in Student 1’s testimony. For example, Student 1 testified that he spoke with the police over the phone, and then recanted that statement. He also said he had spoken with Member’s Counsel prior to the hearing about lying to the police and that Member’s Counsel had told him that he was lying to the police about hitting the Member, but later recanted that statement as well and said he had never spoken with Member’s Counsel. Student 1 also testified that the Member was his teacher in [XXX], [XXX] and [XXX]. The Panel notes Student 1 did not mention the 2017-2018 year but was presented with his safety plan for the 2017-2018 which indicates the Member was his teacher year that year (Exhibit 40). Finally, the Panel finds it probable that Student 1 was motivated to present a favourable account of events because it was clear that he is fond of the Member and feels badly about what happened as a result of the events on May 3, 2018.

180Having considered all of the evidence, the Panel prefers the evidence of the College’s witnesses, who were consistent with each other that the Member made various statements to Student 1 about hitting her and calling the police, to the effect of “don’t hit me. If you hit me, I’ll hit you. I’ll call the cops on you and I’ll call your mom” (per Ms. Gaffar’s testimony and Exhibit 31); “hit me, hit me – I’ll call the police” and “just try it” (per Person C’s testimony and Exhibit 8); “hit me, I dare you” (per Mr. Stephenson’s testimony and Exhibit 34). All three witnesses also testified that they heard the Member tell Student 1 not to touch her (see also Exhibit 8, Exhibit 31, and Exhibit 34).

181The Panel notes that Ms. Gaffar did not witness the Member hitting Student 1 when he attempted to take his [XXX] folder from the Member’s desk, but she did hear Student 1 say, “ouch-you hit me” and she noted that Student 1 does not usually say things like that. The Panel finds it more likely than not that Student 1 said this because he was, in fact, hit by the Member after attempting to take a [XXX] folder from the Member’s desk. The Member did not offer any reasonable explanation for why else Student 1 would have said that. In addition, Ms. Gaffar observed the Member hitting Student 1 after he attempted to pull at the Member’s earbuds. She had sufficient opportunity to observe the Member hitting Student 1. She noted the Member had hit Student 1 in her report to Mr. Stephenson (Exhibit 31), maintained throughout the investigation that she saw the Member hit Student 1 when he grabbed the headphones, and was unshaken in her account under cross-examination.

182The Panel finds that the College has proven on a balance of probabilities that on or about May 3, 2018, the Member: hit Student 1, when he attempted to take a [XXX] folder from the Member’s desk [particular 4(a)]; hit Student 1, after Student 1 pulled or attempted to pull at the Member’s earbuds [particular 4(b)]; taunted Student 1 and/or said words to the effect of: “Just try it, I’m going to call the police” [particular 4(c)(i)]; “Hit me, I dare you” [particular 4(c)(ii)]; and “Don’t touch me. If you hit me, I’ll hit you” [particular 4(c)(iii)].

(2) Legal Conclusions

183The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); verbally abused a student contrary to Ontario Regulation 437/97, subsection 1(7); abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1); abused students psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); failed to comply with the Act, regulations or by-laws contrary to Ontario Regulation, subsection 1(14); failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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, engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

(a) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

184The Panel finds that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. In accordance with Novick and Westerhof, the Panel heard expert evidence from Person B, who was qualified as a participant expert, about the standards of the profession, and the standards for teachers who work with students with special needs.

185Person B spoke to the standards of the profession as they relate to teachers of students with special needs. According to Person B, the Standards of Practice for the Teaching Profession are required to ensure that students’ needs are being met by teachers. In her opinion, these standards are equally applicable to all members regardless of their cultural background. With respect to the practice standard “Commitment to Students and Student Learning”, especially as it relates to working with students with special needs, Person B stated that teachers are expected to be familiar with student needs and their strengths, to consider the best interests of students, and to work towards closing the gaps a student may face. Person B also referred to the practice standard “Professional Practice” and stated that this standard requires teachers to be familiar with their students, with pedagogy and student assessments.

186The Panel finds that the Member did not act in accordance with the standards of the profession on either June 23, 2014 or December 11, 2015. As a teacher of students with special needs, the Member was required conduct herself with consideration of the best interests and emotional needs of her students. Person B testified that an elevated voice is a common trigger for students with exceptionalities, and that IEPs will often suggest using a calm voice as a supportive strategy for students with special needs. The Member, who was responsible for implementing students’ IEPs, clearly disregarded her students’ IEPs and their well-being when she yelled at Person B and Person C for several minutes, on two separate occasions, in front of students at the School. It was inappropriate for the Member to yell at her colleagues, especially in front of vulnerable students, and her conduct negatively affected individuals witnessing these exchanges. Person B testified that she felt uncomfortable when the Member yelled at her, and that a person being screamed at is not being put into a position where they would feel safe. She further testified that students witnessing both incidents appeared uncomfortable.

