College of Early Childhood Educators v. Phillips, 2023 ONSC 226

DIVISIONAL COURT FILE NO.: 159/22

DATE: 20230110

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: COLLEGE OF EARLY CHILDHOOD EDUCATORS Appellant

AND:

SOPHIA SHANAE PHILLIPS Respondent

BEFORE: Justices Stewart, Glustein, and Charney

COUNSEL: M. Jill Dougherty, for the appellant Raj Napal, for the respondent

HEARD by videoconference at Toronto: December 19, 2022

REASONS FOR DECISION

GLUSTEIN J.:

Overview

[1] The appellant, the College of Early Childhood Educators, appeals the Penalty Order dated February 15, 2022 made by a panel of the College’s Discipline Committee in respect of the respondent, Sophia Shanae Phillips, an early childhood educator (ECE).

[2] At a penalty hearing held on November 8, 2021 (the Penalty Hearing), the College sought revocation of Phillips’ license. Phillips asked the Panel to impose no penalty.

[3] The Panel released reasons for decision on penalty dated February 15, 2022 (the Penalty Decision). The Panel:

(i) reprimanded Phillips and suspended her certificate of registration for four months, to take effect from the date that Phillips reinstated her registration and to run without interruption as long as the College had not otherwise prohibited Phillips from practicing or otherwise suspended her for any other reason, and

(ii) imposed conditions requiring her to (a) complete courses before she could return to work “that cover the topics of professionalism, professional judgment, the duty to report and preventing sexual abuse” and (b) participate in a mentorship program.

[4] The College submits that the Panel erred in principle and imposed a clearly unfit penalty. The College asks this court to set aside the Penalty Order and remit the determination of penalty to the Panel, with directions. Phillips submits that this court should not interfere with the Penalty Order.

[5] For the reasons that follow, I would dismiss the appeal.

Facts

The misconduct findings

[6] In the summer of 2016, Phillips was employed at a childcare centre in Toronto (the Centre) as an ECE. An ECE assistant, SN, worked with Phillips in her preschool class.

[7] At various times during the day, Phillips’ class would combine with a class led by CM, who was also an ECE. Phillips, CM, and SN would be responsible for the combined group.

[8] The Panel held a hearing on November 16-18, 2020 into the alleged misconduct of CM and Phillips during the summer of 2016 (the Misconduct Hearing).

[9] The Panel addressed the alleged misconduct of CM and Phillips in separate reasons.

[10] With respect to CM, the Panel found that CM engaged in verbal, psychological and/or emotional, and sexual abuse of a child in her class at the Centre (the Child) by (i) making comments that the Child was “gay” or spelling out the word “g-a-y” with reference to the Child, (ii) encouraging the Child to expose himself in the presence of Centre staff and/or other children, (iii) instructing the Child to touch his genital area and/or touch the genital area of other children, and (iv) encouraging the Child to kiss other children on the lips and to lay on top of other children.

[11] With respect to Phillips, by decision dated June 22, 2021 (the Misconduct Decision), the Panel dismissed all allegations that Phillips had abused the Child. Consequently, the Panel dismissed the three specific allegations of abusive conduct (set out at paras. 5(b), 5(c), and 5(d) of the Notice of Hearing), as well as the professional standards charges related to the alleged abusive conduct (set out at paras. 5(e)(xi) and 5(e)(x)(xii) of the Notice of Hearing): Misconduct Decision, at para. 54.

[12] The Panel found that Phillips (i) failed to supervise the Child and (ii) breached standards of professional conduct, since she had “laughed at or otherwise encouraged CM’s conduct towards the Child”: Misconduct Decision, at p. 50.

[13] The Panel “did not find that [Phillips] sought to encourage CM’s behaviour but found that the fact of her laughing, whether uncomfortably or not, had the effect of encouraging CM’s behaviour”: Misconduct Decision, at p. 46.

[14] The Panel found that Phillips breached standards of practice, including failing to (i) provide a nurturing learning environment, (ii) ensure the best interests of the children remained paramount, (iii) maintain a safe and healthy learning environment, (iv) build a climate of trust, honesty, and respect in the workplace, and (v) establish and maintain clear and appropriate boundaries with children under her supervision: Misconduct Decision, at pp. 48-49.

