Ontario College of Teachers v. Barros, 2017 ONOCT 5

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;

Citation: Ontario College of Teachers v Barros 2017 ONOCT 5

Date: 2017-01-09

AND IN THE MATTER OF a discipline proceeding against

Shelley Fernandes De Barros, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair Sara Nouini, OCT Wes Vickers, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

– and –

SHELLEY FERNANDES DE BARROS (CERTIFICATE #478726) Jerry Raso, Ontario English Catholic Teachers’ Association, for Shelley Fernandes De Barros

Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: December 6, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 6, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated September 4, 2014 (Exhibit 1) was served on Shelley Fernandes De Barros (the “Member”), requesting her presence on September 26, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 6, 2016.

The Member was not in attendance for the hearing but had legal representation. The Member did, however, attend to receive her reprimand immediately following the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Shelley Fernandes De Barros is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

b) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

d) she failed to supervise adequately a student or students who were under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

e) she 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) she 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) she displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of her students of a nature or extent that demonstrates that the Member is either unfit to carry out her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.¹

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Shelley Fernandes De Barros is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information of the Member.

2. At all material times, the Member was employed by the Dufferin-Peel Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”), in Mississauga, Ontario.

3. The Member commenced her employment with the Board in September 2004. At all material times the Member was teaching Grade [XXX] [XXX]. The Member has taught additional [XXX] courses, both as a [XXX] school teacher and a [XXX] school teacher. Prior to the events in this proceeding, the Member has never had a [XXX] [XXX] accident that injured students and has never faced an allegation of professional misconduct.

4. During the 2009-2010 academic year, the students referenced in the Notice of Hearing attended the School.

5. On or about March 10, 2010, only a handful of the students (about 10 to 12) were present during the Member’s [XXX] class period. The Member advised the students that it was a review day (nothing was planned) due to a school sporting event. Attached hereto and marked Exhibit “B” is a copy of the Synopsis of Evidence by the Mississauga Fire and Emergency Services.

6. The [XXX] class/[XXX] contained an instructor’s desk ([XXX]“ bench”) with a flame resistant surface, gas supply for a [XXX]and a built-in ventilation fan located at the front of the class.

7. When the Member returned to the class, she asked the students if they wanted her to show the class an [XXX] in [XXX]. The demonstration proposed by the Member was intended to show complete and incomplete [XXX], and allows the teacher to use various methods to demonstrate this.

8. The Member left the class and went into the prep room connected to the [XXX] classroom. If called to testify, student witnesses will testify that when the Member left the students in her [XXX] class, some students began burning hand sanitizer on top of the [XXX] bench. These students did not have the Member’s permission to do so.

9. The Member returned with two bottles, one with [XXX] and another with [XXX].

10. During the Member’s demonstration, some of the students were seated and some were standing at their own [XXX] benches, which are located approximately five feet away from the [XXX] bench. Some other students were not seated at their [XXX] benches.

11. The Member failed to ensure that the students were reasonably protected from potential risks. The Member did not take any extra precautions to ensure the safety of the students beyond what she had done in the past. For instance, none of the students were asked by the Member to wear safety goggles, gloves or protective clothing. Similarly, some students were watching a movie and not paying attention to the [XXX].

12. The Member turned on the [XXX]on the [XXX] bench to light a wooden stick (splint). The Member then turned off the [XXX] and poured some [XXX] from the bottle onto the [XXX] bench. She lit the [XXX] on fire with the burning splint. The [XXX] caught fire. The Member let the flame die down.

13. The Member wiped off the [XXX] bench and poured some [XXX] from the bottle onto the [XXX] bench. She lit the [XXX] with a burning splint. The [XXX] lit and the Member let the flame die down.

14. The Member did the same demonstration a third time. The Member poured some [XXX] onto the [XXX] bench and applied an open flame to the [XXX]. The Member continued to hold the open container of [XXX]. The Member and the students watched the [XXX] burn.

15. The Member poured another line from the bottle of [XXX], which caused the bottle to ignite in a flash fire. The source container of [XXX] was thrown or dropped by the Member, causing the fire to spread in the direction of the four students in the front row. This was not intentional on the Member’s part.

16. The flames spread in the direction of the four students sitting in the front row.

17. The Member immediately attended to the needs of the students:

(a) She first saw that a male student, [XXX], to her left had his shirt caught on fire. The Member immediately moved to assist the boy, put him on the floor and patted him down with her bare hand until the flames were extinguished.

(b) The Member noticed two other female students, [XXX] and [XXX] with small flames in their hair. The Member patted their hair with her bare hands until the flames were extinguished.

(c) The Member then noticed that the hair of a female student, [XXX]., who was seated in the front row to her right was on fire. The Member grabbed and used the fire extinguisher to extinguish the flames on [XXX].

(d) The Member instructed a student to call 911.

(e) When the Member saw that no other students were in need of immediate attention, she instructed the students to leave from the classroom into the hall. She returned to assist [XXX]. The Member sat her up and made sure that she was conscious.

(f) The Member had the injured students taken to the main office. The Member picked up [XXX] from behind and took her to the main office.

(g) At the office, the Member saw that the secretary was on the telephone with 911. She asked the secretary to ask 911 if she could put cold water on [XXX] burns. She was advised that that was appropriate so she took [XXX] to the office washroom, sat her down and poured cold water onto her hands. She stayed with [XXX] until the paramedics arrived. Once paramedics arrived, they began to treat [XXX] and transported her to a hospital.

(h) The Member then returned to the main office to check on the students that were there.

18. The Fire Marshal's Office investigation concluded that the fire was of an accidental cause, resulting from the application of an open flame to the flammable liquid being dispensed onto the desk. Attached hereto and marked Exhibit “C” is a copy of the Fire Marshal’s investigation, dated March 16, 2010.

