Ontario College of Teachers v. Guerriero, 2023 ONOCT 18 — Ontario College of Teachers | minicounsel

Citation: Ontario College of Teachers v Guerriero 2023 ONOCT 18 Date: 2023-03-08

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 Stephanie Maria Guerriero, OCT, a member of the Ontario College of Teachers.

Between: Ontario College of Teachers – and – Stephanie Maria Guerriero (Registration #704379)

Panel: Emma Rhodes, Chair Rebecca Forte, OCT Anthony Jeethan, OCT

Heard: March 2, 2023

Counsel: Lisa Feinberg, for the Ontario College of Teachers Mandy Wojcik, for Stephanie Maria Guerriero Rebecca Durcan, 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 March 2, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Stephanie Maria Guerriero (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 October 11, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Stephanie Maria Guerriero is guilty of professional misconduct as defined in the Act in that:

(a) she failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(b) she signed or issued in her professional capacity, a document that she knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(c) she falsified a record relating to her professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

(d) she committed acts or omissions 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);

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

C. Statement of Uncontested Facts

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides the following:

At all material times, Stephanie Maria Guerriero was 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.
At all material times, the Member was employed by the Simcoe County District School Board (the “Board”) as an occasional elementary school teacher. The Member began her employment with the Board in March 2021.
On or about August 20, 2021, the Ministry of Education released the "School Board Implementation Resource: Data Collection & Reporting – COVID 19 Immunization Disclosure Policy for the Education Sector" (the "Policy").The Policy applied to all publicly funded school board employees, including employees of the Board.
Under the Policy, Board employees were required to disclose their vaccination status in a vaccination attestation. Board employees who were not fully vaccinated against COVID-19 were required to test regularly for COVID-19 using rapid antigen tests ("RAT").
On or about September 3, 2021, the Ministry of Education informed school boards that individuals subject to RAT requirements under the Policy would need to provide verification of negative test results at least twice each week. The Ministry of Education increased the frequency of testing to three times each week, effective November 15, 2021.
On or about September 15, 2021, the Board provided written guidance by email to all employees who were not fully vaccinated, including the Member, on how to submit their RAT results to the Board in accordance with the Policy. Notably, the Board instructed employees to test not more than 48 hours prior to attending work, to take a picture of their RAT result, and then upload the picture and the test date to the Board’s online portal twice each week, beginning on September 23, 2021.
The Member submitted her first RAT result to the Board in accordance with the Policy on September 23, 2021.
On September 27, 2021, the Member submitted a RAT result to the Board that she declared was taken on September 25, 2021, when the RAT was taken on September 21, 2021.
On October 12, 2021, the Member submitted a RAT result to the Board that she declared was taken on October 10, 2021, when the RAT was taken on October 7, 2021.
On October 18, 2021, the Member did not submit her RAT results to the Board as required.
On October 19, 2021, the Member received correspondence from the Board reminding her to complete and submit her RAT results.
Thereafter, the Member again submitted false information about her RAT results to the Board on the following dates:

(a) On October 19, 2021, the Member submitted a RAT result that she declared was taken on October 17, 2021, when the RAT was taken on September 30, 2021.

(b) On or about October 21, 2021, the Member submitted a RAT result that she declared was taken on October 19, 2021, when the RAT was taken on September 21, 2021.

(c) On October 25, 2021, the Member submitted a RAT result that she declared was taken on October 23, 2021, when the RAT was taken on September 21, 2021.

On October 28, 2021, the Member received correspondence from the Board indicating that she had submitted duplicate photographs of the same RAT on different submission dates. The Board requested that she write down the testing date on a piece of paper next to the test when taking the photograph to ensure the same error did not reoccur. The Member acknowledged the email and agreed to proceed as directed by the Board.
Despite having received the October 28, 2021 reminder email from the Board, the Member continued to submit false information about her RAT results to the Board:

(a) On November 4, 2021, the Member submitted a RAT result that she declared was taken on November 2, 2021, when the RAT was taken on November 1, 2021.

(b) On November 8, 2021, the Member submitted a RAT result that she declared was taken on November 6, 2021, when the RAT was taken on November 1, 2021.

(c) On November 15, 2021, the Member submitted a RAT result that she declared was taken on November 13, 2021, when the RAT was taken on November 10, 2021.

(d) On November 17, 2021, the Member submitted a RAT result that she declared was taken on November 15, 2021, when the RAT was taken on November 10, 2021.

(e) On November 19, 2021, the Member submitted a RAT result that she declared was taken on November 17, 2021, when the RAT was taken on November 10, 2021.

(f) On November 24, 2021, the Member submitted a RAT result that she declared was taken on November 22, 2021, when the RAT was taken on November 21, 2021.

Many of the RAT results submitted by the Member were duplicate photographs. The Member submitted the same photograph of a RAT result on multiple days, presenting it as a new submission each time. In particular:

(a) On September 23, 2021, October 21, 2021, and October 25, 2021, the Member submitted the same photograph of her RAT test result, which was taken on September 21, 2021.

(b) On October 7, 2021 and October 12, 2021, the Member submitted the same photograph of her RAT test result, which was taken October 7, 2021.

(c) On September 30, 2021, October 14, 2021, and October 19, 2021, the Member submitted the same photograph of her RAT test result, which was taken September 30, 2021.

On or about November 24, 2021, the Member was blocked out of the call out system for occasional teachers while a Board investigation into her failure to comply with the Policy was ongoing.
The Member met with the Board and her Federation representative on or about November 25, 2021. The Member resigned her employment with the Board on or about December 8, 2021.

