Ontario College of Teachers v. Phillips, 2023 ONOCT 82

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Phillips 2023 ONOCT 82

Date: 2023-12-18

DECISION, REASONS FOR DECISION AND ORDER

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

Ralph Kenneth Robert Phillips, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RALPH KENNETH ROBERT PHILLIPS (REGISTRATION #501713)

PANEL: Hanno Weinberger, OCT, Chair Lois Figg Kelly Marvin, OCT

HEARD: November 28, 2023

Lisa Feinberg, for the Ontario College of Teachers

Kristen Allen, for Ralph Kenneth Robert Phillips

Julie Maciura, 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 28, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Ralph Kenneth Robert Phillips (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated August 5, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:

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

(b) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);²

(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);³

(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).

5The allegations against the Member in the Notice of Hearing dated March 6, 2023 (Exhibit 2)⁴ are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:

(a) 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);

(b) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

6On consent of the parties, the Panel agreed to proceed with a single hearing to address the allegations set out in these Notices of Hearing, in accordance with subsection 9.1(1)(b) of the Statutory Powers Procedure Act.

C. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides the following:

1. At all material times, Ralph Kenneth Robert Phillips was a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed as a teacher by the Toronto District School Board (“TDSB”). During the 2017-2018 school year, the Member was assigned to work as a teacher at the [XXX] (“[XXX]”), an alternative program with the [XXX] Department.

3. From approximately 2009 until the events described below, the Member worked with another teacher at [XXX] who was female (“Person A”). Both the Member and Person A worked under the direction of a Principal assigned to the alternative schools programs. The Member had no authority to confer, grant, or deny a benefit or advancement to Person A with respect to her employment.

4. In addition to being colleagues, the Member and Person A were friends who socialized outside of the workplace.

Inappropriate Physical Contact – November 18, 2016

5. Person A invited the Member and another co-worker, a mutual close friend, to her home for dinner and drinks on the evening of Friday, November 18, 2016. The evening was not sponsored or otherwise supported by the TDSB, but was organized by Person A to thank her colleagues for supporting her while she was [XXX]. Person A’s partner, who was not an employee of the TDSB, joined them for dinner when he finished his work at around 9:30 p.m.

6. The Member arrived at Person A’s home at approximately 6:00pm. He had consumed two alcoholic drinks before he arrived. During the course of the evening of November 18, 2016, and while still at Person A’s home, the Member, Person A, and their coworker all consumed a significant quantity of alcoholic drinks.

7. At approximately 11:45 pm., after their coworker had left, Person A’s partner went to bed. Person A and the Member went for a walk in nearby [XXX]. Person A prepared further alcoholic drinks for both herself and the Member to take on the walk. Person A and the Member walked around for over an hour, during which they spoke of personal matters.

8. At the end of the walk, Person A suggested they go to a local bar called the [XXX] for a drink. The Member agreed.

9. On the walk to the bar, Person A and the Member walked arm in arm. During the walk, the Member put his hand in Person A’s back pants pocket. The Member did not obtain Person A’s consent before placing his hand in the back of her pocket. The Member acknowledges that this contact was intimate and not welcomed by Person A.

10. Person A and the Member arrived at the bar at approximately 1:00 am. They ordered drinks and went over to the jukebox. Person A selected the songs to play.

11. Person A and the Member danced, first to a fast song and then to a slow song. The Member rubbed Person A’s back while dancing. The Member did not obtain Person A’s consent to rub her back. The Member acknowledges that the contact was intimate and was not welcomed by Person A.

Events Following November 18, 2016

12. On November 19, 2016, the Member left Person A a voice mail message apologizing about having crossed a boundary the night before. Person A texted the Member acknowledging receipt of the message but saying that she was “still trying to process” what had happened. The Member again apologized, saying it was “bothering” him since he “got some of my memory back.”

13. On November 26, 2016, Person A told the Member that she no longer felt safe around him, because the Member touched her inappropriately without her consent. The Member responded by expressing regret for his acts and took responsibility for not obtaining Person A’s explicit verbal consent.

14. On November 26, 2016, the Member went on a medical leave of absence from his position at [XXX].

15. In September 2017, the Member returned to work at a new job site with the DA Morrison Attendance Program.

16. As a result of an investigation into Person A’s allegations by the Board, on May 30, 2018, the Member was issued a letter of discipline and required to take boundary courses, and, effective September 4, 2018, was transferred out of the [XXX] Department. The Member completed a professional boundaries course in February 2018.

17. The Member and Person A no longer work in the same school and have no contact at work.

PLEA OF NO CONTEST

18. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1 to 17 above (the “Uncontested Facts”).