(b) The Member abused a student or students verbally contrary to Ontario Regulation 437/97, subsection 1(7)

187The Panel finds that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7) on several occasions. The Panel found that the Member yelled at or used an excessively loud voice with the Student at the [XXX]. While it is inappropriate for teachers to yell at students generally, the Panel finds that the Member’s conduct was particularly inappropriate in this case given that the Student’s 2016 safety plan (Exhibit 45), of which the Member was aware, indicates that “loud noises” are a trigger for her.

188As found by the Discipline Committee in Campbell, the Panel also considers it verbal abuse for the Member to have made disparaging and demeaning remarks about students’ disabilities in their presence. The Member made statements such as: “Look what I have to deal with. This is not a [XXX] classroom. Look at who I am teaching. It is not possible to do my job under these conditions”; and “Look at this girl, I don’t know her name, she does not even know who [sic] to identify numbers. What am I supposed to do with her…”. Such comments are hurtful and completely inappropriate and, as such, amount to verbal abuse.

(c) The Member abused a student or students physically, contrary to Ontario Regulation 43797, subsection 1(7.1)

189The Panel finds that the Member abused a student physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97, when she hit Student 1. The Panel found that the College proved the Member hit the Student 1 twice (i.e., when he tried to grab the [XXX] folder and when he tried to grab her headphones). While the Member may not have wanted Student 1 to grab the [XXX] folder and the headphones that were around her neck, she should have responded in a different way, using appropriate strategies for managing student behaviour. Members are responsible for the well-being and safety of students and simply cannot hit them.

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

190The Member’s conduct described above constitutes psychological or emotional abuse, contrary to Ontario Regulation 437/97, subsection 1(7.2). The students at the School had special needs and many were particularly vulnerable. As Person B testified, loud voices were triggering for some students. As such, it was not only unacceptable but abusive for the Member to have yelled at the Student and Student 1 (their safety plans specifically call for the use of calm voices, Exhibit 45 and 40 respectively) and to have yelled at colleagues in the presence of students. The Panel accepted the testimony of several witnesses who testified about the negative effects the Member’s yelling had on the students observing her:

• Ms. Morgan testified that the student that was with Ms. Morgan became extremely emotional, terrified, upset and frozen when the Member yelled at Person A;

• Person B testified that the students observing the Member yelling at Person C appeared uncomfortable;

• Ms. Gaffar testified that one of the students started biting herself during the Member’s exchange with Student 1 on May 3, 2018; and

• Ms. Gaffar testified that another student hid behind her and another educational assistant during the Member’s exchange with Student 1 on May 3, 2018.

191The Panel finds that it was also psychologically or emotionally abusive for the Member to have taunted or dared Student 1 to hit her. Student 1’s Safety Plan (Exhibit 40) clearly notes that in addition to “verbal calming”, Student 1 should be reminded to self-regulate when triggered. As the teacher in a position of trust and authority, the Member should have acted in accordance with Student 1’s safety plan. Instead, the Member’s statements, “Just try it, I’m going to call the police” and “Hit me, I dare you” encouraged escalation not self-regulation. The Panel finds that it was abusive for the Member to have put Student 1 in such a confusing and compromised position. Several witnesses testified about the negative effects the Member’s conduct had on Student 1. Mr. Stephenson testified that Student 1 was pleading with the Member, and Person C testified that Student 1 was upset and crying during their exchange.

(e) The Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)

192The Panel finds that the Member repeatedly failed to act in accordance with the Ethical Standards for the Teaching Profession set out in section 26 (previously section 32) of the by-laws. The Member clearly did not demonstrate “Care” or “Respect” for her students when she yelled at the Student, hit Student 1 and dared Student 1 to hit her, and made negative and disparaging comments about students in their presence on June 23, 2014. The Member failed to show compassion, acceptance, empathy, and commitment to these students’ well-being and did not honour their human dignity or emotional wellness. The Member’s actions were abusive and were in breach of the position of “Trust” she held as their teacher.

193The ethical standards set out in section 26 of the by-laws apply not only to teachers’ relationships with students, but with their colleagues as well. The Panel finds that the Member’s outbursts towards her colleagues in the presence of students and other staff failed to demonstrate compassion or empathy towards her colleagues as required by the standard of “Care” or fair-mindedness and consideration of their human dignity and emotional wellness as required by the standard of “Respect”. Person D, in particular, testified that she was made to feel like a child, demeaned, and unsupported by the Member. Ms. Morgan testified that she felt disheartened watching the Member yell at Person A. Person B testified that she felt uncomfortable when the Member screamed at her. Person C testified that she felt confused and embarrassed when the Member yelled at her in December 2015.

