DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION AND REASONS ON FINDING
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 Marie-Gabrielle Balan, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
MARIE-GABRIELLE BALAN (REGISTRATION #482970)
PANEL: Marlène Marwah, Chair Élaine Legault Alain Martel, OCT
HEARD: May 4, 2023
Christine Lonsdale, for the Ontario College of Teachers No one appearing for Marie-Gabrielle Balan Renée Kopp, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1On May 4, 2023, a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) conducted an electronic proceeding, pursuant to rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee(the “Rules”).
2Marie-Gabrielle Balan (the “Member”) did not attend the hearing and did not have legal representation.
3The Member was initially the subject of three separate proceedings before the Discipline Committee, set out in three Notices of Hearing: Notice of Hearing No. 4776, dated October 1, 2018; Notice of Hearing No. 5340, dated October 2, 2019; and Notice of Hearing No. 5624, dated August 7, 2020. In a written decision rendered on October 29, 2021, the Panel granted the College permission to withdraw Notice of Hearing No. 5624, dated August 7, 2020, pursuant to sub-rule 13.13 of the Rules. A hearing on the merits and the penalty in the matter of Notice of Hearing No. 4776, dated October 1, 2018, was held, and the Panel rendered a decision on the merits dated November 9, 2022 (Ontario College of Teachers v. Balan, 2022 ONOCT 117) and a penalty decision dated April 3, 2023 (Ontario College of Teachers v. Balan, 2023 ONOCT 23). The present hearing concerns only Notice of Hearing No. 5340, dated October 2, 2019.
4College Counsel produced the Affidavit of Beti Poyastro sworn on April 27, 2023 (Exhibit 2) and the Affidavit of Beti Poyastro sworn on May 2, 2023 (Exhibit 3), to prove that the Member was advised of the allegations against her and the date and time of the hearing. In her affidavits, Ms. Poyastro, a paralegal at McCarthy Tétrault, provides a detailed account of her communications with the Member and proof of service of all of the required documents. In addition, on December 3, 2022, the Member informed Ms. Poyastro that she would not take part in any of the College’s disciplinary hearings (Exhibit 2 at para. 6).
5On the basis of the affidavits, the Panel is satisfied that the Member did in fact receive the Notice of Hearing and all the disclosure documents, that she was aware of the date and time of the hearing, and that she decided not to take part. The Panel therefore held the hearing in her absence.
A. Publication Ban
6The 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. OVERVIEW
7The College alleges that the Member was involved in several incidents of professional misconduct during the 2017-2018 academic year. The College claims the Member failed to take part in a compulsory performance appraisal. The Member allegedly reported for supervisory and planning duties late, or not at all, on several occasions. She is also accused of failing to provide her principal with lesson plans and/or rubrics without a valid reason and evaluating and assessing students inadequately. In addition, it is alleged that the Member yelled at a student and refused to assist her or answer her questions in class. Lastly, the Member allegedly failed to report to work without informing the School and/or reporting her absence in the electronic attendance system.
8The Panel must decide whether the allegations have been proven on a balance of probabilities and, if so, whether the Member’s conduct supports a finding of professional misconduct. The Panel finds that the Member is guilty of professional misconduct for the following reasons: she contravened Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(10), 1(11), 1(12), 1(15), 1(18) and 1(19). At the request of College Counsel, the Panel has withdrawn the allegations that the Member contravened Ontario Regulation 437/97, subsections 1(13) and 1(14).
C. THE ALLEGATIONS
9The allegations against the Member in the Notice of Hearing dated October 2, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:
a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
b) she abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
d) she failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);
e) she failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);
f) she signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);
g) she falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13)1;
h) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)2;
i) 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);
j) 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);
k) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Marie-Gabrielle Balan is a member of the College.
At all material times, the Member was employed by the Dufferin-Peel Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Mississauga, Ontario.
At all material times, Student 1 was a female student in Grade [XXX] at the School.
During the 2017-2018 academic year, the Member:
a) failed to take part in a compulsory performance appraisal, without a valid reason;
b) reported late and/or not at all for her supervisory and planning duties;
c) failed to submit lesson plans and/or rubrics to the School principal, even though the principal had asked her for them;
d) gave students grades without having carried out adequate supporting evaluations beforehand.
On or about November 29, 2017, the Member refused to help Student 1 in class, telling her, “Ask somebody. Do you have a problem with that?” or words to that effect.
On or about November 19, 2017, the Member yelled at Student 1 in class.
On or about April 4 and 5, 2018, the Member failed to report to work and to inform the School of her absence and/or report it in the electronic attendance system.