19. The Member hereby acknowledges that paragraphs 9-11 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against him, being more particularly:

(a) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional,⁵ contrary to Ontario Regulation 437/97, subsection 1(18); and

(b) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

20. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that 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 otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(f) he understands that any agreement between him and the College with respect to the penalty proposed 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.

21. 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.

22. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

8Counsel for the College requested that the Notice of Hearing dated March 6, 2023 be withdrawn in its entirety because its allegations could not be established based on the Statement of Uncontested Facts and Plea of No Contest (Exhibit 3). College Counsel further requested that the allegations of professional misconduct outlined in paragraphs (a), (b), and (c) of the Notice of Hearing dated August 5, 2019, namely that the Member contravened subsections 1(5); 1(14); and 1(15) of Ontario Regulation 437/97, be withdrawn, given that the Member’s misconduct was not specifically related to the school setting and therefore would better be characterized under the remaining heads of misconduct. The Panel granted these requests.

9Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 28, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19). With respect to subsection 1(18), the Panel is of the view that the Member’s conduct rises to the level of “unprofessional” only.

E. REASONS FOR DECISION

10The Member did not contest the facts and exhibits referred to in paragraphs 1 to 17 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that paragraphs 9 to 11 of the Uncontested Facts constitute professional misconduct under the heads of misconduct set out above. The Uncontested Facts demonstrate that the Member touched Person A inappropriately twice, without her consent.

11The Panel finds 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). The terms disgraceful, dishonourable and unprofessional are not legislatively defined, but are understood to be disjunctive and in a decreasing level of seriousness. Disgraceful conduct is characterized as reprehensible and the most egregious. It is conduct that casts serious doubt on a member’s moral fitness to uphold their duties and responsibilities as a member of the profession. Dishonourable conduct also infers an element of a moral failing, but is less serious than disgraceful conduct. Conduct characterized as unprofessional does not indicate a moral failing, but rather, involves acts that display poor professional judgment. The Panel finds that the Member’s conduct did not rise to the level of disgraceful or dishonourable conduct and would reasonably be regarded by members as unprofessional only. On two occasions in one night, the Member touched Person A in an intimate manner, without her consent. He placed his hand in the back of Person A’s pocket and rubbed her back while dancing with her. The Member acknowledged that his contact was not welcomed by Person A. Members hold a privileged and unique position of trust and authority in their communities and are therefore expected to serve as role models. They are expected to demonstrate respect for others’ boundaries. In failing to meet these expectations, the Member demonstrated a lack of professional judgment. Although the Member’s conduct was inappropriate and unprofessional, the Panel finds that it does not rise to the high level of disgraceful and dishonourable conduct. The circumstances of his misconduct and his acts are clearly distinguishable from other kinds of misconduct that have been more aptly characterized as disgraceful or dishonourable. The Member’s misconduct does not involve factors that are more commonly associated with a moral failing, such as dishonesty, deceit or fraud, and is not comparably severe to be characterized as such. As such, it is appropriate to find that the Member committed acts that would reasonably be regarded by members as unprofessional only.

12The Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The Member’s misconduct undermined the reputation of the teaching profession and violated the trust that the public, parents, students and members of the school community place in teachers.

F. PENALTY Decision

13The parties entered into a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on November 28, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered electronically, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two (2) months commencing on the 15th calendar day following the date of the Oral Decision and the Order of the Discipline Committee relating to this matter. If the Oral Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st; and

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding professional relations and boundaries, subject to the following conditions:

(i) the Member shall provide the course practitioner approved by the Registrar a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course 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 to be undertaken by the Member and the assignments to be completed by the Member; and

(b) within 30 days of his completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

14The Panel accepts the penalty jointly proposed by the parties. However, the Panel had some reluctance in doing so, as the Panel believes that this penalty is on the high end of the range of reasonable outcomes, given the circumstances of the Member’s case.

15The Panel has closely considered the cases presented by the parties at the hearing. In large part, the cases that were provided by the parties were not of great assistance to the Panel in reaching its conclusion, The facts of the cases shared some similarities with this case, but most differed in important respects. The Panel has considered the following cases: Ontario College of Teachers v. Ashwin, 2021 ONOCT 13; Ontario College of Teachers v. Béarez, 2019 ONOCT 17; Ontario College of Teachers v. Forndran, 2022 ONOCT 31; Ontario College of Teachers v. Merolle, 2023 ONSC 3453; Ontario College of Teachers v. Tye, 2022 ONOCT 23; Ontario College of Teachers v. Bergin, 2018 ONOCT 29; Ontario College of Teachers v. Campbell, 2022 ONOCT 103; and Ontario College of Teachers v. Elken, 2021 ONOCT 120.

