DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Nasaire Ndoume Angoune, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
NASAIRE NDOUME ANGOUNE (REGISTRATION #561940)
PANEL: Marlène Marwah, Chair Jacqueline Boulianne, OCT Myrna Tulandi
HEARD: January 19, 2024
Christine Lonsdale, for Ontario College of Teachers
No one appearing for Nasaire Ndoume Angoune
Renée A. Kopp, 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 the identity of, or any information that could disclose the identity of Students 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, or 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 January 19, 2024, in accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).
2Nasaire Ndoume Angoune (the “Member”) did not attend the hearing and did not have legal representation.
3On November 10, 2023, the Panel found that the Member’s conduct during the 2017-2018 academic year constituted professional misconduct, as alleged in Notice of Hearing No. 4402 dated November 18, 2019. Among other things, the Panel found that the Member frequently yelled at students and failed to manage his classroom by allowing students to enter and leave the classroom unsupervised. The Member also failed to intervene when students were looking at pornography in the classroom and when students were roughhousing, and that he did not allow students who were injured to leave the classroom to tend to their injuries. In addition, the Member was found to have used his personal cell phone during teaching periods and to have made inappropriate comments to students.
4As a result of this conduct, the Panel found that the Member had contravened Ontario Regulation 437/97, subsections 1(7), 1(11), 1(14), 1(15), 1(18) and 1(19). At the request of College Counsel, the Panel withdrew the allegations that the Member had contravened the provisions of Ontario Regulation 437/97, subsections 1(5), 1(7.1) and 1(7.2). The Decision on Finding and Reasons for Decision is dated November 10, 2023, and entitled Ontario College of Teachers v Ndoume Angoune, 2023 ONOCT 78.
5The Panel reconvened on January 19, 2024, to hear the submissions with respect to penalty.
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. The publication ban applies to Students 11, 12, 13, 14, 15, 16 and 17, all of whom were under the age of 18 at the time of the hearing.
7College Counsel also asked the Panel to issue a discretionary order under subsection 32.1(1) of the Act, prohibiting the publication of any information that could disclose the identities of Students 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, all of whom were over 18 years old at the time of the hearing and were the subject of evidence. According to College Counsel, the Panel should issue the publication ban provided for in subsection 32.1(1), because subsection 32.1(3) only protects the identity of persons under the age of 18 at the time of the hearing, and although these students were under 18 at the time of the incidents in question, they were not under 18 at the time of the hearing. They therefore do not benefit from the protection of subsection 32.1(3), but their identities must nevertheless be protected.
8The Panel granted the request to protect the identities of Students 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 and issued a publication ban under subsections 32(7) and 32.1(1) of the Act. Subsection 32(7) gives the Panel the authority to make an order excluding the public from a hearing if, in its opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public. Subsection 32.1(1) allows the Panel to issue a publication ban in situations where it makes an order excluding the public under subsection 32(7).
B. SUBMISSIONS OF COLLEGE COUNSEL REGARDING PENALTY
9The College argued that the Panel should impose a penalty that includes the following elements:
a reprimand;
a four-month suspension; and
terms, conditions or limitations that would prevent the Member from returning to the teaching profession before having successfully completed a course on classroom communication.
10College Counsel points out that the proposed penalty meets the objectives of the penalty, such as specific and general deterrence, rehabilitation, transparency and protection of the public interest. According to College Counsel, the reprimand will have a specific deterrent effect insofar as it will enable the Panel to speak directly with the Member, and will have a general deterrent effect since the fact of the reprimand will be recorded on the College’s Public Register. Suspending his Certificate of Qualification and Registration will send a message both to the Member himself and to the public that conduct such as the Member’s will not be tolerated, which will have both a specific and general deterrent effect. Finally, the course on classroom communication will enable the Member to correct the shortcomings for which he has been criticized, and to improve his teaching, in accordance with the principles of rehabilitation and public protection.
11College Counsel outlined the mitigating and aggravating factors that the Panel should take into account when determining the penalty. As for the aggravating factors, first, there is the repeated nature of the Member’s unprofessional conduct. Second, this is the Member’s second disciplinary proceeding before the Panel. College Counsel indicated that there are no mitigating factors involved.
12College Counsel presented seven case law examples to the Panel to justify the proposed penalty: Ontario College of Teachers v Chong Yen, 2019 ONOCT 28 (“Chong Yen”); Ontario College of Teachers v Gulamhusein, 2019 ONOCT 101; Ontario College of Teachers v Wang, 2022 ONOCT 62 (“Wang”); Ontario College of Teachers v McCracken, 2021 ONOCT 141 (“McCracken”); Ontario College of Teachers v Culp, 2021 ONOCT 81; Ontario College of Teachers v Thompson, 2020 ONOCT 133; and Ontario College of Teachers v Coulombe, 2022 ONOCT 112 (“Coulombe”). According to College Counsel, these cases, some of whose facts are analogous to those in the present case, can serve as a frame of reference to help the Panel reach a decision on the appropriate penalty and establish a range of reasonable penalties.