D. ThE Member’s PLeA
10Since the Member was not present at the hearing, the Panel assumed that she denied the allegations set out in the Notice of Hearing.
E. THE EVidencE
11The College produced oral and documentary evidence in support of the allegations set out in the Notice of Hearing. At the hearing, the College called two witnesses: 1) Angela Aquino, principal of the School during the 2017-2018 academic year (“Ms. Aquino”) and 2) Rosana Pilotti, a teacher at the School (“Ms. Pilotti”). The relevant elements of their testimony are outlined in greater detail in the Panel’s reasons for decision. The College’s evidence is summarized below.
(1) Oral Evidence
12For the reasons described in detail below, the Panel finds that the testimony of both witnesses was credible and consistent in all material respects. Both witnesses clearly recalled the incidents involving the Member. Their testimony was internally and externally consistent and was compatible with the documentary evidence produced. Although Ms. Pilotti did not herself observe some of the incidents involving the Member, such as the incident between the Member and Student 1, the Panel finds that her testimony was credible, and the documentary evidence and Ms. Aquino’s testimony corroborated Ms. Pilotti’s testimony.
13Because the Member decided not to take part in the hearing, no testimony was presented in her defence.
(a) Ms. Aquino’s Testimony
14Ms. Aquino was the School principal during the 2017-2018 academic year. She worked as a principal from 2011 to 2022, the year she retired. Ms. Aquino testified regarding her role as principal of the School and her supervisory and management responsibilities, which included managing conflicts and incidents between teachers and/or students.
15Ms. Aquino testified concerning several incidents that took place involving the Member during the 2017-2018 academic year. She stated that she had taken several handwritten notes regarding the incidents and had also documented her meetings with the Member (Exhibit 4, Tab 4). She testified that the Member reported late, and sometimes not at all, for her supervisory or teaching duties. She explained that the Member failed to take part in a compulsory performance appraisal, in spite of the accommodations made by the principal on several occasions. Since the start of the 2017-2018 academic year, Ms. Aquino had asked the Member several times to provide her lesson plans, but no plans were forthcoming. She testified that the Member assigned grades to students without having previously carried out an adequate evaluation in support of her grading. Lastly, Ms. Aquino testified regarding the incident involving the Member and Student 1. She stated that she had received a letter from Student 1’s parent referring to two incidents that had taken place in the Member’s class. She described her role in investigating those incidents, including her meetings with Students 2 and 3.
(i) Designation of Ms. Aquino as a Participant Expert
16College Counsel asked the Panel to designate Ms. Aquino as a participant expert. She stated that, according to the criteria set out in Westerhof v Gee Estate, 2015 ONCA 206 (“Westerhof”), Ms. Aquino met the definition of participant expert. A witness may give opinion evidence if it is based on the witness’s observations of, or participation in, the events at issue, and their skill, knowledge, training or experience (see Westerhof at para. 60).
17The College stated that Ms. Aquino could be considered a participant expert with respect to the Standards of Practice for the Teaching Profession, given her experience, supervisory and conflict management responsibilities and her practical knowledge of the professional standards in her role as principal.
18The College produced two decisions in support of its request: Westerhof and the prior decision involving the Member, Ontario College of Teachers v. Balan, 2022 ONOCT 117 (“Balan”). In Balan, the Panel noted that the witness had met the criteria set out in Westerhof and was therefore designated as a participant expert. The Panel further noted that the evidence was relevant and necessary because of the allegation that the Member had contravened Ontario Regulation 437/97, subsection 1(5). The decision refers to Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”), which states that expert testimony is relevant and necessary when a member is alleged to have breached the standards of the profession.
19The Panel accepts the submissions of College Counsel and finds that Ms. Aquino meets the definition of participant expert as articulated in Westerhof because her opinion concerning the Member’s shortcomings regarding the Standards of Practice for the Teaching Profession is based on her role in the management of the Member’s conduct and on her skill, knowledge, training and experience as an experienced school principal. Having reached this conclusion, the Panel must continue its analysis to ensure that Ms. Aquino’s testimony is admissible according to the criteria articulated by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. In the present matter, Ms. Aquino’s testimony is relevant to the question of whether the Member contravened the standards of the profession, as alleged by the College. As per Novick, expert testimony is necessary because the Panel must hear evidence about the standards before deciding whether they have been breached. There is no exclusionary rule preventing the admission of Ms. Aquino’s testimony. The Panel therefore designates Ms. Aquino as a participant expert with respect to the Standards of Practice for the Teaching Profession.
(b) Ms. Pilotti’s Testimony
20Ms. Pilotti testified regarding her experience as a teacher over the past 34 years. She has taught at the School since the 1996-1997 academic year. She explained that during the 2017-2018 academic year, she was teaching Grades [XXX] and [XXX], but whenever the principal was away, she became the “teacher in charge” and took over all associated duties.
