Duty to Report

Webinar for Employers of Ontario Certified Teachers

Watch this informative Ontario College of Teachers webinar, discussing recent changes to the Ontario College of Teachers Act that impact employers of Ontario Certified Teachers.

Requirement To Report

School boards, as employers, have long been required to notify the teacher licensing body when a teacher has been found guilty of certain criminal acts. In 2002, amended legislation clarified and expanded reporting requirements to include an obligation to report certain criminal charges against members and incidents of professional misconduct.

For example, if you terminate or restrict the duties of a College member for reasons of professional misconduct, you must write to the College within 30 days to explain why. You must report even if the member resigns while you are conducting an investigation or compiling evidence. You can refer to Section 43.2 of the Ontario College of Teachers Act (the Act), which you can find below.

When the College receives an employer notification, the Registrar may file a formal complaint and act as the complainant. Employer notification, however, does not automatically constitute a formal complaint. Additionally, the Registrar has certain disclosure obligations to the employer pending the case outcome.

It is up to the Investigation Committee, under authority set out in the Act, to investigate complaints about College members. A school board, a provincial schools authority or any body or person cited in the regulations may be required to provide the College with information about the member, including personal data, to assist with the investigations (See Section 47 (1) of the Act).

Compiling a Report

When to Report

The Act compels employers – deemed as the Director of Education/Secretary of the Board – to notify the College when certain employment circumstances arise that involve College members.

Section 43 of the Act states:

Employer reports re: termination, etc.

43.2 (1) An employer of a member of the College who terminates the member’s employment, suspends the member or imposes restrictions on the member’s duties for reasons of professional misconduct shall file with the Registrar within 30 days after the termination, suspension or restriction a written report setting out the reasons. 2016, c. 24, Sched. 2, s. 21 (1)

Same
(2) If an employer of a member intended to terminate the member's employment, to suspend the member, or to impose restrictions on the member’s duties for reasons of professional misconduct but the employer did not do so because the member resigned, the employer shall file with the Registrar within 30 days after the resignation a written report setting out the reasons on which the employer had intended to act. 2002, c. 7, s. 4. ; 2009, c. 33, Sched. 13, s. 2 (9); 2016, c. 24, Sched. 2, s. 21 (3).

Same
(3) If a member resigns while his or her employer is engaged in an investigation into allegations of an act or omission by the member that would, if proven, have caused the employer to terminate the member’s employment or to impose restrictions on the member’s duties for reasons of professional misconduct, the employer shall file with the Registrar within 30 days after the resignation a written report stating the nature of the allegations being investigated. 2002, c. 7, s. 4. ; 2009, c. 33, Sched. 13, s. 2 (9); 2016, c. 24, Sched. 2, s. 21 (3).

Employer reports re: certain offences, conduct

43.3 (1) An employer shall report to the Registrar in writing when the employer becomes aware that a member who is or has been employed by the employer,

has been charged with or convicted of an offence under the Criminal Code (Canada) involving sexual conduct and minors;
has been charged with or convicted of an offence under the Criminal Code (Canada) that in the opinion of the employer indicates that students may be at risk of harm or injury; or
has engaged in conduct or taken action that, in the opinion of the employer, should be reviewed by a committee of the College. 2002, c. 7, s. 4. ; 2016, c. 24, Sched. 2, s. 22 (1).

Same
(2) An employer who makes a report under subsection (1) respecting a charge or conviction shall promptly report to the Registrar in writing if the employer becomes aware that the charge was withdrawn, the member was discharged following a preliminary inquiry, the charge was stayed, or the member was acquitted. 2002, c. 7, s. 4. ; 2016, c. 24, Sched. 2, s. 22 (3).

In general, if a member has engaged in conduct you feel a College committee should review, you should report it. Some of this information may come to your attention during your investigation, from a newspaper article or another source.

If after reporting a member to the College, you receive information that the charge was withdrawn or stayed, or that the member was discharged or acquitted, you need to let the College know that too.

How and What to Report

Write a letter addressed to the College Registrar, including:

the name of the member(s) with whom you have a concern
details of the incident
whether the member’s employment status has changed as a result.

