Non-Existent Mitigating Factors

Can a registrant rely on mitigating factors that they earlier argued do not exist? That issue arose in College of Early Childhood Educators v. Phillips, 2023 ONSC 226 (CanLII). The registrant (an early childhood educator) was found to have condoned abusive conduct by a colleague. The colleague had taunted children with homophobic language and encouraged them to engage in sexualized behaviour. The registrant denied laughing at the conduct or failing to report it to a supervisor. During the hearing the registrant was cross-examined on the proposition that she failed to respond appropriately because she lacked experience, was a new immigrant, and was influenced by her more experienced and established colleague. The registrant denied those assertions. When the allegations were found to have been established, the registrant raised those same propositions as mitigating factors during the sanction phase. The hearing panel imposed a four-month suspension along with remedial measures despite the regulator’s submission that revocation was the most appropriate order. The regulator appealed the sanction.

The Court upheld the panel’s order indicating that a registrant is entitled to deny allegations and not have that denial used against them during the sanction phase should a finding be made against them. These were proper mitigating factors that were raised in evidence by the regulator’s own questioning of the registrant. Even in the absence of affirmative evidence that the registrant condoned the conduct for those reasons, it was open to the hearing panel to use its expertise to infer that those considerations played a role.

The Court also supported the hearing panel’s inference that the registrant was effectively prevented from practising her profession for five years because of the proceedings which included assertions, ultimately not established, that the registrant had participated in the abuse rather than simply condoning it.

The Court also concluded that previous cases relating to registrants who had actually perpetuated abuse, did not fully apply to the issue of condoning abuse, even though there were some common elements such as breach of trust and lack of supervision. The Court said the hearing panel had properly distinguished those cases.

The Court also indicated that the remedial measures ordered can serve valid sanctioning goals (e.g., rehabilitation, specific deterrence, public confidence) even where the registrant’s misconduct does not flow from a lack of understanding or experience.

This case illustrates the deference courts generally bring to sanctioning decisions of regulators, including the proper use of the hearing panel’s expertise.

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