21Ms. Pilotti’s testimony focused on her role in the investigation into the incident involving Student 1 and the Member. She stated that she met with Student 1 after the incident and took handwritten notes during the meeting. She added that Student 1 was an exemplary student, hard-working and respectful. Ms. Pilotti knew Student 1 well, because she was one of her students in her Grade [XXX] class.
(2) Documentary Evidence
22The College also produced documentary evidence in support of the allegations of misconduct against the Member, including a Book of Documents (Exhibit 4), which included Ms. Aquino’s handwritten notes (Exhibit 4, Tab 4); email correspondence and memos (Exhibit 4, Tabs 5, 6, 7, 9, 10, 11, 15, 17, 30, 31, 32); Ms. Pilotti’s handwritten notes (Exhibit 4, Tab 27); Student 1’s handwritten notes (Exhibit 4, Tab 28); the letter handwritten by Student 1’s parent (Exhibit 4, Tab 29); and the grades given to the students in the Member’s class (Exhibit 4, Tab 37). Ms. Aquino’s handwritten notes describe some of the incidents involving the Member and the dates of the incidents and meetings between Ms. Aquino and the Member. The various email exchanges and memos are primarily emails between Ms. Aquino and the Member, and email correspondence between Ms. Aquino and Ms. Pilotti regarding an incident involving the Member. The memos are notes to the Member from Ms. Aquino. Most of the memos are follow-ups and reminders about the lesson plans and rubrics and her compulsory performance appraisal. Ms. Pilotti’s handwritten notes, made during her meeting with Student 1, describe the incident between Student 1 and the Member. Lastly, the letter handwritten by Student 1’s parent refers to two incidents that took place in the Member’s class.
F. SUBMISSIONS OF COLLEGE COUNSEL
23College Counsel reviewed each item related to the allegations, setting out the evidence for each one. She asked the Panel to withdraw the allegations that the Member had contravened Ontario Regulation 437/97, subsections 1(13) and 1(14). The College argued that Ontario Regulation 437/97, subsection 1(12), more closely addressed the facts at issue than subsection 1(13), obviating the need to pursue the allegation that the Member had contravened Ontario Regulation 437/97, subsection 1(13). The College further argued that the Panel ought to withdraw the allegation that the Member had contravened Ontario Regulation 437/97, subsection 1(14), because it duplicated the allegation relating to subsection 1(5), which more closely addressed the facts at issue. The College argued that the evidence before the Panel proved that the Member had contravened subsections 1(5), 1(7), 1(7.2), 1(10), 1(11), 1(12), 1(15), 1(18) and 1(19), as alleged in the Notice of Hearing, on a balance of probabilities and that the Panel therefore ought to find that the Member was guilty of professional misconduct.
24In her submissions, College Counsel referred to the evidence of her two witnesses and reminded the Panel that Ms. Aquino had been designated as a participant expert with respect to the professional standards. The College also stated that Student 1 had been unable to testify during the hearing because her parents had refused to allow her to participate (Exhibit 3, para. 2). The College argued that although Student 1’s documentary evidence constituted hearsay, it ought to be admissible on the grounds of necessity and relevance given that Student 1 could not take part in the hearing.
G. DECISION ON THE FINDING
(1) Burden of Proof and Standard of Proof
25The onus is on the College to prove the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41; that is, on a balance of probabilities.
(2) Decision
26Having considered the evidence, onus and standard of proof and the submissions of College Counsel, the Panel finds that the Member is guilty of professional misconduct as defined in Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(10), 1(11), 1(12), 1(15), 1(18) and 1(19).
H. REASONS FOR DeCISION
27The Panel carefully considered the evidence and submissions presented in this matter. In the reasons that follow, it rules only on those portions of the evidence that most closely relate to the allegations in the Notice of Hearing. The Panel begins with its factual findings and then explains how the facts resulted in a finding of professional misconduct, as alleged in the Notice of Hearing.
(1) Factual Findings
(a) Allegation 4(a)
28The Panel finds that, on a balance of probabilities, the Member failed to take part in a compulsory performance appraisal, without a valid reason, as alleged in item 4(a) of the Notice of Hearing.
29The Panel refers to the testimony of Ms. Aquino, who stated that at the start of the 2017-2018 academic year she had informed the Member that she was required to complete a compulsory performance appraisal. Ms. Aquino testified that she sent the Member a memo on September 22, 2017, informing her that her performance appraisal was to be completed no later than December 15, 2017, and that she should meet with her beforehand to begin the process (Exhibit 4, Tab 9). Ms. Aquino said that she followed up several times with the Member to schedule a meeting for her performance appraisal. The Panel finds that the documentary evidence, including Ms. Aquino’s email to the Member on September 25, 2017, is consistent with her testimony. The documentary evidence shows that Ms. Aquino notified the Member by email that a letter concerning her performance appraisal was in her mailbox and that her appraisal had to be completed during the academic year (Exhibit 4, Tab 10).
