DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION ON FINDING AND REASONS FOR DECISION
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
Sophie Stan, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
SOPHIE STAN (REGISTRATION #214074)
PANEL: Hanno Weinberger, OCT, Chair Lois Figg Sandra Pizzuti, OCT
HEARD: February 8, 2022; April 26-27, 2022; and August 9-10, 2022
Danielle Miller, for the Ontario College of Teachers Christopher Perri, Kaylee Duff and Kylie Sier, for Sophie Stan Rebecca Durcan and Julie Maciura, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsections 32.1(1) and 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish or broadcast the identity of, or any information that could disclose the identity of Student 1, or 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 February 8, 2022, April 26 and 27, 2022, and August 9 and 10, 2022 in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2College Counsel informed the Panel that the parties had consented to this proceeding being heard immediately after a related proceeding, Ontario College of Teachers v. Lajoie, 2022 ONOCT 19 (“Lajoie”), pursuant to section 9.1(1)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the “SPPA”). The Panel accepted the parties’ agreement to proceed in this manner.
3Sophie Stan (the “Member”) attended the hearing and had legal representation throughout the hearing.
A. PUBLICATION ban
4The 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.
5The parties also jointly requested that the Panel make an order pursuant to subsection 32.1(1) of the Act, prohibiting the publication of any information that could identify Student 1, who was over the age of 18 at the time of the hearing, and who was unwittingly the subject of evidence in the proceedings. The Panel granted the request and ordered a publication ban pursuant to subsection 32.1(1) of the Act, to protect the identity of Student 1.
6In making this order, the Panel applied the statutory test at subsections 32(7) and 32.1(1) of the Act. It also considered the common law test from Sherman Estate v. Donovan, 2021 SCC 25, with respect to the circumstances in which a departure from the open court principle could be justified, including (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. In the Panel’s opinion, the possibility of serious harm or injustice to Student 1 if her identity were disclosed justifies a departure from the general principle that hearings should be open to the public.
(1) Court openness poses a serious risk to an important public interest
7The parties submitted that the Member acted without consulting Student 1 and without her consent. However, the publication of details in this hearing could raise questions regarding Student 1’s role in the events or lead to adverse inferences about her accomplishments or integrity. An order restricting the publication of details that can identify Student 1 is required to protect her reputation and avoid negative conclusions that could impact her future prospects. The Panel agrees with the parties that the protection of Student 1’s dignity and future prospects is an important public interest. Therefore, it is the Panel’s view that an order prohibiting the publication or broadcast of any personally identifying information of Student 1 is necessary to prevent harm to Student 1.
(2) The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk
8The hearing was open to the public and there were public observers present during the hearing. This increases the risk of dissemination of information that could identify Student 1. Such dissemination would reasonably lead to the possibility of injustice to Student 1 if the public wrongly assumes her involvement in the matters at hand, or otherwise questions her achievements and academic integrity. In addition, the Panel recognizes that its Decision and Reasons will also be published on the College’s website and various legal databases. The mandatory publication ban under subsection 32.1(3) of the Act will not serve to protect Student 1 as she was over the age of 18 at the time of the hearing. It is therefore necessary for the Panel to order the discretionary publication ban under subsection 32.1(1) to protect Student 1’s dignity. This publication ban will prevent the disclosure of Student 1’s personally identifying information and mitigate the risk of any further harm or injustice related to the publication of her identity.
(3) As a matter of proportionality, the benefits of the order outweigh its negative effects
9The Panel is also of the view that the benefits of the discretionary publication ban under subsection 32.1(1) of the Act outweigh its negative effects. The Panel has identified the following two main benefits of the order. Firstly, the order will protect a student who was the subject of the Member’s misconduct (and who had no involvement in or knowledge of the Member’s actions), from any harm or injustice related to the publication of her identity. Secondly, the order sought is quite narrow as it simply seeks to protect Student 1’s identity while not otherwise closing the hearing to the public or limiting the publication of any other facts about this case. While it may be considered a negative effect that the Panel’s order will infringe the open court principle to any extent, the Panel believes that this infringement is minimal in the circumstances of this case. The hearing itself was still open to and attended by members of the public, and the public can still request access to the hearing record, other than information that would identify Student 1. In the Panel’s view, there is no value to the public of knowing Student 1’s identity. In the circumstances, the Panel finds that the benefits of the order outweigh its negative effects.
B. OVERVIEW
10This case involves allegations that on or about April 23, 2018, the Member was involved in the improper alteration of a mark on Student 1’s Ontario Universities’ Application Centre (“OUAC”) file. [XXX]. Specifically, the College alleged that the Member requested the assistance of the Department Head of Student Services at her school concerning Student 1’s mid-term mark in a particular course. The College further alleged that the Member requested and/or suggested and/or agreed that the Department Head could change a mid-term mark as reported to the OUAC file for Student 1. Finally, the College alleged that the Member agreed to the submission of a false and/or inaccurate mark in Student 1’s OUAC file.
11The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel finds that the College has proven the facts alleged against the Member and that the Member engaged in professional misconduct by contravening subsections 1(14), 1(15), 1(18) (dishonourable and unprofessional only) and 1(19) of Ontario Regulation 437/97.
C. THE ALLEGATIONS
12The allegations against the Member in the Notice of Hearing dated January 22, 2020 (Exhibit 1) are as follows:
IT IS ALLEGED that the Sophie Stan is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) she failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);1
(b) 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);
(c) 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);
(d) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Sophie Stan is a member of the Ontario College of Teachers.
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.
On or about April 23, 2018, the Member:
(a) requested assistance from the School Department Head of Student Services concerning a student’s mid-term mark;
(b) requested and/or suggested and/or agreed that the Department Head could change the mid-term mark as reported to the Ontario Universities’ Application Centre file for the student;
(c) agreed to the submission of a false and/or inaccurate mark in the student’s Ontario Universities’ Application Centre file.
D. THE MEMBER’S PLEA
13The Member denied the allegations set out in the Notice of Hearing.
E. COLLEGE’s EVIDENCE
14The College presented oral and documentary evidence in its efforts to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary of the College’s evidence.
(1) College’s Documentary Evidence
15College Counsel asked the Panel to admit the Agreed Statement of Facts and Guilty Plea of Donna Barbara Lajoie, dated February 3, 2022, as evidence in the Member’s proceedings, in accordance with section 15.1 of the SPPA. Ms. Lajoie was the School Department Head of Student Services who altered the mark on Student 1’s OUAC file. Section 15.1 of the SPPAallows a tribunal to treat previously admitted evidence (i.e., evidence that was admitted in any other proceeding before the hearing at hand) as if it had been admitted in a proceeding before the tribunal if the parties consent to doing so. After confirming the parties’ consent, the Panel accepted College Counsel’s request and marked the Agreed Statement of Facts and Guilty Plea of Donna Barbara Lajoie, dated February 3, 2022, as Exhibit 2 of the Member’s proceedings.
(2) College’s Oral Evidence
16The College called three witnesses: (1) Michael O’Grady, the principal at the School at the material time; (2) Teacher A, Student 1’s Grade 12 [XXX] teacher; and (3) Kevin Greco, who was the Secondary Principal-Employee Relations at the material time.
(a) Michael O’Grady
17At the time of the hearing, Mr. O’Grady had retired from his position as principal at the School. Mr. O’Grady was the principal at the School for the seven years leading up to his retirement, and was the principal at the time of the events in question. He was an educator for 32 years and was an administrator at different schools for 18 years. He provided evidence about how he learned of the falsification of Student 1’s Grade 12 mid-term [XXX] mark on the OUAC, and the subsequent investigation he conducted into that event. He also testified about how students were assessed and how marks were reported at the School in general, and to OUAC specifically.
