DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Balan 2022 ONOCT 117

Date: 2022-11-09

DECISION AND REASONS ON FINDING

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

Marie-Gabrielle Balan, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARIE-GABRIELLE BALAN (REGISTRATION #482970)

PANEL: Marlène Marwah, Chair

Élaine Legault

Alain Martel, OCT

HEARD: October 26 and 27, 2021 and March 2, 2022

Charlotte-Anne Malischewski, Christine Lonsdale and Émilie Bruneau, for the Ontario College of Teachers

No one appearing for Marie-Gabrielle Balan

Renée A. Kopp, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1On October 26 and 27, 2021 and March 2, 2022, a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) conducted an electronic proceeding, pursuant to rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2Marie-Gabrielle Balan (the "Member") was present at the hearing on October 26 and 27, 2021, but absent on March 2, 2022. On March 2, 2022, College Counsel indicated that she had received an email from the Member (Exhibit 6) asking the Panel to continue proceedings in her absence. The College subsequently contacted her by telephone, accompanied by Independent Counsel, to confirm her intentions. The Member confirmed that she no longer intended to participate in the proceedings or submit additional documentation or submissions and was not requesting an adjournment. She was not represented by counsel but was accompanied by a family member, Olivier Adrien, who undertook to cross-examine two of the College's three witnesses on the hearing days of October 26 and 27, 2021.

3This proceeding was unique in that it was held in both French and English. It was conducted primarily in French, but since the three College witnesses are anglophone, an interpreter was retained at the Member's request so that she could hear their testimony in French. However, serious flaws in the interpretation of the questions asked of the witnesses and their responses to those questions risked compromising the Member's right to procedural fairness. On agreement by the Panel, Independent Counsel and College Counsel, after the Member had assured the Panel that she had a sufficient understanding of English, the decision was made, with the Member's consent, not to use the services of the interpreter as a matter of course, but rather only when the Member felt the need. To put it simply, the examination and cross-examination of the witnesses was subsequently conducted entirely in English, without interpretation. The Panel also notes that Mr. Adrien appeared to be fluently bilingual, communicating easily in both French and English and, as mentioned earlier, asking the witnesses questions in place of the Member.

4In addition, the Member was initially the subject of three separate proceedings before the Discipline Committee. These proceedings were described in three separate Notices of Hearing: Notice of Hearing #4776 (Exhibit 1), dated October 1, 2018; Notice of Hearing #5340, dated October 2, 2019; and Notice of Hearing #5624, dated August 7, 2020.

5At the October 26, 2021 hearing, College Counsel sought permission from the Panel, by way of an oral motion, to withdraw the Notice of Hearing dated August 7, 2020. College Counsel entered into evidence a document entitled "Undertaking and Acknowledgement" signed by the Member on September 8, 2021 in the presence of a witness. By this document, the Member consented to the withdrawal of the allegations contained in the Notice of Hearing dated August 7, 2020 in exchange for compliance with certain conditions. In a written decision issued on October 29, 2021, the Panel granted the College permission to withdraw Notice of Hearing #5624, dated August 7, 2020, pursuant to rule 13.13 of the Rules.

6At the hearing, College Counsel also brought an oral motion that the proceedings relating to Notice of Hearing #4776 (Exhibit 1), dated October 1, 2018, and #5340, dated October 2, 2019, be heard separately, one after the other. Pursuant to clause 9.1(1)(c) of the Statutory Powers Procedure Act (the "SPPA"), the Panel may hear two proceedings one after the other on similar questions of fact, without the consent of the parties. College Counsel cited the decision of the Discipline Committee in Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56. As in the case before us, the parties in this matter did not agree to combine the proceedings or hear them simultaneously. College Counsel proposed to the Panel that they be heard back-to-back for the sake of efficiency. The Panel also rejected the College's proposal to wait for the second proceeding on the merits before making a decision on the penalty in the first proceeding. The Panel felt that it was more appropriate to hear the two proceedings separately on both the merits and the penalty since they involved allegations about incidents that occurred in different academic years in different schools.

7On the basis of this decision, College Counsel asked the Panel to hear the two proceedings one after the other, that is, to hear the proceeding relating to Notice of Hearing #4776 (Exhibit 1), dated October 1, 2018, on the merits and penalty, and to hear Notice of Hearing #5340, dated October 2, 2019, only after the Panel had rendered a decision on penalty in the first proceeding.

8The Panel rendered an oral decision immediately, granting the College's motion.

A. Publication BAN

9The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. OVERVIEW

10The College presented a long list of incidents, all of which allegedly occurred during the 2016-2017 academic year. One allegation is that the Member failed to take responsibility for the Individual Education Plans ("IEP") of one or more students or to make accommodations as outlined in the IEP. Other allegations include failing to adequately supervise students, making inappropriate comments to students and engaging in inappropriate interactions with students or staff members. In addition, the Member was alleged to have been insubordinate in various ways and to have provided inadequate instruction to students, including failing to assess their work or monitor their progress.

11The Panel must decide whether the allegations have been proven on a balance of probabilities and, if so, whether the conduct of the Member supports a finding of professional misconduct. The Panel finds that the Member committed professional misconduct for the following reasons. She contravened Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(11), 1(14), 1(15), 1(18) and 1(19). The Panel can, however, find no evidence of incompetence based on section 30(3) of the Act.

C. the ALLeGATIONS

12The allegations against the Member in Notice of Hearing #4776 dated October 1, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct and/or is incompetent 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 supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

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

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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Marie-Gabrielle Balan (the “Member”) is a member of the Ontario College of Teachers.

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

3. In the 2016-2017 academic year, the Member:

a) failed to take responsibility for or provide adequate instruction to a student or students with an Individual Education Plan (“IEP”);

b) failed to provide the accommodation specified in the IEP of a student or students;

c) failed to adequately supervise students, including:

(i) allowing students to go to the washroom by themselves, contrary to the School’s buddy system for students;

(ii) failing to adequately supervise students when they were leaving the classroom, standing in the hallway or coming down the stairs;

(iii) leaving a student with an IEP for severe anxiety sitting in the hallway in tears for 25 minutes and/or failing to notice that the student was no longer there;

(iv) sitting at the computer at the front of her class with her back to the students;

(v) reporting late for playground supervision, without the required vest or walkie-talkie;

(vi) sitting with her back to students while on playground supervision;

d) made inappropriate comments to students, including:

(i) calling a student with an IEP for severe anxiety a “liar” in front of the class;

(ii) telling a student or students to hang up when the Principal was attempting to contact her on the classroom phone;

(iii) calling a student or students “stupid” or “dumb”;

(iv) instructing a student or students not to answer the classroom phone when the Principal or secretary called;

(v) telling a student or students, “I don’t care. The Principal does not run my class”;

(vi) telling a student, “You need to be more like God and speak like God. The devil is in you and you need to pray and ask for forgiveness”;

(vii) asking a student to kneel in front of the prayer table in the classroom and when the student refused, saying to her in front of the class “See, you’re speaking the devil’s language”;

(viii) telling a student, “You have a filthy mouth and you need Jesus”;

(ix) accusing a student or students of working with the Principal to have her fired;

(x) telling a student that when the student was at school, the Member was her “mother” and when the student replied that she already had a mother, asking “Is it because I’m Black?”;