30Ms. Aquino further testified that she was working with Employee Relations at the Board to carry out the Member’s compulsory performance appraisal. She stated that the Member was given an extension and her performance appraisal was eventually scheduled for January 31, 2018. In a memo addressed to the Member dated January 18, 2018, Ms. Aquino asks her to submit her lesson plans by January 29, 2018, submit her evaluations and assessments for the lessons and rubrics and complete her annual professional learning plan, as part of her compulsory performance appraisal process (Exhibit 4, Tab 31). Lastly, Ms. Aquino stated that the Member requested and was granted a second extension for completing her performance appraisal (Exhibit 4, Tab 33). The documentary evidence shows that the Member requested an extension for completing her appraisal because she had some family problems and was under a great deal of stress (Exhibit 4, Tab 33). Ms. Aquino stated in her testimony that Employee Relations agreed to grant her a second extension, which postponed the date of the performance appraisal to February 7, 2018. Ms. Aquino testified that she once again asked the Member to submit her lesson plans and rubrics for the February 7, 2018, meeting regarding her compulsory performance appraisal.
31The Panel is satisfied with the evidence produced by the College, including Ms. Aquino’s testimony and the documentary evidence (that is, the email correspondence between Ms. Aquino and the Member and the memos addressed to the Member). The overall evidence shows that the Member failed to take part in her compulsory performance appraisal, without a valid reason. The documentary evidence shows that the Member knew she had to complete the appraisal during the 2017-2018 academic year, that Ms. Aquino had followed up several times and had worked with the Board’s Employee Relations to grant the Member extensions to complete the appraisal. Despite this communication and the extensions, no evidence to the contrary proves that the Member took part in the process or completed her performance appraisal during that academic year. No evidence explains why the Member failed to take part in her appraisal after her second extension and nothing in the evidence produced contradicts Ms. Aquino’s testimony or the documentary evidence.
(b) Allegation 4(b)
32The Panel finds that, on a balance of probabilities, the Member reported late and sometimes not at all for her supervisory and planning duties, as alleged in item 4(b) of the Notice of Hearing.
33Several incidents occurred in which the Member reported late for her duties at the School, as testified by Ms. Aquino and Ms. Pilotti. Ms. Aquino stated that she took handwritten notes about the incidents involving the Member; she also described her meetings with her to discuss her concerns about her frequent lack of punctuality. Ms. Aquino stated in her testimony that from the start of the 2017-2018 academic year, the Member would often report late for her supervisory and teaching duties. Ms. Aquino’s handwritten note dated September 8, 2017, mentions that she met with the Member to discuss her schedule and teachable subjects and also raised her concerns about her frequent lack of punctuality (Exhibit 4, Tab 4, p. 35). She also notes that the Member tried to change the subject when she was criticized for her lack of punctuality (Exhibit 4, Tab 4, p. 35). In a handwritten note dated September 19, 2017, Ms. Aquino specifies that the Member was often late for first period on Tuesday and Wednesday mornings and the students were often left unsupervised in the hallway (Exhibit 4, Tab 4, p. 37).
34Ms. Pilotti explained in her testimony that she acted as teacher in charge whenever the principal was away from the School. She testified about one incident when she was acting as teacher in charge, when the Member arrived for class 10 minutes late and did not report at all for her full-day [XXX] teaching duties. Another teacher had to replace her.
35The Panel finds that Ms. Pilotti’s and Ms. Aquino’s testimony is consistent in this regard. Moreover, the documentary evidence corroborates their testimony. Ms. Aquino and Ms. Pilotti both testified concerning the email Ms. Pilotti sent Ms. Aquino on September 18, 2017, describing the Member’s incidents of tardiness (Exhibit 4, Tab 7). Ms. Aquino also testified about the many times the Member was late, as described in her handwritten notes, including one incident noted on September 28, 2017, in which the Member failed to report to class, leaving students unsupervised in the hallway (Exhibit 4, Tab 4, p. 38). One incident was recorded on October 4, 2017, when the Member arrived in class at the wrong time for her teaching duties (Exhibit 4, Tab 4, p. 39). On October 12, 2017, the Member reported to the wrong hallway for her supervisory duties (Exhibit 4, Tab 4, p. 40). Lastly, another incident took place on October 27, 2017, in which the Member left some Grade [XXX] students unsupervised in her classroom at recess (Exhibit 4, Tab 4, p. 52). Ms. Aquino reported several incidents of tardiness and the Panel is satisfied with the evidence produced by the College to the effect that the Member reported late and sometimes not at all for her supervisory and teaching duties.
