COURT FILE NO.: 410/06

DATE: 20070305

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ontario English Catholic Teachers’ Association

Applicant

-and-

Toronto Catholic District School Board

Respondent

HEARD: February 27, 2007

BEFORE: Lane J.

COUNSEL: Martin Sclisizzi, for the Respondent, moving party;

Paul J. Cavalluzzo, for the Applicant, responding on the motion.

E N D O R S E M E N T

[1] This is a motion by the respondent Board to strike out all or parts of the affidavit of Brenda Carrigan sworn 28 September, 2006 and filed by the applicant in support of its application for judicial review of the Interim Award of arbitrator R. L. Kennedy dated April 19, 2006 in the discharge grievance of Salvador Vizcaya, (the grievor).

[2] In June 2005, the Board terminated the employment of the grievor as a teacher on the basis of alleged unprofessional conduct on April 28, 2005 and on certain previous occasions, which had led to warnings that further incidents would lead to termination. The grievor grieved the termination seeking reinstatement, on the basis that there was no just cause for termination as the allegations were untrue. The grievance was referred to arbitration under section 49(1) of the Labour Relations Act, 1995 and arbitrator Kennedy was appointed. The hearing began on February 6, 2006 and continued on March 28, 2006. An Interim Award was issued on April 19, 2006. An Interim Award was necessary because the arbitration had been bifurcated. The extent of the bifurcation and the terms on which the hearing proceeded are issues addressed by the Carrigan affidavit.

[3] The general rule is that what is judicially reviewed is the record that was actually before the tribunal. There are rare and exceptional cases where that record may be supplemented. One such case is where the affidavit demonstrates that there was “an entire absence of evidence on which the Board could base a finding of fact on an essential point”.[^1] Another is to establish a breach of natural justice. These points will be addressed after a review of the facts.

[4] In the Interim Award, the arbitrator described the scope of the hearing at page 3:

It was the position of counsel for the Union in his opening statement that this case was about the issue of a culminating incident, and if no such incident were established on the evidence, then there was no basis for the dismissal and any past record was irrelevant. The hearing did proceed on the basis of an examination of the events of April 28, 2005 and whether on the evidence they constituted grounds for some response on the part of the Board.

[5] In his findings, the arbitrator stated that the thrust of the Union’s argument was that to find a culminating incident there had to be a finding of culpable conduct and that it was not sufficient for the grievor simply to fall below the Principal’s standards. Not every error in judgment amounted to culpable conduct. In his findings the arbitrator concluded that the incidents as alleged by the Board had occurred; that they called for a response from the Board; that a finding of culpability was a necessary implication from the evidence as he found it; and that he did not accept the argument of counsel for the Union that before the Board can take any action with respect to the grievor it must establish that the conduct of April 28th was in fact culpable conduct. There are standards that the Board is entitled to expect and on the evidence the grievor fell below those standards.

[6] Two things are clear from these passages. First, that the arbitrator did not believe that there was any agreement between the parties that there had to be a finding of culpable conduct to establish a culminating incident; he used the word “argument” repeatedly which is inconsistent with such a belief. The Association’s factum recognizes in paragraph 8 that there is no mention of the existence of such an agreement and that the references in the reasons are to the argument. Second, it is clear that the arbitrator actually made a finding of culpable conduct; it was a necessary implication from the evidence.

[7] The description of the scope of the hearing in the factum of the respondent Board essentially tracks the language of the arbitrator quoted above.

[8] The position of the applicant Association is significantly different. In its factum it submits that there was an agreement in language drawn from the Carrigan affidavit. The Carrigan affidavit is put forward in part to establish that there was such an agreement. The heart of this part of the affidavit is paragraph 8, which is tracked in the factum:

At the outset of the hearing, the parties further advised the arbitrator that [the grievor’s] termination from his employment as an occasional teacher was treated by the Board as a disciplinary discharge and that in terminating [the grievor’s] employment, the Board had concluded that the conduct constituting both the culminating incident and the prior conduct was culpable and therefore subject to discipline.

[9] The applicant takes the position that the arbitrator’s finding that the doctrine of culminating incident does not require a finding of culpable conduct is a breach of natural justice. It says that the issue was not before the arbitrator, by virtue of the agreement described above, and further, the arbitrator did not advise the parties that he intended to expand the inquiry into non-culpable conduct. For the reasons that follow, I reject this submission.

[10] One major difficulty with the applicant’s submission is that the reasons make it clear that whether the conduct had to be culpable or not was in fact debated in the argument. At page 10 of the reasons the arbitrator says that the thrust of the Union’s argument was that there had to be a finding of culpable conduct; that the conduct could not be culpable if the grievor did not act purposefully; that the Principal was not sure if the grievor’s acts showed a lack of skills or culpable conduct; and that the conflicts in the evidence were not that relevant as they did not resolve the issue of culpability. It is clear from this that the issue of whether the conduct had to be culpable or not was canvassed by counsel for the grievor. This is quite inconsistent with the existence of the agreement relied on.