[15] The Panel found that “[Phillips] acted in a manner that, having regard to the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional”: Misconduct Decision, at p. 54.

The Penalty Decision

[16] At the Penalty Hearing, the College sought revocation of Phillip’s license and did not propose any form of suspension as an alternative. Phillips asked the Panel to impose no penalty.

[17] The Panel issued the Penalty Decision summarized at paragraph 3 above, imposing a reprimand, four-month suspension, requirements for education and mentoring, and ordering Phillips to pay $6,600 in costs within three years of the order: Penalty Decision, at pp. 8-10.

[18] In the section entitled “Decision and Reasons on Penalty and Costs”, the Panel stated that it had “carefully considered the submissions of the parties, including the requirements of the Act and the following principles in determining an appropriate penalty for the Member” (cited verbatim at pp. 10-11 of the Penalty Decision):

(i) the nature of the misconduct and its severity,

(ii) the criteria of (a) public protection, (b) maintenance of the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest, (c) specific deterrence of the Member, i.e. deterring this Member from engaging in similar conduct again, (d) general deterrence of the profession, i.e. deterring other members of the profession from engaging in similar conduct, and (e) the member’s opportunity for rehabilitation, where appropriate,

(iii) the principle of consistency in penalty orders, and

(iv) any applicable aggravating and mitigating factors.

[19] The Panel discussed the following mitigating factors as relevant to its decision (cited verbatim at pp. 11-12 of the Penalty Decision):

(i) The Panel considered that the Member has not been practicing the profession for a significant time while this matter proceeded through the discipline process and reduced the suspension as a result.

(ii) [T]he Panel was of the view that the Member is not beyond rehabilitation and that a suspension, rather than revocation, was warranted in this case.

(iii) The Member in this case has been engaged throughout this process and has cooperated throughout the hearing process.

(iv) [T]he Panel considered the Member’s lack of experience, her status as a new immigrant and the influence of her more experienced and established colleague on the Member’s conduct in this case. Specifically, the Panel recognized that the Member may unfortunately have failed to fulfil her own professional obligations in relation to [CM’s] conduct as a result of having taken her lead from [CM].

[20] The Panel concluded, at p. 12 of the Penalty Decision:

In light of the aggravating and mitigating factors and the nature of the conduct in this case (which differed from that of all of the cases presented to the Panel), the Panel considered a four month suspension to be appropriate.

The College determined to proceed with allegations against Phillips on the basis that she abused the Child

[21] From the outset of the events at the Centre, the College took the position that Phillips had abused the Child.

[22] In July 2016, the Centre terminated Phillips on the basis of the allegation that Phillips had abused the Child. Within a month, the College issued a Registrar’s Complaint under s. 31(1)(c) of the Early Childhood Educators Act, 2007, S.O. 2007, c. 7, Sch. 8. The College alleged that Phillips had personally abused the Child.

[23] In a letter from her former counsel to the College dated April 26, 2017, Phillips vehemently denied all allegations of abusive conduct. The College maintained its position and unsuccessfully pursued those allegations at the Misconduct Hearing.

[24] Consequently, Phillips was required to defend extremely serious allegations of abuse of the Child, in addition to the allegations relating to failure to supervise the Child and breach of professional standards.

Standard of review

[25] Success on an appeal from a penalty decision requires the appellant to establish that the panel made an error in principle or that the penalty is clearly unfit. In Hirtle v. College of Nurses of Ontario, 2022 ONSC 1479, the court held, at para. 35:

With respect to the appeal from penalty, the appellant must show that the Panel made an error in principle or that the penalty was clearly unfit. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances: Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49 (Div. Ct.), at para. 82.

[26] In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, the court set out the “very high threshold” to establish that a penalty is “clearly unfit”, adopting expressions from criminal law sentencing case law such as “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure”: at para. 56. The court held that “[a] similarly high threshold applies in the administrative context”: at para. 57.

[27] The deference attached to penalty decisions reflects the specialized nature of professional tribunals who hear and consider the evidence as to misconduct and determine an appropriate penalty. “Assessing penalty is at the heart of the discretion of a professional panel”: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041, at para. 127.