36The Panel has no reason to doubt the veracity of Ms. Aquino’s and Ms. Pilotti’s testimony. It finds that the oral evidence produced is externally consistent with the documentary evidence, including Ms. Aquino’s handwritten notes that clearly describe the incidents and their dates.
(c) Allegation 4(c)
37The Panel finds that, on a balance of probabilities, the Member failed to submit her lesson plans and rubrics to the School principal, even though the principal asked her for them, as alleged in item 4(c) of the Notice of Hearing.
38The Panel is relying on the oral evidence, Ms. Aquino’s testimony and the documentary evidence proving that the Member failed to submit her lesson plans and rubrics to the principal, despite many follow-ups. Ms. Aquino testified about one meeting she had with the Member and the vice-principal, at which they discussed the lesson plans and rubrics for the Member’s classes. Ms. Aquino testified that, during the meeting, when they asked the Member to submit her lesson plans and rubrics, the Member changed the subject, requesting additional planning hours and further resources instead (Exhibit 4, Tab 4, p. 46). There is no date on Ms. Aquino’s handwritten note but in her testimony, she stated that the meeting took place a few days before October 30, 2017. Ms. Aquino’s testimony regarding all the incidents has thus far been accurate and the Panel has no reason to doubt the veracity of her uncontradicted evidence.
39Ms. Aquino also testified about the follow-ups with the Member to obtain her lesson plans and rubrics. A follow-up memo sent to the Member on November 9, 2017, notes that the Member had still not submitted her lesson plans or rubrics, and the principal requested that she submit the documentation by November 13, 2017 (Exhibit 4, Tab 17). An email from the Member shows that she was unable to provide the requested documentation by the deadline and that she asked her principal for help (Exhibit 4, Tab 17). Ms. Aquino testified about two other follow-ups, on November 21 and November 23, 2017, and her claims are supported by her handwritten notes (Exhibit 4, Tab 4, p. 59-60). Ms. Aquino’s handwritten note regarding the November 23, 2017 follow-up indicates that she asked the Member for her lesson plans for lessons that had already been taught and completed, not her future lesson plans. The Member replied that she needed more time to provide the documentation (Exhibit 4, Tab 4, p. 60).
40The Panel is also relying on the documentary evidence, including the notes from the Board’s investigation of the Member, dated March 29, 2018. In these notes, the Board asks why she has not submitted her lesson plans and/or rubrics. She replied that she did not have the time to prepare lessons and did not have lesson plans, just ideas for elements she wanted to teach (Exhibit 4, Tab 38, p. 279-280).
41The Panel therefore finds that there is ample evidence in support of the allegation set out in item 4(c) of the Notice of Hearing. The Panel is satisfied with the oral evidence provided in Ms. Aquino’s testimony on the matter. Ms. Aquino is a credible witness and she carefully documented her meetings with the Member and her numerous follow-ups. Her oral evidence is consistent with the documentary evidence produced, including Ms. Aquino’s handwritten notes, the memos addressed to the Member and the notes on the Board’s investigation. Lastly, the Panel finds that the Member admitted to the Board during its investigation of her that she had not submitted her lesson plans or rubrics to the principal (Exhibit 4, Tab 38, p. 279-280).
(d) Allegation 4(d)
42The Panel finds that, on a balance of probabilities, the Member awarded grades to students without carrying out adequate supporting evaluations beforehand, as alleged in item 4(d) of the Notice of Hearing.
43Ms. Aquino testified that the Member did not provide any documentation showing how she assessed and evaluated her students, a fact that is also noted in the memo addressed to the Member dated November 9, 2017 (Exhibit 4, Tab 17). Ms. Aquino’s handwritten note dated November 14, 2017, indicates that the Member had assigned only one evaluation task to the students, and that she had lost several [XXX] assignments and was asking the students to redo their work (Exhibit 4, Tab 4, p. 58). Ms. Aquino also testified about the letter she sent to the Boards’ Employee Relations on January 29, 2018, after receiving the grades for the Member’s classes. The letter summarizes the grades the Member gave her students, most of whom got an A or a B (Exhibit 4, Tab 36). The Panel is also relying on the grades produced in the documentary evidence, which show that the Member did not adequately evaluate and assess her students. For example, in her Grade [XXX] [XXX] class, all the students obtained an A (either A or A-). The Panel also noticed that all the comments in the report cards are identical for every student in the class. The Panel believes that the Member simply cut-and-pasted the same comment for each of her students.