(xi) replying to a female student who had asked to go to the washroom, “I don’t care that you have to change your tampon”;

e) engaged in inappropriate interactions with students, including:

(i) mocking and/or intimidating a student by mumbling while he was filling out a behaviour sheet as asked;

(ii) yelling at students;

(iii) blowing a whistle in class;

(iv) asking a student or students to kneel down to pray or to sit on the “Jesus Chair” in the prayer corner of the classroom as a disciplinary measure;

(v) asking each student to go with her alone to the prayer room so they could be “closer to God”;

f) engaged in inappropriate interactions with the Principal and staff members, including:

(i) not answering the phone when the Principal or school secretary called the Member’s classroom;

(ii) not answering when the secretary knocked on her locked classroom door;

(iii) calling the school office for help and when the secretary asked for more information, yelling “You’re not the one I want to speak to. I need the Principal!”;

(iv) yelling at the Principal and/or saying, “You need to come upstairs because I need help!”;

(v) when the Principal came to the Member’s class as requested, telling her that her students wouldn’t sit down and asking her to teach the class;

(vi) calling the office to ask for an ambulance and when staff members came to her classroom, telling them that “the students won’t work”;

(vii) denying calling the office to ask for an ambulance and when the Principal asked if she was all right, repeatedly saying “I’m still standing” as she backed away, snapping her fingers and kicking up her legs;

(viii) putting her arm up to stop a colleague from leaving a room and/or telling her colleague to “zip it”;

(ix) leaving her classroom for approximately 25 minutes to make photocopies while the special education resource teacher’s performance was being appraised by the Principal;

(x) on or about October 5, 2016, failing to attend a scheduled meeting about her teacher performance appraisal;

g) called a student’s father despite instructions by the office not to do so because of a family conflict;

h) told a student’s parent that their daughter acted differently with the Member and asked “Is it because I’m Black?”;

i) filled out a Safe Schools Incident Report form and altered it to add an incident involving a student who had accused her of stealing a pencil;

j) failed to provide effective instruction in [XXX];

k) failed to provide evidence of evaluated student work and/or take appropriate steps to inform parents of their children’s progress;

l) failed to take appropriate steps to report student results;

m) did not complete the New Teacher Induction Program courses on classroom management and assessment and evaluation that were offered by her Board.

D. THE MEMBER’S PLEA

13At the hearing, the Member advised that she denied all of the allegations in Notice of Hearing #4776 dated October 1, 2018.

E. THE EVIDENCE

14The College produced oral and documentary evidence to prove the allegations set out in the Notice of Hearing. At the hearing, the College called three witnesses, including two witnesses qualified as participant experts. The relevant elements of the testimony are set out in detail below in the Panel's reasons for decision. The College's evidence is summarized briefly below.

(1) Oral Evidence

15The College called three witnesses: 1) Student 1, a student of the Member at [XXX]School ("[XXX]School") with an IEP with which the Member allegedly did not comply; 2) Sharon Mifsud, Director of Employee Relations for the Elementary division of the Dufferin-Peel Catholic District School Board (the "Dufferin-Peel Board"), to whom incidents were reported involving the Member and who attended a meeting at which the Member was present; 3) Maria Carmin Parker, Principal of [XXX]School, who directly witnessed or was notified through third parties of the incidents alleged against the Member and who had direct interaction with the Member.

16For the reasons described in detail below, the Panel finds that the testimony of the three witnesses is generally credible and consistent in all material respects. Although Student 1's responses were at times somewhat evasive, the Panel feels it ought to accommodate the testimony of a minor child, for whom the experience can often be stressful. On balance, the Panel has no reason to doubt the veracity of her testimony. The Panel also notes that Ms. Mifsud was unable to answer some relevant questions on cross-examination that the Panel believes she should have been able to answer, given her claim that she was aware of the incidents involving the Member. The Panel nevertheless finds Ms. Mifsud's testimony to be generally credible.

17The Member did not call any witnesses in her defence.

F. WITNESSES FOR THE COLLEGE

(1) Student 1’s Testimony

18At the time of the hearing, Student 1 was [XXX] years old and attending [XXX]school. At the time of the incidents in question, she was in Grade [XXX] at [XXX]School and approximately [XXX] years old. During the 2016-2017 academic year, she was a student in the Member's [XXX]class. She related that she had an IEP at the time that included "brain breaks" and allowed her to read all material in 16-point font. Student 1 explained that when she was younger, she had been in a [XXX]and sustained [XXX]as a result of which[XXX] preventing her from reading text in small font. Because of these [XXX]consequences, she also tired more quickly in class, primarily because of the stress on her[XXX]. The brain breaks allowed her to take a break and rest her eyes, then return to class to continue her work.

19Student 1's testimony focuses on the fact that the Member did not provide her with any material in 16 point font, nor did she explain why, which adversely affected her performance and her understanding of the material. Student 1 also stated that the Member also would not give her brain breaks when she requested them. She specifically recalled one time when she asked for a brain break and the Member allegedly told her that she had to finish her work first. After bringing her completed work to the Member, Student 1 was reportedly refused a second time without explanation. The Member eventually allowed her to take a break, provided that two other students accompanied her and held her hand.

20Student 1 testified that she felt so "upset" that she cried in the office and went home in tears.

21In his cross-examination, Mr. Adrien asked her a few questions, including whether the School had provided her with a laptop at the time, to which she replied yes, but she had never used it in [XXX]class. Mr. Adrien also asked her if she remembered an activity in class for which the font size had been enlarged on the laptops, but Student 1 did not recall. The Panel was also able to learn that there were about 20 students in the [XXX]class and that, according to Student 1, the Member had been working at the school for almost a year.

22Despite some vague responses, the Panel found Student 1's testimony reliable. It took into account Student 1’s youth, the number of years that had elapsed since the incidents in the 2016-2017 academic year and the fact that testifying in front of a number of people can be a particularly stressful situation, especially when the incidents in question were unpleasant for the witness. The Panel has no reason to doubt the veracity of Student 1's account.

(2) Sharon Mifsud’s Testimony

23Ms. Mifsud held various teaching positions from the 1990s to 2007, when she was promoted to a Vice-Principal position and then to Principal in 2011. Since February 22, 2016, she has been Director of Employee Relations for the Elementary division. She has been with the Dufferin-Peel Board since the beginning of her career. As a Vice-Principal and Principal, her responsibilities consisted of overseeing school activities for students, community partners and staff, and relationships with parents and Board staff.

24Her current duties consist of overseeing the staffing of the Board's 125 elementary schools. She also sits on staffing committees and attends joint consultation meetings on behalf of the Board and provides support to elementary school principals on issues related to teacher conduct and performance. She frequently participates in investigations of staff conduct in the workplace, including workplace harassment. She regularly works with Children's Aid Services and the Ontario College of Teachers. She serves as intermediary between principals and OECTA (the union) in cases of possible non-compliance with the collective agreement. Ms. Mifsud’s duties also include participation in grievance committee meetings and arbitration sessions.

25Ms. Mifsud testified that she took part in the investigation into the Member's behaviour during the 2016-2017 academic year in her capacity as Director of Employee Relations for the Elementary division, which familiarized her with the expectations of the Member in 1) classroom management, 2) student safety, 3) assessments and curriculum compliance, and 4) appropriate communication. She also had the opportunity to form an opinion about the appropriateness of the Member's alleged actions.

