School Investigation Has Negative Impact on College Decision

Juin 2012 | Nadya Tymochenko

( Disponible en anglais seulement )

In a recent decision by the Ontario College of Teachers (the “College”) regarding whether discipline should be imposed on an occasional teacher (the “Member”) who had allegedly (1) struck the upper arm of a female student with her hand (2) struck that student in the chest with her hand, and (3) grabbed and/or squeezed the arm of another female student, the College found that the allegations of misconduct were not proven, and the matter was dismissed.

Of particular interest in this case are the rather lengthy reasons provided by the College addressing the investigation conducted by the school board into the allegations, which were denied by the teacher.

Both the school board through the school and the Children’s Aid Society (the « CAS”) conducted investigations into the allegations. The principal of the school, Mr. O’Neil, assigned a vice-principal, Ms. Major, who was a .25 vice-principal and taught for .75 of the week, to conduct the investigation by interviewing the students of the class.  Although the CAS and the school insisted that they conducted independent investigations, both were privy to the results of the other, and the CAS did consider the school administration’s assessment of the credibility of the students.

The College commented on the way in which the allegations were first addressed by the school administration stating:

“The fact that Mr. O’Neil was not concerned enough to call parents immediately, nor did he book a supply teacher to take over Ms. Major’s classes for the next day, so that the interviews could be properly conducted, caused the Committee to lean towards the Member’s assertion that he did not appear to be overly concerned at that point.  Although Principal O’Neil confirms that they wanted to make certain that the interview process was ‘fair and unbiased’, the process that unfolded may not have achieved that goal.”

The issues identified by the College with respect to the investigation included that the principal did not ask students if they had witnessed the incident or simply heard about it, nor was there any attempt to ascertain where the students were located at the various relevant times.  The College also found it problematic that the principal did not personally interview all of the students.

At issue also was the fact that the vice-principal, Ms. Major, had to interview students during her spare bits of time during the day creating problems with the process, such as there being a lack of time and spacing between interviews, as well as a failure to ensure that the students did not speak to each other. While Ms. Major did not have concerns about students sharing information, arguing that there was no way to prevent it, the College did have concerns.

The College identified other issues with the investigation conducted by the school, such as an inconsistency in language about the “hits”, which were sometimes being referred to as ‘smacks’ and other times as ‘squeezes’.  Also, there was inconsistency about the number of hits reported, the manner in which student notes were written, and whether or not the students’ written accounts had been supplemented.

The College also identified that Ms. Major did not determine whether or why a student might make a false statement or whether or not the students were discussing the incident before the investigation began.  As well, it was of concern to the College that Ms. Major made assessments of credibility based on her prior involvement with certain students.

The notes taken as part of the school’s investigation were also identified to have problems: they did not identify when they were made or their authorship, it was not clear if students made written statements independently, and it was not clear whether students wrote statements before being interviewed, during their interview or after their interview.  While there were photos taken by the vice-principal on her smart phone of the “marks” left on the student’s arm from the alleged hit, the marks were not discernable in the photos, nor were the photos tagged with the date and time they were taken, therefore, the photos were of little use.

The College commented that,

“Although well intentioned in undertaking her investigation, Ms. Major was inexperienced in conducting this kind of investigation.  In the end, her workload, lack of experience and the time constraints undermined the quality of the evidence collected.  Therefore, in spite of the well intentioned effort, ultimately the investigation conducted by Ms. Major was flawed.”

The College did not reserve all of its criticism for the school administrators, it also criticized the investigation conducted by the CAS, indicating that the investigator relied heavily on the opinions of the principal and vice-principal.

While the hearing process before the College Committee charged to determine whether or not a member is to be disciplined is arguably the most important step in the discipline process of the College, the College did emphasize the importance of the investigation conducted at the school level, stating:

“The investigation and its quality were significant in establishing the issue of credibility.  The review of evidence is such that it must satisfy the requirement of clarity, consistency and cogency.  This is necessary in determining a matter based on the balance of probabilities standard of proof.”

School administrators often lack training and opportunities to investigate serious matters leading to discipline of either a student or teacher.  School boards choosing to rely on school administrators to conduct investigations of staff matters need to ensure that the administrator is trained and experienced in conducting investigations.  If a matter might lead to a staff member being disciplined or terminated or a student being expelled, it must be given a priority and a plan for investigation should be created.  While trite to say, once created, the plan should be followed. Despite the fact that each incident is unique, there are good practices that should be applied consistently by all administrators conducting investigations and it is important that administrators have both in-depth training and experience to assist them. When an administrator lacks training and/or experience, school boards should consider assigning the duty to anther administrator or a third party professional.

Avis de non-responsabilité

Cette publication est fournie à titre informatif uniquement. Elle peut contenir des éléments provenant d'autres sources et nous ne garantissons pas son exactitude. Cette publication n'est ni un avis ni un conseil juridique.

Miller Thomson S.E.N.C.R.L., s.r.l. utilise vos coordonnées dans le but de vous envoyer des communications électroniques portant sur des questions juridiques, des séminaires ou des événements susceptibles de vous intéresser. Si vous avez des questions concernant nos pratiques d'information ou nos obligations en vertu de la Loi canadienne anti-pourriel, veuillez faire parvenir un courriel à privacy@millerthomson.com..

© 2018 Miller Thomson S.E.N.C.R.L., s.r.l. Cette publication peut être reproduite et distribuée intégralement sous réserve qu'aucune modification n'y soit apportée, que ce soit dans sa forme ou son contenu. Toute autre forme de reproduction ou de distribution nécessite le consentement écrit préalable de Miller Thomson S.E.N.C.R.L., s.r.l. qui peut être obtenu en faisant parvenir un courriel à newsletters@millerthomson.com.