[28] Consequently, an appellate court cannot set aside a penalty decision simply because it would have imposed a different penalty. An appellate court cannot reweigh the evidence considered by a panel who determines a penalty upon a finding of misconduct. Deference must be afforded in accordance with this established line of authority.

Issue

[29] The issue before the court is whether the College has established that the Penalty Order is clearly unfit or that the Panel erred in principle in its determination of the penalty.

Analysis

[30] I address below each of the grounds of appeal raised by the College.

Issue 1: Was the penalty inconsistent with the Panel’s misconduct findings?

[31] The College submits that the four-month penalty was inconsistent with the Panel’s findings in the Misconduct Decision.

[32] The College submits that the Panel improperly considered mitigating factors related to Phillips “lack of experience, her status as a new immigrant and taking her lead from CM’s actions”, which the College submits “underpinned the Panel’s reasoning for rejecting the College’s position with respect to revocation, and led the Panel to impose a suspension period of just four months”, when “[a] four-month suspension is at the low end of the range for cases featuring a simple failure to supervise and ignores the many other facets of this case”.

[33] The College further submits that the mentoring and education conditions imposed by the Panel “were not rationally connected to [Phillips’] misconduct”, since those conditions “seem to be premised on the assumption that the issues to be addressed and remediated by the penalty involved a lack of understanding and experience on the part of [Phillips], and/or the lack of a good role model”.

[34] Phillips submits that since the Panel did not find that she engaged in abusive conduct, the Panel had the discretion to find that a suspension was an appropriate penalty, and not revocation as sought by the College.

[35] Phillips further submits that the Panel properly considered evidence before it as to mitigating factors and in particular, that Phillips had not worked as an ECE for five years after being terminated by the Centre and becoming the subject of a Registrar’s Complaint, based on subsequently unproven allegations that Phillips abused the Child.

[36] The Panel recognized the “serious misconduct” of Phillips which was “deserving of a significant sanction”. However, that finding is not inconsistent with the four-month suspension ordered.

[37] At all times, the College sought revocation of Phillips’ license. The decisions relied upon by the College established that revocation was ordered when a member was found to have personally engaged in abusive behaviour or was ungovernable. The Panel correctly held that there was no case before it which addressed “the nature of the conduct” in the present case.

[38] Having found that Phillips engaged in serious misconduct, the Panel was then entitled to consider mitigating factors. In particular, the Panel considered the five-year period in which Phillips was unable to work. Phillips’ employment was immediately terminated by the Centre as a result of the allegation that she abused the Child.

[39] Phillips was then unable to renew her work permit, which hinged on her being employed or having an offer of employment.

[40] Finally, the Registrar’s Complaint was brought immediately after her dismissal, and raised the same charges of abuse against her.

[41] The College relies on Phillips’ evidence that she returned to Jamaica to take care of her daughter when Phillips’ mother (who had been taking care of Phillips’ daughter) passed away suddenly. However, if Phillips had been able to continue her career in Canada as an ECE, there is no evidence that she would have foregone that career to return to Jamaica. Therefore, the Panel could reasonably infer that Phillips would have worked as an ECE if she had been able to do so.

[42] Consequently, the Panel properly considered that Phillips was effectively unemployable as an ECE for five years because of her termination, not having a work permit, and the Registrar’s Complaint. All of these consequences arose from the allegations of personal abusive conduct ultimately rejected by the Panel in the Misconduct Decision.

[43] In effect, the Panel accepted, in part, Phillips’ written submission at the Penalty Hearing that she “has suffered enough at the hands of the College and [the Centre]. She should not be made to suffer anymore”, as a mitigating factor to reject revocation and impose a penalty at the lower end of the failure to supervise cases.

[44] The Panel stated in the Penalty Decision that it considered the “several cases [presented by the College] involving inadequate supervision where suspensions tended to the higher end of six and seven months and where revocation was ordered [but] did not find the circumstances in those cases to be similar to this case”. Based on the five-year work gap alone, it was within the Panel’s discretion to adopt the lower end of the four to seven month range of penalty cases before it.

