DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDERS
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
Mark Harold Eugene Phillips, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
Mark Harold Eugene Phillips (REGISTRATION # 495277)
PANEL: Stéphane Vallée, OCT, Chair
Benoît Dussault, OCT
Marlène Marwah
HEARD: July 22, 2019
Christine Lonsdale of McCarthy Tétrault LLP, for Ontario College of Teachers
Jean-Michel Corbeil of Goldblatt Partners LLP, for Mark Harold Eugene Phillips
Renée A. Kopp of Jones Litigation Counsel PC, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 22, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated May 22, 2018 (Exhibit 1) was served on Mark Harold Eugene Phillips (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the charges. The hearing was subsequently set for July 22, 2019.
With the College’s permission, the Member attended the hearing by conference call, and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Mark Harold Eugene Phillips is guilty of professional misconduct as defined in 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 failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(c) 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);
(d) 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);
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
STATEMENT OF UNCONTESTED FACTS
Counsel for the College introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
The Member is a member of the College. Attached as “Exhibit A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Conseil scolaire catholique Providence (the “Board”) as a learning consultant.
During the period in question, Person 1 was a [XXX] employed by the Board. During the period in question, Person 2 was a teacher employed by the Board.
From November 6 to 8, 2016, the Ontario School Counsellors’ Association held a conference at a hotel in [XXX]. Approximately 20 of the Board’s employees attended the conference, including the Member, Person 1 and Person 2. Employees from other Ontario school boards also attended.
On the evening of Sunday, November 6, 2016, the Member and other participants attended a social event at the hotel. The Member drank a great deal of alcohol.
Person 1 and Person 2 also attended the social event on the evening of November 6, 2016. After leaving the event, they went to the hotel elevators. The Member was there as well. He invited Person 1 and Person 2 up to his room. The women declined and all three of them got into the elevator.
The women went to Person 1’s room, located on the same floor as the Member’s.
When Person 2 opened the door of Person 1’s room to go to her own room, the Member was at the door. He pushed the door open and entered the room. He groped Person 1’s buttocks, through her clothing. He then slid his hand behind Person 2 and touched her genitals, through her clothing. Another conference-goer came into the room and escorted the Member out.
After the conference, the Board conducted an investigation. On December 1, 2016, the Member received a discipline letter and was suspended without pay for two weeks. The Board ordered the Member to receive sexual harassment counselling. A copy of the Board’s letter dated December 1, 2016 is attached in Appendix B.
On December 21, 2016, the Member’s bargaining agent, the Association des enseignantes et des enseignants franco-ontariens (“AEFO”), filed an individual grievance on the Member’s behalf contesting the disciplinary measure imposed by the Board. On April 15, 2019, AEFO and the Board ratified a memorandum of agreement reached through dispute resolution. A copy of the Memorandum of Agreement dated April 15, 2019 is attached in Appendix C.
The Member has been a teacher with the Board since September 2017.
PLEA OF NO CONTEST
By this document1, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the aforementioned Uncontested Facts constitute professional misconduct and pleads no contest to the allegations of professional misconduct against him, particularly the breaches of Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19).
By this document the Member states that:
(a) he understands fully the nature of the allegations of professional misconduct 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 Discipline Committee’s decision and reasons will be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, will be published in Professionally Speaking/Pour parler profession, the official publication of the College;
(e) he understands that any agreement between him and Counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) 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 and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Act, 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 aforementioned Uncontested Facts and plea of no contest, the College and the Member submit that the Committee should find the Member guilty of professional misconduct.
DECISION
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions by the parties, the Committee rendered an oral decision on July 22, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1 to 11 of the Statement of Uncontested Facts and Plea of No Contest. He acknowledged and the Committee accepts that the Uncontested Facts constitute professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19).
Paragraphs 4, 5, 6 and 8 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 4, 5, 6 and 8 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14).
Paragraphs 4, 5, 6 and 8 of the Statement of Uncontested Facts and Plea of No Contest 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 4, 5, 6 and 8 of the Statement of Uncontested Facts and Plea of No Contest 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).
Paragraphs 4, 5, 6 and 8 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
direct that the Member appear before the Committee within six months after the date of the order to receive an oral reprimand which will be delivered at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and that the fact of the reprimand be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct that the Registrar suspend the Member’s Certificate of Qualification and Registration for a period of four months commencing on the 15^th^ calendar day following the date of the Oral Decision of the Committee relating to this matter, and that the fact of the suspension be recorded on the Register;
direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, which will be recorded on the Register:
(a) Within 90 days following the date of the Committee’s Order, the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, including the ethical implications of excessive consumption of alcohol in a professional setting, and that satisfies the following conditions:
(i) the Member shall provide a Registrar-approved course provider with a copy of the Statement of Uncontested Facts and Plea of No Contest, the Joint Submission on Penalty entered into evidence at the hearing into this matter, and the Decision and Reasons of the Discipline Committee;
(ii) after a review of the documents referred to in (i), above, the course provider shall submit to the Registrar, for his approval, a curriculum for the proposed course which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The curriculum proposed by the course provider shall also specify the length of said course and describe the course objectives;
(b) Within 30 days following his completion of the course outlined in (a) above, the Member shall provide the Registrar with proof in writing from the course provider stating that:
(i) the Member has successfully completed the course, and describing the Member’s progress with respect to the course objectives.
At the hearing, the parties informed the Committee that they had reached an agreement allowing the Member to receive the oral reprimand by telephone immediately following the hearing.
PENALTY DECISION
In an oral decision rendered on July 22, 2019, the Committee accepted the Joint Submission on Penalty presented by the parties and the parties’ agreement to allow the Member to receive the oral reprimand by telephone, and made an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that the law confines the Committee’s role to determining only whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. 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 penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Bergin, 2018 ONOCT 29, Ontario College of Teachers v. Allam, 2017 ONOCT 86 and Ontario College of Teachers v. Béarez, 2019 ONOCT 17.
The Committee finds that the Member’s inappropriate conduct warrants a reprimand by his peers. The Member drank heavily during an evening social event at a professional conference and then sexually harassed two colleagues by touching them inappropriately. This conduct shows poor professional judgment. Members of the profession are expected to treat their colleagues with respect. The reprimand will allow the Committee to express its concerns directly to the Member, which will serve as a specific deterrent. Recording the fact of the reprimand on the Register is important because it will serve as a general deterrent to other members of the profession.
The Committee finds that a four-month suspension is appropriate under the circumstances. The College takes sexual harassment very seriously. The fact that the Member’s actions occurred during a social event at a professional conference excuses neither his drinking to excess nor his inappropriate behaviour towards his colleagues.
The Committee finds that the course on professional ethics which incorporates the ethical implications of excessive consumption of alcohol in a professional setting will contribute to the Member’s rehabilitation process. It will remind him of his obligations as a teacher and will help him to make better decisions in his future interactions with his colleagues in social settings.
The Committee is satisfied that the penalty is fitting in the circumstances and serves and protects the public interest.
Date: July 22, 2019
Stéphane Vallée, OCT
Chair, Discipline Panel
______________________________ Benoît Dussault, OCT
Member, Discipline Panel
Marlène Marwah
Member, Discipline Panel