44Further, the Panel found previously that the Member failed to submit her lesson plans and rubrics to the School principal. Without lesson plans or rubrics, the evidence cannot provide any information whatsoever about how the Member was able to adequately assess and evaluate her students or arrive at the grades assigned to them. All the facts appear to show that the Member simply fabricated the students’ grades.
45The College also produced the Board’s investigation notes, dated March 29, 2018. At that meeting, the Board raised the issue of the grades with the Member and asked how she could have assigned a B- to a student who was absent for 38.5 days. The Member had no response or comment (Exhibit 4, Tab 38, p. 283-284).
46The Panel is satisfied with all of the evidence produced by the College. No evidence to the contrary shows that the Member adequately assessed and evaluated her students.
(e) Allegations 5 and 6
47Since allegations 5 and 6 both concern incidents involving the Member and Student 1, the Panel has chosen to address them together.
48The Panel finds that, on a balance of probabilities, on or about November 29, 2017, the Member refused to help Student 1 in class, telling her, “Ask somebody. Do you have a problem with that?” or words to that effect, and that on or about November 19, 2017, the Member yelled at Student 1 in class.
49Ms. Aquino testified regarding these two incidents and her role in investigating them. She stated that she received a letter from Student 1’s parent claiming that the Member refused to help Student 1 in class, telling her “Do you have a problem with that?” or words to that effect. Ms. Aquino testified that she then called Student 1’s parent to discuss the incident and documented the call in her handwritten notes dated November 29, 2017 (Exhibit 4, Tab 4, p. 63). She stated that after her call with Student 1’s parent, she had a discussion with the Member regarding the conduct expected of a teacher towards students.
50On another occasion, on or about December 19, 2017, the Member yelled at Student 1. This incident is also referred to in the letter from Student 1’s parent, which explains that before the Christmas holidays, Student 1 asked the Member a question and was told to wait a minute. After waiting, Student 1 asked her question again and the Member yelled at her 1 (Exhibit 4, Tab 29). The letter goes on to state that when Student 1 returned home, she was crying and frightened and didn’t want to go back to school (Exhibit 4, Tab 29).
51Ms. Aquino and Ms. Pilotti also testified about this incident. Ms. Aquino explained that she met with Students 2 and 3 separately to question them about the incident, because they were both in a work group with Student 1. Ms. Aquino took notes during the meetings and also testified that she asked them open-ended questions. At her meeting with Student 2 on December 20, 2017, Student 2 stated that she was doing group work with Students 1 and 3 and that Student 1 asked the Member a question. The Member yelled at Student 1 and when Student 1 went back to her group, she was frightened (Exhibit 4, Tab 4, p. 77). At her meeting with Student 3 on December 20, 2017, Student 3 also told Ms. Aquino that Student 1 asked the Member a question and Student 3 heard the Member say, “Can it wait?” and seemed angry and then she heard her yelling at Student 1 (Exhibit 4, Tab 4, p. 78).
52Ms. Pilotti also testified about this incident, explaining that she was Student 1’s teacher and met with Student 1 after the incident. She stated that she took handwritten notes at her meeting on December 20, 2017 to the effect that Student 1 asked the Member a question and the Member told her to wait. After waiting, Student 1 asked the question again and the Member started to yell at her. The notes indicate that this was the first time that someone had yelled at Student 1 like that and she was frightened (Exhibit 4, Tab 27). Ms. Pilotti also testified that she knew Student 1 very well, because she was her teacher. She described her as a calm, hard-working and exemplary student.
53Although neither witness personally observed the two incidents described above, and their oral evidence constitutes hearsay, the Panel finds that their testimony is internally and externally consistent with the documentary evidence, such as the letter from Student 1’s parent and their handwritten notes. The Panel is also relying on the testimony of Ms. Pilotti and her description of the general conduct of Student 1 as being exemplary and respectful. The Panel further notes that two other students described the same incident to Ms. Aquino and it is unlikely that three students made up a lie and told it to the principal. The Panel therefore considers it more likely than not that the Member not only refused to help Student 1 when the latter asked her a question, but yelled at her as well.
(f) Allegation 7
54The Panel finds that, on a balance of probabilities, on or about April 4 and 5, 2018, the Member failed to report to work or to inform the School of her absence and/or to report it in the electronic attendance system.