194The Panel notes that the Member agreed in cross-examination that respect includes understanding and appreciating other perspectives, and that communication is a two-way street. The Member failed to show respect when she failed to moderate the tone and volume of her voice in her communications with her colleagues, resulting in her colleagues perceiving her to have yelled at them, or to have used an aggressive, disrespectful or unprofessional tone with them.

195Finally, the Panel finds that the Member failed to engage in the continual reflection of her professional commitments and responsibilities as required by the ethical standard of “Integrity”. The Member was given several suggestions by her principal, Mr. Zupo, and her Board, as well as her colleagues, about her inappropriate conduct. Yet, the Member repeatedly engaged in a pattern of unprofessional communications that negatively impacted her colleagues and students at the School.

(f) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15)

196The Panel finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. In particular, section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” Section 264(1)(d) requires teachers “to assist in developing co-operation and co-ordination of effort among the members of staff of the school”. The inappropriate manner in which the Member communicated with and expressed her frustrations to her colleagues were incompatible with the expectations set out in these provisions.

197As found in Reid, Weglarz, Armstrong, De Santis, and Vandenberg, members are expected to be restrained, respectful and professional in their relationships with their colleagues. When a member’s colleagues perceive themselves to be treated in a disrespectful, angry or aggressive manner, this sets a negative example and discourages co-operation and collaboration. In the Member’s case, the Panel heard from Ms. Morgan who testified that the role of an educational assistant working with challenging student behaviour is difficult and it was disheartening to see her co-worker being disrespected in the manner that Person A had been. Person D testified that she wanted to be transferred out of the Member’s classroom because of the way the Member treated her.

(g) The 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)

198The Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Member’s conduct is rightfully characterized by all three terms in this instance. The Member’s interactions with school staff and other colleagues, and her conduct involving the Student and Student 1 failed to show good judgment or regard for her professional obligations, such that her behaviour would reasonably be regarded as unprofessional by her peers.

199Moreover, several of the Member’s colleagues told her that she was yelling at them, and the Member was disciplined by her Board on a number of occasions for her conduct. However, the Member’s conduct did not improve. Rather, the Member maintained on each occasion and during the hearing that the incidents in question were instances of miscommunications and cultural differences.

200While the Member’s cultural background may account for some differences in communication styles, the Panel heard and accepts the evidence that the Member’s voice during the exchanges at issue in this hearing was objectively, excessively loud and at times aggressive and angry in tone. For example, Ms. Walker testified that the Member’s voice on December 11, 2015 was louder than her usual volume (which is in generally louder than other teachers’ voices). Mr. Zupo testified that he used a ten-point scale to objectively characterize the voice and tone used by the Member.

201The Panel notes that the member in Reid was noted to be a “loud and animated talker”, but this did not negate the necessity for Ms. Reid to show restraint and professionalism in her interactions with her colleagues. Likewise, the Member should have learned from her colleagues’ comments, and the discipline resulting from each incident to improve her communications with her colleagues. As stated by the Discipline Committee in De Santis, the Member’s “failure to recognize her unprofessional behaviour and implement improvements in her […] interpersonal communication demonstrates a disregard for her professional obligations” (at paragraph 14). In this case, the repetitive nature of the Member’s misconduct, and the fact that it often occurred in the presence of vulnerable students is shameful and demonstrates significant moral failings such that the Panel finds the Member’s misconduct disgraceful and dishonourable, in addition to being unprofessional.

(h) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

202Finally, the Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession. Teachers are entrusted with the safety and well-being of students under their care. This is an especially important responsibility for teachers of students with special needs. The Member’s abusive conduct at the School reflects not only poorly on the Member but erodes public confidence in teachers as a whole. Additionally, the Member’s repeated inability to communicate effectively and professionally with her colleagues undermines the reputation of the teaching profession.

J. penalty

203The Tribunals’ Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.

Date: October 21, 2022

Irene Dembek, OCT Chair, Discipline Panel

John Hamilton, OCT Member, Discipline Panel

Marlène Marwah Member, Discipline Panel

Footnotes

1. 1As amended on consent by the parties on the record, during the first day of the proceedings.
2. 2As of January 20, 2022 section 32 of the by-laws has been renumbered to section 26 of the by-laws.
3. 3Brian Wilson was the Toronto District School Board Investigator who conducted the investigation into the Member’s conduct in May 2018.
4. 4Section 35(2) of the Evidence Act provides for the admission into evidence: Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.