19. The Member and the Board were charged under the province of Ontario’s Fire Code, Ontario Regulation 213/07 under the Fire Protection and Prevention Act, 1997.

(a) The Board was charged with: a) failing to provide training (Division B, Article 4.12.4.1(3)); b) failing to control an activity that produces open flames (Division B, Article 4.1.5.3); and c) allowing a flammable liquid to be ignited in a manner that created a fire and explosion hazard (Division B, Article 2.1.2.2).

(b) The Member was charged with violations of Articles 2.1.2.2 and 4.12.4.1(3).

20. The School Board pled guilty to all charges and was ordered to pay $40,000 in fines.

21. The Member also pled guilty and was ordered to pay two fines of $3,130.00 each.

22. If called to testify, the Member would testify that she believed she had reasonable arguments to defend against the foregoing charges. First, that as an employee, the Fire Protection and Prevention Act did not apply to her. Secondly, that she was not guilty on the merits as she acted reasonably and according to the accepted standards and practice with respect to conducting the demonstration that caused the fire. The College does not accept the Member’s position on these arguments.

23. The Member was not disciplined by the Board for what occurred.

24. A police investigation determined that the act of adding [XXX] to an open flame is highly dangerous; however, there was no criminal intent to injure any of the students. The police determined that no crime had been committed, and no criminal charges were laid against the Member. Attached hereto and marked Exhibit “D” is a copy of police report dated March 13, 2010.

GUILTY PLEA

25. By this document, and for the purposes of this proceeding only, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-24 above (the “Admitted Facts”).

26. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(7.2), 1(11), 1(15) and 1(18).

27. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) she 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 her name, may be published in the official publication of the College;

(e) she understands that any agreement between her and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

28. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Counsel for the College requested that the allegation of incompetence outlined in paragraph (g) of the Notice of Hearing be withdrawn. The Committee granted the request.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(11), 1(15) and 1(18).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 24 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(11), 1(15) and 1(18).

Paragraphs 11, 15, 17, 19 and 21 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 11, 15, 17, 19 and 21 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 11, 15, 17, 19 and 21 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 11, 15, 17, 19 and 21 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to supervise adequately a student or students who were under her professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11).

Paragraphs 11, 15, 17, 19 and 21 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).

Paragraphs 11, 15, 17, 19 and 21 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed by the Committee in this matter would be that the Committee:

1. 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 W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar of the Ontario College of Teachers (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) Within 120 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course(s) of instruction pre-approved by the Registrar regarding classroom management with emphasis on supervision and classroom safety subject to the following conditions;

(i) The Member will provide to a course provider approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course(s) which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course(s) to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of her completion of the course(s) outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) the Member has successfully completed the course.

3. direct that there be publication of the finding and order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of her name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.

College Counsel referred the Committee to two cases involving student safety and failure by a member to maintain appropriate safety standards in the classroom: Ontario College of Teachers v. Gumulak, 2016 ONOCT 23 and Ontario College of Teachers v. Neumann, 2014 ONOCT 74. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in both instances.

Submissions of Member’s Counsel

Member’s Counsel submitted that publication with the name of the Member is not warranted in this case. According to Member’s Counsel, the Member’s misconduct was an isolated incident and it was unintentional. The purposes of penalty, including specific deterrence, general deterrence, and transparency will be met through the reprimand of the Member and the recording of the fact of the reprimand on the Register. There is no value added by publishing the Member’s name in the College’s official publication. Moreover, publication with name would prejudice the Member as she attempts to re-establish her teaching career.

Member’s Counsel referred the Committee to six cases: Ontario College of Teachers v. Venditti, 2016 ONOCT 53; Ontario College of Teachers v. Trueman, 2014 ONOCT 105; Ontario College of Teachers v. Milsap, 2013 LNONCTD 52; Ontario College of Teachers v. Richard, 2015 ONOCT 68; Ontario College of Teachers v. Legros-Stewart, 2014 ONOCT 57; and Ontario College of Teachers v. Naklicki, 2015 ONOCT 62. According to Member’s Counsel, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession. Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

Reply Submissions of College Counsel

With respect to the submission of Member’s Counsel that the conduct at issue was an isolated incident and not intentional, College Counsel replied that the Member’s conduct was of a very serious nature and the Member could have taken the necessary steps to prevent the incident.

College Counsel also disagreed with the submission of Member’s Counsel that the Committee should not rely on the cases presented by the College, and reiterated that the Member’s case is analogous to the cases presented in which publication with name was ordered.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the Member’s failure to provide adequate supervision and safety in the classroom warrants a reprimand by her peers. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that the course(s) of instruction regarding classroom management with emphasis on supervision and classroom safety will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in any classroom setting.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted, and would have been ordered even if the Committee still retained its discretion under the Act in this regard.² The Committee weighed the mitigating and aggravating factors presented by the parties. With respect to mitigating factors, the Committee accepts that the Member has had no prior history or subsequent incidents of misconduct. The Committee also accepts that the misconduct was not intentional.

The Committee finds, however, that the aggravating factors outweigh the mitigating factors. The Member could have taken the necessary steps to ensure the safety of her students. The Member failed to ensure that the students were reasonably protected from possible risks. The Committee finds that the Member’s misconduct was serious, and does not agree with Member’s Counsel that it was at the low end of the spectrum of professional misconduct.

Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds her accountable for her actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: January 9, 2017

Marie-Claude Yaacov Chair, Discipline Panel

Sara Nouini, OCT Member, Discipline Panel

Wes Vickers, OCT Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2While the Committee heard argument about publication and decided to publish the Member’s name, the Committee notes that Bill 37 received Royal Assent the day before the hearing on December 5, 2016, and as a result, the panel had no discretion to order publication without the member’s name on December 6, 2016.