16Many of the cases presented some analogous facts, such as the nature of the offence being that of inappropriate behaviour towards colleagues and the mitigating factor of the members not contesting their misconduct, which saved the time and expense of a contested hearing. However, upon further comparative analysis, the Panel found some considerable differences in the Member’s case. First, the Member’s misconduct was not indicative of a pattern of inappropriate behaviour. The offence occurred on one night during a social event that was not sponsored by the Board or directly related to the teaching workplace. Second, the Member’s misconduct did not involve or have any impact on students. Finally, the nature of the Member’s longstanding relationship with Person A was that of a peer and a friend; the Member was not in a position of authority. Furthermore, the Panel finds it mitigating that the Member expressed remorse the day after, apologized to Person A multiple times, and took accountability for his actions, all within his own volition. The Panel also found it mitigating that within the six years that have passed since his misconduct, the Member already completed relevant coursework from the Board. Lastly, the Member has not been the subject of discipline proceedings in the past.

17Many of the factors mentioned are unique to the Member’s circumstances and distinguish his case from the caselaw presented, especially the cases where members received the same penalty that was jointly submitted by the parties. For instance, in Campbell, the member received a reprimand, a 2-month suspension, and coursework, even though there are aggravating factors that were not present in this case – the member was a Principal and was found to have made inappropriate comments and engaged in inappropriate behaviour towards four teachers over the course of several months. The Member’s misconduct also occurred at the school. The member’s comments and conduct were often demeaning and objectifying in nature, and constituted workplace harassment and gender-based discrimination. Similarly, the member in Bergin also received the same penalty, even though the misconduct was more serious – he had led his colleague into a windowless storage room at school and then touched his colleague inappropriately. Unlike these cases, the Member did not engage in a pattern of inappropriate behaviour with multiple people over a period of time, he was not in a position of authority, and he did not lure his colleague with the intent of touching her inappropriately. In light of such distinguishing factors, the Panel is of the opinion that the proposed joint submission is on the high end of the range of reasonable penalties. Even after considering the aggravating factors in the Member’s case, namely the fact that the Member touched Person A without her consent more than once; and the uncontested fact that his conduct had a negative effect on Person A, the Panel finds that the penalty proposed is quite severe.

18However, the Panel recognizes that the Joint Submission on Penalty is the result of negotiations between two adversarial parties. College Counsel and Member’s Counsel are both highly knowledgeable about the circumstances of their respective positions. College Counsel focuses on the public interest and Member’s Counsel focuses on his client’s interests. They are together well-placed and can generally be relied upon to arrive at a joint submission that reflects both interests. The Panel recognizes that it must give joint submissions a high degree of deference. Once the Panel ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining 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.⁶ A rejection of the joint submission would require a finding that the proposed penalty is so unhinged that it would bring the administration of the discipline process into disrepute. Although the Panel is concerned that the proposed penalty is on the high end of what would be reasonable in the Member’s circumstances, it is not of the belief that this penalty reaches the level of unhinged and would warrant a rejection of the parties’ joint submission. The Panel is satisfied that, in the full context of this proceeding, the public interest is satisfied by accepting the joint submission. As such, the Panel accepts the penalty proposed and makes an order in accordance with those terms.

19The Panel finds that the Member’s misconduct in touching Person A intimately without her consent, warrants a reprimand. Members are expected to act professionally and maintain respectful, professional boundaries with their colleagues. The Member failed to do this when he touched Person A inappropriately twice in one night without her consent. The reprimand will allow the Panel 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.

20Given the facts of this case, the Panel accepts the parties’ submission that a two-month suspension is appropriate. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on December 13, 2023, which is 15 days after the Panel’s Oral Decision and Order.

21The Panel finds that the course of instruction regarding professional relations and boundaries will assist in the continued rehabilitation of the Member. Although the Panel had reservations about ordering the Member to repeat coursework similar to what he had previously completed in February 2018, the Panel accepts that the coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

22The Panel accepts the parties’ submissions that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3Allegation withdrawn at the request of College Counsel.
4. 4Notice of Hearing withdrawn at the request of College Counsel
5. 5The Statement of Uncontested Facts and Plea of No Contest was amended by the parties during the hearing to reflect the Member pleading no contest to the entirety of subsection 1(18) of Ontario Regulation 437/97, and not only “unprofessional,” as originally written.
6. 6See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; Bradley v. Ontario College of Teachers, 2021 ONSC 2303; and Ontario College of Teachers v. Merolle, 2023 ONSC 3453.