Ontario College of Teachers v. Balan, 2023 ONOCT 80

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Balan 2023 ONOCT 80 Date: 2023-11-14

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 Marie-Gabrielle Balan, 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: October 17, 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on October 17, 2023, in accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

[2] On August 3, 2023, the Panel found Marie-Gabrielle Balan (the “Member”) guilty of professional misconduct, as alleged in Notice of Hearing No. 5340, dated October 2, 2019. Among other things, the Panel found that during the 2016-2017 academic year, the Member:

• did not participate in a mandatory performance review;
• showed up late and sometimes not at all for her supervisory and teaching duties;
• failed to report to work on April 4 and 5, 2018, and to notify the school and/or to report her absence in the electronic attendance system;
• failed to provide lesson plans and rubrics to the school principal;
• assigned grades to students without having carried out proper assessments; and
• refused to help a student in class and shouted at her.

3Based on the established facts, the Panel found that the Member had 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). The Discipline Committee’s Decision on Finding and Reasons for Decision, dated August 3, 2023, is entitled Ontario College of Teachers v Balan, 2023 ONOCT 59.

4The Panel reconvened on October 17, 2023, to hear submissions with respect to penalty. The Member was not present at this stage of the hearing and was not represented by counsel.

A. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

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

1. a reprimand;
2. a suspension of six to 12 months;
3. terms, conditions or limitations that would restrict the Member from returning to the teaching profession until she successfully completes a course regarding professional ethics;
4. an order requiring the Member to submit a copy of her next performance appraisal report to the College.

6College Counsel presented nine cases to the Panel in support of the proposed penalty: Ontario College of Teachers v Thompson, 2020 ONOCT 133, Ontario College of Teachers v Antonenko, 2019 ONOCT 79, Ontario College of Teachers v Labbé, 2018 ONOCT 39 (“Labbé”), Ontario College of Teachers v O’Shea, 2017 ONOCT 8 (“O’Shea”), Ontario College of Teachers v Charette, 2018 ONOCT 32 (“Charrette”), Ontario College of Teachers v Velec, 2021 ONOCT 108 (“Velec”), Ontario College of Teachers v Béarez, 2022 ONOCT 14, Ontario College of Teachers v Coulombe, 2022 ONOCT 112 and Ontario College of Teachers v Orton, 2017 ONOCT 100. 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 professional misconduct.

B. PENALTY DECISION

[7] On November 14, 2023, the Panel made the following order as to penalty:

1. The Member is directed to receive a reprimand, in writing, and that the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;
2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of eight months commencing on the date of the Order of the Discipline Committee relating to this matter; and
3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration: a) Prior to accepting a position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding the Standards of Practice for the Teaching Profession, subject to the following conditions: (i) the Member will provide to a course practitioner approved by the Registrar a copy of the Discipline Committee’s Decision and Reasons for Decision dated August 2, 2023, and Decision on Penalty dated November 14, 2023; (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 Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length and objectives of the course to be undertaken by the Member. b) Within 30 days of her completion of the course outlined at paragraph (a) above, the Member shall provide to the Registrar a written report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

C. REASONS FOR PENALTY

8The Panel carefully considered the submissions of College Counsel 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 Member’s misconduct. The penalty proposed by College Counsel also falls within a range of acceptable outcomes, as evidenced by the following similar decisions she submitted: Labbé, O’Shea, Charette and Velec.

9The Panel considered the Member’s circumstances in comparison to the cases provided. In terms of aggravating factors, the Member was involved in several incidents of professional misconduct during the 2017-2018 academic year. Secondly, she had a disciplinary history with her principal and the Board yet failed to improve her behaviour. Third, the Panel considers the Member’s refusal to participate and cooperate in the College’s disciplinary process to be an aggravating factor, especially given that she had three disciplinary files before the Panel and that there was an overlap as to the nature of the allegations, which could have resulted in significant savings in time and resources. Her refusal to participate and cooperate amounts to indifference, carelessness and disrespect for the College’s disciplinary process. The Panel notes that there are no mitigating factors in this case.

(1) Reprimand

10The Panel feels that the Member merits a reprimand for repeatedly acting inappropriately and being insubordinate. The Panel is concerned that the Member did not participate in her mandatory performance appraisal, often arrived late for her supervisory and teaching duties, failed to provide her lesson plans and rubrics to the School principal, and neglected to conduct adequate assessments of her students. This conduct undermines public confidence in teachers to carry out their professional responsibilities.

11The Panel is also concerned that the Member refused to help a student and shouted at her. Teachers must act as positive role models for their students. Members of the teaching profession are expected to create positive learning environments and to model appropriate and respectful behaviour, which the Member failed to do in this case. 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 is important, as it will serve as a general deterrent to other members of the profession. Finally, the Panel considers that a written reprimand is appropriate given the Member’s refusal to participate in the disciplinary process.