(b) Teacher A
18Teacher A has been a teacher in the school since 2013 and was Student 1’s Grade 12 [XXX] teacher in the second semester of the 2017-2018 school year. Teacher A testified about his practices for marking students’ work, and about the marks he gave Student 1 in his grade 12 [XXX] class in 2018. He also testified that the Member never spoke to him about Student 1’s marks, and that he was never informed (and never would have agreed to) Student 1’s mid-term mark in his class being increased substantially by Ms. Lajoie.
(c) Mr. Kevin Greco
19At the time of the hearing, Mr. Greco was the Superintendent of Education for the Brant Haldimand Norfolk Catholic District School Board. He has been a teacher (including at the School at one point), an administrator, and was a Secondary Principal-Employee Relations for the Dufferin Peel Catholic District School Board at the time of the events in question. As the Secondary Principal-Employee Relations, Mr. Greco’s responsibilities included investigating concerns about teachers and preparing investigation reports for the Superintendent of Education’s consideration.
20Mr. Greco testified about his involvement with the events at issue. He described his meeting with the Member, her union representative and other Board staff to address the alteration of Student 1’s mark. He testified that during that meeting, the Member admitted that she was aware that Ms. Lajoie had changed Student 1’s Grade 12 [XXX] mid-term mark from 80% to 91% without any justification for doing so, and the Member acknowledged that it was inappropriate and unacceptable to input a false mark into OUAC. After consulting with the Manager of Employee Relations and the Superintendent of Education, it was decided that the Member would be disciplined by the Board for this incident (Exhibit 15). Mr. Greco further testified that the arbitrary alteration of a student’s marks was unfair to other students and contrary to the relevant policies in relation to the assessment and evaluation of students.
21College Counsel tendered Mr. Greco as a participant expert on the assessment and evaluation of students and the expectations of staff with respect to the assessment and evaluation of students. College Counsel clarified that Mr. Greco was not being tendered as an expert on either the ethical or practice standards of the profession but rather to provide expert evidence regarding what the Member knew or ought to have known when she spoke with Ms. Lajoie and whether it was reasonable for the Member to rely on what Ms. Lajoie said about changing marks on OUAC. Member’s Counsel opposed this request on the basis that this was not a proper area for expert evidence and submitted that the Panel would be able to draw a conclusion as to what the Member knew or ought to have known based on the evidence from the testimony of all the fact witnesses without the assistance of any expert testimony. Additionally, Member’s Counsel submitted that Mr. Greco was not properly qualified as an expert in this instance, as the College had not presented evidence as to his expertise regarding OUAC reporting.
(i) The Panel did not qualify Mr. Greco as a Participant Expert
22A participant expert is a particular kind of expert witness who is generally introduced as an exception to the general rule that confines witness testimony to factual observations only. Unlike other non-expert witnesses, participant experts may provide opinion evidence. In qualifying a witness as a participant expert, the Panel must first determine whether the expert opinion itself is admissible. Then, the Panel must determine whether the witness is properly qualified as a participant expert.
23The test to determine whether expert opinion is admissible was established in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (“Mohan”) and involves a determination of whether the expert’s evidence is relevant, necessary, whether there is a rule that would exclude the evidence, and whether the expert witness is properly qualified. The test to determine whether an expert is properly qualified as a participant expert is outlined in Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”), which sets out that the Panel must determine whether the witness’ opinion is based on their own observation of or participation in the events at issue in the hearing. Additionally, the Panel must determine if the witness formed their opinion as part of the ordinary exercise of their skills, knowledge, training and experience while observing or participating in the events at issue.
24Upon consideration of the submissions of the parties, the Panel declined to accept Mr. Greco as a participant expert as tendered by the College on the basis that expert evidence was not necessary to assist the Panel in its decision making in this case. The Panel determined that it would be able to draw its own conclusions about what the Member knew or ought to have known regarding the assessment and evaluation of students when she had approached Ms. Lajoie and when Ms. Lajoie changed Student 1’s mark, based on the evidence of the fact witnesses who testified, and without the assistance of an expert witness. Having made this determination, the Panel found it unnecessary to consider the other elements of the tests set out in Mohan and Westerhof. Mr. Greco was permitted to testify as a fact witness, and the relevant portions of his evidence will be set out in the Panel’s reasons below.
F. MEMBER’S EVIDENCE
25The Member testified on her own behalf and called no other witnesses. At the time of the hearing, she had been a teacher with the Board for 26 years and had taught at the School since 2003. The Member denied the allegations and testified that she approached Ms. Lajoie in March 2018 after learning about Student 1’s struggles in her Grade 12 [XXX] class to discuss whether Student 1 should take the same course through [XXX]. She maintained that Ms. Lajoie offered to change Student 1’s mid-term mark on OUAC to align with Student 1’s usual performance in the 90% range, and that she relied on Ms. Lajoie’s assurances that it was acceptable to change Student 1’s mark on OUAC and that it was done all the time. The Member also testified about her own experiences as a teacher, and her understanding of the province’s policy regarding student assessment and evaluation and mark reporting.
G. SUBMISSIONS OF COLLEGE COUNSEL
26College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.
27College Counsel submitted that the evidence supports a finding that the Member, who had been a teacher at the School for 15 years at the time, ignored her professional and ethical obligations and her understanding of the policy Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5) to conspire with Ms. Lajoie in a plan to cheat for Student 1’s benefit. College Counsel submitted that the Member was not a passive bystander to Ms. Lajoie’s wrongdoings, but rather, the catalyst for the mark adjustment, having approached Ms. Lajoie regarding Student 1 taking [XXX] through [XXX] and continuing to discuss Student 1’s struggles after Ms. Lajoie discouraged the [XXX] plan. The Member broke down while talking with Ms. Lajoie and Ms. Lajoie then offered to help by raising Student 1’s mark in OUAC to something in the 90% range to align with Student 1’s usual grades. The Member agreed to and condoned the plan, knowing full well that the mark was not an accurate reflection of Student 1’s achievement but meant to improve Student 1’s chances of acceptance into a highly competitive university program (“the Program”). She did not stop Ms. Lajoie from changing Student 1’s mark on OUAC but this was more than a failure to intervene. The Member consciously decided not to speak with anyone else about this plan; not with Teacher A or even Student 1. No one other than Ms. Lajoie and the Member knew that the mark had been changed until it was discovered by the principal, Mr. O’Grady, in June 2018.
28College Counsel argued that it was implausible that the Member did not see any red flags regarding their plan and that she thought that she and Ms. Lajoie could report a mark to OUAC based on their subjective beliefs of Student 1’s capabilities. The School did not use predictive marks. Further, the Member did not require any special knowledge to know that marks uploaded to OUAC needed to align with marks reported in Trillium (the Board’s student information system from which report cards are generated). If she did not actually know that what Ms. Lajoie had suggested was wrong, then she ought to have known that changing the mark on OUAC was wrong. College Counsel suggested that the Member had been willfully blind or deliberately ignorant to any suspicions about the propriety of their actions: see R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411 and Ontario College of Teachers v. Perron, 2013 ONOCT 75. College Counsel submitted that cheating and academic dishonesty are so notorious that expert evidence is not required to show that they are contrary to the standards of the profession, which are set out in the College By-laws.
29College Counsel referred the Panel back to the Agreed Statement of Facts and Guilty Plea for Donna Lajoie dated February 3, 2022 (Exhibit 2) and submitted that the Member adopted the accuracy of the facts described therein, except that she denied that there had been a second meeting with Ms. Lajoie on April 23, 2018. College Counsel urged the Panel to accept Ms. Lajoie’s account of events. College Counsel submitted that it was entirely possible that the Member and Ms. Lajoie had a second meeting on April 23, 2018, and Ms. Lajoie did not have any motivation to make up this fact. College Counsel urged the Panel not to place any weight on the Member’s assertions that Ms. Lajoie had reassured her that it is acceptable to report projected marks on OUAC as those assertions are hearsay and the Panel did not hear from Ms. Lajoie. Further, the Member did not mention being misled by or having relied on Ms. Lajoie’s assurances when she was interviewed by Mr. Greco. Rather, she was noted by both Mr. Greco (Exhibit 14) and Ms. Mifsud, Elementary Principal – Employee Relations (Exhibit 19), as having apologized during that interview. College Counsel submitted that there were many inconsistencies in the Member’s testimony and that the Member had not been candid and straightforward in her evidence. College Counsel argued that the Panel should therefore give greater weight to the evidence of the College’s witnesses.