26Ms. Mifsud also testified that she had emailed or spoken with Ms. Parker by telephone regarding a number of incidents involving the Member. During the examination, College Counsel focused on notes written by Ms. Parker but compiled by Ms. Mifsud in preparation for a meeting with the Member. They summarize the key behaviours or deficiencies observed in the Member in relation to the four areas listed above. College Counsel also directed Ms. Mifsud's attention to notes from a meeting on May 12, 2017, which included Ms. Mifsud and the Member. The notes were written by Amber Van Opstal, a research officer at the Board, but edited by Ms. Mifsud. The meeting primarily concerned an incident in which the Member allegedly refused to allow a student to use the washroom for personal hygiene purposes, did not evaluate student work as required and did not attend professional development sessions as requested.

27In cross-examination, Mr. Adrien asked Ms. Mifsud a number of questions that she was unable to answer, including the location of the Member's classroom, which was allegedly located in a hallway away from the others and was thus isolated, and the fact that the Member had not been provided with all of the necessary teaching and learning resources in French. There were also references to the language barrier in meetings with the Member and the concept of “body breaks”.

i. Qualification of Sharon Mifsud as a Participant Expert

28College Counsel submits that, based on the criteria set out in Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”), Ms. Mifsud meets the definition of a participant expert. A witness may give opinion testimony if it is based on their observation of or participation in the incidents in question, and if the opinion is based on their expertise, training and experience (see Westerhof, at para. 60).

29The College argued that Ms. Mifsud could be considered a participant expert in the following areas: 1) classroom management, 2) student safety, 3) assessments and curriculum compliance, and 4) appropriate communication.

30To support its claim, the College cited the following decisions: Ontario College of Teachers v. Douglas, 2017 ONOCT 18 and Ontario College of Teachers v. Armstrong, 2019 ONOCT 48. In Douglas, the Panel accepted the expert testimony of an "Associate Director of Schools" for a school board who had held a variety of administrative positions, including Superintendent of Education for the board at the time of its investigation of the member. The Panel found that "based on her role in the investigative process and her extensive expertise as a teacher and administrator, Ms. Johnstone meets the criteria of a participant expert as articulated in Westerhof" (see p. 7 in Douglas). In Armstrong, a school board superintendent of human resources who received complaints about the incidents at issue was recognized as a participant expert and provided testimony on the relevant standards of practice.

31The Panel is of the view that the same reasoning can easily be applied to Ms. Mifsud. It therefore finds that Ms. Mifsud meets the definition of participant expert set out in Westerhof. Having reached this conclusion, the Panel must continue its analysis to ensure that Ms. Mifsud's testimony is admissible according to the criteria established by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. In the case before us, Ms. Mifsud's testimony is relevant to the question of whether the Member contravened the aforementioned standards of the profession, as alleged by the College. This is necessary because the Panel must hear evidence about the standards before deciding whether they have been breached (Novick v. Ontario College of Teachers, 2016 ONSC 508). There is no exclusionary rule preventing the admission of Ms. Mifsud's testimony and she is a sufficiently qualified expert, as explained above, based on her experience and expertise. The Panel therefore qualified Ms. Mifsud as a participant expert in the following areas: 1) classroom management, 2) student safety, 3) assessments and curriculum compliance, and 4) appropriate communication.

32The Member consented to Ms. Mifsud being qualified as a participant expert.

(3) Maria Carmin Parker’s Testimony

33Ms. Parker testified that she taught grades ranging from kindergarten to Grade 12 for approximately ten years. In 2000, she was promoted to Vice-Principal in the Dufferin-Peel Board and served in that capacity until 2008. In 2014, she was appointed Principal of St. Peter Elementary School in Orangeville, Ontario. During the 2016-2017 academic year, she had been Principal of [XXX]School in Mississauga, Ontario since the 2015-2016 academic year. Ms. Parker described the academic environment within the school (approximately 600 students, multi-ethnic), which was located in a close-knit community. She got to know the Member during the 2015-2016 academic year when the latter joined the School's teaching staff. Ms. Parker noted that she had always had a good personal relationship with the Member.

34In the course of her duties as Principal, Ms. Parker said that she had to deal with certain problematic situations involving the Member. She compiled notes on each incident that she was asked to handle in a chart (Exhibit 3 at p. 35). Ms. Parker confirmed that the incidents were related to classroom management, student safety, assessments and adherence to curriculum, and appropriate classroom communication. She also had the opportunity to form an opinion about the appropriateness of the Member's alleged actions.

35College Counsel showed Ms. Parker a letter from David Amaral, then Superintendent of Education, Mississauga South, which she recognized and of which she had obtained a copy. Ms. Parker confirmed that, in the letter, Mr. Amaral reminded the Member of some of her obligations, especially pertaining to IEPs. In her testimony, Ms. Parker also referred to fire drills in which the Member allegedly refused to participate, lack of achievement evaluations for the students in her class and her alleged refusal to follow the Board's Français curriculum (such as the AIM program), her alleged use of unapproved teaching and learning materials, false accusation of theft against a student and failure to adequately supervise the students in her class on more than one occasion. Ms. Parker also referred to the Member allegedly allowing students to go to the washroom alone, contrary to buddy-system protocols, and making disparaging comments with religious overtones to students. She also said the Member behaved inappropriately to some of her colleagues and that parents were beginning to complain about the Member, in particular about the lack of testing or evaluations.

36Ms. Parker also confirmed that she attended a meeting on January 18, 2017 involving the Member and Deborah Finegan-Downey, the Superintendent of Education, at which the Member's alleged failures to meet the aforementioned standards were discussed. This meeting was followed by a letter from the Board dated January 27, 2017, of which Ms. Parker obtained a copy, informing the Member that her alleged deficiencies would be referred to the College for investigation and that her duties were thus restricted with pay in the meantime. Lastly, College Counsel produced for Ms. Parker a letter from the Board dated February 7, 2017, addressed to the Member, of which Ms. Parker obtained a copy, which summarized the topics discussed at the January 18, 2017 meeting and in which the Board recommended that the Member use the employee assistance services.

37Ms. Parker summarized her concerns about the Member: 1) her ability to manage her classes, including planning periods; 2) the appropriateness of the comments she was making to students and parents; 3) her belief that Ms. Parker was part of a conspiracy to have her fired and her denial of Ms. Parker’s authority; 4) her lack of follow-up with parents; 5) her lack of assessments and refusal to follow the curriculum; 6) the lack of supervision and risk to student safety; and 7) her refusal to comply with IEPs.

38In her testimony, Ms. Parker explained that these concerns grew and the problematic incidents became more frequent, resulting in her having to deal with crying students who no longer wanted to attend their [XXX]class. Parents reportedly requested that their child not go back to the Member's [XXX]class (Exhibit 3, Tab 7 at p. 44).

i. Qualification of Maria Carmin Parker as a Participant Expert

39College Counsel submitted that, under the criteria set out in Westerhof, Ms. Parker met the definition of a participant expert.

40The College argued that, given her role as Principal in managing the incidents involving the Member, Ms. Parker could be considered a participant expert in the following areas: 1) classroom management, 2) student safety, 3) assessments and curriculum compliance, and 4) appropriate communication.

