Ontario College of Teachers v. Stan, 2023 ONOCT 61

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Stan 2023 ONOCT 61

Date: 2023-08-09

PENALTY DECISION 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: May 9, 2023

Danielle Miller, for the Ontario College of Teachers Kylie Sier and Christopher Perri, for Sophie Stan 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.

1The penalty stage of this proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on May 9, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2On January 11, 2023, the Panel found that Sophie Stan (the “Member”) engaged in professional misconduct. The Panel found that on or about April 23, 2018, the Member was involved in the improper alteration of a mark on the Ontario Universities’ Application Centre (“OUAC”) file of Student 1. The Member requested the advice of the Department Head of Student Services (“Ms. Lajoie”) at her school concerning Student 1’s midterm Grade [XXX] [XXX]mark. Specifically, the Member was very concerned with how Student 1’s atypically low grade might impact Student 1’s acceptance into a highly competitive university program (the “Program”). The Panel further found that Ms. Lajoie offered to access Student 1’s OUAC record and adjust Student 1’s midterm [XXX]mark to align it with Student 1’s usual achievements in the 90% range. Although the Member did not know what numerical mark Ms. Lajoie would upload to Student 1’s OUAC file, the Member agreed to this plan knowing that Student 1 was not required to do any additional work to increase her [XXX]mark. Therefore, the Panel found that the Member agreed to the submission of a false and/or inaccurate mark in Student 1’s OUAC file.

3Based on this conduct, the Panel found that the Member contravened subsections 1(14), 1(15), 1(18) (dishonourable and unprofessional only) and 1(19) of Ontario Regulation 437/97.

4The Panel reconvened on May 9, 2023, to hear submissions with respect to penalty and costs. The Member attended this stage of the hearing and had legal representation.

A. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

5The College submitted that the Panel ought to order a penalty that includes the following elements:

1. a reprimand;
2. a suspension of four months in duration; and
3. terms, conditions or limitations which would prohibit the Member from returning to the teaching profession until she successfully completes a course regarding professional ethics acceptable to the Registrar.

6College Counsel presented six cases to the Panel in support of its proposed penalty: Ontario College of Teachers v MacKellar, 2017 ONOCT 76 (“MacKellar”); Ontario College of Teachers v Vellinga, 2018 ONOCT 10 (“Vellinga”); Ontario College of Teachers v Debich, 2018 ONOCT 8 (“Debich”); Ontario College of Teachers v Khoshnoudian, 2021 ONOCT 118 (“Khoshnoudian”); Ontario College of Teachers v Opris, 2021 ONOCT 88 (“Opris”); and Ontario College of Teachers v Duncan, 2022 ONOCT 64 (“Duncan”). According to College Counsel, these cases provide guidance with respect to the Panel’s determination of the appropriate penalty, as they establish a range of reasonable penalties from cases involving similar acts of academic dishonesty. College Counsel further submitted that the Member should receive the same penalty imposed on Ms. Lajoie in Ontario College of Teachers v Lajoie, 2022 ONOCT 19.

7Finally, College Counsel submitted that, because the penalty would be ordered close to the end of the school year, the Panel should consider that the suspension would likely run during the summer months, where a teacher would not normally be teaching. Therefore, the College sought that the Member’s suspension, if ordered, should start as of September 1, 2023 (i.e., closer to the beginning of the school year). College Counsel relied on Duncan for this proposition, which was a case where a member’s four-month suspension was ordered to begin on September 1, to avoid allowing that member to serve their suspension during the summer when teachers are not typically expected to teach, and which would therefore undermine the principle of specific deterrence.

B. PENALTY SUBMISSIONS OF THE MEMBER

8Member’s Counsel agreed with College Counsel that a reprimand and the proposed remedial coursework would be appropriate orders but submitted that the Panel should not order any suspension; or, in the alternative, that the Panel should order a one-month suspension beginning on the date of the Penalty Decision and Reasons.

9Member’s Counsel presented five cases to the Panel in support of its proposed penalty: Ontario College of Teachers v Burke, 2018 ONOCT 75; Ontario College of Teachers v Brown, 2006 ONOCT 7; Ontario College of Teachers v Lajoie, 2022 ONOCT 19; Ontario College of Teachers v Allarde, 2019 ONOCT 65; and Opris. According to Member’s Counsel, these cases provide guidance with respect to the Panel’s determination of the appropriate penalty, as they establish a range of reasonable penalties from cases involving similar professional misconduct. Member’s Counsel further submitted that the Member’s misconduct does not warrant a suspension given the circumstances of this case, including that the Member’s conduct was not egregious, that she herself did not alter Student 1’s mark, and that there is no risk of repeated misconduct by the Member.

