DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Genevieve Nancy Rail, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
GENEVIEVE NANCY RAIL (REGISTRATION #267140)
PANEL: Myrna Tulandi, Chair Wanda Percival, OCT Lisa Tucker
HEARD: April 21, 2023
Lisa Feinberg, for the Ontario College of Teachers
No one appearing for Genevieve Nancy Rail
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 April 21, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Genevieve Nancy Rail (the “Member”) did not attend the hearing and did not have 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 May 25, 2022 (Exhibit 1) are as follows:
IT IS ALLEGED that Genevieve Nancy Rail is guilty of professional misconduct as defined in the Act in that:
(a) she abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(b) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) she failed to supervise adequately a person or persons who were under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);
(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 sexual misconduct as defined in section 1 of the Act.
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, Genevieve Nancy Rail 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.
From September 1997 to March 2021, the Member was employed by the Thames Valley District School Board (the “Board”) as a teacher at [XXX] (the “School”) located in [XXX], Ontario.
During the 2019/2020 school year, Member made inappropriate, harmful and unwelcome comments to students in her Grade [XXX] class, Grade [XXX] [XXX] class and Grade [XXX] [XXX] class at the School. These comments include:
(a) referring to students as “fags,” “clowns,” “dumbasses,” “useless idiots,” and “Humpty Dumpty;”
(b) telling students that they “suck,” are “retarded,” are “useless,” and are “stupid;”
(c) using profanity in class including, but not limited to, “shit,” “fuck,” “stupid,” “ass,” and “dumbass,” and telling students to “shut up;”
(d) telling a student that their brother is a “fucking moron;”
(e) making a reference to six inches being “average;”
(f) saying to a male student, “this is my box” and pointing to her crotch when the student asked if the Member had graded his class project;
(g) discussing her personal life with students;
(h) discussing marijuana and how she had waited 40 years for it to become legal;
(i) telling students that she would be away due to illness the next day because it was her birthday;
(j) belittling a male student in front of the class by saying that he had to “call mommy and bring his work in;”
(k) encouraging students to call a male student a “snitch;”
(l) telling a male student in front of the class, to go to the School office and tell the School administration that he uses drugs or sold drugs; and
(m) telling students that she does not care about Individual Education Plans.
During the 2019/2020 school year, the Member allowed students in her Grade [XXX] [XXX] Class to go outside unsupervised to test aluminum bolts by burning wood in small ovens, while the Member remained inside. While the students were outside unsupervised, a fire started that students had to put out on their own.
While employed as a teacher at the School, the Member mocked disabled individuals, including:
(a) using inappropriate, derogatory and demeaning gestures;
(b) calling a student with a limp a “sharpshooter who needed to learn how to walk.”
As a result of the conduct described in paragraphs 3 and 5, several students experienced emotional and psychological upset and distress.
On September 1, 2020, the Member was issued a three-day unpaid suspension and was administratively transferred to another school following an investigation by the Board.
On March 22, 2021, the Member retired from the Board.
PLEA OF NO CONTEST
By this document, the Member agrees that the Discipline Committee can accept as correct for the purposes of this proceeding only the facts and appendices referred to in paragraphs 1-8 above (the “Uncontested Facts”).
The Member hereby acknowledges that the conduct contained within paragraph 3-5 of the Uncontested Facts constitutes 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(b) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) she failed to supervise adequately a person or persons who were under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);
(d) she committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);
(e) she engaged in sexual misconduct as defined in section 1 of the Act.
- 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 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;
(g) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and 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 College Counsel, the Panel rendered an oral decision on April 21, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(11) and 1(18). The Member also engaged in sexual misconduct as defined in section 1 of the Act.
E. REASONS FOR DECISION
7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 8 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 3 to 5 of Exhibit 3 constitute professional misconduct under the heads of misconduct set out above. The Uncontested Facts demonstrate that the Member repeatedly engaged in inappropriate conduct, including by making profane, derogatory, and demeaning comments to students, exposing students to sexual remarks, and leaving students unsupervised.
8The Member verbally abused students, contrary to subsection 1(7) of Ontario Regulation 437/97, by making several inappropriate comments to students. The Member’s comments included referring to students as “fags”, “clowns”, “dumbasses”, “useless idiots”, and telling them that they “suck” and are “retarded”. The Member also belittled a male student in front of class by saying that he had to “call mommy and bring his work in”. Furthermore, the Member used profanity in class such as “fuck” and “shit”. Additionally, the Member called a student with a limp a “sharpshooter who needed to learn how to walk”. Teachers must always be respectful in their interactions with students and are expected to foster safe and supportive learning environments. The Member did the opposite by repeatedly putting down her students and setting a poor example through her derogatory, demeaning, and offensive comments. The Member’s comments therefore amount to verbal abuse.