41As in the case of Ms. Mifsud, College Counsel relied on Douglas to support her claim. The Panel therefore finds that Ms. Parker meets the definition of participant expert set out in Westerhof. Having reached this conclusion, the Panel must continue its analysis to ensure that Ms. Parker's testimony is admissible under the criteria established by the Supreme Court of Canada in Mohan. In the case before us, Ms. Parker’s testimony is relevant to the issue of whether the Member contravened the aforementioned standards of the profession, as alleged by the College. This is necessary because the Panel must hear evidence about those standards before deciding whether they have been breached (Novick v. Ontario College of Teachers, 2016 ONSC 508). There is no exclusionary rule preventing the admission of Ms. Parker's testimony and she is a sufficiently qualified expert, as explained above, given her experience and expertise. The Panel therefore qualifies Ms. Parker as a participant expert in the following areas: 1) classroom management, 2) student safety, 3) assessments and curriculum compliance, and 4) appropriate communication. The Member also consented to the qualification.

(2) Documentary Evidence

42The College entered various documents into evidence (Exhibit 3), including: 1) Student 1's Individual Education Plan; 2) a letter from David Amaral, Superintendent of Education for the Board, addressed to the Member and dated June 28, 2016; 3) the schedule of professional development sessions for the Member; 4) an incident summary in chart form prepared by Maria Carmin Parker; 5) email correspondence between Ms. Parker and Ms. Mifsud; 6) a school safety incident report completed by the Member; 7) notes from a meeting with the Member on January 18, 2017; 8) a letter from C. Pitoscia, Superintendent of Human Resources and Employee Relations for the Board, addressed to the Member and dated January 27, 2017; 9) a letter from Deborah Finegan-Downey, Superintendent of Education for the Board, addressed to the Member and dated February 7, 2017; 10) notes on a meeting with the Member on May 12, 2017; and 11) a letter from C. Pitoscia, Superintendent of Human Resources and Employee Relations for the Board, addressed to the Member and dated May 26, 2017.

43The Member entered into evidence a four-page document containing email correspondence (Exhibit 5).

G. SUBMISSIONS OF COLLEGE COUNSEL

44College Counsel reviewed each item in the allegations, setting out the evidence for each one. She asked the Panel not to rule on item 3(d)x) as it was virtually identical to item 3(h). She then reviewed each allegation against the evidence submitted at the hearing. College Counsel argued that the evidence before the Panel proved each allegation set out in items (a) through (h) of the Notice of Hearing (Exhibit 1) on a balance of probabilities. She stated that the Panel must find that the Member committed professional misconduct as per these allegations. The College did not present any evidence with respect to the allegation of incompetence set out in (i) and therefore did not specifically ask the Panel to rule on the allegation of incompetence. With respect to the allegations in (a) and (e), College Counsel submitted that it would be more judicious to find for a breach of either subsection 1(5) or 1(14), but not both, and left the choice to the Panel. The Panel will address this issue in its reasons.

H. DECISION ON THE FINDING

(1) Burden of Proof and Standard of Proof

45The onus is on the College to prove the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41; that is, on a balance of probabilities.

(2) Decision

46Having considered the evidence, onus and standard of proof and the submissions of College Counsel, the Panel finds that the Member committed professional misconduct as defined in Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(11), 1(14), 1(15), 1(18) and 1(19). However, the Panel has no evidence to support a finding of incompetence.

I. REASONS FOR DeCISION

47The Panel carefully considered the evidence submitted and the submissions of the parties. In the reasons that follow, the Panel chooses to rule only on those items for which it finds the evidence most compelling. The Panel will begin with its factual findings and then explain how the facts resulted in its finding of professional misconduct, as alleged in the Notice of Hearing.

(1) Factual Findings

a) Allegations 3(a) and (b)

48Since allegations 3(a) and (b) are similar, the Panel will address them together.

49The Panel finds that, on a balance of probabilities, the Member failed to take responsibility for one or more students with an IEP, as alleged in item 3(a) of the Notice of Hearing. Specifically, the Member failed to make the accommodations specified in Student 1's IEP, as alleged in item 3(b) of the Notice of Hearing.

50First of all, Student 1's IEP is available to the Panel, as it was entered into evidence (Exhibit 3 at p. 9). Thus, it is clear that during the 2016-2017school year, Student 1 had an IEP. According to Ms. Parker's testimony, an IEP is a legally enforceable document. On the fourth page of Student 1's IEP (Exhibit 3 at p. 12), two of the accommodations for Student 1 were 16 point font and "frequent breaks for eye rest". The Panel heard Student 1’s testimony, described above, in which she stated that the Member did not provide her with any material in16 point font, without telling her why, and did not give her the breaks for eye rest to which she was entitled. She related one incident that she found particularly upsetting.

51The Panel has no reason to doubt the truthfulness or credibility of Student 1's testimony. Since Student 1 no longer attends [XXX]School and no longer comes into contact with the Member, it is unlikely that she has any personal stake in the outcome of this case. Nothing in the evidence contradicts her testimony. On cross-examination, the Panel heard that Student 1 did not use her laptop in [XXX]class, but that did not prevent the Member from fulfilling her own obligations as set out in the IEP. Mr. Adrien alluded to a supposed laptop activity in which the font size was enlarged, but Student 1 did not recall this. Unfortunately, the Panel has no other evidence of this activity. In any event, it is reasonable to conclude that the Member's failure to enlarge the font was repeated, not an isolated incident.

52Ms. Parker testified that the Member told the resource teacher that adhering to the IEP was not her responsibility and that her role was to teach. This statement constitutes hearsay and while the Panel may choose to admit a hearsay statement, it chooses to give it no weight in this case as the evidence is somewhat contradictory on this issue. Indeed, in the notes on the January 18, 2017 meeting—incidentally, written somewhat confusingly, making it difficult sometimes to know who is making the statements recorded in the notes--the Member is reported as saying, "[I]t is my professional responsibility to adhere to the IEP, for example to increase the font size—to have a computer so that she [Student 1] can enlarge the font" (Exhibit 3, Tab 9 at p. 88). Although Ms. Parker stated that the Member also told her directly that her role was not to implement the IEP, this statement is still hearsay in the Member's absence and the Panel cannot ignore the contradictory nature of the evidence. The Panel is still satisfied that Student 1’s IEP was not accommodated in the Member's [XXX]class, but is not satisfied that the Member denied this responsibility.

53With respect to the brain breaks, the Panel must note that Student 1 testified that the Member denied her a break until she had finished her work, which defeats their purpose. Either the Member did not understand the purpose of these brain breaks or she did not believe in their usefulness. In any case, she was still required to adhere to Student 1's IEP.

b) Allegation 3(c)

54The Panel finds that, on a balance of probabilities, the Member failed to adequately supervise students, as alleged in item 3(c) of the Notice of Hearing. The College has listed several incidents to support its claim.

55The Panel does not have conclusive evidence to support item i. The notes from the January 18, 2017 meeting (Exhibit 3, Tab 9 at p. 89) are the only evidence. The Panel has no date and no student testified before the Panel that the Member sent him to the washroom alone, nor did any other witness testify to such an incident.