C. REPLY SUBMISSIONS OF COLLEGE COUNSEL

10In reply, College Counsel submitted that the Member played an active role in the alteration of Student 1's mark, contrary to what was submitted by Member’s Counsel who focused more on Ms. Lajoie’s misconduct. College Counsel submitted that the penalty sought by the Member was too lenient. College Counsel reiterated that the caselaw shows that a suspension in the range of four to six months is reasonable and appropriate when a member has engaged in academic dishonesty.

D. PENALTY DECISION

11The Panel makes the following order as to penalty:

1. The Member is directed to appear before the Discipline Committee within 90 days of the date of the Penalty Decision and Reasons for Decision, on a date to be arranged by the Member and the Tribunals’ Office, to receive a reprimand which will be delivered electronically, and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”);
2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of four months commencing on September 1,2023;
3. The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration:

(a) Within 90 days of the date of the Penalty Decision and Reasons for Decision, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Decision on Finding and Reasons for Decision and Penalty Decision and Reasons for Decision of the Panel;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Panel’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

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

(i) stating whether the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

E. REASONS FOR PENALTY DECISION

12The Panel carefully considered the submissions of the parties with respect to penalty and reviewed the relevant jurisprudence provided. The Panel believes that the order set out above satisfies the penalty objectives of deterrence, rehabilitation, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member. The penalty is also within a reasonable range, based particularly on Debich and Opris, which the Panel found to be most analogous to the circumstances in the Member’s case.

13The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in this case include the fact that the Member allowed her [XXX]to conflict with her professional responsibilities by approaching her colleague, Ms. Lajoie, as a [XXX] and agreeing to the unjustified alteration of Student 1’s [XXX]mark. But for the Member initiating these discussions, Ms. Lajoie would not likely have become involved in this scheme. Also, the fact that the Member participated actively in the alteration of Student 1’s mark and blamed her colleague, rather than recognizing her own fault is an aggravating factor, as the Member has shown very little insight into her misconduct. Moreover, the Member risked Student 1’s academic future without her knowledge or agreement, as the Member’s academic dishonesty could have had a significant impact on Student 1’s university prospects despite Student 1’s complete lack of knowledge or participation in the scheme to alter her mark. Finally, the Member’s misconduct created a disadvantage to all other students who were applying to universities across Ontario, by unfairly increasing Student 1’s mark, which made Student 1 a more competitive candidate. In terms of mitigating factors, the Member has had a long-standing career as a teacher, she has not been subject to any prior discipline proceedings, and her misconduct was an isolated incident.

(1) Reprimand

14The Panel finds that the Member’s dishonest and unprofessional conduct warrants a reprimand. The Member actively participated in the alteration of a false mark on Student 1’s OUAC file. The Member’s conduct can be characterized as academic dishonesty. Teachers are expected to always behave with integrity and demonstrate sound professional judgment. The Member failed to act with integrity and honesty when she knowingly participated in the alteration of Student 1’s mark and placed her [XXX]above her professional responsibilities. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession and will serve to protect the public interest.

(2) Suspension

15Given the serious and dishonest conduct of the Member, the Panel finds that a four-month suspension is reasonable and appropriate. The Panel considered the caselaw provided by the parties and finds that the circumstances in Debich and Opris are most analogous to the Member’s case. Debich involved a classroom teacher who administered the Education Quality Accountability Office (“EQAO”) Grade 3 Mathematics assessment in a way that contravened the EQAO instructions and guidelines. The panel in that case ordered a three-month suspension. Opris involved a classroom teacher who had engaged in academic dishonesty by modifying a student’s written assignment and uploading it as the student’s final work. In that case, the panel ordered a two-month suspension.

16Both cases are similar to the Member’s case in that they involve academic dishonesty committed by classroom teachers; whereas the other cases provided by College Counsel involved academic dishonesty committed by members who were in positions of authority and who had additional leadership responsibilities. For example, MacKellar involved a vice-principal who had adjusted students’ final course marks without the knowledge or authorization of the school’s principal after report cards had been completed and signed by the principal. The vice-principal in that case received a four-month suspension. Vellinga involved a principal who was responsible for administering the Grade 10 Ontario Secondary School Literacy Test (“OSSLT”) but whose conduct led to several testing irregularities that were contrary to the EQAO’s rules. Among other things, after the test was completed, the principal noticed some of the students’ booklets were incomplete and instructed her staff to call the students to complete their work, which was an academically dishonest and unfair testing practice. In that case, the principal received a six-month suspension. Finally, Khoshnoudian involved a principal who had improperly administered the OSSLT and submitted false test results to OUAC. In that case, the principal received a five-month suspension. The Panel believes that members who hold leadership positions and who have greater oversight of a school’s program have greater accountability. However, the Panel recognizes that these cases involved guilty pleas, which is an important mitigating factor to consider, and had these cases been contested, the suspension imposed would have likely been longer (i.e., the fact that the members admitted the facts and allegations would have justified a reduction in what otherwise would have been the appropriate penalty for the conduct). Considering this fact, the Panel believes that a four-month suspension in this case is reasonable, given the Member’s position as a classroom teacher but also given the lack of the mitigating factor of an admission to the allegations.