30College Counsel argued that teachers cannot ignore their obligations and are obliged to conduct themselves as teachers at all times: see Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825 (“Ross”) at paragraph 44. College Counsel also referred the Panel to two decisions of the Discipline Committee involving academic dishonesty for their consideration: Ontario College of Teachers v. Opris, 2021 ONOCT 88 and Ontario College of Teachers v. Dundas, 2020 ONOCT 201.
H. SUBMISSIONS OF MEMBER’S COUNSEL
31Member’s Counsel submitted that this was a case about the Member’s failure to intervene when she knew Ms. Lajoie was going to engage in an act of professional misconduct by reporting a predictive or aspirational mark for Student 1 on OUAC. Member’s Counsel argued that, apart from when there are concerns that a child may be harmed, members do not have a positive duty to intervene when another member is about to engage in professional misconduct. Accordingly, the Member is not guilty of professional misconduct.
32Member’s Counsel submitted that there is no evidence that the Member influenced Ms. Lajoie’s actions. Member’s Counsel urged the Panel to consider the Member’s evidence that Ms. Lajoie made the offer to the Member to change Student 1’s mark and assured her of the propriety of doing so in the circumstances. Member’s Counsel submitted that it was appropriate for the Member to have trusted Ms. Lajoie’s expertise and assurances. Member’s Counsel noted that the College did not bring evidence to counter the Member’s evidence, and instead relied on the Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2). However, Exhibit 2 is silent about what Ms. Lajoie told the Member specifically. Member’s Counsel suggested that Ms. Lajoie had an incentive to suggest that there was a second meeting with the Member on April 23, 2018, rather than just one in March 2018, as this supports a theory that Ms. Lajoie wanted to follow the proper channels and consult with administration but was unable to do so as the vice-principal was not in the office. Member’s Counsel also suggested that Ms. Lajoie could have had poor memory and the Panel should not place much weight on Exhibit 2, as it is untested hearsay evidence: see R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.
33Member’s Counsel referred the Panel to the Divisional Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”), for the proposition that the College must provide the Panel with expert evidence of the standards of the profession (what they are and how they apply) when there are allegations of a breach of the professional standards (regardless of whether the allegations are made under subsection 1(5) or 1(14) of Ontario Regulation 437/97), unless a member’s conduct is so notorious that it is self-evidently contrary to the standards of the profession: see also Ontario College of Teachers v. Fox, 2021 ONOCT 34. Member’s Counsel submitted that whether an expert is required to provide evidence on the ethical standards is a live issue. Member’s Counsel submitted that the Panel should have been provided with an expert on the relevant standards in this case.
34However, if, in the alternative, the Panel concludes that an expert was not required, they should not make a finding that the Member breached the standards of the profession unless they are satisfied that the Member had actual knowledge that what Ms. Lajoie would be doing was wrong. Member’s Counsel noted that the only subsections of Ontario Regulation 437/97 imposing a requirement that the Member has subjective knowledge (i.e., “knows or ought to know”) are subsections 1(8) and 1(12), neither of which are alleged in this case; and, based on the principle of implied exclusion, the Panel should not infer this requirement into any of subsection 1(14), 1(15), 1(18) and 1(19): see Ruth Sullivan, On the Construction of Statutes, 6th Ed., Chapter 8 – Textual Analysis and the Maxims of Interpretation. Member’s Counsel submitted that the Member did not have actual knowledge of Ms. Lajoie’s wrongdoing.
35Member’s Counsel distinguished the matter at hand from the cases presented by College Counsel. Member’s Counsel provided the Panel with cases considering the difference between conduct that is “disgraceful, dishonourable, or unprofessional” as set out in subsection 1(18) of Ontario Regulation 437/97 (Ontario College of Teachers v. Spence, 2021 ONOCT 139 (“Spence”) and Ontario College of Teachers v. Pavlovic, 2021 ONOCT 31) and the meaning of conduct “unbecoming a member” (Ontario College of Teachers v. Fife, 2022 ONOCT 12).
I. ADVICE OF INDEPENDENT LEGAL COUNSEL
36Independent Legal Counsel (“ILC”) advised the Panel that the College bears the burden of proof in discipline matters. The College is required to prove the allegations in the Notice of Hearing on a balance of probabilities. ILC also reminded the Panel that they can consider various factors in assessing the credibility of the witnesses and can determine credibility based on logic, experience, intuition, and common sense.
37ILC noted that Ms. Lajoie did not testify at the hearing, and either party could have called Ms. Lajoie as their witness. ILC cautioned the Panel in accepting the accuracy of the points in the Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2) with which the Member disagreed (i.e., that there had been two conversations rather than one and whether Ms. Lajoie had told the Member that marks were changed all the time) and advised that the Panel should provide thorough reasons if they do accept Exhibit 2 for the truth of its contents over the Member’s testimony where those things conflict.
38ILC also advised the Panel that regulatory matters, like discipline proceedings, do not generally require proof of a member’s intentions, unless required by the definition of a particular head of professional misconduct. For example, if the definition of the particular head of misconduct refers to “knowingly” doing something, then knowledge must be proved. Similarly, the phrase “knows or ought to have known” may require some evidence of a member’s disregard for their professional duty. However, none of the allegations in the Member’s case include such language. ILC further advised the Panel that professional misconduct is a strict liability offence. The only defences available in strict liability offences are the defence of due diligence or the defence of mistaken belief. Those defences will be available if the Member took all reasonable steps to avoid liability or if she had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.
39Finally, ILC reviewed the Novick decision. ILC advised that the Divisional Court stated that the Discipline Committee cannot create the standards of the profession. Rather, a panel must generally be provided with external evidence, usually in the form of an expert witness or possibly published standards, which identify the standards of practice for the teaching profession and how they have been breached. The Panel can rely on its own expertise if the conduct is so egregious or obvious that external evidence is not required to establish misconduct including, for example, when a member has sexually abused a student.
40ILC distinguished the professional standards from the ethical standards in the College by-laws and noted that expert evidence is not usually required to prove ethical breaches. Rather, it is within the purview of the Panel to make findings of a breach of ethical standards without expert evidence, just as it could determine, without expert evidence, that conduct is disgraceful, dishonourable or unprofessional.
J. DECISION ON FINDING
41Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) (dishonourable and unprofessional only) and 1(19).
K. REASONS FOR DECISION
42The Panel has carefully reviewed the evidence presented and submissions made in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.
43The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities. This means that first, the College must prove that the behaviour alleged in the Notice of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such behaviour constitutes professional misconduct.
44In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding whether to accept a witness’ testimony, the Panel has considered the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence (see: Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC). The Panel can also determine credibility based on logic, common sense, and its experience.
45The Panel notes that the parties consented to admitting the Agreed Statement of Facts and Guilty Plea of Donna Barbara Lajoie, dated February 3, 2022 (Exhibit 2) as evidence in the proceedings, pursuant to section 15.1 of the SPPA. To the extent that the evidence contained in Exhibit 2 is uncontradicted, the Panel accepts those facts have been proven. Where there were contradictions with other evidence heard during the proceedings (i.e., from the Member), as discussed below, the Panel assessed the coherence and plausibility of the facts at issue, as well as the internal and external consistency of the evidence and found that the facts set out in Exhibit 2 were more likely to have occurred than the contradictory version of events presented by the Member in this hearing.
(1) Credibility Assessments
(a) Mr. O’Grady
46The Panel finds that Mr. O’Grady was a credible witness. The Panel is satisfied that Mr. O’Grady was honest and gave clear testimony about his recollection of how he discovered the mark change, his interview with Ms. Lajoie, and how grades are recorded in Trillium and OUAC. The Panel is satisfied that Mr. O’Grady did not have an interest in the outcome of this proceeding and did not embellish his evidence. The Panel accepts his testimony in full.
