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
Barry Mervyn Brooks, OCT, a member of the Ontario College of Teachers
PANEL: Wes Vickers, OCT, Chair Jean-Luc Bernard, OCT Irene Dembek, OCT
BETWEEN: )
) Alyssa Brierley,
) Legal Counsel,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers
- and - )
) Heather Alden,
BARRY MERVYN BROOKS ) Ontario Secondary School Teachers’
(CERTIFICATE # 265549) ) Federation,
) for Barry Mervyn Brooks
) Julie Maciura,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: June 8, 2015
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on June 8, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
An Amended Notice of Hearing (Exhibit 1) dated November 28, 2014 was served on Barry Mervyn Brooks (the “Member”) requesting his presence on December 18, 2014 to set a date for a hearing and specifying the charges. The hearing was subsequently set for June 8, 2015.
The Member was in attendance at the hearing.
THE ALLEGATIONS
IT IS ALLEGED that the Member 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) 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);
(e) 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
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
At the hearing on June 8, 2015, Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (c) of the Amended Notice of Hearing be withdrawn. The Committee granted the request.
Counsel for the College tendered the Membership Information for Barry Mervyn Brooks (Exhibit 2), which indicates that the Member has held a Certificate of Qualification and Registration since 1995 and that he was registered with the College during the period of the alleged events.
MEMORANDUM OF AGREEMENT
Counsel for the College advised the Committee that an agreement had been reached between the parties and introduced a Memorandum of Agreement (Exhibit 3) dated May 13, 2015 (the “MOA”), which is reproduced below:
Agreed Statement of Facts
The parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed and agree to the receipt of this document by the Discipline Committee.
At all material times, the Member was employed by the Ottawa-Carleton District School Board (the “Board”) as a teacher at [XXX] School (the “School”).
Barry Mervyn Brooks is a member of the College in good standing and has been teaching for twenty-four years.
During 2011-2012 academic year the Member taught two sisters, Grade [XXX] female student, Student 1 and Grade [XXX] female student, Student 2. The Member in a joking manner posed to students in his classes, whether it would be evil to indicate to one class that the sister in that class was the better looking one and then in the other class indicate that the other student was the better looking one. In addition, on February 3, 2012, the Member allowed Student 1 to text Student 2 about the joke. When Student 1 received a response from Student 2, the Member said to Student 1 “tell her I said her hair was too short and that she dressed funny.”
The Board conducted an investigation and concluded that the Member acted “inappropriately.” The Board issued a letter of discipline and suspended the Member for one day without pay. In addition, the Member was required to complete a course on boundaries, and provide proof of successful completion of the course to the Board. The Member successfully completed the boundaries course shortly thereafter.
By this document, the Member pleads guilty to professional misconduct as alleged in the Amended Notice of Hearing, issued on November 28, 2014, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18), and 1(19).
The Member voluntarily admits the above particulars, for the purpose of this proceeding only, and understands that by doing so, he is waiving the right to require the College to prove the case against him and the right to a contested hearing.
Joint Submission on Resolution
The Parties agree to resolve the matter as follows:
the Parties agree and undertake that upon ratification of this MOA, there shall be no further action taken in this administrative proceeding, no appeal of any or all of the terms of this agreement, and no application for judicial review, providing the terms of this MOA are adhered to;
the Parties agree and understand that if any phrase or paragraph of this MOA is deemed null and void, the MOA shall be read as though the phrase or paragraph that was stricken from the MOA and the amended MOA shall remain in force and effect;
the Member agrees and understands that upon ratification of this MOA, the Discipline Committee shall find him guilty of professional misconduct and he shall receive a reprimand from the Committee;
the Member agrees and understands that for the purpose of considering this matter, the Discipline Committee will be provided with this MOA and the Notice of Hearing, which will be marked as Exhibits and will constitute the evidence upon which the guilty plea will be accepted, the finding of guilt or finding will be made, and the penalty or order will be imposed;
the Member shall 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 College’s public Register. The reprimand shall be delivered at the offices of the College located at 101 Bloor Street West, Toronto, Ontario;
the Member agrees and undertakes to, within 90 calendar days of ratification of this MOA, or within 90 days of the start of the 2015 – 2016 school year, whichever is later, successfully complete, at his own expense, a course(s) of instruction covering professional boundaries, pre-approved by the Registrar. Such course(s) shall not be required to be longer than 5.5 hours in duration. The Member’s Certificate of Qualification and Registration will be subject to Terms, Conditions and Limitations;
the Member agrees and undertakes to provide the Registrar with written confirmation of his successful completion of this course, prepared by the course practitioner(s), within 30 calendar days of completion. The course practitioner will also confirm that he/she reviewed the Decision, Reasons and Orders of the Discipline Committee and MOA before commencing the course and that, based on his/her interactions with the Member, he/she is satisfied that the Member understands that his/her conduct was inappropriate;
the Member agrees and understands that upon ratification of this MOA, a notation shall be placed on the Public Register, maintained by the Registrar, in accordance with section 23 of the Ontario College of Teachers Act, 1996. This information will also be contained on the Certificate of Qualification and Registration, public register, and Statement of Professional Standing. There may be amendments made to these documents and the Public Register to reflect this agreement between the Parties, including amendments to the Member’s Status, Status History and Terms, Conditions and Limitations;
the Member agrees and understands that the College shall publish a summary of the complaint and its resolution as contained in this MOA. Such publication be made in the College’s official publication, Professionally Speaking/Pour parler profession, on the College web site, and in any other manner the Registrar deems appropriate. The Discipline Committee shall determine whether publication shall include the Member’s name;
the Member agrees and understands that upon ratification of this MOA, the College shall make the Decision and Reasons of the Discipline Committee available for review by the public in the College’s Margaret Wilson Library, on the College’s website and in any other forum the Registrar deems appropriate;
the Member agrees and understands that upon ratification of this MOA, the College may submit a copy of the Decision and Reasons of the Discipline Committee to Quicklaw and/or any other on-line legal database;
the Member agrees and understands that this MOA is the entire agreement between him and the College and that there have been no oral or written representations made by the College as an inducement or threat to enter into this MOA; and
each party may sign a separate copy of this MOA which, when so signed and delivered, shall be an original copy even though not signed by the other parties. All such separately signed copies shall together constitute evidence of all parties’ consent to be bound by this agreement.
