DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Mancuso 2022 ONOCT 45

Date: 2022-04-29

DECISION, REASONS FOR DECISION AND ORDER

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Shelley Mancuso, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

SHELLEY MANCUSO (REGISTRATION #565291)

PANEL: Jessica Saffran Reimers, OCT, Chair Anthony Jeethan, OCT Damienne Lebrun-Reid

HEARD: April 21, 2022

Zirka Jakibchuk, for the Ontario College of Teachers Amin Nur and Christopher Reid, for Shelley Mancuso Renée Kopp, Independent Legal Counsel

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on April 21, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Shelley Mancuso (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing. College Counsel advised that the publication ban would apply to the identity of Student 1, who is under 18 years of age.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated January 20, 2022, (Exhibit 1) are as follows:

IT IS ALLEGED that Shelley Mancuso 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) 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);

(e) 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);

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

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Shelley Mancuso is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. At all material times, Student 1 was a [XXX]-year-old female student in the Member’s class, who identifies as Black.

4. On or about March 6, 2020, the Member showed her Grade [XXX] [XXX] class a PowerPoint presentation from her previous school, which included the terms “Jew-boy” and “J-Boner”, as the student presenters, on the first slide.

5. The Member showed the presentation in question as a demonstration of inappropriate language in a school environment. In this particular class, the Member states that there had been multiple race-based incidents throughout the year.

6. A discussion ensued among students in the class about the use of these terms. Some students, including Student 1, suggested that it was acceptable for Jewish students to refer to themselves in that manner. Again, the Member did not agree.

7. In response to these suggestions, the Member stated to Student 1, “It’s the same thing as when Black people call themselves N***** [using the full word]. Is that OK?,” or something to that effect.

8. Many students were in shock and Student 1 questioned why the Member would use the “N” word. The Member responded that this was her point and that no one should use racial slurs, even when referring to themselves.

9. The Member states that she had no ill intent in her use of language, but rather aimed to discuss why racist language should not be used in the classroom.

10. The Member’s conduct was a source of considerable discomfort and upset to students in her class. The Board also found that the Member’s choice of words was “unwelcome and insensitive, and recklessly so”.

11. On September 11, 2020, the Board issued a discipline letter to the Member and suspended her for 10 days without pay. Attached hereto and marked as Appendix “B” is a copy of the Board’s September 11, 2020 discipline letter to the Member to this effect.

12. The Member was also required to, and did, provide evidence to School administration that she had satisfactorily addressed her professional development needs with respect to her responsibility to promote Fairness, Equity, Acceptance and Inclusion in the course of her professional practice, by October 31, 2020.

13. The Member regrets her conduct and is deeply apologetic for not being more sensitive in the way she handled the classroom discussion.

GUILTY PLEA

14. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-13 above (the “Admitted Facts”).

15. The Member hereby acknowledges that the conduct set out at paragraphs 4-8 and 10-12 of the Admitted Facts constitutes professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

16. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) she understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including her name, shall be published in the official publication of the College;

(e) she understands that any agreement between her and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel or the opportunity to have obtained the advice of legal counsel.

17. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on April 21, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts at paragraphs 4-8 and 10-12 constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in culturally insensitive conduct in class.

8The Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. In particular, the Member breached the standard of practice of “Professional Practice” and the ethical standards of “Respect” and “Care”. Members must use appropriate resources in planning for and responding to the needs of individual students and learning. They must also honour human dignity, emotional wellness and cognitive development as well as model respect for spiritual and cultural values. Moreover, members are required to demonstrate their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice. The Member used a PowerPoint presentation which contained the terms “Jew-boy” and “J-Boner”, in class. The Panel finds that it was unnecessary and inappropriate for the Member to use resources containing offensive material, even as a demonstration of inappropriate language in a school environment. In addition, during a discussion in class, the Member gave an inappropriate and insensitive response to Student 1, who identifies as Black, by stating “It’s the same thing as when Black people call themselves N*****[using the full word]. Is that OK?”. The Member’s insensitive conduct shocked many students in class and was a source of considerable discomfort and upset to students. The Member therefore breached the standard of “Professional Practice”. The Panel finds that by engaging in such insensitive conduct, the Member was disrespectful towards Student 1 and demonstrated a lack of commitment to students’ well-being. The Member’s conduct therefore fell below the standards of the teaching profession.

9The Member abused a student verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. The Member’s response, which was directed personally at Student 1, who identified as Black, and particularly her use of the “N*****” word, as described above, was inappropriate and offensive. Teachers must always be culturally sensitive and respectful in their interactions with students, which the Member failed to do in this case. The Member’s conduct therefore amounts to verbal abuse.

10The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Admitted Facts demonstrate that the Member’s culturally insensitive comment to Student 1, which was made in class, was shocking and a source of considerable discomfort as well as upset to students. Given her unique position of trust and authority, it was psychologically or emotionally abusive for the Member to engage in conduct that was shocking, a source of discomfort and upset to students. As such, the Member’s conduct was in violation of this provision.

11The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) provides that teachers are “to inculcate by precept and example respect for religion […] and all other virtues.”. Simply put, teachers must act as positive role models. By using offensive resources and insensitive language in class, as described above, albeit to demonstrate a point, the Member acted as poor role model and therefore failed to fulfil her duties as a teacher.

12The Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to communicate appropriately and be culturally sensitive in their interactions with students. The Member did the opposite by her offensive conduct in class. Although it was a single incident, the Panel finds that such conduct is serious enough to rise to the level of disgraceful and dishonourable conduct in this case. By engaging in such conduct, the Member also demonstrated a lack of professional judgment. The Member’s conduct can therefore be characterized as disgraceful, dishonourable and unprofessional.

13The Panel finds that the Member’s inappropriate conduct, as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. By engaging in culturally insensitive conduct in class, the Member undermined the reputation of the teaching profession as a whole and breached the trust that the public places in the profession.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on April 21, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference, and that the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

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

(a) within 90 days of the date of the Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding appropriate communication with students, including cultural sensitivity training, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

15The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.¹ The Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by the parties: Ontario College of Teachers v. Weller, 2020 ONOCT 168, Ontario College of Teachers v. Pavlovic, 2021 ONOCT 31, Ontario College of Teachers v. Vite, 2020 ONOCT 145, Ontario College of Teachers v. Flitton, 2021 ONOCT 25, and Ontario College of Teachers v. Drakes, 2019 ONOCT 69.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are that the Member’s insensitive comment was made in front of class and was a source of considerable discomfort and upset to students. In terms of mitigating factors, the Member admitted her misconduct, saving the time and expense of a contested hearing, expressed sincere remorse and has not been the subject of discipline proceedings in the past. Furthermore, the parties also jointly submitted that the absence of any ill-intent on the part of the Member in making the inappropriate comments ought to be viewed as a mitigating factor in this case. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s culturally insensitive conduct, as described above, warrants a reprimand. Members are expected to communicate appropriately with students and to be culturally sensitive in class. The Member failed to do so by her inappropriate conduct. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the public Register will serve as a general deterrent to other members of the profession.

18The Panel recognizes that the Member has addressed her professional development needs with respect to her responsibility to promote Fairness, Equity, Acceptance and Inclusion in the course of her professional practice (see paragraph 12 of the Agreed Statement of Facts and Guilty Plea in that respect). Given the parties’ Joint Submission on Penalty, the Panel finds that the course of instruction regarding appropriate communication with students, including cultural sensitivity training, will further assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students. The coursework should provide the Member of a clear understanding of how to be culturally sensitive and use appropriate language when discussing sensitive topics in class.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.