(b) Teacher A
47The Panel finds that Teacher A was a credible witness. He did not have an interest in the outcome of the proceedings. He gave clear, detailed and coherent evidence about his recollection of events, Student 1’s performance in his class, and Ms. Lajoie’s call to him about Student 1. His evidence was also consistent with the documentary evidence. Teacher A was straightforward and forthcoming in his testimony and he did not embellish or fabricate evidence. The Panel notes that Teacher A was candid about details he could not recall and admitted that he could not recall whether Student 1 would have received a copy of her marks for the second unit, before receiving her mid-term report card. The Panel accepted Teacher A’s evidence in full.
(c) Mr. Greco
48The Panel accepted all of Mr. Greco’s evidence. The Panel was satisfied that Mr. Greco did not have an interest in the outcome of the proceedings and gave clear, coherent and detailed testimony about his meeting with the Member, the expectations set out in Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5), and about OUAC and mark reporting. He was honest and forthcoming. Mr. Greco admitted that he did not personally interview Ms. Lajoie and that he did not specifically ask the Member if she had pressured or influenced Ms. Lajoie to change Student 1’s mark.
49He was also presented with and acknowledged the apparent discrepancies between his notes (Exhibit 14) of the Board meeting with the Member, and those of the Elementary Principal – Employee Relations, Ms. Mifsud (Exhibit 19), who was also present at the meeting. Ms. Mifsud’s notes included references that were absent in Mr. Greco’s notes of the Member asking Ms. Lajoie about doing a course through [XXX]. Mr. Greco testified that he recalled discussing [XXX] with the Member but did not record that discussion because his concerns were the Member and Ms. Lajoie’s eventual alteration of Student 1’s mid-term mark, not their initial reason for meeting. The Panel finds that this a plausible and reasonable explanation and is satisfied that this discrepancy does not detract from Mr. Greco’s credibility.
50There is also a discrepancy between Mr. Greco’s notes and Ms. Mifsud’s notes of the end of their meeting with the Member. Both record the Member apologizing at the end of the meeting when Mr. Greco advised he would report to the College that the Member willingly allowed a public record to be changed. Ms. Mifsud ends her notes with the Member stating that Student 1 had not been accepted into the Program. Mr. Greco’s notes continue further with the Member acknowledging the inappropriateness of altering Student 1’s mark, as well his comments to the Member that this is a breach of subsection 1(12), 1(13), and 1(19) of Ontario Regulation 437/97 and that the issues raised at the meeting would be reported to the Superintendent of Human Resources and Employee Relations. Mr. Greco was unshaken in cross-examination on the accuracy of his notes. The Panel has reviewed both sets of notes and is of the view that Mr. Greco’s notes are a more comprehensive record of how the meeting concluded. The Panel finds no reason for Mr. Greco to have fabricated the Member’s acknowledgement of the inappropriateness of the mark alteration, given her apologies and earlier acknowledgment that it was inappropriate to influence another staff member (which is in both Mr. Greco’s and Ms. Mifsud’s notes). The Panel is satisfied that Mr. Greco was a credible witness.
(d) The Member
51The Panel had concerns about the Member’s credibility. The Member maintained throughout her testimony that she did not approach Ms. Lajoie with the intention of changing Student 1’s grade in OUAC, that she relied on Ms. Lajoie’s expertise, experience and assurances that it was routine to change a student’s grade, and that she, therefore, did not think that the grade change was unethical or contrary to Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5) at the time it was made. The Panel found that the Member’s evidence was both internally and externally inconsistent at times with respect to these material facts, and her credibility was diminished by the implausibility of her rationalization of what occurred.
52In particular, the Panel found it internally inconsistent and incredulous that the Member thought it was acceptable to alter Student 1’s mark on OUAC simply because Ms. Lajoie assured her it was acceptable to do so. The Member was a veteran teacher at the time of the mark alteration with 16 years of experience teaching at the School. By her own admission, the Member was aware of the principles and expectations set out in Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) when she had approached Ms. Lajoie, and had never, herself, exercised professional judgment to raise a student’s grades by 11%. She also testified that at the time, she had never heard of predictive marks. The Panel is satisfied that the Member knew or ought to have known, through her experience as a classroom teacher and as a result of her understanding of the requirements and principles underlying Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010), that the mark change proposed by Ms. Lajoie was unacceptable.
53The Panel gives minimal weight to the Member’s testimony that Ms. Lajoie assured her it was acceptable to change Student 1’s mark on OUAC and that mark changes were done routinely. This is an important detail for the Member’s defence and account of what transpired. The Panel finds it illogical and improbable that the Member did not tell Mr. Greco at the time of the Board interview that she had relied on Ms. Lajoie’s assurances of the propriety and acceptability of changing Student 1’s mid-term marks on OUAC if that is, in fact, what had happened and what she believed. However, neither Mr. Greco’s notes (Exhibit 14) nor Ms. Mifsud’s notes (Exhibit 19) of the meeting record any references to Ms. Lajoie making such assurances to the Member. The Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2) also does not mention making assurances to the Member, and rather, notes that Ms. Lajoie advised the principal that she had not changed marks before. Mr. O’Grady confirmed this in his testimony and in his email to Mr. Greco summarizing his meeting with Ms. Lajoie (Exhibit 7). The Panel recognizes that Ms. Lajoie’s claim to never have changed a mark before may be self-serving, but the Panel finds it more likely than not that if Ms. Lajoie had told the Member that she regularly changed marks, the Member would have told Mr. Greco that.
54The Member was specifically questioned by College Counsel about why she did not defend herself during the meeting by relying on Ms. Lajoie’s assurances (i.e., that Ms. Lajoie does this “all the time”). The Member did not give a definitive answer but stated that she was devastated by being “called out” by the Board. The Panel notes that the Member had the benefit of union representation at this meeting and could have taken appropriate time to compose and explain herself or to request a further meeting if required. From the evidence before the Panel, it does not appear that the Member ever advised the Board that she had relied on assurances that Ms. Lajoie made to her. The Panel therefore finds the evidence of what the Member said at the time of the meeting to be more credible than her evolving version of events that was presented years later at this hearing.
55The Panel is of the view that the Member understood the mark adjustment was not, in fact, acceptable or common practice. First, the Member admitted that she understood that the adjusted mark would be a false mark fabricated to give a favourable perception of Student 1’s abilities to the Program. Moreover, she testified that she did not tell anyone (not even Student 1) of her arrangements with Ms. Lajoie and agreed with the suggestion that Student 1 would have considered the arrangement to be cheating. The Member testified that she was devastated at being “called out” during the Board meeting for her actions, which suggests that she understood that she was involved in some inappropriate activity. Additionally, both Mr. Greco’s notes (Exhibit 14) and Ms. Mifsud’s notes (Exhibit 19) record the Member apologizing during the Board meeting. The Panel finds that the Member’s position during the hearing that she was blameless because she relied on assurances by Ms. Lajoie negatively impacted her credibility because the Panel views this as an attempt, years later, to provide a more favourable account of the events in question.
(2) Factual Findings
56The Panel finds that the College has proven on a balance of probabilities all of particular 3.
(a) Particular 3(a)
57The Panel finds that the College has proven particular 3(a) on a balance of probabilities, namely that on or about April 23, 2018, the Member requested assistance from the School Department Head of Student Services concerning a student’s mid-term mark.
(i) Evidence
58The Panel heard the following evidence from the Member, Mr. O’Grady and Mr. Greco about this particular. The Panel also considered the Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2) and Ms. Mifsud’s notes of the Board meeting with the Member (Exhibit 19).
Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022
59According to the Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2), the Member met with Ms. Lajoie on two occasions. The first time, on or about March 20, 2018, they discussed Student 1’s performance in her Grade 12 [XXX] class and the Member expressed strong concerns about how Student 1’s relatively poor performance might impact her chance of gaining entry into the Program. They discussed whether Student 1 should repeat the [XXX] course at [XXX], but Ms. Lajoie discouraged that option and recommended waiting to see what grade Student 1 had earned by the time mid-term report cards were issued. The Member contacted Ms. Lajoie again on April 23, 2018 concerned that Student 1 had received a mid-term grade of 80% in Grade 12 [XXX]. Ms. Lajoie offered to change Student 1’s mark on OUAC to 91% to align with Student 1’s usual performance. The Member agreed to this plan.
Mr. O’Grady
60Mr. O’Grady testified that he spoke with the Member about the mark alteration and that the Member told him Ms. Lajoie had changed Student 1’s mark. He also spoke with Ms. Lajoie about the incident and testified that it was his understanding that the Member had spoken to Ms. Lajoie about Student 1’s mid-term [XXX] mark and how it would impact Student 1’s chances of acceptance into the Program. Ms. Lajoie offered to change Student 1’s mark on OUAC. The summary of Mr. O’Grady’s interview with Ms. Lajoie notes that the Member “came to [Ms. Lajoie] and asked if there was anything that she could do. So she changed the mark” (Exhibit 7).
Mr. Greco
61According to Mr. Greco’s testimony and notes of his meeting with the Member (Exhibit 14), the Member said she spoke with Ms. Lajoie out of concern for Student 1, who was distressed at the time about her performance in Grade 12 [XXX]. The Member approached Ms. Lajoie for help. The Member wanted Student 1 to be accepted into the Program. Ms. Lajoie told the Member she would “take care of it” and would change Student 1’s mid-term mark in OUAC. The Member said this conversation took place before midterms. Ms. Mifsud’s notes (Exhibit 19) confirm these points and additionally note that the Member spoke with Ms. Lajoie about whether Student 1 should take Grade 12 [XXX] through [XXX].
The Member
62The Member admitted that she spoke with Ms. Lajoie regarding Student 1’s performance in Grade 12 [XXX], and in the course of doing so, strongly expressed concern for Student 1 and how Student 1’s mark in her Grade 12 [XXX] class (which was lower than her usual achievements) might be perceived by the Program. The Member also admitted that she agreed with Ms. Lajoie’s offer to adjust Student 1’s mark on OUAC to align with Student 1’s regular marks.
63However, the Member testified that she had only one meeting with Ms. Lajoie in March 2018, during which they discussed whether Student 1 should take Grade 12 [XXX] through [XXX]. The Member testified that Ms. Lajoie discouraged that idea. Instead, Ms. Lajoie recommended that they wait to see what mid-term grade Student 1 achieved, and if necessary, Ms. Lajoie would change Student 1’s grade to align with Student 1’s usual achievements.
(ii) Factual Findings
64The Panel finds that the Member had two interactions with Ms. Lajoie, one in March 2018 and another on April 23, 2018. The Panel does not accept the Member’s testimony that she only had one meeting with Ms. Lajoie in March 2018 about whether Student 1 should take [XXX] through [XXX], and that Ms. Lajoie recommended waiting to see what grade Student 1 had earned by the time mid-term report cards were issued and offered, in March 2018, to change Student 1’s marks, if necessary, to align with Student 1’s usual achievements.
65Rather, the Panel prefers the version of events set out in the Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2). The Panel acknowledges that Ms. Lajoie was not called as a witness by either party and was not cross-examined on Exhibit 2. However, the Panel places more weight on the chronology set out in Exhibit 2, given its concerns about the Member’s credibility. The Panel does not accept the suggestion by Member’s Counsel that Ms. Lajoie may have mis-remembered the events or that she had fabricated this second interaction to present a more favourable account of events to her (i.e., that after this interaction, Ms. Lajoie tried to consult with the vice-principal but was unable to do so). The Panel notes that Ms. Lajoie was admitting to altering Student 1’s mark and whether there had been one or two interactions with the Member would not affect the ultimate finding of professional misconduct against Ms. Lajoie. The Panel finds there is no plausible or coherent reason for Ms. Lajoie to have fabricated a second interaction. Finally, the Panel notes that Student 1’s true marks were uploaded from Trillium at 1:23 p.m. on April 23, 2018 and then altered at 4:21 p.m. that same day (Exhibit 2). The Panel finds it reasonable to conclude that an external circumstance, in this case, a second interaction between the Member and Ms. Lajoie on April 23, 2018, prompted Ms. Lajoie to alter Student 1’s OUAC record.
66The Panel finds it more likely than not that when she approached Ms. Lajoie on April 23, 2018, the Member requested her assistance concerning Student 1’s mid-term Grade 12 [XXX] mark, specifically with how it might be perceived by the Program. Ms. Lajoie offered to change Student 1’s mid-term mark after the Member spoke with her (for a second time) about concerns that Student 1’s mid-term grade was not up to Student 1’s usual performance (per Exhibit 2). The Panel accepts the Member’s admission during the hearing that the Member was concerned that the Grade 12 [XXX] course could negatively impact Student 1’s chances of acceptance into the Program. The Panel notes that the Member expressed this same sentiment during the Board meeting as well. Mr. Greco’s (Exhibit 14) and Ms. Mifsud’s (Exhibit 19) notes both clearly record the Member saying she wanted Student 1 to get into the Program. It was clear to the Panel that the Member was deeply concerned for [XXX], Student 1, and whether Student 1 would be admitted into the Program. Therefore, the Panel finds it more likely than not, that the Member requested Ms. Lajoie’s assistance regarding the impact that Student 1’s mid-term mark might have on her acceptance into the Program. Even if it were the case that the Member had only approached Ms. Lajoie about [XXX] (which is not the Panel’s finding), the Member was still requesting Ms. Lajoie’s assistance concerning how best to deal with Student 1’s mid-term mark, and therefore the Panel would be satisfied making a finding that this allegation has been proven.
(b) Particular 3(b)
67The Panel finds that the College has proven on a balance of probabilities that the Member requested and/or suggested and/or agreed that the Department Head could change the mid-term mark as reported to Student 1’s OUAC file.
(i) Evidence
68The Panel heard evidence from Mr. O’Grady, Mr. Greco and the Member herself about this particular. The Panel has also considered Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2).
Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022
69The Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2) states that during their conversation on April 23, 2018, the Member expressed concerns about Student 1’s mid-term Grade 12 [XXX] mark and Ms. Lajoie reassured the Member she would “take care of it”. Ms. Lajoie offered to access Student 1’s OUAC record and change the mid-term [XXX] grade from 80% to 91% in order to bolster Student 1’s transcript to align with her usual performance and ability. The Member agreed to this plan. Ms. Lajoie altered Student 1’s mark in the OUAC system on April 23, 2018, at 4:21 p.m. The mark was altered without the consent or knowledge of Teacher A, the [XXX] department head, or anyone in the school administration. No one other than Ms. Lajoie and the Member were aware that Student 1’s OUAC record had been altered.
Mr. O’Grady
70Mr. O’Grady testified that he learned of the falsification of Student 1’s Grade 12 mid-term [XXX] mark on OUAC by happenstance in June 2018 while making sure Student 1’s course codes had been properly reported to OUAC. Mr. O’Grady spoke with the Member who informed him that Ms. Lajoie had changed the mark. He also spoke with Ms. Lajoie, who admitted to changing the mark and said she had never done anything like this in the past. Mr. O’Grady testified that it was his understanding that the Member had spoken to Ms. Lajoie about Student 1’s mid-term [XXX] mark and how it would impact Student 1’s chances of acceptance into the Program and that Ms. Lajoie offered to change Student 1’s mark on OUAC. The summary of Mr. O’Grady’s interview with Ms. Lajoie notes that the Member “came to [Ms. Lajoie] and asked if there was anything that she could do. So she changed the mark” (Exhibit 7).