C. PENALTY DECISION
13On January 19, 2024, the Panel issued the following penalty order:
The Panel requires that the Member receive a written reprimand, and that this fact be recorded on the College’s public register;
The Panel directs the Registrar to suspend the Member’s Certificate of Qualification and Registration for a period of four months, commencing on the 15th calendar day following the Discipline Committee’s decision and order in this matter; and
The Panel directs the Registrar to attach the following terms, conditions or limitations to the Member’s Certificate of Qualification and Registration:
a. Prior to accepting a position requiring a Certificate of Qualification and Registration, the Member shall enroll in and successfully complete at his own expense a course of instruction pre-approved by the Registrar regarding classroom management with a component on classroom communication, subject to the following conditions:
i. The Member shall provide to the course practitioner approved by the Registrar a copy of the Discipline Committee’s Decision on Finding and Reasons for Decision, and a copy of the Discipline Committee’s Penalty Decision and Reasons for Decision;
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 his completion of the course referred to in paragraph (a) above, the Member shall provide written evidence to the Registrar:
iii. 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.
D. REASONS FOR PENALTY DECISION
14The Panel carefully reviewed the submissions of College Counsel with respect to penalty, as well as the case law presented. The Panel is of the opinion that the order set out above meets the penalty objectives, namely specific and general deterrence, rehabilitation, transparency and protection of the public interest, and that it is proportionate to the Member’s professional misconduct. The penalty proposed by the College also falls within a range of acceptable outcomes, as evidenced by the case law presented by College Counsel, the facts of which are of course not identical to those in this case, but are sufficiently similar to guide the Panel.
15The Panel compared the circumstances of this case with those of the case law presented. In this case, the Member’s misconduct included numerous inappropriate and unprofessional behaviours, which constitutes an aggravating factor. Moreover, this is the second time the Discipline Committee has made a finding of professional misconduct against the Member for similar conduct. The Panel was unable to find any mitigating factors in this case.
(1) Reprimand
16The Panel finds that the Member’s repeated inappropriate conduct warrants a reprimand. On several occasions during the 2017-2018 academic year, the Member made inappropriate comments, yelled at students, and behaved in an unprofessional manner. Members of the teaching profession must create a safe and supportive learning climate and model appropriate and respectful conduct. The Member’s conduct failed to meet these expectations.
17The reprimand will allow the Panel to address its concerns directly to the Member. Especially given that this is a second appearance before the College’s Discipline Committee, the reprimand will allow the Panel to address its concerns about the Member’s repeated misconduct directly with the Member, so as to minimize the risk of future recidivism. Although this is the second case before the Committee, it is important to note that the Member had not received the Panel’s first decision at the time of the allegations in this case. Therefore, this is not a situation in which the reprimand ordered the first time did not serve as a specific deterrent. Moreover, recording the fact that a reprimand has been ordered on the Register will serve as a general deterrent to other members of the profession. Finally, the Panel considers that the written reprimand is appropriate given the Member’s non-participation in this disciplinary process.
(2) Suspension
18The Panel finds that the Member’s conduct and inappropriate comments were sufficiently serious to warrant a four-month suspension of his Certificate of Qualification and Registration. The case law presented by College Counsel demonstrates that suspensions of between three and six months have been ordered in cases involving similar conduct. The Panel considers that the length of the suspension is within the norm and proportionate to the Member’s misconduct.
19In Chong Yen, the member was found guilty of professional misconduct for making inappropriate comments to students and for inappropriate classroom conduct, including yelling at students, stamping his feet and banging his fist on his desk. In this contested case, the Panel ordered a three-month suspension. Like the Member’s conduct, Mr. Chong Yen’s conduct included numerous incidents of inappropriate conduct that occurred over the course of an academic year.
20The Panel also considered the McCracken, Wang and Coulombe decisions. In McCracken, the member was found guilty of professional misconduct for yelling at students and making disrespectful and degrading remarks to students and colleagues. Mr. McCracken received a four-month suspension. In Wang, the member was found guilty of professional misconduct for making intimidating, mocking and insensitive remarks to students, and behaving inappropriately and aggressively. The Panel ordered a four-month suspension in that case. In Coulombe, a six-month suspension was imposed on the member for making disrespectful, humiliating and sarcastic comments toward students and for using an inappropriate tone with students. The Panel notes that McCracken, Wang and Coulombe were all uncontested hearings, which is an important distinction.
21In arriving at the decision of a four-month suspension, the Panel considers that, unlike McCracken, Wang and Coulombe, the Member was not found guilty of inflicting psychological or emotional abuse on students. However, like Chong Yen and Coulombe, the Panel believes that the fact that this is the Member’s second disciplinary proceeding before the College’s Discipline Committee for similar conduct constitutes an aggravating factor in favour of a suspension greater than the three-month suspension that was ordered by the Panel in 20221 for professional misconduct committed during the 2015-2016 academic year. Specifically, the Panel believes that the fact that the Member’s repeated misconduct continued over a long period of time, starting in 2015, warrants a four-month suspension. However, the Panel points out that a longer suspension might have been warranted had the Member already been subject to disciplinary measures before this case was heard.
