DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kumor 2022 ONOCT 79

Date: 2022-08-02

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

Michael Toru Kumor, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MICHAEL TORU KUMOR (REGISTRATION #471452)

PANEL: Marlène Marwah, Chair Sarah Choudhury Alain Martel, OCT

HEARD: July 27, 2022

Zirka Jakibchuk, for the Ontario College of Teachers Sheilagh Turkington, for Michael Toru Kumor 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 July 27, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Michael Toru Kumor (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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated March 24, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Michael Toru Kumor is guilty of professional misconduct and/or is incompetent as defined in the Act in that:

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

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

(c) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);³

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

C. AGREED STATEMENT OF FACTS

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

1. Michael Toru Kumor 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 George Webster Elementary School (the “School”) in Toronto, Ontario.

3. During the 2017-2018 and 2018-2019 academic years, the Member was a Grade 7 homeroom teacher at the School.

4. Between in or around April 2018 and in or around June 2019, the Member’s teaching performance was evaluated through three teacher performance appraisals (“TPA”s), which were conducted in accordance with the Education Act, R.S.O. 1990, c. E.2 (the “Education Act”) and the Board’s Teacher Performance Appraisal Process.

5. On or about April 16, 2018, the School Vice-Principal completed the Member’s first TPA in the review period. The Member received an ‘unsatisfactory’ rating on this TPA. Attached hereto and marked as Appendix “B” is a copy of the Summative Report dated April 16, 2018.

6. On or about April 24, 2018, the Board wrote to the Member confirming the ‘unsatisfactory’ rating, identifying the various deficiencies in the Member’s teaching practice, and outlining the Board’s expectations for improvement. Attached hereto and marked as Appendix “C” is a copy of the Board’s letter to this effect.

7. On or about December 11, 2018, the Member’s second TPA in the review period was completed. The Member believes this TPA was conducted by a Board administrator (other than the Superintendent of Education referenced in para. 10 below). The Member also received an ‘unsatisfactory’ rating on this TPA. Attached hereto and marked as Appendix “D” is a copy of the Summative Report dated December 11, 2018.

8. On or about January 22, 2019, the Board wrote to the Member confirming the second consecutive ‘unsatisfactory’ rating and placing the Member on ‘review status’. Attached hereto and marked as Appendix “E” is a copy of the Board’s letter to this effect.

9. On or about the same day, the Principal met with the Member and provided him with an Improvement Plan setting out the competencies requiring development (which were 15 of the 16 competencies evaluated as part of the TPA Process), the Board’s expectations of the Member, and the support to be provided by the Board to the Member to help him improve his teaching performance. Attached hereto and marked as Appendix “F” is a copy of the Improvement Plan signed by the Member on January 31, 2019.

10. On or about June 3, 2019, the Superintendent of Education (“Superintendent”) completed the Member’s third TPA in the review period. The Member also received an ‘unsatisfactory’ rating on his TPA. Attached hereto and marked as Appendix “G” is a copy of the Summative Report dated June 3, 2019.

11. On or about June 14, 2019, the Board wrote to the Member confirming the Member’s third consecutive ‘unsatisfactory’ rating and that, pursuant to s. 277.38(9) of the Education Act, a recommendation for the termination of the Member’s employment with the Board would be sent to the Board for its decision. Attached hereto and marked as Appendix “H” is a copy of the Board’s letter to this effect.

12. On or about September 25, 2019, a recommendation was submitted for the termination of the Member’s employment with the Board. The Member’s performance was found to be ‘unsatisfactory’ in 15 of the 16 competencies evaluated as part of the TPA Process. The Reasons for Termination noted serious concerns with the Member’s teaching performance, including, but not limited to:

(a) poor program planning;

(b) minimal and ineffective assessment and evaluation practices and record-keeping;

(c) poor communication with students and parents regarding expectations and feedback;

(d) poor pedagogical practices;

(e) poor classroom and behaviour management; and

(f) failure to provide differentiation, accommodations and modifications for students with various learning needs (i.e. Individual Education Plans, English Language Learners).

Attached hereto and marked as Appendix “I” is a copy of the Recommendation for the Termination of the Member’s employment with the Board.

13. Throughout the review period, the Board provided the Member with several opportunities and supports to improve his performance (including meetings with the Principal every other week, visits to other grade appropriate classrooms for ideas, meetings with a learning coach and other school staff experts for support, professional development in planning, assessment and classroom management strategies, etc.). Despite these various supports, the Member’s performance did not improve to the point where he was assessed as performing at a ‘satisfactory’ level.

14. On or about September 25, 2019, the Board terminated the Member’s employment. Attached hereto and marked as Appendix “J” is a copy of the letter from the Board to the Member to this effect.

ACKNOWLEDGMENT OF INCOMPETENCE

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

16. The Member hereby acknowledges that the conduct set out at paragraphs 5-14 of the Admitted Facts constitutes incompetence in that he has displayed a lack of knowledge, skill or judgment or disregard for the welfare of a student(s) of a nature or extent that demonstrates that his Certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Ontario College of Teachers Act, 1996.

