Court of Appeal Decision of the Week

Former Principal/Teacher Guilty of Professional Misconduct in “Upgrading” Daughter’s High School Grades; “Weighing” Evidence at a Committee Stage

Case: Sautner v Saskatchewan Teachers’ Federation, 2017 SKCA 65 (CanLII)

Keywords: “Upgrading” High School Grades; Professional Ethics Committee; The Education Act, 1995, SS 1995, c E-0.2; Education Regulations, 1986, RRS c E-0.1 Reg 1

Synopsis:

The Appellant, Kimberly Sautner, formerly a teacher and principal of Wolseley High School, is found guilty of professional misconduct by a Professional Ethics Committee (“the Committee”) of the Saskatchewan Teachers’ Federation after “upgrading” two of her daughter’s grade 12 marks.

The Appellant’s daughter is at risk of failing an English course at the University of Lethbridge. Faculty advisors suggest that, had she achieved a combined average of 80% in two high school courses, she would not be required to take English. The Appellant undertakes to “upgrade” her daughter’s high school English marks; inquires as to whether individuals at the school could assist in altering the grades, so sends a text message as follows:

… So my question for you is Tori ended with an 80 in your B30 – she needs 8% to achieve this overall average. What do you think you could arrange for her – please don’t make this a huge work project for yourself – and I want you to know that I plan to pay you $500 for doing this (that’s between you and I) because I know it’s more work than having someone sit in your class. We can communicate through email if you’d like. Please think about this and let me know what we can arrange. I will get in touch with Crystal once we figure out a plan and have Tori enrolled so this change can happen. Thanks so much. (See para. 9).

Both the recipient of the text and current principal at Wolseley (also contacted by the Appellant) do not cooperate with her requests. Following an investigation of the school’s electronic grade book system, it is revealed:

  • at some time between midnight on June 25, 2014, and midnight on June 26, 2014, the Appellant’s daughter’s marks get changed
  • the Appellant logged into the program within this timeframe. (See para. 13).

The Committee finds the Appellant’s conduct in increasing her daughter’s marks constitutes professional misconduct that both “tends to harm the standing of the profession” and “would reasonably be regarded by the profession as disgraceful, dishonorable [sic] or unprofessional” (pursuant to s. 209.4(b) of the The Education Act, 1995, SS 1995, c E-0.2 and s. 59.1(2) of The Education Regulations, 1986, RRS c E-0.1 Reg 1 respectively). (See para. 18).

The Committee further concludes the Appellant’s actions bring dishonour to both herself and the teaching profession generally (pursuant to Article 1 of the Code of Professional Ethics of the Saskatchewan Teachers’ Federation); recommends a 6-month suspension of the Appellant’s teacher’s certificate. (See para. 18).

The Appellant appeals against both the findings of professional misconduct and the penalty, alleging evidentiary errors and arguing a 6-month suspension is “excessive”. The Court of Appeal disagrees, dismisses the Appellant’s appeal, and finds no error of law or that the Committee’s treatment of the evidence was improper. Moreover, the Court of Appeal finds the penalty is not unreasonable in light of the evidence.

Importance:

The Appellant raised a number of issues on appeal including,

  • whether the Committee erred in law by interpreting and applying s. 28(2) of the Act without regard to, and in a manner inconsistent with, s. 28(4)(a) of the Act, and by failing to allow cross-examination of Ms. Godlien?
  • whether the Committee erred in law by disregarding or failing to give proper weight to relevant evidence?
  • whether the penalty imposed by the Committee was inappropriate/unfit under the circumstances?

With respect to the first issue, the Court of Appeal determined there was “a simple answer to this ground”: the evidence in question was irrelevant to the Committee’s analysis and ultimate finding of guilt. (See para. 30). Moreover, the Committee stated it was attributing “no weight” to the evidence, which had the effect of curing “…any failure to consider the necessity of admitting the hearsay evidence”. (See para. 31).

With respect to the second issue, the Court of Appeal determined the Committee’s decision with respect to how much weight to allocate to pieces of evidence “…does not equate to a disregard of evidence”. (See para. 35).

Citing Fletcher Challenge Energy Canada Inc. v Sulz, 2001 SKCA 11 (CanLII), the Court of Appeal set out the difference between disregarding evidence and giving limited weight to evidence. It also found “The appeal process must not be used to redo the hearing in an attempt to establish a new perspective of the evidence that weighed in favor of the appellant.” (See at para. 36). It was clear to the Court of Appeal that, although the Committee may have declared some evidence as unhelpful, it had considered all the probative evidence. (See para. 45).

Finally, to the appropriateness of the penalty, the Court of Appeal was critical as to the adequacy of the reasons provided by the Committee in support of its 6-month suspension of the Appellant:

While the Executive states in the April 12, 2016, letter that it “considered the representation” made by counsel at the penalty hearing, the failure to say more leaves much to be desired. By upholding the recommendation of a six-month suspension, the Executive obviously did not put much weight, if any, upon the submissions made by the appellant’s counsel at the penalty hearing. However, little is known about what the Executive specifically made, or did not make, of those submissions. This is somewhat unfortunate considering it would not have been a great burden for the Executive to add a few sentences indicating why it was adopting the Committee’s recommendation at the penalty hearing. (See para. 63).

The Court of Appeal noted the Appellant did not enter a guilty plea nor express a sense of responsibility or remorse. The Committee recognized both as aggravating factors. Ultimately, the Court of Appeal found the Committee had carefully considered all of the relevant factors and arrived at a conclusion that was reasonable. (See paras. 70-71).

Counsel for the Appellant: Jay Watson (Cuelenaere, Kendall, Katzman & Watson, Saskatoon)

Counsel for the Respondent: Dennis Fisher (Scharfstein Gibbings Walen Fisher LLP, Saskatoon)

Discuss on CanLii Connects

Posted: Wednesday, September 06, 2017