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Education - Early Childhood Education Act, 2007. College of Early Childhood Educators v. Phillips
In College of Early Childhood Educators v. Phillips (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Discipline Committee of the College of Early Childhood Educators, here under s.38(1) of the Early Childhood Educators Act, 2007. In this quote, the court considers breach of trust as it aggravates professional discipline:[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. . College of Early Childhood Educators v. Phillips
In College of Early Childhood Educators v. Phillips (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Discipline Committee of the College of Early Childhood Educators, here under s.38(1) of the Early Childhood Educators Act, 2007 (ECEA). In these quotes the court reviews some cases of ECEA misconduct:[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.
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[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.
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[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. . College of Early Childhood Educators v. Phillips
In College of Early Childhood Educators v. Phillips (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Discipline Committee of the College of Early Childhood Educators, here under s.38(1) of the Early Childhood Educators Act, 2007. In this quote the court considers the standard of review for professional disciplinary decisions: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.
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