DECISION
Having examined the exhibits filed, and based on the MOA, the Member’s guilty plea and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the MOA. The Committee finds that the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Committee carefully considered the MOA presented by the parties. The Member agreed to the truth and accuracy of the facts contained in the MOA and waived his right to require the College to prove the case against him. The Committee accepts the facts set out in the MOA as well as the Member’s guilty plea and finds the Member guilty of professional misconduct.
The Member acknowledged that, during the 2011-2012 academic year, he made several inappropriate comments which involved the physical appearance of two of his students. The Committee finds that the Member demonstrated a lack of judgment and professionalism and that he did not exercise the appropriate professional boundaries when communicating with his students. Although the Member may have intended for his comments to be lighthearted jokes, members of the teaching profession should not make negative and inappropriate comments about the physical appearance of their students. The Member failed to serve as a leader and a role model for his students, and he did not act in the best interest of his students.
The Committee therefore accepts the agreement of the parties and finds that the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
SUBMISSIONS ON PUBLICATION
Submissions of Counsel for the College
Counsel for the College submitted that publication with the Member’s name, in the official publication of the College, Professionally Speaking/Pour parler profession is warranted in this case. Counsel for the College explained that publication with name responds to the following three penalty objectives: specific deterrence, general deterrence, and protection of the public interest by ensuring accountability and transparency.
Counsel for the College submitted that publication with the name of the Member will inform members of the profession that inappropriate behaviour is taken seriously by the College, and will accordingly serve as a general deterrent. Publication with name serves as a specific deterrent by motivating the Member to never commit any further acts of professional misconduct which would require him to appear before the Committee.
Finally, publication with name upholds the principles of transparency and accountability. According to College Counsel, not only must justice be done; it must also be seen to be done. In other words, publishing the name of the Member in the College’s official publication is important because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.
Submissions of Counsel for the Member
Member’s Counsel submitted that ordering publication with the name of the Member would be disproportionate to the nature of the misconduct. According to Member’s Counsel, publication with the name of the Member is unnecessary since the summaries contained in the College’s official publication provide a link to the Committee’s decision, and because the fact that the Member received a reprimand will be noted on the College website for three years. Counsel for the Member submitted that the principles of general deterrence and transparency are satisfied without publishing the Member’s name in Professionally Speaking/Pour parler profession.
Member’s Counsel added that the following mitigating factors should weigh against publishing the Member’s name: the Member had an unblemished teaching career for 24 years and has never before been involved in a discipline proceeding; the Member’s case involves an isolated incident of professional misconduct, for which the Member accepted responsibility, served a suspension and completed coursework; the Member pleaded guilty, which conserved the judicial resources that would have been required for a full hearing of this matter; there is virtually no risk of the Member reoffending as it has been three and a half years since the incident and he has successfully continued teaching with no further complaints; and, the Member has agreed to take an additional course dealing with professional boundaries.
RESOLUTION
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 College (the “Register”).
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) within 90 days of ratification of the MOA or within 90 days of the start of the 2015-2016 school year, whichever is later, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries, which course is not required to be longer than 5.5 hours in duration;
(b) within 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 reviewed a copy of the MOA and the Decision, Reasons for Decision and Orders of the Discipline Committee prior to the commencement of the course;
(ii) he or she is satisfied that the Member understands that his conduct was inappropriate; and
(iii) the Member has successfully completed the course.
- The findings and orders of the Committee shall be published in summary form, without the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR RESOLUTION
The Committee carefully considered and accepted the Joint Submission on Resolution. The Committee determined that the reprimand and coursework are appropriate resolutions for misconduct of this nature, and satisfy the objectives of specific deterrence and rehabilitation of the Member.
Having considered the parties’ submissions with respect to publication with name, the Committee finds that publication with the name of the Member is not warranted in the circumstances of this case. The mitigating factors in this case outweigh the aggravating factors. The Member has had a lengthy, and previously unblemished teaching career; the case involves an isolated incident of professional misconduct that falls at the lower end of the spectrum of misconduct; the Member has accepted responsibility for his actions, he has served a suspension and completed coursework, and he has successfully returned to teaching without further incident more than three years ago; and the Member has been cooperative and has pleaded guilty, which has avoided the expenditure of time and resources required for a full hearing of this matter.
While transparency of the discipline process remains an important concern for the Committee, given the circumstances of the Member’s case, the Committee finds that publication without name is appropriate. The Committee notes that this hearing was open to the public and that a summary of the findings and resolution will be published in the College’s official publication and will be linked to the Member’s certificate. Given the mitigating factors in this case and the nature of the Member’s misconduct, the Committee finds that these measures adequately address the transparency concerns in this matter.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: July 14, 2015
Wes Vickers, OCT
Chair, Discipline Panel
Jean-Luc Bernard, OCT
Member, Discipline Panel
Irene Dembek, OCT
Member, Discipline Panel