Mr. Greco
71Mr. Greco testified that the Member admitted during their meeting that she was aware that Ms. Lajoie had changed Student 1’s mid-term Grade 12 [XXX] mark in OUAC from 80% to 91%. The Member said she spoke with Ms. Lajoie out of concern for Student 1, who was distressed at the time. She did not ask Ms. Lajoie to change the mark (Exhibit 14 and Exhibit 19). Ms. Lajoie said she would “take care of it” and change Student 1’s grade in OUAC to help Student 1 until she brought up her marks in that course (see also Exhibit 14). According to Mr. Greco, the Member said Ms. Lajoie did not speak with Teacher A when she changed the mark and the Member did not think Teacher A was aware of the mark change.
The Member
72The Member testified that she spoke with Ms. Lajoie in March 2018 about Student 1’s performance in her Grade 12 [XXX] class and whether Student 1 should take the same course through [XXX]. Ms. Lajoie suggested that they wait and see how Student 1 did in the course by mid-terms and also said that she would change Student 1’s mid-term mark in OUAC, if needed, to align with Student 1’s usual marks. Ms. Lajoie assured the Member this would only be for Student 1’s mid-term grade, and that it was “okay” for Ms. Lajoie to change the mark on OUAC. The Member did not speak to Teacher A, the head of the [XXX] department, or administration, or Mr. O’Grady about Student 1’s grade. Student 1 was not advised of the plan to alter her mark. No one other than her and Ms. Lajoie knew about the alteration of Student 1’s mark until Mr. O’Grady discovered it in June 2018.
(ii) Factual Finding
73The Panel recognizes that none of the witnesses testified that the Member directly asked Ms. Lajoie to change Student 1’s mid-term mark. The Member denied having done so, both during the hearing and also in her meeting with the Board. The Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2) states that the Member approached Ms. Lajoie about Student 1’s [XXX] mark and that Ms. Lajoie offered to access Student 1’s OUAC record and alter Student 1’s grade. However, Exhibit 2 does not say that the Member asked Ms. Lajoie to change Student 1’s mark. Mr. O’Grady testified that Ms. Lajoie offered to change Student 1’s mark but did not state whether this was at the Member’s request. The summary of Mr. O’Grady’s interview with Ms. Lajoie notes that the Member “came to [Ms. Lajoie] and asked if there was anything that she could do. So she changed the mark” (Exhibit 7). However, the Panel does not find that this statement alone proves that the Member directly asked Ms. Lajoie to change Student 1’s mark.
74While there is no evidence that the Member directly “requested” that Ms. Lajoie change Student 1’s mark, the Panel finds, on a balance of probabilities, that there is evidence to show that the Member, at the very least, “agreed” to the plan to alter Student 1’s mark. Because particular (b) is disjunctive, the Panel finds that the College has proven this allegation on a balance of probabilities. There was no dispute that Ms. Lajoie changed Student 1’s mark from 80% to 91% on April 23, 2018 and that the Member did nothing to stop Ms. Lajoie. The Member knew of and agreed to the plan to alter Student 1’s mark and at least gave her tacit approval. She kept the plan a secret from Student 1, Teacher A, Student 1’s assigned guidance counsellor, and the School’s administration, both at the time it was made, and after it was it was executed. The evidence during the hearing was that no one other than Ms. Lajoie and the Member were aware of the mark change until Mr. O’Grady reviewed Student 1’s OUAC profile in June 2018.
(c) Particular 3(c)
75The Panel finds that the College has proven particular 3(c) on a balance of probabilities, namely that on or about April 23, 2018, the Member agreed to the submission of a false and/or inaccurate mark in Student 1’s OUAC file.
(i) Evidence
76The Panel heard evidence from Mr. O’Grady, Mr. Greco, Teacher A, and the Member herself about this particular. The Panel has also considered the Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2).
Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022
77The Agreed Statement of Facts and Guilty Plea of Donna Lajoie dated February 3, 2022 (Exhibit 2) states that Ms. Lajoie rationalized altering Student 1’s mid-term Grade 12 [XXX] mark on the basis that Student 1 had received consistently high grades up to that point. Of Student 1’s 35 high school marks, she had received 90% or higher 32 times. Ms. Lajoie changed Student 1’s mid-term Grade 12 [XXX] mark from 80% to 91% in order to bolster Student 1’s transcript to align with Student 1’s usual performance and ability. Student 1’s mark was only altered in OUAC, and not in Trillium or Student 1’s report card. Ms. Lajoie altered Student 1’s OUAC file without the knowledge or consent of Teacher A or anyone else (i.e., the [XXX] department head, administration, or Student 1).
Mr. O’Grady
78Mr. O’Grady testified that Ms. Lajoie changed the mark without consulting Student 1’s [XXX]teacher or the administration, and without requiring Student 1 to do any additional coursework to earn this mark. Ms. Lajoie acknowledged to him that it should not have been done but told Mr. O’Grady that she did not think the change would matter because she thought Student 1 would, in the end, achieve 91% in that course. However, Student 1 ultimately did not receive a 91% mark in the course and did not receive entry into the Program.
79According to Mr. O’Grady, the mark adjustment was not in line with the procedure for reporting marks to OUAC. The expected procedure is that teachers upload student marks to Trillium, and the OUAC administrator (in this case Ms. Lajoie) uploads those marks into OUAC as batch transfers. The mark alteration was also contrary to the School’s procedures for addressing concerns about student marks, as well as the Board’s Policy 6.10 Assessment and Evaluation (Exhibit 4) and the province’s policy Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5). If a guidance counsellor, or any other individual, has concerns about a student’s performance in a course, they should talk with the student’s classroom teacher. The guidance counsellor could provide the classroom teacher with information that could help the teacher in exercising their professional judgment on how to assess the student. However, guidance counsellors should not unilaterally change students’ marks as they do not have the same opportunity to assess a student’s understanding and knowledge about a subject that the student’s classroom teacher would have. Simply reviewing a student’s transcript would not provide the guidance counsellor with sufficient familiarity about the student’s performance in a course to justify a unilateral change to the mark. Further, even if a teacher exercises professional judgment, they should generally not increase a student’s mark by more than 2-4% and certainly not by 11%, as was done in this case.
Mr. Greco
80Mr. Greco testified that the Member acknowledged in the Board meeting that it was inappropriate and unacceptable to input a false mark into OUAC. Mr. Greco’s testified that the Member admitted to him that Student 1 was not required to do any extra assessments or credit work to justify the increase in her mark and told him Ms. Lajoie was just helping until Student 1 brough her mark up. Mr. Greco did not recall the Member making any indication to him during that meeting that Student’s 1 mid-term grade of 80% was wrong or inaccurate in any way. The Member wanted Student 1 to be accepted into the Program.
81Mr. Greco testified that the mark alteration was inconsistent with the province’s policy Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5). Ms. Lajoie arbitrarily increased Student 1’s mid-term mark by 11%. She was not Student 1’s classroom teacher nor a [XXX] teacher. The 11% mark increase was not based on any established criteria or fulsome conversation and consultation with Teacher A (who would be entitled to, and already had, exercised his professional judgment in evaluating Student 1). According to Mr. Greco, schools may hold a promotion meeting with a committee to consider if there were special circumstances to warrant changing a student’s final grade. Otherwise, if there were concerns about a student’s grade, they would typically be addressed with the classroom teacher, and through the School administration to determine whether there was a flaw in how the student was evaluated or if the mark was not a true demonstration of the student’s ability. It was well known that teachers cannot change marks that have been entered on any source (Trillium, OUAC) without consultation with the relevant classroom teacher and the principal’s involvement. Mr. Greco testified that he believed that the Member’s action of approaching Ms. Lajoie about [XXX], Student 1’s, [XXX] mark was a conflict of interest. Moreover, Mr. Greco believed that the Member agreeing with the plan to have Ms. Lajoie change Student 1’s mark without following the typical process at the School for doing so, constituted misconduct.
82Mr. Greco testified that the marks on a student’s report card and transcript should be the same as those uploaded to OUAC because both are derived from Trillium. He was not of aware of anyone mentioning predictive marks during the investigation and expects the Member would not have been aware of predictive marks.