17In addition, the Panel also believes that the Member should receive the same length of suspension as Ms. Lajoie. Ms. Lajoie was the Department Head of Student Services, a position of greater responsibility than the Member, who received a four-month suspension following her uncontested hearing relating to the same mark alteration scheme. The Panel notes that if Ms. Lajoie had not entered into an Agreed Statement of Facts and Joint Submission on Penalty, she likely would have received a longer suspension, because she was in a position of greater responsibility than the Member and had access to the students’ OUAC files. However, Ms. Lajoie’s guilty plea was an important mitigating factor which presumably shortened the length of her suspension of what otherwise would have been the appropriate length of suspension for her conduct. The Panel believes that considering all the circumstances, the conduct of Ms. Lajoie and the Member warrants suspensions of the same length.

18At the finding stage of this proceeding, the Panel found that the Member had an active participatory role in the alteration of Student 1’s mark on her OUAC and that during the second interaction, on April 23, 2018, she prompted Ms. Lajoie to alter Student 1’s mark on the OUAC file. It is unlikely that Ms. Lajoie would have altered Student 1’s mark if the Member had not approached her in the first place. Given this, the Panel determines that a four-month suspension is appropriate given the circumstances and the position held by the Member. The suspension will serve as a specific deterrent to the Member and should reinforce for her that the College does not tolerate the type of conduct in which she engaged. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession and will serve and protect the public interest.

19With respect to the starting date of the suspension, the Panel agrees with College Counsel’s submission that the penalty objective of specific and general deterrence would not be adequately served if the suspension were to begin during the summer months, when teachers are not normally teaching. Given the timing of the issuance of this decision, the Panel therefore orders that the Member’s suspension will begin on September 1, 2023.

(3) Coursework

20The Panel finds that requiring the Member to successfully complete the course of instruction regarding professional ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in her professional practice.

21The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

F. COSTS SUBMISSIONS OF COLLEGE COUNSEL

22College Counsel sought an order for costs payable by the Member to the College pursuant to subsection 30(5) of the Act. College Counsel submitted that the Panel should be guided by rule 16.03 and Tariff A of the Rules when ordering costs. When there is a request for a costs order, no evidence of the costs of a day of hearing is needed if the amount sought is equal to or less than the amount prescribed in Tariff A, which is $10,000 per hearing day.

23College Counsel requested a total costs order of $20,000. College Counsel submitted that the proceedings lasted five and a half hearing days which would entitle the College to seek $55,000 in costs without providing a bill of costs. College Counsel explained that they advised the Member in writing of their intention to seek costs of up to $10,000 per hearing day if the matter proceeded on a contested basis and the Member was found guilty of professional misconduct. College Counsel further submitted that given the Member’s financial evidence in the Affidavit of Sophie Stan sworn April 19, 2023 (Exhibit 21), the College is seeking a total costs order of $20,000.

24College Counsel presented five cases to the Panel in support of their position regarding the costs order: Ontario College of Teachers v Hall, 2019 ONOCT 20 (“Hall”); Ontario College of Teachers v Spence, 2022 ONOCT 37; Ontario College of Teachers v Paterson, 2023 ONOCT 5; Ontario College of Teachers v George, 2022 ONOCT 34; and Ontario College of Teachers v Armstrong, 2019 ONOCT 49. College Counsel submitted that the Panel should be guided by the principles set out in the Hall decision when determining the appropriateness of a costs order.

G. COSTS SUBMISSIONS OF THE MEMBER

25Member’s Counsel submitted that a costs order was not appropriate. Member’s Counsel submitted that the Member should not be penalized for exercising her right to a contested hearing. The Member was cooperative throughout the proceedings, attended all hearing dates and presented justifiable defences. Member’s Counsel also submitted that the finding stage of this proceeding lasted four and a half days and that the College called three witnesses and presented their evidence over a period of three days, whereas the Member agreed to submit the Agreed Statement of Facts & Guilty Plea of Donna Lajoie (Exhibit 2), only called one witness, and presented the Member’s defence in one and a half days.