55The Panel is relying solely on the documentary evidence, including the letter from the Board dated April 5, 2018, which states that the Board had begun its investigation into the Member’s conduct and that a meeting had taken place on March 29, 2018. The letter also states that the Board had given the Member permission to be absent from work on Tuesday, April 3, 2018, but that she did not report to work on Wednesday, April 4 or Thursday, April 5, 2018 and neither absence was reported in the electronic attendance system, TRACS (Exhibit 4, Tab 39). The Panel is satisfied with the evidence produced by the College, because it is a formal letter from the Board dated April 5, 2018, and no evidence to the contrary shows that the Member did report to work on April 4 or 5, 2018.
(2) Conclusions of Law
56The Panel finds that the Member’s conduct as described above supports a finding of professional misconduct. In particular, the Member:
failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);
failed to supervise adequately a person who is under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);
signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);
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);
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);
engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
(a) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)
57The Panel finds that the Member failed to maintain the following Standards of Practice for the Teaching Profession: Professional Practice; Commitment to Students and Student Learning and; Professional Knowledge. In making this finding, the Panel is relying on the evidence of Ms. Aquino, who has been designated as a participant expert.
(i) Professional Practice
58The Member repeatedly breached the standard of Professional Practice, which requires that:
Members apply professional knowledge and experience to promote student learning. They use appropriate pedagogy, assessment and evaluation, resources and technology in planning for and responding to the needs of individual students and learning communities. Members refine their professional practice through ongoing inquiry, dialogue and reflection.
59According to Ms. Aquino’s testimony, the Member’s failure to take part in her compulsory performance appraisal is a serious breach of professional practice. In a teacher performance appraisal, it is important that teachers be able to explain what they are teaching and why. The performance appraisal is an important step in their career path.
60The Member’s failure to submit her lesson plans and rubrics to the principal is another breach of the standard of Professional Practice. According to Ms. Aquino, lesson plans are important and are integral to teachers’ professional practice. By preparing lesson plans, teachers show that they are dedicated to their planning tasks and know how to follow the curriculum, which the Member failed to do.
61Lastly, the Member also breached the standard of Professional Practice when she refused to answer Student 1’s question and yelled at her. According to Ms. Aquino’s testimony, the standard of Professional Practice requires that members be dedicated to their duty and promote and assist student learning. The Member failed to do so when she refused to help Student 1 and hindered her learning by yelling at her.
(ii) Commitment to Students and Student Learning
62The Member breached the standard of Commitment to Students and Student Learning, which requires that:
Members [be] dedicated in their care and commitment to students. They treat students equitably and with respect and are sensitive to factors that influence individual student learning. Members facilitate the development of students as contributing citizens of Canadian society.
63It has been clearly established that on several occasions during the 2017-2018 academic year, the Member did not report, or reported late, for her assigned supervisory and teaching duties. According to Ms. Aquino’s expert testimony, this conduct demonstrates a lack of commitment to students and student learning. When teachers report late for their work, it directly affects student learning: the students lose valuable time in the classroom, time set aside for learning. Furthermore, leaving her students unsupervised shows her lack of concern for their well-being.
64The Member also lacked commitment to her students when she refused to help Student 1 and yelled at her. Teachers must treat students equitably and with respect, which the Member failed to do.
(iii) Professional Knowledge
65The Member breached the standard of Professional Knowledge, which requires that:
Members strive to be current in their professional knowledge and recognize its relationship to practice. They understand and reflect on student development, learning theory, pedagogy, curriculum, ethics, educational research and related policies and legislation to inform professional judgment in practice.
66According to Ms. Aquino’s testimony, the Member did not pursue these objectives when she failed to take part in her performance appraisal or submit her lesson plans and rubrics. As noted above, there is no evidence showing how the Member assessed and evaluated her students. Furthermore, according to Ms. Aquino, the failure to adequately assess and evaluate the students demonstrates that the Member does not understand the issues relating to student development and learning theory, nor is she familiar with education foundations.
67The Panel therefore finds that the Member breached the standard of Professional Knowledge.
(b) The Member abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7)
68The Panel finds that the Member abused Student 1 verbally. It has been established that the Member refused to help Student 1 when she asked her a question during her class, said, “Do you have a problem with that?” or words to that effect and then yelled at the student. Teachers must never yell at students, even when encountering classroom management challenges. Given her unique position of trust and authority as a teacher, and her needlessly harsh response to Student 1, especially yelling at her, the Panel finds that the Member’s conduct constitutes verbal abuse.