56However, the Panel accepts item ii, as Ms. Parker witnessed it first-hand. In her testimony, Ms. Parker related that on October 25, 2016, she saw several students yelling and running down the stairs. The students explained to her that they were coming from [XXX]class and that the Member had asked them to come downstairs since she had to make photocopies. At the time, the Member was not in the stairwell or near the students. A second incident occurred on November 4, 2016, which Ms. Parker also witnessed. On that occasion, she saw students leaning against the wall in the hallway unsupervised, while others were roaming in and out of the washroom shouting. The Member was in the classroom complaining about the students' behaviour to their homeroom teacher. A third incident occurred on November 30, 2016, in which Ms. Parker saw students in the hallway unsupervised, waiting to enter the [XXX] classroom while the Member was talking to another teacher in another classroom.

57The Panel also accepts item iii, as Ms. Parker witnessed it first-hand, at least in part. Ms. Parker testified that after an allegedly heated exchange with the Member, a particularly shy and anxious student left the classroom on his own. The custodian reportedly found the student in the hallway in tears, with two girls trying to comfort him, and notified the Principal. The Member reportedly yelled at the student for not finishing his work. The student explained that she had not given him any work to do, and the Member allegedly called him a liar. Ms. Parker called the Member's classroom to ask if the student was there and then went looking for him in the school with the help of the custodian, after making a school-wide announcement asking the student to come to the office. Ms. Parker went directly to the Member to ask her where the student was, but she did not know. Ms. Parker eventually found the student sitting in a corner in tears. He told her that the Member was yelling at him and he did not know what to do. Ms. Parker believes that the student was left unattended for approximately 20 minutes.

58The Panel has no reason to doubt the truthfulness of Ms. Parker's testimony about this incident, particularly since her account of the incidents is also described in the notes on the January 18, 2017 meeting (Exhibit 3, Tab ? at p. 89). Ms. Parker confidently related what she witnessed, including what the student told her and his emotional state.

59The Panel also accepts item iv to the effect that the Member sat at the computer in front of the class with her back to the students. Ms. Parker testified that she witnessed this first-hand when she walked past the Member's classroom to check that everything was in order, as the students were being noisy.

60Lastly, the Panel cannot accept items v and vi because they are based solely on a summary of notes (Exhibit 3, Tab 7 at p. 53) and the notes from the January 18, 2017 meeting (Exhibit 3, Tab 9 at p. 89). This documentary evidence is not supported or corroborated by the testimonial evidence. Ms. Parker does not mention it in her testimony, while Ms. Mifsud only describes the alleged incident in terms of the professional standards. In the meeting notes, it is difficult, if not impossible, for the Panel to tell who wrote the passage alleging the Member's tardy playground supervision, or determine the Member's response to the allegation. Moreover, the Panel cannot base its conclusion on a mere summary of notes compiling unsubstantiated incidents. Who witnessed them? And when? If the College wishes the Panel to rule on an allegation described in an account by an unknown author, it must substantiate the allegation with testimony.

c) Allegation 3(d)

61The Panel finds that, on a balance of probabilities, the Member made inappropriate remarks to students, as alleged in item 3(d) of the Notice of Hearing.

62The Panel does not have conclusive evidence to support item i. The notes on the January 18, 2017 meeting (Exhibit 3, Tab 9 at p. 89) are the only evidence. The Panel heard no witnesses to corroborate that the Member called a student a liar.

63The Panel accepts item ii, to the effect that the Member told students to hang up when the Principal was attempting to speak to her on the phone. In her testimony, Ms. Parker repeatedly referred to the fact that she had heard the Member instruct students to hang up the classroom phone when she called to speak to her. This occurred on November 22, 2016 specifically (Exhibit 3, Tab 6 at p. 38). The Panel therefore chooses not to rule on item iv since the two allegations are virtually identical.

64The Panel cannot accept item iii because there is no corroborating evidence to support the allegation in the January 18, 2017 meeting notes.

65The Panel accepts item v because of Ms. Parker's testimony. She stated that she heard the Member say "I don't care. The Principal doesn't run my class" in the presence of students when she was trying to talk to her on the phone. Although this is a hearsay statement in the Member's absence, the Panel chooses to accept it and give it sufficient weight since there is no evidence to contradict the statement.

66Items vi, vii and viii refer to the same incident, so the Panel chooses to deal with them together. According to Ms. Parker's testimony, the incident was reported to her not only by the student in question, but also by her parents through the Superintendent of Education. Based on a conversation with the student's mother, Ms. Parker stated that the student no longer wanted to be in the Member's class after the incident because she no longer felt comfortable being there and the Member constantly picked on her. While these statements are hearsay, the Panel believes that they are reliable, consistent and necessary to an appreciation of the facts. Furthermore, they are not contradicted by the evidence. The Panel therefore gives them sufficient weight to conclude that the incident did in fact occur.

67The Panel cannot accept item ix. In her testimony, Ms. Parker related that a parent of a student had reported to the Superintendent of Education that the Member believed that the Principal and students were plotting to have her fired. This statement constitutes double hearsay and without other witnesses to corroborate what was said, the Panel has no other evidence on which to rely.

68The Panel chooses not to accept item x because, as College Counsel pointed out, it duplicates item 3(h).

69Lastly, the Panel accepts item xi, to the effect that the Member said to a student who asked to use the washroom, "I don't care that you have to change your tampon". The most credible evidence regarding this incident is Ms. Mifsud's testimony as well as notes on a meeting—minutes of sorts—held on May 12, 2017 and attended by Ms. Mifsud and the Member (Exhibit 3, Tab 9 at p. 114). During her testimony, Ms. Mifsud related that it was when the Member said no to the student the first time that the student explained to the Member why she had to go to the washroom. That was when the Member made the abovementioned statement. According to Ms. Mifsud, the entire class heard the Member respond in this way to the student in question, who was "extremely upset”.

70The notes from the May 12, 2017 meeting give the Panel the Member's version of events. According to her notes, the Member denied refusing the student permission to go to the washroom. Instead, she allegedly prohibited students from taking their books with them to the washroom. As for the tampon comment, she stated at the meeting that she in fact told this student or some students that they did not need to give her a reason for going to the washroom. While the Panel notes a slight ambiguity between Ms. Mifsud's testimony and the meeting notes, particularly as to the number of students involved, the Panel finds the facts are consistent overall.

71The Panel chooses to accept the testimony of Ms. Mifsud and the content of the notes from the May 12, 2017 meeting, in the absence of evidence to the contrary. Indeed, at the hearing the Member did not cross-examine Ms. Mifsud on this issue. The Panel has no reason to doubt the veracity of Ms. Mifsud's testimony, which it considers credible, and the statements she reported.

d) Allegation 3(e)

72The Panel finds that, on a balance of probabilities, the Member engaged in inappropriate interaction with the students, as alleged in item 3(e) of the Notice of Hearing.

73The Panel accepts item i given the documentary evidence and the testimony of Ms. Parker. In her testimony, Ms. Parker consistently and confidently related an incident on October 31, 2016 in which a student came to tell her that the Member had accused him of stealing a pencil and had made fun of him. As the Panel understands it, the student has a [XXX] and difficulty expressing himself clearly. According to Ms. Parker, the Member raised her voice to the point of making the student cry. Ms. Parker first had him write an account of the incident in his own words on a sheet of loose leaf paper; this is the documentary evidence before the Panel (Exhibit 3, Tab 8 at p. 86). She also annotated the student's account. Her annotations read, "mocking me when I was writing; making multiple voices - intimidating me".