[45] The Panel also considered other mitigating factors before it, including that Phillips was not “beyond rehabilitation” and was “engaged throughout this process and has cooperated throughout the hearing process”: Penalty Decision, at pp. 11-12. Considering these factors is not “inconsistent with the Panel’s misconduct findings”, contrary to the College’s submissions. The Panel took into account the “nature of the misconduct and its severity”, while at the same time considering “any applicable aggravating and mitigating factors”: Penalty Decision, at pp. 10-11.

[46] The Panel also found mitigating factors based on Phillips’ “lack of experience, her status as a new immigrant and the influence of her more experienced and established colleague”, along with Phillips “having taken her lead” from CM: Penalty Decision, at pp. 11-12.

[47] The College submits that (i) these mitigating factors “underpinned the Panel’s reasoning for rejecting the College’s position with respect to revocation, and led the Panel to impose a suspension period of just four months” and (ii) the evidence before the Panel did not support such findings. I do not agree with either submission.

[48] As I set out above, the effect of the five-year delay as well as Phillips’ cooperation with the College were significant underpinnings of the Panel’s decision to order a suspension at the lower end of the range in the cases provided by the College.

[49] In any event, I do not accept the College’s submission that the Panel should not have considered mitigating evidence as to Phillips’ lack of experience, her status as a new immigrant, or her taking her lead from CM’s actions.

[50] It was the College who asked Phillips on cross-examination at the Misconduct Hearing if she had laughed or not challenged CM because of her lack of experience, her status as a new immigrant, or her taking her lead from CM’s actions. The College submits that because Phillips did not accept that point on cross-examination at the Misconduct Hearing, she cannot rely on such factors at the Penalty Hearing.

[51] However, a member of a professional regulatory body is entitled to defend allegations on the basis that the member did not engage in the impugned conduct. It is axiomatic that in such circumstances the member could not lead evidence of mitigating factors as to why they engaged in the conduct when they are denying the impugned conduct altogether.

[52] In the present case, Phillips denied having seen CM engage in the impugned conduct.

[53] Once the Panel found that Phillips was aware of CM’s conduct, Phillips was entitled to present mitigating factors, including the factors suggested by the College in its cross-examination. Further, Phillips raised those factors in her penalty submissions without objection from the College. Consequently, the Panel could consider them as mitigating factors.

[54] Finally, once the Panel rejected revocation as an appropriate penalty, the mentoring and education conditions could assist Phillips in understanding her obligations as an ECE. I do not accept the College’s submission that such conditions are limited to situations when there is “a lack of understanding and experience on the part of the Member, and/or the lack of a good role model”.

[55] To the contrary, regardless of whether a member has a good role model, or whether the member understands proper professional conduct, mentorship and education can assist that member and serve the roles of rehabilitation, public protection, specific deterrence of the member, maintenance of the reputation and integrity of the profession, and public confidence in the College’s ability to regulate the profession in the public interest. These factors were considered by the Panel: Penalty Decision, at pp. 11-12.

[56] For the above reasons, the penalty imposed was not inconsistent with the Panel’s misconduct findings.

Issue 2: Did the Panel make findings in the absence of evidence?

[57] The College submits that there was no evidence before the Panel that Phillips’ conduct arose from her inexperience or her status as a new immigrant, and, in any event, those factors are not “an excuse for failing to report child abuse” since there was “ample evidence that [Phillips] was aware of her reporting obligations”. Consequently, the College submits that there was an absence of evidence and “[t]he Panel drew impermissible inferences about the significance of the Respondent’s inexperience as an ECE”.

[58] Phillips submits that the Panel was entitled to accept her submissions that these factors contributed to her conduct.

[59] As discussed above, the Panel was entitled to take Phillips’ inexperience or status as a new immigrant into account. It was the College who suggested in cross-examination that these factors could have influenced Phillips’ conduct. Phillips could rely on any reasonable inference as to why she would have laughed or chuckled at CM’s conduct, as she did in her penalty submissions.

[60] Further, the Panel considered other significant mitigating factors (particularly, the five-year period when Phillips could not work as an ECE due to the allegations that she personally engaged in abusive conduct).

[61] The Panel is an experienced and sophisticated tribunal with expertise in reviewing the conduct of the ECEs who appear before it. The Panel can draw inferences based on that expertise.