(c) The Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)
69The Panel finds that the Member abused Student 1 psychologically or emotionally. The Panel accepts the testimony of Ms. Aquino and Ms. Pilotti, who both said that Student 1 didn’t want to go back to class after the incident in which the Member yelled at her. It also accepts Ms. Aquino’s testimony that Students 2 and 3 told her that Student 1 was afraid of the Member after she raised her voice with her and that Student 1 had never been treated like that by a teacher. The Panel accepted Ms. Pilotti’s testimony that she knew Student 1 well, and that she was a hard-working and respectful student. She added that after the incident, Student 1 told her that she didn’t want to go back to the Member’s class. The documentary evidence, including the letter from Student 1’s parent (Exhibit 4, Tab 29), corroborates this finding as well. Based on the evidence, it is clear that Student 1 was frightened and did not want to go back to the Member’s class. The Panel therefore finds that the Member’s conduct, including making a bullying remark to Student 1 and yelling at her to the point that the student didn’t want to go back to her class, constitutes psychological or emotional abuse.
(d) The Member failed to keep records as required by her professional duties, contrary to Ontario Regulation 437/97, subsection 1(10)
70The Panel finds that the Member failed to keep records as required by her professional duties. Considerable evidence points to this type of professional misconduct. First, it has been clearly established that the Member failed to submit her lesson plans and/or rubrics to the principal, even though the latter had requested them several times. Ms. Aquino testified at length on this subject, and the Panel found that in spite of all the follow-ups from the principal, the Member did not submit any lesson plans and/or rubrics for the 2017-2018 academic year. The Panel also found that the Member admitted that she had not submitted lesson plans and instead just had ideas of the elements that she wanted to teach (Exhibit 4, Tab 38, p. 279-280). Second, the Panel found previously that without lesson plans or rubrics, the Member could not adequately assess and evaluate her students. This has also been clearly established by the documentary evidence, the students’ grades and the fact that the grades and comments in the report cards were all virtually identical for each student. Teachers have a professional obligation to prepare lesson plans and/or rubrics that reflect the curriculum. Failing in this obligation constitutes professional misconduct.
(e) The Member failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11)
71The Panel finds that the Member failed to adequately supervise students under her professional care. It has been clearly established that the Member often reported late, or not at all, for her supervisory and teaching duties. The Committee accepted the testimony of Ms. Aquino and Ms. Pilotti on this subject. Ms. Aquino’s testimony, documentary evidence and handwritten notes confirm that the Member was often late for first period on Tuesdays and Wednesdays and her students were left unsupervised in the hallway. Ms. Pilotti’s testimony corroborated these facts; that is, that the Member was late for her supervisory duties and they could not find her in the School. The Member’s frequent tardiness resulted in students being unsupervised. Teachers are responsible for ensuring students’ safety and physical well-being, a responsibility requiring, at the very least, that teachers be physically present in the classroom. When teachers report late to class or for their supervisory period, they are not adequately supervising the students in their professional care, as in the Member’s case.
(f) The Member signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12)
72The Panel finds that the Member signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false, improper or misleading statement. It found previously that the Member assigned grades to students without carrying out an adequate evaluation to arrive at a fair and accurate grade. The Panel accepted the testimony of Ms. Aquino, who stated that it is statistically impossible for the students in every Grade to have obtained such virtually identical results. Furthermore, the documentary evidence showed that the Member had given the same grade to all of the students in her Grade [XXX] [XXX] class: an A (either A or A-). The Panel found that nothing in the evidence showed how the Member had arrived at these grades. There were no evaluation tasks or lesson plans, leading the Panel’s finding that all of the facts in this case demonstrate that the grades were pure fabrications on the Member’s part. The Panel therefore finds that the Member assigned grades that she knew or ought to have known contained a false or misleading statement.
(g) 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)
73The Panel found 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 requires that teachers demonstrate the highest regard for certain moral qualities, which is generally interpreted to mean that teachers must act as a positive role model for students. When she frequently reported late to class or her supervisory duties, the Member showed that she had little regard for her students’ well-being. She also did not act as a positive role model in front of the students when she yelled at Student 1 in class.
(h) 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)
74The Panel finds that the Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The incident in which the Member refused to help Student 1 and yelled at her when she asked her a question casts serious doubt on the Member’s moral fitness and professional abilities. Assigning grades to her students without carrying out an adequate evaluation is disgraceful and dishonourable conduct given the Member’s deceitfulness and lack of integrity. Frequently reporting late for her duties at the School and failing to submit her lesson plans after numerous requests from her principal is unprofessional. The Member’s misconduct created additional work for her colleagues and the principal.
(i) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)
75The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession. Parents and the public expect teachers to be committed to their children’s learning. They are required to be punctual and well prepared to teach and to assess and evaluate students. The Member did the opposite, which undermines public trust and damages the reputation of the teaching profession.
I. PENALTY
76This disciplinary proceeding will resume on October 17, 2023, for the Panel to hear the parties’ submissions on the penalty.
Date: August 3, 2023
Marlène Marwah Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Alain Martel, OCT Member, Discipline Panel