(2) Suspension

12Given the number and nature of the Member’s incidents of misconduct during the 2017-2018 academic year, the Panel finds that an eight-month suspension is reasonable and appropriate. In arriving at this decision, the Panel considered the jurisprudence presented by College Counsel as well as her submissions recommending a six- to twelve-month suspension. The Panel focused particularly on the Labbé, Charette, O'Shea and Velec decisions, which were the most factually similar to the present matter. Although the Panel only considered decisions including a six-month suspension, it found that in the Member’s case, the lack of mitigating factors and more serious conduct merited a suspension beyond six months.

13The Panel reviewed the Labbé and O’Shea decisions, both of which were contested hearings. In Labbé, the member (Ms. Labbé) was found guilty of professional misconduct for having engaged in conduct similar to the Member’s, including shouting at students and failing to supervise a student who had run away from school while under her professional responsibility. Like the Member, Ms. Labbé had also received warnings from her principal regarding her conduct but did not improve her behaviour. She received a six-month suspension. However, the Panel notes that, unlike the Member, Ms. Labbé participated in the College’s disciplinary process.

14In the O’Shea case, the member (Ms. O’Shea) was found guilty of professional misconduct for verbally and physically abusing students, using an inappropriate tone with her principal and failing to adequately supervise her students. Ms. O’Shea had received a six-month suspension. Although her conduct differs slightly from the Member’s in that no physical abuse occurred in the present case, the underlying nature of the professional misconduct is similar. The Panel notes that Ms. O’Shea also did not participate in the College’s disciplinary process.

15The Panel finds that there are important distinctions between the Labbé and O’Shea decisions and the Member’s case. First, in the Labbé case, the Panel notes that Ms. Labbé’s participation in the College’s disciplinary process, even though the hearing was contested, is an important distinguishing factor. In the present case, the Member did not participate in any way in the disciplinary process, despite College Counsel’s attempts to get in touch with her. The Member had several disciplinary files before the College, and her cooperation could have reduced the number of hearings required. Second, in the O’Shea case, Ms. O’Shea had no disciplinary history with her principal or school board. According to the Panel, those two key distinguishing elements justify ordering a longer suspension in the Member’s case than in Labbé and O’Shea (i.e., more than six months).

16The Charette and Velec decisions, both of which were uncontested hearings, were also reviewed as they are factually similar to the Member’s case. In Charette, the member (Mr. Charette) had engaged in a pattern of insubordinate behaviour similar to the Member’s. For example, he refused to cooperate with the supervisor of the Specialist High Skills Major program, did not allow the principal to enter his classroom, and did not show up at school on the day his lesson plans were due. Mr. Charrette displayed shortcomings relating to lesson plan creation and student assessment. Like the Member, Mr. Charette had also received warnings from his principal and had been disciplined by his school board. He received a six-month suspension. In the Velec case, the member (Ms. Velec) yelled at students, failed to prepare lesson plans and arrived late to school. Ms. Velec also received a six-month suspension.

17Although these two decisions deal with professional misconduct of a similar nature to the Member’s, there is a very important distinction in that they were uncontested hearings. The Panel notes that both Mr. Charette and Ms. Velec acknowledged their professional misconduct and pleaded guilty, which constitutes a significant mitigating factor. Had these proceedings been contested, the suspension imposed would likely have been more severe and in excess of six months. When a member admits to their misconduct and pleads guilty, this constitutes a mitigating factor that weighs in the member’s favour for justifying a less severe penalty than that which would be imposed following a contested hearing where a member is found guilty of similar behaviour. In the cases mentioned above, several factors were at play that were absent in the Member’s case, including the fact that the members in question engaged in less serious misconduct, participated in the disciplinary hearings, or reached agreements with the College.

18In addition, the Panel notes that an eight-month suspension was ordered in the Discipline Committee’s previous decision regarding the Member (Ontario College of Teachers v. Balan, 2023 ONOCT 23), dated April 3, 2023, and relating to Notice of Hearing No. 4776. The Panel considers that there is a strong similarity between that case and the present matter, both in terms of the type of professional misconduct involved and the Member’s failure to cooperate or participate in the disciplinary process. The Panel believes that an eight-month suspension is reasonable and appropriate in this case and is consistent with its previous decision.

19Finally, the eight-month suspension will serve as a specific deterrent to the Member, sending her a clear message that the College does not tolerate this type of behaviour. Recording the suspension on the Public Register will serve as a general deterrent to other members of the profession, who will know what to expect if they engage in similar behaviour. In addition, the suspension meets the objective of protecting the public interest.