[62] Therefore, the Panel did not make findings in the absence of evidence.

Issue 3: Did the Panel misapprehend key evidence or draw erroneous inferences?

[63] The College submits that the Panel erred by “treating the period [Phillips was] away from practice as if it was related to the College proceedings”. The College relies on the evidence that “[Phillips’] employment was terminated by her employer, with no involvement by the College” and submits that Phillips “did not pursue a job as an ECE for reasons unrelated to the College proceedings”.

[64] Phillips submits that the Panel was entitled to consider the five-year period from her termination until the completion of the Misconduct and Penalty Hearings.

[65] As discussed above, beginning with the Registrar’s Complaint brought within a month of Phillips’ termination, the College sought Phillips’ revocation based on the allegation that Phillips had abused the Child. Those allegations were restated in the Notice of Hearing and remained outstanding until the Panel dismissed them in the Misconduct Decision.

[66] Having been terminated by the Centre based on allegations of abuse, and with the Registrar’s Complaint against Phillips raising the same allegations of abuse, it was reasonable for the Panel, with specialized knowledge and expertise in the ECE profession, to infer that Phillips could not work in the profession. The Panel was not required to accept the College’s submission that Phillips chose to “not pursue a job as an ECE for reasons unrelated to the College proceedings”.

[67] Further, the College submits that the Panel’s finding was improper because Phillips had not signed “an undertaking with the College not to practise” nor was “subject to an interim order that restricts the member’s right to practise”. I do not agree.

[68] It was within the Panel’s discretion to infer that once Phillips was terminated, lost her work permit, and was facing a Registrar’s Complaint, she could not obtain work as an ECE until the completion of the Misconduct Hearing and Penalty Hearings, even without having signed an undertaking or being subject to an interim order.

[69] For the above reasons, the Panel neither (i) misapprehended the evidence related to Phillips’ inability to work as an ECE from the date of her termination until the resolution of the Misconduct and Penalty Hearings, nor (ii) drew any erroneous inferences in that regard.

Issue 4: Did the Panel fail to apply the principle of proportionality?

[70] The College submits that the Panel “failed to properly apply the principle of proportionality by disregarding the case law with respect to the range of penalties imposed in cases involving comparable conduct”, since it “treated this like [sic] case a of inadequate supervision and applied a suspension period at the low end of the range for such cases”. I do not agree.

[71] An appellate court will find a penalty to be clearly unfit only if it is an unreasonable departure from the principle of proportionality such that the penalty is “demonstrably unfit”: Peirovy, at para. 56.

[72] The College submits that it “provided the Panel with cases where ECEs had engaged in conduct that was similar to the conduct engaged in by the Member”. However, the Panel did not agree that the cases relied upon by the College for revocation applied to the case before it: Penalty Decision, at p. 12.

[73] For the reasons that follow, I agree with the Panel. The revocation cases relied upon by the College were all distinguishable on the basis that the member had engaged directly in the abusive conduct (or in one case, was found to be ungovernable).

[74] Further, as the Panel held, “[t]he College presented several cases involving inadequate supervision where suspensions tended to the higher end of six and seven months”: Penalty Decision, at p. 12.

[75] The Panel did not find the circumstances in the higher suspension cases “to be similar to this case”. Thus, it applied the lower end of the range which it considered to be appropriate “[i]n light of the aggravating and mitigating factors and the nature of the conduct in this case (which differed from that of all of the cases presented to the Panel)”: Penalty Decision, at p. 12.

[76] The above approach was fully consistent with the principle of proportionality.

[77] The College submitted to the Panel that the suspension decisions it provided were not appropriate because (i) revocation should be ordered and (ii) in any event, the failure to supervise in the cases provided did not engage the same level of serious misconduct that the College submitted arose from Phillips’ conduct.

[78] Before this court, the College relied on several cases which it had relied upon at the Penalty Hearing to support its submission that the Penalty Decision was an unreasonable departure from the principle of proportionality. I address these cases below.

[79] In College of Early Childhood Educators v. Li, 2018 ONCECE 7, the member failed to supervise a child under three years old who left the room unnoticed. The child was later observed standing in the childcare centre’s parking lot. Until that point, the member had not noticed that the child was missing. Neither the member nor her teaching partner reported the incident to their supervisor. The member was suspended for three days without pay by the childcare centre: at paras. 2-6.