PLEA OF NO CONTEST

By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-17 above (the “Uncontested Facts”).
The Member hereby acknowledges that paragraphs 8-15 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against her, being more particularly:

(a) she failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) she falsified a record relating to her professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

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

By this document the Member states that:

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

(b) she understands that she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) she understands that, by pleading no contest to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;

(d) she understands that the Discipline Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) 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;

(f) she understands that any agreement with respect to the penalty proposed does not bind the Discipline Committee; and

(g) she understands and acknowledges that she is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel or having had the opportunity to obtain legal advice.

The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances and the plea of no contest, 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 Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on March 2, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(10), 1(12), 1(13), 1(18) and 1(19).

E. Reasons for Decision

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 17 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Uncontested Facts at paragraphs 8 to 15 of Exhibit 3 constitute professional misconduct under the heads of misconduct set out above. The Uncontested Facts demonstrate that the Member repeatedly submitted false information about her RAT results to the Board and on one occasion she failed to submit her test results as required.

8The Panel finds that the Member failed to keep records as required by her professional duties, contrary to subsection 1(10) of Ontario Regulation 437/97. Beginning on September 23, 2021, employees of the Board who were not fully vaccinated against COVID-19, including the Member, were required to (1) test for COVID-19 at least twice per week¹ and not more than 48 hours prior to attending work, (2) take a picture of their RAT result and (3) upload the picture and the test date to the Board’s online portal, in accordance with the Policy and the Board’s instructions of September 15, 2021. Not only did the Member fail to submit her RAT results to the Board on October 18, 2021, but on multiple days she submitted photographs of the same RAT result, presenting it as a new submission each time, contrary to the Policy and the Board’s instructions. For instance, on September 23, October 21 and October 25, 2021, the Member submitted the same photograph of her RAT test result, which was taken on September 21, 2021. The Panel finds that by engaging in such conduct, the Member failed to keep records as required.

9The Member signed or issued in her professional capacity, a document that she knew or ought to have known contained a false, improper or misleading statement, contrary to subsection 1(12) of Ontario Regulation 437/97. On several occasions, the Member submitted false information about her RAT results to the Board. For instance, on six occasions in November 2021, the Member falsely declared to the Board the date that her RAT was taken. The Panel finds that the Member knew or ought to have known that the information she was submitting about her RAT results was false because, on October 28, 2021, the Board had emailed the Member about her false reports and provided her with instructions to ensure that the same error did not reoccur. Despite having received this reminder email and agreeing to proceed as directed, the Member continued to submit false information about her RAT results to the Board.

10The Member falsified a record relating to her professional responsibilities, contrary to subsection 1(13) of Ontario Regulation 437/97. The Panel accepts College Counsel’s unopposed submission that the Member had a professional responsibility to ensure the health and safety of students and staff during the COVID-19 pandemic by complying with record-keeping requirements. The Member, however, repeatedly failed to do so by submitting false information about her RAT results to the Board during the pandemic. Furthermore, the Panel places significant weight on the fact that the Member has pleaded no contest to this subsection.

11The Member committed acts or omissions 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 behave ethically and demonstrate good judgment in their professional practice. By failing to submit a RAT result on one occasion and repeatedly submitting false information and duplicate photographs regarding her RAT results in blatant disregard of her Board’s directions, the Member acted dishonestly and contrary to her professional obligations. The Member’s conduct can therefore be categorized as disgraceful, dishonourable, or unprofessional.

12The Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. By repeatedly submitting false information about her RAT results in the face of a public health crisis and contrary to the Board’s directions, the Member undermined the reputation of the teaching profession and breached the trust that the public, her employer, and the school community had placed in her.

F. Penalty Decision

13The parties entered into a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on March 2, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered electronically, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at her own expense, coursework of instruction pre-approved by the Registrar regarding ethical practice, subject to the following conditions:

(i) the Member shall provide the course practitioner approved by the Registrar a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph 2(a)(i) above, the course practitioner shall 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; and

(b) within 30 days of her completion of the course outlined in paragraph 2(a) above, the Member shall provide to the Registrar a report from the course practitioner 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

14The 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.² The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Bene, 2009 ONOCT 7; Ontario College of Teachers v. Cosentino-Galloro, 2019 ONOCT 4; Ontario College of Teachers v. Opris, 2021 ONOCT 88; Ontario College of Teachers v. Sullivan, 2017 ONOCT 41; Ontario College of Teachers v. Villeneuve Mason, 2019 ONOCT 54; and Sullivan v. Ontario College of Teachers, 2018 ONSC 942.

15The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in this case are: (1) the Member’s conduct was not a momentary lapse in judgment. She repeatedly submitted false information about her RAT results despite having been reminded by her Board on October 28, 2021 that she had submitted duplicate photographs of the same RAT results on different submission dates, and (2) the Member blatantly ignored directions relating to health and safety requirements from the Ministry of Education and her Board in the context of the COVID-19 pandemic. In terms of mitigating factors, the Member did not contest her misconduct, saving the time and expense of a contested hearing, and she took responsibility for her actions. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

16The Panel finds that the Member’s repeated dishonest conduct, despite having been reminded by the Board, warrants a reprimand. Members must act ethically in their professional practice. The Member’s conduct was in stark contradiction to this principle. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

17The Panel finds that the course of instruction regarding ethical practice will 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 her professional practice. The coursework should provide the Member with a clear understanding of the importance of being honest, trustworthy, and reliable in her professional practice.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: March 8, 2023

Emma Rhodes Chair, Discipline Panel

Rebecca Forte, OCT Member, Discipline Panel

Anthony Jeethan, OCT Member, Discipline Panel

Footnotes

The Ministry of Education increased the reporting frequency to three times per week, effective November 15, 2021.
See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.