[11] A second major difficulty is that the affidavit is vague on the question of whether the arbitrator was told there was an agreement. The affidavit asserts in paragraph 8 that the arbitrator was told that the Board had treated the termination as disciplinary and the Board had concluded that the conduct was culpable. It does not assert that there was any agreement that the question of the need for a finding of culpability was not before the arbitrator or that the Board could not assert and the arbitrator could not find that there was a right to terminate for non-culpable conduct.

[12] The third major difficulty with the submission that there has been a breach of natural justice is that there has as yet been no finding that this dismissal was justified in the circumstances. The arbitrator found that there was culpable conduct, and disagreed with the submission that such conduct was the only basis in law for taking action against the employee. The arbitrator held that the employer could take action against an employee for falling below the standards and norms which the Board was entitled to expect, both of conduct and of skill and ability. However, the arbitrator expressly stated that the onus remained on the Board to establish that the events of April 28th in the context of the grievor’s past service with the Board justified the Board’s choice of the response of dismissal. Since that question is still open, there has been no breach of natural justice as alleged, as the arbitrator did not find that the grievor was properly discharged for non-culpable conduct, but rather found that the Board had yet to prove that this response of dismissal was justifiable.

[13] The fourth difficulty is that the agreement asserted is an agreement not as to the facts, but as to the law. Whether the doctrine of culminating event applies only where the alleged culminating act is culpable is a question of law. Parties cannot agree on the law so as to bind a court or tribunal to their view; the law is the law and it is always open to the tribunal to determine what it is.

[14] The final difficulty with the affidavit as a basis for interfering with the Interim Award because of the arbitrator’s views on the law as to culminating event, is that he did make the finding of culpability, which the Union asserts is the only basis for invoking the culminating event doctrine. This finding does not raise a natural justice issue. It could not be beyond the expectation of the parties; the Union maintains in its material that the Board always argued that the conduct was culpable. The arbitrator did not, however, state any conclusion as to the suitability of dismissal as a remedy: that he properly left to the second phase hearing.

[15] In summary, the affidavit falls significantly short of alleging the agreement relied on; is inconsistent with the record from the arbitrator as to the arguments actually advanced by counsel; advances an agreement which it is not open to the parties to make; and fails to demonstrate a foundation for any breach of natural justice having occurred. The key issue in the case remains to be argued.

[16] In these circumstances, I return to the law as to the admission of affidavits such as this. They are to be admitted only rarely and in exceptional circumstances[^2]. Such circumstances may include disclosure of a breach of natural justice on which the record is silent or a complete absence of evidence on an essential point. For the reasons set out above, the affidavit does not raise a reasonable case that a breach of natural justice has occurred. Nor does the affidavit disclose that there is no evidence upon the crucial point of the grievor’s alleged comments to the students. It simply argues that the evidence on which the arbitrator relied, being hearsay, should not have been relied on by him.[^3] There was evidence that the students told the Principal about the language in the hearing of the grievor, although he denied that he heard it. It is for the arbitrator to determine the credibility of the Principal and the grievor in this regard as well as the weight to be given to the evidence. It cannot be said that this is an instance of “no evidence”.

[17] The final point made by the applicant is that the arbitrator did not draw an adverse inference from the failure of the respondent to call the students and, further, he accepted that there were valid political reasons for not getting the students involved. The drawing of an adverse inference is not automatic where potentially relevant evidence is not called. Here, the applicant knew who the students were and could have called them himself if he thought they would assist him. It was said that there was no evidence to support the “valid political reasons” why the respondent did not call them. That is true, although anyone familiar at all with schools would appreciate that the dynamics of calling on students against their teacher are problematic at best. But more to the point, such evidence is not necessary unless there was an obligation on the respondent to offer an explanation as to why the respondent did not call them. Where they were equally available to the applicant to call, there is no need for such an explanation.

[18] I conclude that this is not one of those rare occasions when the interests of justice require the admission of affidavit evidence.

[19] In paragraph 29 Ms. Carrigan states that she has seen instances where students have testified as to complaints. This evidence is irrelevant and also improper in the absence of leave to introduce fresh evidence.

[20] For these reasons, the entire Carrigan affidavit is irrelevant and inadmissible. It will be struck from the record and a fresh factum will be filed without reference to it.

[21] I cannot part with this case without observing that the whole application seems to be premature. The issue of discharge as an appropriate remedy in these circumstances has not been decided and the arbitration is only halfway done. This court has a long history of restraint in interfering with proceedings through judicial review until they are completed. It will be for the panel to consider if there is any merit to that view.

[22] Costs of today reserved to the panel.

DATE: March 5, 2007 Lane, J.

[^1]: Re Securicor and Ontario Labour Relations Board (1985) 1985 1978 (ON SC), 50 O.R. (2nd) 570 (Div. Ct.) per Henry J. at p. 571 g.

[^2]: Keeprite Workers’ Independent Union v Keeprite products Ltd. (1980) 29 O.R. (2nd) 514 (C.A.); Nunes v St Paul Fire and Marine Insurance Co [2004] O.J. No.1419 (Div. Ct.)

[^3]: Section 15(1) of the Statutory Powers Procedure Act R.S.O. 1990 c. S.22 permits hearsay evidence to be admitted although in some cases it may be a breach of natural justice: Lischka v Criminal Injuries Compensation Board (1982) 1982 1840 (ON SC), 37 O.R.(2nd) 134 (Div. Ct.)