26Member’s Counsel presented two cases to the Panel in support of their position for not ordering any costs against the Member: Ontario College of Teachers v Caine, 2020 ONOCT 150 and Ontario College of Teachers v Riccardi, 2015 ONOCT 67 (“Riccardi”). Member’s Counsel also relied on the Hall factors to submit that the Member was cooperative throughout the proceedings and did not act in a vexatious or unreasonable manner. The Member also succeeded in showing that her conduct did not amount to disgraceful conduct under subsection 1(18) of Ontario Regulation 437/97. Finally, the Member’s Counsel submitted that the Member did not have the ability to pay a costs order and relied on the Affidavit of Sophie Stan sworn April 19, 2023 (Exhibit 21) which details the Member’s financial circumstances. The Member’s household income is $10,352.33 per month and the Member’s living expenses are $10,287.87 per month. Member’s Counsel therefore submitted that the Member lives pay cheque to pay cheque and that if a suspension were ordered the Panel ought to consider that the Member would also lose income during that period of time.

H. REPLY SUBMISSIONS OF COLLEGE COUNSEL

27In reply, College Counsel submitted that even though the Panel concluded that the Member’s conduct was not disgraceful, the Panel nonetheless made a finding of professional misconduct under subsection 1(18) (dishonourable and unprofessional) of Ontario Regulation 437/97. The fact that the Panel did not find the Member’s conduct disgraceful should not be weighed among the Hall factors. College Counsel also urged the Panel not to rely on Riccardi, indicating that this decision predated Hall by four years and that Hall is now the leading case for determining the appropriateness of a costs order.

28Finally, College Counsel submitted that it would be inappropriate to consider the loss of income during a suspension when determining the appropriateness of a costs order, because there are different rationales for penalty and costs orders. A penalty order is meant to address the underlying conduct, and a costs order is meant to be compensatory in nature, so that the rest of the profession does not pay for the cost of the hearing (through their annual licensing fees). College Counsel explained that it would be an error for the Panel to not order costs simply because it ordered a suspension.

I. COSTS DECISION

29The Panel makes the following order as to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $5,000, within 24 months of the date of the Panel's Penalty Decision and Reasons for Decision.

J. REASONS FOR COSTS DECISION

30The Panel has the jurisdiction and authority to order costs payable by a member to the College where it has found that member guilty of professional misconduct, according to paragraph 4 of subsection 30(5) of the Act. Pursuant to Rule 16.05(3) of the Rules, the College is not required to provide evidence of the costs of a day of hearing if the amount is equal to or less than the amount set out in Tariff A.

31The Panel considered the factors outlined in the Hall decision carefully. Hall provides the panel with guidance as to the factors to be considered when making a costs order:

Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.

Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.

Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.

Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.

The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor: Hall at pp. 12-13.

32In light of the Hall factors, the Panel finds that ordering costs in the amount of $5,000 is reasonable and appropriate in the circumstances and meets the compensatory goal of a costs order. The Member was allowed to pursue her right to a contested hearing and presented a defence that was not outrageous or fanciful. The costs order in the amount of $20,000 that College Counsel sought would be disproportionate. The Panel did not find that the Member was vexatious; in fact, the Member was cooperative throughout the hearing process. The Member was cooperative in the disciplinary process and agreed to admit into evidence the Agreed Statement of Facts and Guilty Plea of Donna Lajoie (Exhibit 2). When looking at the success of the parties, the College was fully successful in demonstrating that the Member had engaged in professional misconduct (with the exception of the one finding of “disgraceful’ conduct). Finally, when assessing the Member’s ability to pay, the Panel considered the Affidavit of Sophie Stan sworn April 19, 2023 (Exhibit 21) which provided some evidence that a costs order would be financially onerous for the Member. However, this factor was not determinative of the issue of costs, on its own, given that a consideration of all the Hall factors leads to the conclusion that a relatively small costs award is appropriate in this case.

33When determining the appropriate amount for its costs order, the Panel believes that the costs order sought by College Counsel, in the amount of $20,000, was disproportionate and unreasonable given the Member’s cooperation throughout the proceeding, however the Panel also believes that a costs order is appropriate in this case as it would address the concept behind costs recovery, therefore a costs award in the amount of $5,000 is fair and reasonable.

34When deliberating specifically on the "apportionment of costs" factor, as enunciated in Hall, the Panel felt that the burden on all the members of the College in assuming a larger proportion of the actual costs of this matter would not be onerous. In contrast, the Panel was concerned that the amount sought by the College of $20,000 in this matter, in light of the Member’s not unreasonable defence and her cooperative behaviour would be disproportionate in the circumstances.

35Given the circumstances of this case and its consideration of the Hall factors, the Panel is satisfied that an order of $5,000 in costs payable by the Member to the College within 24 months of the date of the Panel's Penalty Decision and Reasons for Decision, is just and appropriate and represents a fair allocation of the costs of the hearing.