Teacher A
83Teacher A testified that Student 1’s mid-term mark had originally been 75% or 76%. However, Student 1 approached him sometime before mid-term marks were due to ask if he would consider increasing her mid-term grade. Teacher A advised her that he would review her evaluations and get back to her. He spoke with Student 1’s guidance counsellor to find out if there were extenuating circumstances affecting Student 1’s performance and discussed how to support Student 1 going forward. Teacher A also reviewed Student 1’s assessments again, and ultimately decided to raise Student 1’s mid-term mark to 80%, which was then reported to Trillium. Teacher A testified that the due date for entering mid-terms marks that term was April 18, 2018 and he would not have been able to change the mid-term mark on Trillium after that due date.
84Teacher A was not advised when the mark was changed in OUAC and had not been aware of the mark alteration until he was contacted by the College with respect to the present discipline proceedings. Teacher A testified that the Member did not speak to him about Student 1’s mark. He did not speak with Ms. Lajoie specifically about Student 1’s performance in his class either. Had he been consulted at that time, Teacher A testified that he would have advised that an increase of Student 1’s mid-term mark from approximately 75% or 76% (that was awarded originally) to 80% (as he eventually gave Student 1) was fair, but that an increase to 91% would not be appropriate based on Student 1’s performance on all her evaluations up to that point in the course. Teacher A has never raised a student’s mark by 11% and is not aware of any circumstance when students’ grades have been raised by that much.
85He recalled that Ms. Lajoie had called him on one occasion during class, advised him that she was completing an application form (without identifying what the application was for), and asked if he considered Student 1 to be an A+ student. Teacher A was primarily pre-occupied with completing his lesson with the class at that time but advised Ms. Lajoie that he had given Student 1 a mid-term grade of 80% and therefore considered her an A- student. Teacher A advised the Panel that he considers an A+ to be a grade of 90% and above. Teacher A and Ms. Lajoie then briefly spoke about how Student 1 was doing generally, and he agreed that overall, Student 1 was an A+ student. Teacher A’s conversation with Ms. Lajoie lasted only approximately five minutes and Teacher A had no indication from that conversation that Ms. Lajoie would change Student 1’s mid-term mark from the 80% he had given.
86According to Teacher A, students’ grades typically decrease when they move from Grade 11 to Grade 12 [XXX]. The courses are different in nature and Grade 12 [XXX] is substantially more difficult than Grade 11 [XXX]. Grade 12 [XXX] is a pre-requisite for many [XXX] programs at university and the students taking the course were very academically motivated. Teacher A testified that as such, a student’s mark in Grade 11 [XXX] is not predictive of their performance in Grade 12 [XXX]. Teacher A reviewed the Combined Report for Student 1 (Exhibit 11) which indicated that Student 1 received a 77% on her final examination and an overall final mark of 75% in her Grade 12 [XXX] class. Teacher A testified that Student 1’s performance was in the middle of the class.
The Member
87The Member testified that she agreed to Ms. Lajoie’s plan to change Student 1’s grade on OUAC because she trusted Ms. Lajoie’s assurances that it was acceptable to do so and that mark adjustments were done all the time. The Member testified that she did not have any particular insight into OUAC at that time, even though she was a teacher, and was not familiar with predictive marks either. Ms. Lajoie was the head of the Guidance Department and the “go to person” at the School for all questions relating to universities. The Member did not think that Ms. Lajoie was offering to help Student 1 as a personal favour to the Member, or that Student 1 was being provided with preferential treatment. The Member testified that she believed that anyone else who approached Ms. Lajoie would have been given the same information as she had been given.
88The Member testified that she and Ms. Lajoie did not discuss the details of what adjustments would be made but she left the conversation with the understanding that Student 1’s mid-term Grade 12 [XXX] mark would be reported to OUAC as being somewhere in the 90% range and that Student 1 would not be required to do any additional work to earn this adjusted grade. The Member did not know whether Ms. Lajoie would speak to the principal, vice-principal, or Teacher A about changing Student 1’s mark but assumed Ms. Lajoie would follow the proper procedures for doing so.
89The Member testified that she was aware of Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5) at the time of her conversation with Ms. Lajoie and that she was required to abide by the principles of consistency, objectivity, transparency, fairness, and equity set out in the policy. She testified that she thought that Ms. Lajoie was using her professional judgment to change Student 1’s mark to better reflect Student 1’s capabilities and that Ms. Lajoie was answering her call, as a teacher, to act in the interests of students’ well-being. The Member thought Student 1’s mid-term mark was a ‘one-off’ because Student 1 had otherwise done consistently well in school up until that point, and the Member believed that Student 1 would do well in the course in the end. Ms. Lajoie was familiar with Student 1’s capabilities and circumstances as she was part of the panel at the School that had selected Student 1 as a candidate for the Program.
90The Member testified that she considered each of her students and their circumstances individually, and would exercise professional judgment accordingly. For example, if the Member saw that a mark would be detrimental to a student because it would be weighted heavily, she might consider taking out that mark for a period of time and putting it back at a later time when it would be weighted less heavily in the calculation of the student’s mark. The Member testified that she thought Ms. Lajoie might similarly take out Student 1’s first [XXX] test, since Student 1 did poorly on it, and it counted for nearly 60% of Student 1’s mid-term mark. However, the Member testified that she does not know how Ms. Lajoie actually arrived at the mark of 91% and agreed that it was an “entirely false” mark. The Member also admitted that she had never exercised her professional judgment to increase a student’s mark by 11%.
91The Member did not tell anyone else about the plan to alter Student 1’s mark. The Member testified that she did not approach Teacher A because she did not want to appear to be giving Student 1 preferential treatment and did not want to make her colleague feel awkward. The Member acknowledged that Teacher A should have been made aware that Student 1’s mark had been changed and that Teacher A, not Ms. Lajoie, was best suited to assess Student 1’s academic progress in his class. The Member was asked how she dealt with concerns about marks she assigned to students and conceded that she would expect to be included in the discussion about the concerns and that it makes the most sense to speak with the classroom teacher who awarded the particular mark. The Member also agreed that Teacher A had already exercised professional judgment in raising Student 1’s mark from a 76% to 80%. The Member, however, was concerned about the “perception” of the 80%. The Member testified that she thought there was a lot riding on that mark at the time; it could “make or break” Student 1’s chances for acceptance into the Program. She did not mean to disrespect Teacher A.
92The Member testified that she did not tell Student 1 about Ms. Lajoie’s offer and did not ask Student 1 about her progress in the course thereafter because she did not want to cause Student 1 further stress. When asked why she did not tell Student 1 about the plan, the Member said Student 1 would have taken it to mean that she had not achieved her best and that she was a disappointment. The Member also conceded that it was possible that Student 1 could have thought the plan sounded like cheating.
93The Member testified that she now recognizes that the adjustment of Student 1’s mark was not fair, transparent or equitable. However, at the time she had approached Ms. Lajoie, the Member did not believe that the adjustment of Student 1’s mid-term Grade 12 [XXX] mark would have had any impact on other students. Student 1 had already been given offers of admission by March 2018 to all of the programs to which she had applied, other than the Program. Student 1, therefore, was not taking the place of another applicant; the only place that was in question was Student 1’s place in the Program.
(ii) Factual Finding
94The Panel finds that the College has proven on a balance of probabilities that the Member agreed to the submission of a false and/or inaccurate mark in Student 1’s OUAC file.
95All of the witnesses at the hearing testified that they were not aware of a mark ever being changed by 11%. The Member testified that she, herself, has never exercised her professional judgment to increase a student’s mark by 11%. In the Panel’s view, such a large increase to a student’s mark is highly unusual and suggestive, on its face, of a false and inaccurate mark adjustment.