74The Panel finds, on a balance of probabilities, that the Member mocked the student while he was filling out a behaviour sheet, despite some ambiguity in this regard. According to Ms. Parker’s annotations, the Member asked the student to "make a behaviour sheet", whereas Ms. Parker testified that the Member told the student's parent that she had completed a "behaviour form". The Panel can only assume that this form is the incident report discussed below. Nevertheless, the Panel concludes, based on the documentary evidence and Ms. Parker’s testimony, that the Member did in fact make fun of and intimidate the student, and specifically attacked his [XXX] disorder.

75The Panel accepts item ii. It has now been established that the Member yelled at students according to Ms. Parker's testimony. In particular, the Panel recalls the incident involving a shy and anxious student who walked out of class, requiring a search of the entire school, after the Member had yelled at him (see para. 57).

76The Panel cannot accept item iii, in the absence of evidence corroborating the reference in the January 18, 2017 meeting notes.

77The Panel accepts item iv for the same reasons that it accepts item 3(d)vii), since it is clearly the same incident. On the other hand, the Panel cannot accept item v in the absence of evidence corroborating the reference in the January 18, 2017 meeting notes (Exhibit 3, Tab 9 at p. 92) and the notes attached to email correspondence between Ms. Parker and Ms. Mifsud (Exhibit 3, Tab 7 at p. 55). The Panel heard no oral testimony about this incident and, as explained above, will not base a finding of fact solely on unsubstantiated documentary evidence.

e) Allegation 3(f)

78The Panel finds that, on a balance of probabilities, the Member engaged in inappropriate interactions with the Principal and school staff as alleged in item 3(f) of the Notice of Hearing. Again, the College listed numerous incidents to support its claim.

79In light of its previous factual findings, the Panel has no difficulty accepting item i, to the effect that the Member refused to answer the classroom telephone when Ms. Parker was attempting to call her. In fact, Ms. Parker testified several times that the Member refused to talk to her on the phone and she had even heard her tell the students to hang up. She also discussed the incident on October 19, 2016 (Exhibit 3, Tab 6 at p. 41) in which, even after a school-wide announcement, she received no response from the Member.

80The Panel also accepts item ii, given the testimony of Ms. Parker. Ms. Parker did not witness the incident herself, but it was reported to her by the secretary. Ms. Parker's testimony about the incident was consistent and credible.

81The Panel chooses to deal with items iii, iv and v together, as they refer to the same incident. The Panel accepts items iii and iv, as Ms. Parker was directly involved in the December 13, 2016 incident, at least for the most part, and her testimony about the incident was equally consistent and credible. The Panel cannot accept item v since it did not hear any testimonial evidence on the item.

82The Panel chooses to deal with items vi and vii together as they relate to the same incident. Ms. Parker did not witness this herself as she was out of the school in the morning; it was reported to her by the secretary upon her return in the afternoon. She then spoke with the resource teacher who confirmed that she had received a call from the secretary asking her to go up to the Member's classroom as the Member had called the office in a panic for help and there appeared to be an emergency. She also spoke with the Member who, according to Ms. Parker's testimony, denied calling the office and denied asking for an ambulance.

83The Panel cannot speak to whether the Member did in fact ask for an ambulance as the evidence is not clear in this regard. In her testimony, Ms. Parker never stated that the Member herself asked for an ambulance; rather, she appeared to be replying to a question from the secretary as to whether she needed an ambulance, and the Panel has no evidence that can confirm the Member's answer to that question. For example, the College did not call either the secretary or the resource teacher to testify, and Ms. Parker did not seem certain about this aspect of the conversation during her testimony. What is clear, however, is that the Member definitely called the office for assistance, including from the resource teacher, that some colleagues went to her classroom and that the Member subsequently denied calling the office or requesting assistance from the resource teacher.

84Both the secretary and the resource teacher confirmed to Ms. Parker what had happened. Furthermore, Ms. Parker's testimony was sufficiently reliable and credible as a whole: she had properly documented the facts to which she was testifying, the statements she reported were written down and her testimony was supported by documentary evidence. Ms. Parker related that, when she asked the Member if she was all right, she allegedly replied yes, while snapping her fingers and walking away. The Panel will make no ruling on the alleged "leg-kicking" since Ms. Parker did not refer to it in her testimony.

85The Panel also accepts item viii as Ms. Parker witnessed it herself. According to Ms. Parker's testimony, the Member entered Ms. Parker's office with no notice, closed the door and leaned against it. After a discussion about how to get a student on the resource team, the resource teacher attempted to leave the office at the Principal's request, at which point the Member tried to block her exit while motioning “shush!” or telling her to "zip it.” Ms. Parker testified that she thought the Member was going to hit the resource teacher.

86The Panel cannot accept item ix because of the lack of corroborating evidence, as noted in the summary chart.

87The Panel accepts item x, however, because Ms. Parker testified that the Member did not attend the meeting to discuss her performance appraisal. This statement is not contradicted by the evidence.

f) Allegation 3(g)

88The Panel finds that, on a balance of probabilities, the Member did not call a student's father and therefore did not act against the wishes of the school office, as alleged in item 3(g) of the Notice of Hearing.

89The Panel has no evidence to support this allegation other than the notation in Ms. Parker's summary chart (Exhibit 3, Tab 6 at p. 40), which is clearly insufficient for the College to meet its burden of proof.

g) Allegation 3(h)

90The Panel finds that, on a balance of probabilities, the Member told a student’s parent that their daughter acted differently with her, and asked, "Is it because I’m Black?” Ms. Parker testified that the incident was reported to her directly by the student's mother through the Superintendent of Education. According to Ms. Parker, the Member denied the incident entirely. The Panel finds that Ms. Parker's testimony was consistent and credible and has no reason to doubt its veracity.

h) Allegation 3(i)

91The Panel finds that, on a balance of probabilities, the Member completed the Safe Schools Incident Report form (the "incident report") and altered it to include an incident involving a student who had accused her of stealing a pencil, as alleged in item 3(i) of the Notice of Hearing. However, the Panel must qualify its finding.

92The College entered the incident report into evidence (Exhibit 3, Tab 6 at p. 84). Upon review of this document, it is evident to the Panel that an "activity" was added by hand to include "Accusing a teacher of stealing". However, in her testimony, Ms. Parker clearly stated that the Member had falsely accused the student of stealing a pencil. Ms. Parker's summary chart (Exhibit 3, Tab 6 at p. 39) clearly indicates that "the [XXX]teacher used the GF 025 form and altered it to include an incident that does not fit into any of the categories accusing a student of stealing”. The implication is that the Member falsely accused a student of stealing a pencil, which the student denied. The Member then allegedly completed the incident report to show that the student had accused her of stealing a pencil. Based on the wording of item 3(i) of the Notice of Hearing, the College also believes that the Member falsely reported that the student had accused her of theft. Based on Ms. Parker's testimony and her summary chart, the incident report should have read "Stealing (by student)".

93The Panel cannot ignore this inconsistency and discrepancy in the evidence. The College needs to draft its allegations more carefully: the Panel's task is unnecessarily complicated when the College alleges that the Member added to the incident report an incident involving a student who accused her of stealing a pencil, whereas the testimonial and documentary evidence, apart from the incident report itself, shows the opposite: that it was the Member who accused the student of stealing a pencil.