(3) Courses

20The Panel believes that the course on the Standards of Practice for the Teaching Profession will help rehabilitate the Member before she returns to the classroom. The Panel finds that the Member has demonstrated significant shortcomings in relation to her commitment to the students and their learning, her professional knowledge, and her professional practice. Although College Counsel put forth that a course on the professional ethics would be appropriate, the Panel disagreed. In the Decision on Finding and Reasons for Decision dated August 3, 2023, the Panel described at length its concerns about the Member’s professional practice (Ontario College of Teachers v. Balan, 2023 ONOCT 59 at para. 57-67). No mention was made of the Ethical Standards in that decision since the College did not make any allegations of violations in this regard. The penalty must be aligned with the Member’s professional misconduct. Since many aspects of the Member’s misconduct involved a failure to meet the Standards of Practice for the Teaching Profession, the Panel believes that a course on that topic is more fitting and will allow the Member to address the shortcomings identified by the Panel. Additionally, the course will provide her with tips and tools to help her improve her behaviour should she eventually return to the classroom.

(4) Copy of the Performance Appraisal

21Although College Counsel requested the Panel make an order requiring the Member to provide the College with a copy of her next performance appraisal, the Panel considers it inappropriate to make such an order in this case. The Panel recognizes the importance of teacher performance appraisals. However, there is no indication that the Member failed to comply with her Undertaking and Acknowledgement dated September 8, 2021 (the “Undertaking”)¹ that required her to provide a copy of her last two appraisals. Moreover, there is no evidence before the Panel that the Member has returned to a teaching position since she signed the Undertaking. The Panel therefore expects she will comply within a reasonable timeframe.

22The Panel is satisfied that overall, the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

D. SUBMISSIONS OF COLLEGE COUNSEL REGARDING COSTS

23College Counsel sought an order for costs payable by the Member to the College, pursuant to subsection 30(5) of the Act. She put forth that the Panel could make an order for costs based on Rule 16.03 and Tariff A and that the College does not have to prove the actual amount of costs when the amount requested is equal to or less than Tariff A, i.e., $10,000 per day of proceedings.

24In this case, College Counsel requested an order of $10,000 in costs payable to the College. She noted that the College could request an order for costs in the amount of $20,000, given that the hearing took place over two days (one day for the hearing on the merits and another day for the hearing on penalty). However, College Counsel stated that she was only claiming the costs of a single hearing day ($10,000). In addition, the College put forth that according to the Affidavit of Beti Poyastro sworn on April 27, 2023 (Exhibit 2), Ms. Poyastro communicated with the Member regarding Rule 16 of the Rules relating to hearing costs. The College advised the Member that a request for costs could be presented to the Panel if the Member was found guilty of professional misconduct.

25Finally, College Counsel presented the Panel with three cases in support of her position on costs: Ontario College of Teachers v Stan, 2023 ONOCT 61 (“Stan”), Ontario College of Teachers v Poon, 2023 ONOCT 42 and Ontario College of Teachers v Fox, 2021 ONOCT 34. College Counsel put forth that the Stan decision aptly summarized the principles on which the Panel should rely in rendering a costs order, as established in the Hall² decision.

E. COSTS DECISION

[26] On November 14, 2023, the Panel made the following order with respect to costs:

1. The Panel requires the Member to pay costs in the amount of $10,000 to the College in relation to the present proceedings within six months of the date of the Panel’s Decision on Penalty and Reasons.

F. REASONS FOR COSTS

27According to paragraph 4 of subsection 30(5) of the Act, the Panel has the jurisdiction and authority to order a member to pay the costs associated with a hearing to the College where it has found that member guilty of professional misconduct.

28The Panel reviewed the Stan decision, and in particular the section addressing the following factors set forth in Hall:

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 is 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.

29Based on the factors set out above, the Panel finds that it is reasonable and appropriate in the circumstances to order compensatory costs in the amount of $10,000.

30The Panel notes that in terms of apportioning the costs of the proceedings, it is reasonable to apportion the financial burden between the parties, given that this was a contested disciplinary hearing. The costs of disciplinary proceedings should not only be borne by members of the teaching profession through their membership fees, but also by the Member, whose misconduct brought her before this Panel. The Panel finds that the Member failed to cooperate throughout the College’s disciplinary process. Although her conduct was not vexatious, the fact remains that she often ignored College Counsel’s attempts to communicate with her. As two of the Member’s disciplinary files before the College could easily have been combined into a single hearing, her lack of cooperation and participation caused the disciplinary process to stretch out over a longer period than was necessary and thus prevented possible savings in time and resources. In reviewing the parties’ success, the Panel finds that the College succeeded in proving all the allegations of professional misconduct against the Member. Finally, the Panel notes that it has received no evidence regarding the Member’s ability to pay.

31Given the findings above relating to the factors set out in Hall, the Panel finds that the costs order requested is appropriate. The Member was aware that she could be required to pay costs yet chose not to participate in the College’s disciplinary process. The Panel therefore orders the Member to pay $10,000 in costs to the College within six months of the date of its Decision on Penalty and Reasons.

Dated: November 14, 2023

Marlène Marwah Chair, Discipline Panel

Élaine Legault Member, Discipline Panel

Alain Martel, OCT Member, Discipline Panel

Footnotes

1. 1Ontario College of Teachers v Balan, 2021 ONOCT 124 at subsection 4(2).
2. 2Ontario College of Teachers v Hall, 2019 ONOCT 20.