[80] In Li, the panel found that the member, like Phillips, had failed to supervise the child and failed to maintain many of the same standards that Phillips was found to have breached, including acting in a manner that “would reasonably be regarded by members as disgraceful, dishonourable or unprofessional”: at para. 7.

[81] In Li, the Panel imposed a four-month suspension, based on a joint penalty submission, including mentorship.

[82] The College submits that Phillips’ failure to supervise has a degree of “moral turpitude” distinguishable from the “inattention” which was the basis for the failure to supervise in Li.

[83] However, it is not “clear” that the Penalty Decision is a “substantial and marked departure” from the decision in Li. Both cases arose from a breach of a duty to supervise and a breach of professional standards.

[84] The seriousness of Phillips’ conduct was not minimized by the Panel, who found that Phillips (i) encouraged CM by laughing at her conduct, and (ii) failed to report CM’s conduct to her supervisor.

[85] On the other hand, the conduct of the ECE in Li “exposed the child to grave physical risk” (as found by the panel) by failing to notice that a young child was unattended in the childcare centre’s parking lot.

[86] It is not the role of this court to impose its own view as to the severity of the respective failures to supervise, unless it can be said that the Panel engaged in an unreasonable departure from the principle of proportionality. The failures to supervise in both Li and in the present case caused a dangerous situation to occur. The College has not established that the Panel’s penalty is an unreasonable departure from the penalty imposed in Li.

[87] Further, in Li, the employer suspended the member for only three days. In contrast, Phillips was immediately terminated and could not work for five years in the face of allegations of abusive conduct which were later dismissed. Different mitigation factors were entitled to be considered by the Panel.

[88] Consequently, the College has not satisfied its heavy onus to establish that the Penalty Decision was clearly unfit on the basis of Li.

[89] The College also relied on the decision in College of Early Educators v. Carrie ChunJuan Tan, 2021 ONCECE 1 to submit that the Penalty Order was clearly unfit because, as in Tan, a failure to supervise can lead to revocation even without a finding of abuse by the member.

[90] In Tan, the panel found a failure to supervise and a breach of standards, arising from a four-year-old child who was not accounted for in a headcount that should have taken place at 4:20 pm. The child then walked home alone for almost a kilometre. At 5:10 pm, the ECE noticed the child was missing but did not call the child’s parents, nor did she alert her centre’s manager. The panel in Tan noted that “[a]t approximately 5:30 p.m., the Child’s father called the Centre and the Member told him that she thought the Child had been picked up. At various times, the Member stated that the Child had gone home with the parents or a friend, even though she had not.” The member was immediately terminated by the childcare centre.

[91] The panel in Tan revoked the member’s license. However, the panel did so only because of the member’s “ungovernability” since she “refus[ed] to participate in the College’s discipline process” and demonstrated an “overall disregard for the College’s regulatory authority”.

[92] In the Penalty Decision, the Panel considered the Tan decision, and concluded, at p. 12:

In [Tan], the Member was considered ungovernable due to her lack of engagement with the discipline process. That was not the case in this matter and should not be applied in this case. The Member in this case has been engaged throughout this process and has cooperated throughout the hearing process.

[93] I agree with the above conclusion. The Tan decision does not establish that the Panel engaged in an unreasonable departure from the principle of proportionality.

[94] The College also relied on the decision in College of Early Educators v. Reid, 2015 ONCECE 1 (Reid (ECE)) to submit that the Panel’s decision in the present case is an unreasonable departure from similar cases.

[95] However, in Reid (ECE), revocation was ordered because the member directly engaged in sexually inappropriate conduct with her grade five and six students. The panel in that case found that the member (i) “discussed graphic sexual activities with grade five and six students”, (ii) “shared text messages with grade five and six students from a male friend that described how he wanted her sexually”, (iii) played “Truth or Dare” with the students and “dared students to kiss each other”, and (iv) shared stories about partying, drinking beer and whisky, getting drunk, and falling out of the back of a moving truck: at pp. 3-4.