94In any event, the Panel still finds it more likely than not that the Member completed and altered the incident report to add an incident for the sole purpose of penalizing the student in question, even though the evidence is contradictory as to the identities of accuser and accused. Ms. Parker testified that it was the Member’s handwriting on the report, not her own. There is also a signature that appears to be the Member’s. Collectively, the evidence demonstrates that the Member did in fact complete and alter the incident report submitted in evidence.

i) Allegation 3(j)

95The Panel finds that, on a balance of probabilities, the Member failed to provide effective instruction in [XXX], as alleged in item 3(j) of the Notice of Hearing.

96Ms. Parker testified that the Member admitted directly to her that she did not use [XXX], the [XXX] program for Grades [XXX] and [XXX]. The College also entered into evidence the cover of a workbook that Ms. Parker said the Member used to teach her subject, and is typically purchased at a dollar store. Ms. Parker then cautioned the Member that she should not use the workbook as a primary resource, but as a supplement to Board-approved resources. Ms. Parker also observed the Member using a Think Sheet, a resource generally intended for staff members. The Panel believes that it is more efficient to use Board- or Ministry-approved curriculum and that doing otherwise is not an effective use of instructional time. The Member’s approach undermines the effectiveness of her teaching through her refusal to use pre-approved teaching and learning resources and curriculum. In addition, Ms. Parker repeatedly stated that she had heard students in the Member's class complain that they did not know what to do, a sign that the Member's instruction was probably not effective or clear enough for students to thoroughly grasp the material.

97More generally, the Member's turning her back on her students, her failure to adhere to IEPs and various incidents of poor classroom management (such as students roaming freely around the school or answering the phone for the Member, and the confusing call to the school office) are all signs that the Member's classroom can often be disorganized, which can only be detrimental to the effectiveness of her teaching.

j) Allegations 3(k) and 3(l)

98Since allegations 3(k) and 3(l) are similar, the Panel chooses to deal with them together. It therefore finds that, on a balance of probabilities, the Member failed to provide evidence that she had assessed the students' work and failed to inform parents of their children's progress, as alleged in item 3(k) of the Notice of Hearing. In addition, the Member failed to take appropriate steps to report student results, as alleged in item 3(l) of the Notice of Hearing.

99According to Ms. Parker's testimony and the January 18, 2017 meeting notes, some parents complained that their children were not bringing home any assignments and never had a test or practice exam. According to the notes on the January 18, 2017 meeting, Ms. Parker looked through various Duo-Tang binders belonging to students and found no work assessed by the Member (Exhibit 3, Tab 9 at p. 91). In her testimony as well as in the meeting notes, Ms. Parker indicates that the Member does not follow up with parents or provide any evidence of assessment when parents requested it. Taken together, this evidence is sufficient to convince the Panel that it is more likely than not that the Member does not give students any tests or practice exams and that she fails to report children's progress to their parents.

k) Allegation 3(m)

100The Panel finds that, on a balance of probabilities, the Member did not complete the New Teacher Induction Program course offered by the Board, as alleged in item 3(m) of the Notice of Hearing.

101The College entered into evidence the schedule for the course that the Member was to attend (Exhibit 3, Tab 5 at p. 32 ff.). At the top of the first page, a handwritten note states, "PD sessions arranged for [the Member] for the 2016-2017 school year. Teacher did not attend." Ms. Mifsud testified that it was she who made the notation and signed it. She further explained that the program administrators told her at the time that the Member had not attended the scheduled sessions, except for one previously scheduled session in May 2016.

102The Panel has no reason to doubt the authenticity of this document or the veracity of Ms. Mifsud's testimony. It therefore concludes that the Member did not attend the professional development sessions in which she was supposed to participate.

(2) Legal Conclusions

103The Panel finds that the Member’s conduct as described above gives rise to a finding of professional misconduct. Thus, the Member committed the following acts of professional misconduct: 1) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); 2) she abused students verbally, contrary to Ontario Regulation 437/97, subsection 1(7); 3) she abused students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2); 4) she failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11); 5) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14); 6) 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); 7) 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); and 6) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

104The College did not present any evidence with respect to the allegation of incompetence set out in (i) and therefore did not specifically ask the Panel to rule on the allegation of incompetence. In the absence of evidence, the Panel chooses not to rule on the allegation.

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

105The Panel considers that the Member failed to meet the standards of the profession, specifically: 1) classroom management, 2) student safety, 3) assessments and curriculum compliance, and 4) appropriate communication. The Panel heard evidence from two witnesses qualified as participant experts.

i. Classroom Management

106Most of the factual findings above could be addressed from the perspective of the standard for classroom management. Indeed, that was the Panel's main finding in this case: the Member was evidently overwhelmed by her duties and therefore had difficulty managing her classroom appropriately. Most of the incidents of which she is accused in this case stem from this finding. At the May 12, 2017 meeting, the Member clearly stated that she would like more resources, including more help from the resource teacher. She referred to the size of her class and the number of students with an IEP, and the unavailability of educational resources. The Panel cannot comment as to whether the School or Board provided sufficient resources to the Member or whether she had the skills required to perform her duties, but it is clear that the Member seemed overwhelmed by the demands of her teaching job.

107In any event, it has been shown that the Member left students unsupervised: students were seen running up and down the stairs and on their own in the hallway, while others roamed freely in and out of the washroom while the Member was talking to another teacher in a classroom. The Member should have interrupted her conversation and gone to settle her students, but the Principal had to do it for her. It has also been shown that one student left the Member's classroom on his own and his whereabouts were unknown for at least 20 minutes or so. Similarly, the fact that the Member called the office in a panic for help and was unable to answer the phone when the Principal called demonstrates that the Member was not in control of her classroom. Worse, the Member seemed so overwhelmed that she did not bother to report the absence of the student who walked out of class after she called him a liar. It has also been shown that the students sometimes did not know what to do in the Member's class, which is indicative of some disorganization or poor planning on the Member's part.

108Ms. Mifsud testified that teachers have a professional obligation to ensure student safety and supervise students at all times. Leaving students unsupervised increases the risk of an incident. Therefore, the Panel believes that, based on the facts of the case, the Member failed to meet the standard of practice for classroom management.

ii. Student Safety

109The standard of practice for student safety overlaps the one for classroom management. For the abovementioned reasons, it is also clear to the Panel that the Member contravened the standard of practice for student safety. Ms. Mifsud testified that this standard also referred to the supervision of students and that, in accordance with the Standards of Practice for the Teaching Profession, it is a teacher's duty to ensure student safety. Ms. Mifsud added that the public expects parents who send their children to school to be assured of their safety.

110The Panel thus finds that the Member failed to meet the standard for student safety.

iii. Assessments and Curriculum Compliance

111It has been shown that the Member failed to assess her students, measure their achievement and report on student progress to their parents. It has also been shown that the Member did not always follow Board- or Ministry-approved curriculum or use Board-approved teaching and learning resources. Ms. Mifsud’s expert testimony was that teachers have a professional obligation to teach the subject matter approved by the Ministry of Education and, more importantly, the Board in which they work. They are also responsible for assessing students to measure their progress and ensure their learning needs are being met. Ms. Mifsud also noted that under Regulation 298 of the Education Act, teachers have a duty to communicate regularly with parents.

112It has also been shown that the Member failed to modify her teaching to meet the needs of students with an IEP, for example, in the case of Student 1. According to Ms. Mifsud's testimony, the Member had a professional responsibility to adapt her teaching to an individual student’s needs and the accommodations in his IEP.