17. By this document, the Member states that:

(a) he understands fully the nature of the allegations against him;

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

(c) he understands that by acknowledging incompetence in relation to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

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

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

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

18. In light of the Admitted Facts and circumstances and the plea of incompetence, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member to be incompetent, as defined in subsection 30(3) of the Ontario College of Teachers Act, 1996.

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(15) and 1(18) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegations was being sought because the evidence does not support a finding of professional misconduct. The Panel granted these requests.

7Having considered the Agreed Statement of Facts and Acknowledgment of Incompetence and the submissions of the parties, the Panel rendered an oral decision on July 27, 2022, finding the Member to be incompetent as defined in subsection 30(3) of the Act, in that he displayed a lack of knowledge, skill or judgment or disregard for the welfare of his students of a nature or extent that demonstrates that the Member’s certificate should be made subject to terms, conditions or limitations.

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 14 of the Agreed Statement of Facts and Acknowledgment of Incompetence and admitted the allegation of incompetence against him. He acknowledged and the Panel accepts that the Admitted Facts at paragraphs 5 to 14 of Exhibit 2 constitute incompetence as defined in subsection 30(3) of the Act and show serious deficiencies in several domains of the Member’s teaching practice.

9The Member’s teaching performance was evaluated through three TPAs. In his first TPA which was completed on April 16, 2018, the Member received an “unsatisfactory” rating. The Board identified various deficiencies in the Member’s teaching practice and outlined the Board’s expectations for improvement. In his second TPA which was completed on December 11, 2018, the Member received a second consecutive “unsatisfactory” rating and the Board informed him, on January 22, 2019, that he was placed on “review status”. The Member was provided with an Improvement Plan setting out the competencies requiring development, the Board’s expectations of the Member and the support to be provided by the Board to help the Member improve his teaching performance. In his third TPA which was completed on June 3, 2019, the Member received a third consecutive “unsatisfactory” rating. In accordance with subsection 277.38(9) of the Education Act, the termination of the Member’s employment with the Board was recommended, and the Board terminated the Member’s employment on September 25, 2019.

10The Member experienced difficulty in all five domains of his teaching practice, i.e., (1) Commitment to Pupils and Pupil Learning, (2) Professional Knowledge, (3) Professional Practice, (4) Leadership in Learning Communities and (5) Ongoing Professional Learning.

(1) Commitment to Pupils and Pupil Learning

11The Panel received ample evidence demonstrating that the Member did not show a Commitment to Pupils and Pupil Learning. Among other things, the Member failed to provide differentiation, accommodation, and modifications for students with various learning needs, especially English Language Learners (ELL) and students with Individual Education Plans. For instance, in his first performance appraisal, the Vice-Principal observed that the Member required significant support to consider and implement “Differentiated Instruction” in his classroom program and that “he did not demonstrate in his planning that he has taken into consideration the needs of his students who require modifications or accommodations.”

12Similarly, during the second evaluation, it was observed that “[…] there is no evidence of modifications or accommodations have been made that might allow ELL students success and permit them to access the Ontario Grade 7 curriculum.”

13Again, during the third evaluation, the Superintendent noted that “[…] at no time were copies of students’ Individual Education Plans or information about the learning profile of the ELL students evident in [the Member’s] planning and/or assessment documentation […].”

14Additionally, in all three TPAs, it was observed that the Member did not demonstrate that he treated students equitably and with respect. For instance, in the second evaluation, “[…] Students were observed arguing and being disrespectful to each other without being redirected by the teacher. On another occasion, the [Member] was observed saying in a loud voice ‘I’ve told you not to say that word.’”

(2) Professional Knowledge

15The Panel finds that the Member did not demonstrate adequate professional knowledge. In particular, the Member did not satisfactorily show that he knows a variety of effective teaching and assessment practices. For instance, in his second appraisal, it was observed that there was minimal evidence of a variety of assessment strategies and virtually no evidence that assessment strategies were aligned with the learning objectives. Furthermore, in the third appraisal and Reasons for Termination, the Superintendent noted that the Member did not “keep detailed and accurate assessment and evaluation records. Nor was there any evidence of a variety of assessment and evaluation strategies being implemented.”

(3) Professional Practice

16With respect to his professional practice, the Member did not deploy adequate teaching practices and classroom management strategies to promote the learning and achievement of his students. For instance, during the third appraisal and Reasons for Termination, the Superintendent observed that the Member did not provide timely and constructive feedback to students on written assignments, he did not establish a positive learning environment in the classroom, and he did not use effective strategies to secure the attention of all students when giving instructions or explaining a point. Additionally, the Member did not communicate effectively with pupils and parents. The Superintendent also noted that the Member did not provide clear written or verbal communication to students, and he did not develop routines for communicating with parents on a regular, planned basis about matters such as attendance, student progress and classroom issues. Similar concerns were also observed during the first and second appraisals.