96However, the Panel makes its findings on particular 3(c) based on the Member’s admission that while she did not know what numerical mark Ms. Lajoie would upload to OUAC, she understood that Ms. Lajoie would adjust Student 1’s mid-term mark to align with Student 1’s usual achievements in the 90% range. The Panel also relies on the Member’s admission that Student 1 was not required to do any additional work to earn this 91% mark, which is consistent with Exhibit 2, and the evidence of Mr. O’Grady and Mr. Greco. The Panel was most persuaded by the Member’s admission that the adjusted mark was a “false” mark to improve Student 1’s candidacy to the Program while the mark reported in Student 1’s Trillium file was Student 1’s “true” mark, as well as her (reluctant) agreement with the suggestion that she did not tell Student 1 of the plan to alter her mark on OUAC because Student 1 would have considered it to be “cheating”.
(3) Legal Conclusions
97The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to comply with the Act, or the regulations or the by-laws, and specifically section 322 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14); she failed to comply with subsection 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and, she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
(a) The Member failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 (now section 26) of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)
98The Panel finds that the Member failed to maintain the ethical standards for the teaching profession, which, at the time of the Member’s misconduct, were set out at section 32.02 of the by-laws (i.e., “Care”, “Trust”, “Respect”, and “Integrity”). Although no expert evidence was provided to prove that the Member’s conduct breached the ethical standards, the Panel accepts ILC’s advice that expert evidence is not required to prove a breach of the ethical standards. The Panel accepts that a determination of whether there has been breach of the ethical standards for the profession is similar to a determination of whether the member has engaged in conduct that is disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97, which does not require proof in the form of expert evidence.
99The Panel finds that through her academic dishonesty, in agreeing to and being involved with the secret and illegitimate increase of Student 1’s mark on OUAC, the Member breached the ethical standard of “Trust”, which embodies “fairness, openness and honesty”. As well, the Member failed to abide by the ethical standard of “Integrity” which requires “honesty, reliability, and moral action” as well as “continual reflection” of one’s obligations and duties as a teacher. Teachers cannot ignore their obligations as a teacher as it suits them. They must always behave ethically. The Member lacked integrity when she approached Ms. Lajoie and ultimately agreed with the plan to confer a benefit to Student 1 contrary to the requirements of Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5). The Panel finds that the Member was solely concerned with Student 1 [XXX] and did not consider the well-being of and fairness to other students, nor did she show empathy for the other Grade 12 students in the province who were applying to university that year and who may have been similarly anxious as Student 1 was with respect to their university applications. Her actions showed a lack of respect for the other students applying to university across the province. The Member therefore also failed to abide by the ethical standards of “Care” and “Respect”.
100The Panel accepts ILC’s advice that expert evidence is usually required to prove a breach of the standards of practice for the teaching profession unless the conduct at issue is so notorious and self-evidently contrary to the standards of practice (per Novick). The Panel finds that although the Member did not herself change Student 1’s mark, agreeing to Ms. Lajoie’s plan to alter Student 1’s [XXX] mark on OUAC is “misconduct involving blatant dishonesty [which is] obviously inappropriate in an academic and educational setting” (per paragraph 38 of Spence) and therefore, self-evidently contrary to the standards of practice for the teaching profession. The Member knew that Ms. Lajoie would be entering a false mark in OUAC, agreed to that plan, and kept the plan secret. Agreeing to the falsification of marks to create the perception that a particular student has achieved at a higher level than they actually did, in order to increase that student’s chances for acceptance to a competitive university program, is clearly contrary to the principles of treating all students equitably and with respect, as set out in the practice standard “Commitment to Students and Student Learning”. It is also contrary to the practice standard, “Professional Knowledge” which requires teachers to understand and reflect on ethics, educational research, related policies (in this case, the Board’s Policy 6.10 – Assessment and Evaluation (Exhibit 4), and the Ministry of Education’s directive Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5)) and legislation to inform professional judgment in practice.
(b) 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)
101The Panel finds that the Member failed to comply with subsection 264(1) of the Education Act, which sets out the duties of a teacher. Subsection 264(1)(c) of the Education Act is commonly understood as requiring teachers to act as positive role models and to demonstrate morality in their conduct. By participating in an arrangement for Student 1’s Grade 12 [XXX] mark to be raised to a mark in the 90% range on OUAC, regardless of Student 1’s efforts or actual achievements in her class, the Member did not uphold the moral values required of teachers. The fact that the Member conceded she did not tell Student 1 of the plan because Student 1 might consider it to be cheating demonstrates that the Member was aware that she was not acting as a positive role model.
102Subsection 264(1)(d) of the Education Act requires teachers to assist in developing co-operation and co-ordination of effort among the members of the staff at the school. The Member failed to do so in this case. Rather than voicing her concerns to Student 1’s classroom teacher and working with him to find ways to support Student 1, the Member by-passed him and the normal procedures at the School for dealing with concerns about student marks. The Member was familiar with these procedures. She conceded during the hearing that she would expect to be included in any discussion about the marks she assigned to students in her class and that the classroom teacher was best suited to address such concerns. However, the Member chose not to follow the expected and established protocols at the School. Instead, she embarked on a course of action that undermined her colleague, Teacher A, who had already exercised his professional judgment to raise Student 1’s mid-term grade to 80%.
(c) 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)
103The Panel finds that the Member’s conduct would reasonably be regarded by members as dishonourable and unprofessional. The Panel declines to make a finding that the Member’s actions were disgraceful, but notes that because the terms in subsection 1(18) are disjunctive, the Panel can find that the Member has committed profession misconduct as alleged under this head of misconduct.
104Conduct characterized as disgraceful is considered the most egregious. Disgraceful conduct casts serious doubt on a member’s moral fitness to perform their professional duties and on their ability to be a member of the profession. Like disgraceful conduct, dishonourable conduct has an element of moral failing, but it need not be as severe. Dishonourable conduct often involves, but is not limited to, acts of dishonesty, deceit, fraud and theft. Unprofessional conduct does not require an element of moral failing but rather involves acts demonstrating poor professional judgment.
105The Panel finds that the Member’s conduct was unprofessional. The Member had been a teacher for over 20 years when she chose to disregard her obligations under the provincially prescribed policies and practices described in Growing Success: Assessment, Evaluation, and Reporting in Ontario Schools – First Edition, Covering Grades 1-12 (2010) (Exhibit 5) and when she ignored standard procedures at the School for adjusting student marks where appropriate. Moreover, her actions were dishonourable because they were dishonest. As the Member admitted, she was aware that the adjusted mark on OUAC was not a “true” mark but an entirely false mark, based on her and Ms. Lajoie’s perceptions of Student 1’s capabilities, to give a favourable impression to universities, and in particular, the Program. According to the Member, the marks on Trillium were true marks. Moreover, the Member admitted that she, as a classroom teacher, has never altered a student’s mark by 11%.
106As serious as the Member’s misconduct is, the Panel does not find that it rose to the level of being “disgraceful”. The Panel is satisfied that the circumstances of this case were unique (i.e., Student 1 is the Member’s [XXX]). The Panel notes that this was an isolated incident concerning a particular student. The Panel is, therefore, unwilling to make a finding that there are serious doubts about the Member’s ability to perform her professional duties or remain a member of the teaching profession.
(d) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)
107Finally, the Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession. Through her conduct, the Member undermined the trust that parents, students and the public place in teachers to ensure the fair, transparent, and equitable evaluations and reports of student achievement to universities. Her conduct threatened the integrity of the university application process and tarnished the reputation of the teaching profession.
L. PENALTY
108The Tribunals’ Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.
Date: January 11, 2023
Hanno Weinberger, OCT Chair, Discipline Panel
Lois Figg Member, Discipline Panel
Sandra Pizzuti, OCT Member, Discipline Panel
Footnotes
- As of January 20, 2022, section 32 of the by-laws was re-numbered as section 26. At the time of the alleged conduct, the professional and ethical standards for the teaching profession were set out at section 32 of the by-laws.
- As the provisions of the by-laws setting out the ethical and professional standards for the teaching profession were numbered at the time of the misconduct.