22The four-month suspension will have a specific deterrent effect on the Member and should make him understand that the College does not tolerate this type of conduct. Recording the suspension on the Public Register will have a general deterrent effect on other members of the profession. In addition, the suspension achieves the objective of protecting the public interest.
(3) Coursework
23The Panel finds that the course of instruction regarding classroom management with a classroom communication component will help the Member readjust and acquire the necessary tools for the teaching profession, should he ever take up a teaching position again. The course will remind him of his obligations as a teacher and help him make better decisions in his future interactions with students.
24The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
E. COSTS SUBMISSIONS OF COLLEGE COUNSEL
25College Counsel submitted that the Member be ordered to pay costs to the College pursuant to provision 4 of subsection 30(5) of the Act. She argued that the Panel should make this order on the basis of Rule 16.05(3) and Tariff A of the Rules. Together, these provisions provide that the College may request the Panel to render a costs order and need not provide evidence of the costs incurred for a day of hearing if the amount of the request is equal to or less than $10,000 per day of hearing.
26College Counsel claimed costs in the amount of $5,000 for a day and a half of hearings. Following the Panel’s request for additional submissions, College Counsel confirmed that the Member was informed of the date and time of the penalty hearing by email on December 6, 2023. In addition, College Counsel confirmed that a case law book and a reminder of the date of the penalty hearing were emailed to the Member on January 15, 2024. Finally, on January 17, 2024, the Member was advised of the College’s position with respect to penalty and the costs it intended to claim. Based on the submissions of College Counsel, the Panel is reassured that the Member was advised of the date and time of the penalty hearing and of the College’s position with respect to penalty and costs sought.
27College Counsel drew the Panel’s attention to the decision in Ontario College of Teachers v Hall, 2019 ONOCT 20 (“Hall”), which sets out principles on which the Panel can base its decision regarding costs. She also presented the following cases to the Panel, in which the members were required to pay costs: Ontario College of Teachers v Fox, 2021 ONOCT 34; Ontario College of Teachers v Stan, 2023 ONOCT 61 and Ontario College of Teachers v Poon, 2023 ONOCT 42.
F. COSTS DECISION
28On January 19, 2024, the Panel issued the following penalty order:
- The Panel hereby orders the Member to pay the College costs in the amount of $5,000 in reimbursement of costs incurred in these proceedings, within six months of the date of this order.
G. REASONS FOR COSTS DECISION
29In accordance with paragraph 4 of subsection 30(5) of the Act, the Committee may, when it has found that a member has committed professional misconduct, order the member to pay costs.
30Rule 16 of the Rules sets out the procedure that applies when either party claims costs. Under Rule 16.05(3), if the College claims costs, it does not need to provide evidence of the actual costs of a day of hearing if the request is equal to or less than the amount set out in Tariff A, which is currently set at $10,000.
31Hall provides factors for the Panel to consider in 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 (see Hall, pp. 13 and 14).
32Having considered the factors set out in Hall, the Panel finds that it is justified in requiring the Member to pay costs in the amount of $5,000 within six months of the date of this order.
33The Panel carefully considered the factors set out in Hall. The Panel agrees that costs orders are not punitive in nature, but rather compensatory in order to fairly apportion the costs of proceeding between the parties.
34The Member’s lack of cooperation is another Hall factor that supports an order for costs in this case. Conduct that unnecessarily lengthens the proceedings should be sanctioned. The Panel finds that the Member failed to cooperate with the College’s disciplinary process. Although his conduct was not vexatious, the fact remains that he often ignored College Counsel’s attempts to communicate with him. His lack of cooperation increased the length of the disciplinary hearing, since the College had to prove its case on a contested basis, which consumed limited court resources. Had the Member been more cooperative with the College, even without acknowledging his professional misconduct, the parties might have been able to agree on certain facts, thereby shortening the hearing and saving the Panel’s resources.
35Moreover, the Panel is aware that the College has fully succeeded in proving the allegations against the Member, other than those relating to subsections 1(5), 1(7.1) and 1(7.2), which have been withdrawn.
36Since he did not attend the hearing, the Member presented no evidence or submissions concerning his inability to pay the costs sought by the College. Thus, the Panel did not take into account the Member’s financial ability to pay costs when it decided to render a costs order and set the deadline for payment.
37For all the foregoing reasons, the Panel is of the opinion that it is just and appropriate to order the Member to pay the College costs in the amount of $5,000 within six months of the date of this order.
Date: April 22, 2024
Marlène Marwah, Chair, Discipline Panel
Jacqueline Boulianne, OCT Member, Discipline Panel
Myrna Tulandi Member, Discipline Panel
Footnotes
- Ontario College of Teachers v Ndoume Angoune, 2022 ONOCT 121.