[96] There is no obligation on a panel to refer in its reasons to every case relied upon by counsel. While the Panel did not refer to Reid (ECE) in its reasons, it would not be demonstrably unreasonable for a panel to conclude that the highly inappropriate sexualized conduct by the member in Reid (ECE) is not similar to Phillips’ conduct.

[97] Given that the Panel did not accept the allegations of abusive conduct by Phillips, none of the revocation cases relied upon by the College applied. Instead, the Panel had before it cases which involved a failure to supervise and breach of professional standards, with a suspension range of between four and seven months, with findings similar to those against Phillips (albeit under different facts).

[98] The Panel considered the facts and the mitigating circumstances and chose a suspension period in the lower end of the range of failure to supervise/breach of professional standards cases provided by the College at the Penalty Hearing.

[99] For the above reasons, the College has not established that the Panel failed to apply the principle of proportionality or engaged in an unreasonable departure from prior penalty cases.

Issue 5: Did the Panel disregard the College’s position with respect to the Member’s breach of trust?

[100] The College submits that the Panel disregarded the law which requires a breach of trust to be treated as a significant aggravating factor in determining the appropriate penalty.

[101] Phillips submits that the Panel (i) understood that Phillips, like any ECE, is in a position of trust with the children in her class, and (ii) considered that relationship as part of its penalty.

[102] For the reasons that follow, I agree with Phillips.

[103] It is settled law that a breach of trust is to be treated as a significant aggravating factor in determining the appropriate penalty: R. v. M.M., 2022 ONCA 441, at para. 17.

[104] Further, teachers (and by analogy, ECEs) are “the trustees of the most precious possession of the community and must be held strictly accountable for any breach of that trust”: R. v. Lysack, [1988] O.J. No. 287 (Ont. C.A.), at para. 5.

[105] In many cases involving an ECE’s failure to supervise or breach of professional standards, there is a breach of the trust relationship. Whether it is the more obvious case of direct physical, verbal, or sexual abuse (as in the revocation cases relied upon by the College) or in the failure to supervise cases such as Li, Tan, and the present case, the member’s breach violates the trust required in the relationship between an ECE and a child.

[106] In the Misconduct Reasons, the Panel recognized that Phillip’s conduct resulted in a breach of trust. The Panel noted in the Misconduct Decision that (quoted verbatim):

(i) These standards [which Phillips breached] are meant to make the environment in which children are supervised, safe, nurturing, caring, developmentally appropriate and trusted by children and their families: Misconduct Decision, at p. 50; and

(ii) The Member failed to build a climate of trust, honesty, and respect in the workplace, contrary to Standard IV.C.2 of the Standards of Practice: Misconduct Decision, at p. 52.

[107] Consequently, the Panel understood the existence of a trust relationship between Phillips and the Child, just as it arises generally between an ECE and both the children in the class and the parents who entrust the care of their children to the ECE.

[108] In the revocation cases relied upon by the College before the Panel at the Penalty Hearing, and before this court in their factum, the revocation of the ECE’s license was ordered because the member engaged directly in serious misconduct. By way of example:

(i) In College of Early Childhood Educators v. Bridget Theobald, 2013 ONCECE 2, the member was engaged in child pornography.

(ii) In College of Early Childhood Educators v. Daniel Robert Harker, 2020 ONCECE 4, the member engaged in sexual interference on three girls, two aged 6 and one aged 8 on multiple occasions while caring for the children in their house.

(iii) In College of Early Childhood Educators v. Jill Wendy Walsh, 2020 ONCECE 11, the member committed an assault on a child causing injury.

[109] The above cases involve egregious breaches of trust committed by ECEs whose licenses were revoked.

[110] However, there is no basis for this court to find that the Panel disregarded Phillip’s breach of trust. The Misconduct Decision demonstrates otherwise. Further, there is no authority before this court that the only available sanction for any breach of trust is revocation, or a minimum suspension greater than four months. The facts of each case must be considered to determine the appropriate penalty.

Order and costs

[111] For the above reasons, I would dismiss the appeal. The parties agreed to each bear their own costs of the appeal and I would so order.

GLUSTEIN J.

I agree STEWART J.

I agree CHARNEY J.

Date: 20230110