(4) Leadership in Learning Communities

17The Member did not demonstrate Leadership in Learning Communities. The Panel notes that, although the Member engaged in professional learning together with colleagues to some extent, overall, the Member did not demonstrate that he worked with other professionals, parents and members of the community to enhance pupil learning, pupil achievement and school programs.

(5) Ongoing Professional Learning

18Similarly, the Member did not engage in ongoing professional learning and apply it to improve his teaching practice. In the Reasons for Termination, the Superintendent noted that, although the Member participated in professional supports that were offered to him in his Improvement Plan, there was little evidence that he successfully used the ideas from those professional learning opportunities to improve his teaching practices.

F. DECISION on order

19The parties agreed to a Joint Submission on Order (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 27, 2022, the Panel accepted the Joint Submission on Order and ordered that the Registrar impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration:

1. Prior to commencing or returning to a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall enrol in and successfully complete, at his own expense, an Additional Qualification course or Additional Basic Qualification course, pre-approved by the Registrar covering, among other things: lesson and program planning; instructional strategies; differentiation, accommodation and modification for students with learning needs; assessment and evaluation of student learning; and classroom management;

2. Within 30 days of his completion of the course referred to at paragraph 1 above, the Member shall provide evidence to the Registrar in writing of his successful completion of the course;

3. Within 90 days prior to returning to a Teaching Position, the Member shall enrol in and successfully complete, at his own expense, an additional course of instruction, pre-approved by the Registrar, regarding classroom management and appropriate communication with students, subject to the following conditions:

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

(b) the Member shall provide to the Registrar the syllabus from the course practitioner and confirmation of the length of the course to be undertaken by the Member, and the course expectations for successful completion.

4. Within 30 days of his completion of the course referred to at paragraph 3 above, the Member shall provide to the Registrar a written report from the course practitioner stating that the Member has successfully completed the course;

5. At least 14 days prior to commencing or resuming any Teaching Position, the Member shall notify the Registrar in writing of his start date and nature of the position, along with the name of his new employer;

6. Upon the commencement or resumption of his employment in a Teaching Position, the Member shall take all reasonable steps to have his employer conduct two appraisals of his performance within the first 24-month period, and shall provide the Registrar with proof (acceptable to the Registrar) that he has taken such steps, subject to the following conditions:

(a) if the Member’s employer is unable or unwilling to conduct such performance appraisals, the Member shall immediately so notify the Registrar in writing;

(b) the employer’s refusal or failure to conduct these appraisals will not, in and of itself, constitute a breach of the terms and conditions on the part of the Member, provided the Member has taken all reasonable steps to facilitate the completion of the appraisals within the two-year time period set out above; and

(c) in the event of the employer’s failure to complete the appraisals within the allotted time, the Registrar may, in his discretion, grant an appropriate extension; and

7. The Member shall provide the Registrar with copies of the performance appraisal reports prepared by the Member’s employer, pursuant to paragraph 6 above, within 30 days of the completion of each appraisal.

G. REASONS FOR order

20The Panel accepts the terms, conditions, or limitations 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.⁴ The Panel finds that the order proposed in the Joint Submission on Order is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Pilania, 2021 ONOCT 128, and Ontario College of Teachers v. James, 2021 ONOCT 75.

21The Panel finds that the Additional Qualification course or Additional Basic Qualification course that covers, among other things, lesson and program planning, instructional strategies, differentiation, accommodation and modification for students with learning needs, assessment and evaluation of student learning, and classroom management, will assist the Member in acquiring competencies required to improve his teaching practice. The coursework will also focus specifically on the deficiencies identified in the Member’s unsatisfactory TPAs. Moreover, the Panel accepts College Counsel’s submission that, given that the Member had difficulty, particularly, in the areas of classroom management and communication with students, the additional course of instruction regarding classroom management and appropriate communication with students will further assist the Member in acquiring competencies required to improve these two areas.

22In addition, upon the commencement or resumption of his employment in a Teaching Position, the Member will take all reasonable steps to have his employer conduct two performance appraisals within the first 24-month period, which the Registrar will monitor. This provision will help ensure that the Member is putting into practice the knowledge and skills gained from the ordered coursework, and that there is sufficient oversight of the Member’s teaching performance to ensure that it meets professional expectations and the needs of his students going forward.

23The Panel is satisfied that the order is appropriate in the circumstances. It will assist in the rehabilitation of the Member, and it meets the principles of serving and protecting the public interest. The transparency of the discipline process will be ensured by making the Decision and Reasons publicly accessible, and by posting a notation of the terms, conditions, or limitations on the Public Register of the College.

Date: August 2, 2022

Marlène Marwah Chair, Discipline Panel

Sarah Choudhury Member, Discipline Panel

Alain Martel, OCT Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3Allegation withdrawn at College Counsel’s request.
4. 4See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.