113The Panel thus finds that the Member did not meet the standard of practice for assessments and curriculum compliance.

iv. Appropriate Communication

114It has been shown that the Member yelled at students and made inappropriate comments such as asking them to kneel down to pray, telling them that they needed to be more like God, that they were speaking the devil's language and that the devil was in them. The Member also told some students that she didn't care if the Principal was trying to talk to her since she didn’t run her class. She also made fun of one student and told another that she didn't care if she had to change her tampon. It has also been shown that the Member raised her voice with colleagues, including the secretary, and yelled at the Principal. These comments, sometimes crude, contravene the professional standard for appropriate communication with students and colleagues.

115Ms. Mifsud testified that teachers are expected to discipline students appropriately, encouraging positive interactions. Yelling at students in front of other students demeans and humiliates them. She also said that it is the responsibility of school staff to adopt a professional tone and demeanor in their interactions with other colleagues. Ms. Parker said that the remarks with religious overtones that the Member used as punishment were inappropriate and did not reflect the Catholic values that the Board strives to instill in students.

116The Panel thus finds that, on a balance of probabilities, the Member did not meet the standard of practice for assessments and compliance with the curriculum.

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

117The Panel finds that the Member abused students verbally. It has been shown that the Member called one student a liar, and told students that they needed to be more like God, that they were speaking the devil's language and that the devil was in them. She also made fun of one student while he was filling out a behaviour sheet and accused a student of being crude, telling her she needed Jesus. The evidence also shows that she repeatedly yelled at students.

118Being the recipients of such inappropriate comments from a person in a position of authority and trust like a teacher can only be demeaning for students and certainly constitutes verbal abuse. Similarly, making fun of one student and calling another a liar is definitely verbal abuse. This type of language is not conducive to learning and demonstrates blatantly poor judgment on the Member’s part.

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

119The Panel finds that the Member abused a student psychologically or emotionally. Student 1 testified that she was hurt by the Member's stubborn refusal to allow her brain breaks or let her go to the washroom unaccompanied. She even went home in tears. Moreover, the Panel finds the incident involving the student who was left unsupervised for approximately 20 minutes to be particularly concerning, not only because of the Member's indifference to a student she must have known was anxious since, according to Ms. Parker's testimony and the meeting notes, he had an IEP, but also because of the emotional impact of this incident on the student. The evidence clearly shows that the student was in tears and was shaken by the Member's attitude.

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

120It has been shown that on October 25, November 4 and November 30, 2016, the Member did not adequately supervise the students in her care. The lack of supervision is confirmed by Ms. Parker's testimonial evidence, which is supplemented by the documentary evidence. A particularly telling instance of the Member's shortcomings in this regard is the incident in which a student was left on his own for some 20 minutes in the school hallways. Teachers cannot fulfill their supervisory obligation if the students in their care are free to roam the school without the teacher knowing where they are.

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)

121While the allegations based on Ontario Regulation 437/97, subsection 1(14) do not require expert evidence relating to a breach of the ethical standards, the Panel nonetheless heard Ms. Mifsud’s testimony that the Member failed to meet the Ethical Standards for the Teaching Profession as set out in section 26.02 of the College Bylaws. She found that the Member breached the standard of practice for trust by failing to supervise, teach the approved curriculum or modify her teaching to accommodate students with an IEP, as well as through her inadequate classroom management. The Member did not have the trust of students, parents or her colleagues. Ms. Mifsud also felt that the Member lacked empathy as shown by her inadequate supervision, which amounted to a lack of commitment to students’ well-being. The Panel agrees.

122Like Ms. Mifsud, the Panel believes that the Member also contravened the ethical standard of Integrity through her interactions with the Principal and her colleagues. The concept of Integrity embodies honesty. The evidence shows that the Member largely denied the actions of which she was accused, even though several people had witnessed them, for example. Lastly, the Member failed to meet the ethical standard of Respect. Both Ms. Mifsud and Ms. Parker alluded to inappropriate methods of discipline in their testimony. The Panel would also add the Member’s manner of speaking about the Principal in front of her students, her general behaviour towards her colleagues and the altercation in the office between the Member and the resource teacher, which was described above. She also wasted her colleagues' time by not attending the professional development courses that had been arranged for her, which is equally disrespectful.

123For all of these reasons, the Panel finds that the Member contravened Ontario Regulation 437/97, subsection 1(14).

f) The Member 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)

124Clauses 264(1)a) and c) of the Education Act provide that it is the duty of the teacher to both "teach diligently […] subjects assigned to the teacher [by the Principal]” and "to inculcate by precept and example" several principles and virtues. The latter is generally understood to mean the teacher's duty to model respect for their ethical obligations. The Member’s conduct showed contempt for the students in her care by using inappropriate language about them and failing to teach them the subject matter required by the Board and the Ministry. The Member also showed little concern for the physical or psychological well-being of Student 1 or the other student whom she called a liar and left unsupervised until the custodian found him in tears. By responding in a curt and disparaging manner to the Principal's attempts to reach her on the phone, and insinuating to a student's parent that her daughter was acting differently with her because of the colour of her skin, the Member certainly did not set an example, and should have shown restraint on several occasions.

125Accordingly, the Panel finds that the Member contravened Ontario Regulation 437/97, subsection 1(15).

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)

126The Panel is of the view that the Member's behaviour is disgraceful, dishonourable and unprofessional. The incident that casts serious doubt on the Member's moral character, and is therefore disgraceful, is undoubtedly the insults she hurled at some of her students. Calling one student a liar and another one crude, or using religion to try to make students feel guilty, either by implying that they are speaking "the devil's language" or that the devil is in them, is unacceptable. The Panel expects higher moral character from a member of the teaching profession.

127The Member's conduct is also dishonourable in that she was dishonest in her meetings with the Principal, giving answers to questions that are contradicted by the evidence, including denying that she had called the office for assistance. The Member’s lack of transparency casts doubt on her sincerity and implies dishonourable motives.

128Lastly, the Panel is of the view that the Member's conduct was unprofessional, as several incidents in this case point to her poor professional judgment. Although the Member was relatively new to [XXX]School, she obtained her Certificate of Qualification and Registration in October 2004 (Exhibit 3, Tab 1 at p. 6) and thus had almost 20 years of experience. She should have been able to judge for herself that several instances of her behaviour and deficient performance of various duties as a teacher were unprofessional. Her indifference to certain students, including Student 1, directly contravened her duty to ensure the well-being of her students at all times.

129For all of these reasons, the Panel finds that the Member contravened Ontario Regulation 437/97, subsection 1(18).

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

130The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession, specifically because her actions tarnished the reputation of the teaching profession and betrayed the trust that parents, students and the public place in teachers.

131The Panel heard testimony from Ms. Mifsud, for example, that parents had even complained about the tampon episode to the Director of Education and the community was "very upset" and even "very agitated". Ms. Parker also testified that some parents had complained about the lack of evaluations and that because of repeated incidents involving the Member, some parents of students did not want their children to return to her class.

J. PENALTY

132The Tribunals Office will set a later date for the Panel to hear submissions from the parties on the penalty.

November 9, 2022

Marlène Marwah Chair, Discipline Panel

Élaine Legault Member, Discipline Panel

Alain Martel, OCT Member, Discipline Panel