You may wish to include any other documents to support the notification.

Send the letter within 30 days of terminating the member’s employment, restricting his or her teaching duties or receiving his or her resignation. If the reason for reporting is due to a relevant charge or conviction under the Criminal Code, the letter must be sent promptly in accordance with section 43.3(1) of the Act.

A College investigator may call to request specific information. Based on the nature of the complaint, you will need to provide information and documents outlined in the checklist, provided below. Do not wait until you have accumulated all the data. Investigators appreciate receiving a preliminary set of documents that are immediately available, with notice that more will be sent once they have been collated.

FAILURE TO REPORT

Offence: failure to report

48.1 Every employer who contravenes subsection 43.2 (1), (2) (3), (3.1) or (3.2) or subsection 43.3 (1), (1.1), (1.2), (1.3) or (2) is guilty of an offence and on conviction is liable to a fine of not more than $25,000. 2002, c. 7, s. 6. ; 2023, c. 11, Sched. 3, s. 16.

What Happens Next

Collecting and Sharing Information

Notwithstanding the College’s investigation process, as an employer you should continue with your own investigation and not rely solely on the outcome of the complaint addressed to the College.

Employers may be required by the College to share personal information about a member. This requirement is found in the Act in Section 47:

Information and disclosure

47.(1) For the purpose of carrying out its objects, the College may require the Provincial Schools Authority, a school board or any other person or body designated by the regulations to provide the College with information, including personal information within the meaning of section 38 of the Freedom of Information and Protection of Privacy Act or section 28 of the Municipal Freedom of Information and Protection of Privacy Act, in respect of members of the College. 1996, c. 12, s. 47 (1).

College investigators would need to know when the member’s status changed, when he/she went on leave and whether it was paid or unpaid.

Processing the Complaint

The College’s Investigation Unit undertakes an investigation, on behalf of the Investigation Committee.

After reviewing the information and the collected documents, the Investigation Committee may:

conclude that the complaint does not relate to professional misconduct, incompetence or incapacity
decide that the complaint is frivolous, vexatious or an abuse of the process and choose not to refer the matter to a hearing
issue a caution or admonish the member
refer the complaint to a Discipline or Fitness to Practise hearing.

The Investigation Committee can also ratify a Memorandum of Agreement reached through the Dispute Resolution Program.

College Reports to Employers

The College keeps employers informed at the end of each stage in the process.

Within a reasonable amount of time following receipt of a report from an employer, the College Registrar informs the employer of actions taken in response to the report.

Following investigations and hearings, the College notifies the member’s current employer and the employer who made the initial report of any orders or decisions in respect to the member made by the hearings committees, the Investigation Committee, or by a divisional court.

The Registrar is also required to notify an employer if a member has been directly referred to discipline after the member has been found guilty of an offence under the Criminal Code of Canada for conduct that is the same subject matter as the complaint.

Reporting Unsatisfactory Teacher Performance Appraisals (TPA)

Reviewing the Information

The Director of Education/ Secretary of the school board is responsible, under the Education Act, to act as a public complainant in reporting unsatisfactory TPA outcomes. An investigator reviews the TPA process chronology, notes, information, and reports sent by an employer to the College. This information may contain allegations of professional misconduct, incompetence and/or incapacity.

An investigator will review the TPA process for completeness. The Investigation Committee may inquire further or proceed based on the information submitted, even if steps were omitted or the administrator did not complete the process in a timely fashion. Based on the information, the committee may decide to caution or admonish the member, orally or in writing. Most likely, if the member is alleged to be incompetent, the Investigation Committee may wish one of the College’s two hearing committees to decide on the outcome of the complaint. Unless fitness to practise elements are present, allegations of incompetence or professional misconduct, or a combination of the two, would only be referred to the Discipline Committee.

Allegations of Incompetence

After helping a member with his or her performance and finding no improvement, you may decide to terminate the member’s employment contract due to a failure to perform satisfactorily.