9The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. In addition to the derogatory and offensive comments described above, the Member encouraged students to call a male student a “snitch” and told a male student in front of class to go to the School office and tell the School administration that he uses or sold drugs. Such conduct would reasonably have been embarrassing for these students. Additionally, the Member’s sexualized remarks such as making a reference to six inches being “average”, or pointing to her crotch and telling a male student that “this is my box”, would reasonably have been distressing to students. Indeed, the Uncontested Facts indicate that several students experienced emotional and psychological upset and distress as a result of the Member’s conduct. The Panel therefore finds that the Member’s conduct towards students was psychologically or emotionally abusive.
10The Member failed to supervise adequately persons who were under her professional supervision, contrary to subsection 1(11) Ontario Regulation 437/97. In particular, the Member allowed students to go outside to test aluminium bolts by burning wood in small ovens, while the Member remained inside. While the students were outside unsupervised, a fire started that students had to put out on their own. Teachers are responsible for student safety, and the Member’s decision to remain inside while students performed a dangerous activity outside jeopardized their safety and amounted to woefully inadequate supervision in the circumstances.
11The 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 be respectful and inclusive in their professional practice, manage their classroom appropriately, and prioritize student safety. The Member’s conduct was in stark contradiction to these principles. Not only did the Member make derogatory and offensive comments to students, but she also demonstrated her intolerance for people with disabilities by mocking them using inappropriate, derogatory and demeaning gestures, and by saying that she did not care about Individual Education Plans. Furthermore, the Member exposed students to sexualized remarks, she discussed personal and inappropriate topics with students, and she left her students unsupervised in a precarious situation. Such conduct demonstrates significant moral and professional failings by the Member, and as such, can be characterized as disgraceful, dishonourable, or unprofessional.
12The Member engaged in sexual misconduct as defined in section 1 of the Act. “Sexual misconduct” is defined in the Act as:
1(1) inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,
(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and
(b) a reasonable person would expect the behaviour or remarks to have the effect of,
(i) causing distress to a student exposed to the behaviour or remarks,
(ii) being detrimental to the physical or mental well-being of a student, or
(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.
The Member exposed students to remarks of a sexual nature by (1) making a reference to six inches being “average” and (2) saying to a male student, “this is my box” and pointing to her crotch when the student asked if the Member had graded his class project. A reasonable person would expect that when a teacher, who holds a position of trust and authority, exposes students to these types of sexualized remarks, it would be distressing or detrimental to students’ well-being and create a negative school environment for them. Indeed, in this case, the Panel has received evidence that the Member’s conduct was distressing to students. Furthermore, the Panel accepts College Counsel’s submission that the sexual remarks do not constitute “sexual abuse” under the Act, as they were not directed specifically at the students but were rather made in front of the students. Therefore, the Panel finds that the Member’s conduct in this case meets the definition of sexual misconduct under section 1 of the Act.
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 April 21, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to receive a reprimand, which will be delivered in writing, and that the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 5 months commencing on the 15^th^ calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter;
The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration:
(a) prior to commencing any teaching position in Ontario (including in a private school), or any position for which a Certificate of Qualification and Registration is required, the Member shall enroll in and successfully complete, at her own expense, a course of instruction, pre-approved by the Registrar regarding classroom management, subject to the following conditions:
(i) the Member will provide to a 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, Reasons for Decision and Order of the Committee;
(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the 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 3(a) above, the Member shall provide to the Registrar a written certificate 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.1 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. Antonenko, 2019 ONOCT 79; Ontario College of Teachers v. Burke, 2021 ONOCT 76; Ontario College of Teachers v. Primi, 2022 ONOCT 56; and Ontario College of Teachers v. Towler, 2015 ONOCT 79.
15The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. Firstly, the Member’s conduct was not a momentary lapse of judgment. The Member repeatedly made derogatory and offensive comments to students. Secondly, several students experienced emotional and psychological upset and distress as a result of the Member’s conduct. Finally, the Member put students’ safety at risk. In terms of mitigating factors, the Member did not contest her misconduct, saving the time and expense of a contested hearing and sparing students from having to testify. 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 pattern of inappropriate conduct warrants a reprimand. Teachers must be respectful and inclusive in their professional practice and manage their classrooms appropriately. The Member repeatedly failed to do so by making derogatory and offensive comments to students, exposing students to sexual behaviour or remarks, and leaving students unsupervised. 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. In relation to the form of the reprimand, the Panel finds that a written reprimand is appropriate in this case in light of the parties’ Joint Submission on Penalty.
17Given the nature and severity of the Member’s misconduct, the Panel finds that a five-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on May 6, 2023, which is 15 days after the Panel’s Decision and Order.
18The Panel finds that the course of instruction regarding classroom management 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 how to interact respectfully with students and supervise her classroom adequately.
19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: April 25, 2023
Myrna Tulandi Chair, Discipline Panel
Wanda Percival, OCT Member, Discipline Panel
Lisa Tucker Member, Discipline Panel
Footnotes
- See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.