DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Dwayne Michael Brame, OCT, a member of the Ontario College of Teachers.
PANEL: Alexander (Sandy) Bass, OCT, Chair
Robert Gagné
Monique Lapalme Arseneault
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Law Clerk
– and – )
DWAYNE MICHAEL BRAME ) Carol Mackillop,
(CERTIFICATE #480845) ) Mackillop Law Professional ) Corporation,
) for Dwayne Michael Brame
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: November 24, 2014
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 24, 2014 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated January 10, 2014 was served on Dwayne Michael Brame (the “Member”), requesting his presence on February 3, 2014 to set a date for a hearing. The hearing was subsequently set for November 24, 2014.
The Member was in attendance at the hearing.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated January 10, 2014 (Exhibit 1) are as follows:
IT IS ALLEGED that Dwayne Michael Brame is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(f) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(g) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
At the hearing on November 24, 2014, College counsel requested that the allegations of professional misconduct in paragraphs (c), (d), (e) and (g) of the Notice of Hearing (Exhibit 1) be withdrawn. The Committee granted this request, and these allegations were subsequently withdrawn.
STATEMENT OF UNCONTESTED FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest document (Exhibit 2), which provides as follows:
Dwayne Michael Brame is a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab A is a copy of the Ontario College of Teachers Registered Member Information.
At all material times, the Member was an employee of the Limestone District School Board as a teacher at [XXX] (the “School”) in [XXX], Ontario.
The Member taught [XXX] at the School.
At all material times during the 2011-2012 academic year, Student No. 1 and Student No. 2 were male students in the same [XXX] class taught by the Member.
On March 7, 2012, the Member was informed by the Vice Principal that Student No. 1 had been observed and overheard by a colleague while he bullied Student No. 2 and threatened to spread rumours about the Member. The Member understood that Student No. 1 had been sent to the office to be dealt with by school administrators.
Student No. 2 was anxious and worried about seeing Student No. 1 during [XXX] class that day. The Member informed Student No. 2 quietly that Student No. 1 would not be in class. The Member also informed an Educational Assistant in his class that if Student No. 1 appeared, he was to be sent directly to the office.
At one point, the Member left the classroom to retrieve materials for his students. While in the hallway, the Member observed Student No. 1 in the hallway by the lockers.
If Student No. 1 were to testify, he would say that the Member approached him and yelled words to the effect of, “Get to the office! I’m so angry I could throw you through that locker.”
If the Member were to testify, he would say that he was surprised to see Student No. 1 in the hallway and said words to the effect of, “Get to the office! I’m so angry I could go through that locker”. The Member admits that he said these words as a direct result of his anger about Student No. 1’s bullying conduct and the impact of his conduct on Student No. 2, as described in paragraphs 5 and 6 above. The Member acknowledges that Student No. 1 may have misheard him, and perceived what he heard as a threat. However, the Member would state that he did not intend to convey a threat to Student No. 1.
Student No. 1 filed a complaint with the police and the Member was charged with uttering a threat to cause bodily harm contrary to section 264.1 of the Criminal Code of Canada. On October 4, 2012, the charge was withdrawn at the request of the Crown upon completion of diversion. The diversion completed by the Member consisted of writing a letter of apology to Student No. 1. Attached to Exhibit 2 at Tab B is a copy of a Letter of Apology written by the Member to Student No. 1, dated September 26, 2012.
PLEA OF NO CONTEST
By this document, the Member does not contest, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to above in paragraphs 1 to 10 (the “Uncontested Facts”).
The Member hereby acknowledges that the Discipline Committee can accept that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(18) [unprofessional].
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;
(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed in this document does not bind the Discipline Committee;
(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member acknowledge that the Discipline Committee can find the Member guilty of professional misconduct.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by counsel for the College and counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Dwayne Michael Brame committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), and 1(18) [unprofessional].
REASONS FOR DECISION
The Member acknowledged that the Uncontested Facts in the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2) constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct. The Committee accepts the Member’s plea and the facts contained in the Statement of Uncontested Facts and Plea of No Contest.