The College’s Discipline Committee, however, has a different process and standard for deciding if a member is incompetent and/or guilty of professional misconduct. Based on section 30(3) of the Ontario College of Teachers Act, the committee looks for clear, cogent and convincing evidence of incompetence. If found incompetent or guilty of professional misconduct, a member’s teaching certificate may have terms, conditions and limitations placed on it, or the certificate may be suspended or revoked.

To find a member incompetent, the Discipline Committee requires three things.

The incompetence must relate to the member’s professional responsibilities.
The incompetence must relate to a deficiency, that is, a lack of knowledge, skill or judgment or disregard for the welfare of a student.
The incompetence must be sufficiently serious and demonstrate that the member is either unfit to continue to carry out his or her professional responsibilities, or that the member’s certificate should be subject to terms, conditions or limitations.

Unlike professional misconduct, where a single serious act could constitute adequate evidence, incompetence cases typically are manifested over time. It is sufficient for the discipline panel to find that the member is incompetent in one area of practice and not in others and order that the member’s certificate be made subject to terms, conditions or limitations. Evidence, however, must be current and prove that the member is currently incompetent.

Supervisors, peers, or others can provide evidence of performance. Evidence of failure to meet competencies in TPA matters can support a finding of incompetence, but the Discipline Committee must consider the context when assessing the evidence. For example, the committee would view evidence from TPAs of new and experienced teachers differently. The perspective of the TPA evaluator may also differ from that of an impartial member of the Discipline Committee.

Remember, the employer and the College use different standards and different perspectives to determine incompetence. You may decide through the performance appraisal process that a member is incompetent, but the College’s Investigation Committee may not.

Documents and Information Required By the College

To help you collate the appropriate documents and information the College requires, please use the following checklists. Please send all preliminary information you have available while you collect the remaining information to send to us at a later date.

List A: General

The member’s first, middle and last names
The member’s date of birth
The member’s College registration number
The member’s current or last known address, postal code and telephone number
The date of commencement of the member’s employment with the employer
Grade(s) and subject(s) taught by the member at the time of the alleged conduct
Information/documentation re: any previous disciplinary/behaviour/conduct issues
The member’s current employment status (in classroom, terminated, suspended, other duties)
The name of the school where the member is currently employed (if applicable)
Any policy documents that formed the basis of the employer’s decision to investigate, terminate or suspend the member
Recommended course(s) and/or mentoring offered to the member by the employer and current status (i.e. in progress or completed; dates of commencement and completion; details of courses)
A copy of the Board’s resolution to report the member’s conduct in accordance with sections 43.2 and/or 43.3 of The Ontario College of Teachers Act
Copies of correspondence concerning the member’s suspension or termination
The names, telephone numbers, and email addresses of the principal, vice-principal, investigating parties and the legal counsel for the employer
All documents relating to the employer’s investigation of the matter, including documentary evidence, witness statements, reports, and notes
Any relevant member health or medical information and documentation
The names, addresses and telephone numbers of student and teacher witnesses, and other witnesses, including the ages of the students at the time of the behaviour/conduct (not applicable if it is a TPA matter)
Gender, birth date and age of the student witnesses andn victim(s) at the time of the alleged conduct
The relationship of the member to the affected students (not applicable if it is a TPA matter)
Notes of employer meeting(s) with the member (i.e. the member's response to alleged conduct)
Status of any grievance or arbitration relating to this matter
Copies of documents concerning grievance and/or arbitration
Minutes or meeting notes relating to the member's conduct (i.e. recommendation to the Board to terminate)
Any specific policy that relates to the alleged conduct of the member
Any media articles (not applicable if it is a TPA matter)
Contact information for police service including name of police service, address, and telephone number (where applicable)
Contact information for Investigating Officer (i.e. name, rank, badge number, address, and telephone number)
Any police service or court documents/correspondence
Name of Children's Aid Society and contact information for investigator including name, address, telephone number, and email address (where applicable)
Any documents, reports, letters or notes relating to Children's Aid Society investigation of the matter (where applicable)
Please provide the College with any other information the employer deems may be of assistance.

List B: (in addition to List A)

For Matters Related to Teacher Performance Appraisal

Any specific board policies that relate to teacher performance appraisal
A copy of the member's most recent performance appraisals (including all of the following: Summative Reports, Pre-observation and Post-observation forms, Annual Learning Plan, Improvement Plan and notice of "on-review" status)
Principal and/or vice-principal’s notes of classroom observations and transcripts thereof
Any parent/student surveys or information collected in connection with the TPA procedure

List C: (In addition to List A)

Member Charged with, or Convicted of, a Criminal Offence

The names, date of birth, addresses and telephone numbers of student and teacher witnesses, including the ages of the students at the time of the offence(s)
The relationship of the member to the affected students
The date the member was charged with an offence, if known
The specifics of the offence(s) that the member has been charged with, if known
The dates of any upcoming hearings (that is, preliminary hearing, plea, sentencing), if known
The name, address and telephone number of the Crown Attorney, if known
The address and location of the court where the matter was heard or will be heard, if known
Documents from the proceedings, if available, such as:

a copy of the court information, conditions of judicial interim release, sentencing order, probation order
a copy of the certificate of conviction

Regulation 437/97, Professional Misconduct

Regulation Made Under the Ontario College of Teachers Act
Filed: December 4, 1997

Section 1

The following acts are defined as professional misconduct for the purpose of subsection 30 (2) of the Act:

Providing false information or documents to the College or any other person with respect to the member’s professional qualifications
Inappropriately using a term, title or designation indicating a specialization in the profession which is not specified on the member’s certificate of qualification and registration
Permitting, counselling or assisting any person who is not a member to represent or herself as a member of the College
Using a name other than the member’s name, as set out in the register, in the course of his or her professional duties
Failing to maintain the standards of the profession
Releasing or disclosing information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian. The release or disclosure of information is not an act of professional misconduct if,

the student (or if the student is a minor, the student’s parent or guardian) consents to the release or disclosure, or
if the release or disclosure is required or allowed by law

Abusing a student verbally

7.1 Abusing a student physically
7.2 Abusing a student psychologically or emotionally
7.3 Abusing a student sexually

Practising or purporting to practise the profession while under the influence of any substance or while adversely affected by any dysfunction,

which the member knows or ought to know impairs the member’s ability to practise and
in respect of which treatment has previously been recommended, ordered or prescribed but the member has failed to follow the treatment

Contravening a term, condition or limitation imposed on the member’s certificate of qualification and registration
Failing to keep records as required by his or her professional duties
Failing to supervise adequately a person who is under the professional supervision of the member
Signing or issuing, in the member’s professional capacity, a document that the member knows or ought to know contains a false, improper or misleading statement
Falsifying a record relating to the member’s professional responsibilities
Failing to comply with the Act, the regulations or the bylaws
Failing to comply with the Education Act or the regulations made under that Act, if the member is subject to that Act
Contravening a law if the contravention is relevant to the member’s suitability to hold a certificate of qualification and registration
Contravening a law if the contravention has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk
An act or omission that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional
Conduct unbecoming a member
Failing to appear before a panel of the Investigation Committee to be cautioned or admonished, if the Investigation Committee has required the member to appear under clause 26 (5)(c) of the Act
Failing to comply with an order of a panel of the Discipline Committee or an order of a panel of the Fitness to Practise Committee
Failing to co-operate in a College investigation
Failing to take reasonable steps to ensure that requested information is provided in a complete and accurate manner if the member is required to provide information to the College under the Act and the regulations
Failing to abide by a written undertaking given by the member to the College or an agreement entered into by the member with the College
Failing to respond adequately or within a reasonable time to a written inquiry from the College
Practising the profession while the member is in a conflict of interest
Failing to comply with the member’s duty under the Child, Youth and Family Services Act, 2017.

Section 2

A finding of incompetence, professional misconduct or a similar finding against a member by a governing authority of the teaching profession in a jurisdiction other than Ontario that is based on facts that would, in the opinion of the Discipline Committee, constitute professional misconduct as defined in section 1, is defined as professional misconduct for the purposes of subsection 30 (2) of the Act.

The College acts in a fair and impartial way to respect the member’s rights while protecting the public interest.

For additional information:
Ontario College of Teachers
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Toronto ON M5S 0A1

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