The Member admitted that he said to Student No. 1, words to the effect of, “Get to the office! I’m so angry I could go through that locker”. The Member acknowledged that Student No. 1 may have misheard him, and perceived what he heard as a threat, namely, “I’m so angry I could throw you through that locker”.
In light of the Member’s behaviour and his plea, the Committee finds that the Member committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7) and 1(18) [unprofessional].
JOINT SUBMISSION ON PENALTY
Counsel for the College and Counsel for the Member submitted a Joint Submission on Penalty (Exhibit 3) indicating the following:
The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled:
(a) the Member shall enrol in and successfully complete at his own expense, prior to returning to a teaching position, a course of instruction pre-approved by the Registrar regarding effective communication strategies and management of difficult situations;
(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:
(i) he or she has reviewed copies of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and
(ii) the Member has successfully completed the course.
- direct that there be publication of the findings and Order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession.
The parties had not agreed on whether or not the Member’s name should be included and submissions were made on that issue.
SUBMISSIONS ON PUBLICATION
Submissions of College Counsel
Counsel for the College submitted that publication with name is warranted in this case as it addresses the four principles of sanction, being specific and general deterrence, transparency and accountability. College Counsel supplied one case previously decided by a panel of the Discipline Committee where there was publication, with the name of the Member.
College Counsel further stated that publication with name ensures transparency, openness and accountability and serves the public interest. Therefore, in order to meet these goals, publication with name is necessary.
Submissions of Member’s Counsel
Counsel for the Member requested that the name of the Member not be published in Professionally Speaking/Pour parler profession. Member’s Counsel pointed out that the Member has been teaching since 2004, that this is the only time that he has appeared before the College, and has no prior history of misconduct.
Member’s Counsel reminded the Committee that the Member’s conduct was at the low end of the spectrum of professional misconduct, and involved a single incident. Counsel stated there was no evidence of the Member yelling at the student, no profanity and no physical contact.
Member’s Counsel pointed out that the course the Member was required to take was not one of anger management but rather a course dealing with effective communication strategies and management of difficult situations.
Member’s Counsel added that publishing the Member’s name would be punitive and would not serve as a further specific deterrent.
Counsel provided the Committee with a Book of Authorities with six cases of similar misconduct where the Discipline Committee of the Ontario College of Teachers decided to publish without the name of the Member.
Counsel stated that by publishing the summary of the decision in the official publication, the goals of openness and transparency are achieved, and added that publication with name, in this case, is not warranted and not necessary.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled:
(a) the Member shall enrol in and successfully complete at his own expense, prior to returning to a teaching position, a course of instruction pre-approved by the Registrar regarding effective communication strategies and management of difficult situations;
(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:
(i) the course provider has reviewed copies of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and
(ii) the Member has successfully completed the course.
- There shall be publication of the findings and Order of the Committee in summary form, without the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
The Committee determined that the Joint Submission on Penalty (Exhibit 3) was proportionate to the misconduct committed by the Member and appropriate in the circumstances. Therefore, the Committee accepted the proposed penalty presented by the parties.
The Committee agrees that a course regarding effective communication strategies and management of difficult situations is appropriate in this matter and acts as a specific deterrent to the Member. In addition, the course serves as a remedial measure and will assist the Member in dealing with difficult situations in the future.
The reprimand by his peers and on behalf of the profession acts as a specific deterrent to the Member. The fact of the reprimand will remain on the Member’s certificate for a period of three years and will serve as a general deterrent to the profession.
The Committee considered the submissions of the parties with respect to publication with or without the name of the Member.
The Committee agrees with both counsel that the misconduct was at the low end of the spectrum and determined that publication, without name was appropriate in the circumstances of this case.
The Committee considered the following mitigating factors as outlined in this case, which include:
(a) this was the first time the Member has appeared before the College;
(b) the Member has had a 10 year unblemished teaching career;
(c) the Member accepted responsibility for the misconduct and agreed to enter a plea of no contest, thereby avoiding a full hearing and ensuring that no students were required to testify;
(d) the misconduct involved a single incident and was on the minor end of the spectrum.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: November 24, 2014 ______________________________
Alexander (Sandy) Bass, OCT, Chair
Chair, Discipline Panel
Robert Gagné
Member, Discipline Panel
Monique Lapalme Arseneault
Member, Discipline Panel