COURT FILE NO.: 445/08

DATE: 20090115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, swinton AND bellamy JJ.

B E T W E E N:

SIMCOE COUNTY DISTRICT SCHOOL BOARD

Applicant

• and -

ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION

Respondent

Christopher G. Riggs Q.C. and Frank J.. Cesario, for the Applicant

Joshua Phillips and Anthony Singleton, for the Respondent

HEARD at Toronto: January 6, 2009

SWINTON J.:

Overview

1The Simcoe County District School Board (“the Board”) applies for judicial review of an arbitration award dated August 12, 2008, which reinstated a teacher (the “grievor”) with full seniority but without compensation. Effectively, the penalty was a suspension without pay of four and one half years. At issue in this application for judicial review is the reasonableness of the order of reinstatement.

Background Facts

2The grievor taught in the Life Skills program at Twin Lakes Secondary School in Orillia. Life Skills is a program for students between the ages of 14 and 21 years who have physical and/or mental challenges. The students are very vulnerable and require constant individualized attention. Some are non-verbal and function at a young age level. In addition to the grievor, three or four educational assistants worked with the class.

3The grievor was hired in 1999 to develop the Life Skills program, and she ran it until she was suspended in December, 2003 because of allegations that she had acted in an unprofessional manner and had treated students in a physically and verbally abusive manner. Her employment was terminated on January 28, 2004.

4As a result of a grievance, a three-person arbitration board was constituted, and it held hearings lasting 30 days between March 2006 and May 2008. This included 25 days of evidence and five days of submissions.

5The Chair of the arbitration board issued lengthy reasons on August 12, 2008. He found that the Board had proved three allegations of misconduct, but had not proven a number of other allegations. Specifically, he found that the grievor had had an inappropriate argument with student J in January 2003 during a class trip to a skating rink. The grievor had ordered J to dispose of a cup left on a table, while J disputed that the cup was his. The Chair also found that there had been unnecessary physical contact with J, but he made no finding as to the severity of the contact, given conflicting testimony.

6The Chair also found that there were two incidents of misconduct with student V. One occurred in January 2003, when the class was at the skating rink, and V was essentially put in a “time out” in the kitchen for more than one hour. The Chair found the conduct of the grievor to be “improper and unjustified”. He also found that there was a physical confrontation between the grievor and V, but it was not as violent as another witness testified.

7The Chair found that there was serious professional misconduct in the grievor’s treatment of V one morning in March 2003, when V did not stand for the National Anthem. The grievor yelled at V, pulled her to her feet and took her to a study carrel for a time out. The Chair preferred the evidence of other witnesses to that of the grievor and found

there was no justification for the application of physical force to V or for the use of loud and aggressive language, and for blowing out of proportion what she perceived to be defiance of her rules and herself. (Reasons, p. 41)

8The Chair concluded that the grievor’s conduct warranted a “significant disciplinary response” by the Board, but not termination of employment. He specifically stated (at p. 50 of the Reasons):

There can be no question that the Grievor’s treatment of V on January 9 and March 24, and of J in late January was unprofessional and inappropriate, considering the nature of the students and the Grievor’s obvious knowledge, experience, and normal dedication.

9The Chair went on to consider what he called the “background circumstances” and concluded that the Board had not established just cause for discharge. He commented on the excellence of the Life Skills program that the grievor had established. He took into account the tensions between the grievor and other staff that had developed in the school when a second Life Skills class was created in the fall of 2002. He found the school administration failed to address those tensions in a timely manner or to provide counselling and intervention to deal with the situation. He took into account that the conduct occurred during a stressful time for the grievor, and that she was aware of her need to communicate and develop a better relationship with other staff.

10The Chair expressed concern that the grievor was reluctant to admit there was anything wrong or unprofessional in anything she did. However, he commented on the grievor’s potential to excel as a teacher. Both counsel had agreed that the grievor had no intent to cause harm to any student. The Chair found there was no evidence of actual harm to any student, although there was evidence that the grievor may have caused mental distress and upset to a couple of students.

11The Chair concluded the grievor should be reinstated to her position effective the commencement of the 2008-09 school year. The reinstatement was with seniority but without back pay – effectively, a suspension of four and one half years without pay. His rationale was, in light of all the evidence, she should be given a second chance and “an opportunity to show that she has learned from the unfortunate experience that she has gone through” (Reasons, p. 57).

12The Board nominee dissented on the ground that there was just cause for discharge. He found that there was further misconduct in the form of excessive physical force involving student B. He stated,

The reinstatement of a teacher who has been found responsible for inappropriate verbal and physical behaviour with special needs students and who denies and takes no responsibility for her behaviour is incomprehensible. (Dissent, p. 12)

13The Union nominee also dissented, on the basis that the penalty was too harsh. She would have substituted a letter of reprimand.

14In accordance with Article 7.10 of the collective agreement, where there is no majority in an arbitration award, the decision of the chair governs.

The Standard of Review

15The standard of review of an arbitration award is reasonableness (Dunsmuir v, New Brunswick (2008), 2008 SCC 9, 291 D.L.R. (4th) 577 (S.C.C.) at para. 68).

16The Supreme Court described the reasonableness test as follows:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (Dunsmuir at para. 47)

Was the Decision of the Board Unreasonable?

17The Board submits the award was unreasonable, essentially for three reasons: the rationale that the grievor should be given a second chance was contrary to the findings in the award as to her conduct; the Chair failed to take into account relevant considerations relating to the role of teachers and the vulnerability of the students; and the Chair failed to consider a concession by Union counsel that he would not be seeking mitigation of the penalty if there was a finding of just cause for discipline.

Second Chance

18The Board submits that labour arbitrators do not reinstate an employee in order to give a second chance unless the employee has acknowledged misconduct and demonstrated remorse. In this case, the second chance rationale of the Chair is not supported by his factual findings with respect to the grievor’s conduct and runs contrary to the Chair’s finding that she did not acknowledge wrongdoing or express remorse. The Board also submits that the concept of a second chance is inappropriate when the safety and care of this group of very vulnerable students is concerned.

19An arbitration board, in determining whether there was just cause for discharge, is required to work through the analysis described in Toronto(City) Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, [1997] 1 S.C.R. 487 (“Bhadauria”) at para. 49: determine whether the grievor was responsible for the misconduct alleged by the employer, determine whether the misconduct gives rise to just cause for discipline, and finally, to determine whether the discipline imposed was appropriate “in light of the misconduct and the other relevant circumstances”.

20The Supreme Court went on to outline relevant circumstances at para. 57, including matters such as seniority and past performance. With respect to teachers, there are special considerations:

… it is essential that arbitrators recognize the sensitivity of the educational setting and ensure that a person who is clearly incapable of adequately fulfilling the duties of a teacher both inside and outside the classroom is not returned to the classroom. Both the vulnerability of students and the need for public confidence in the education system demand such caution.

21Although the Board submits there is a second chance doctrine requiring the grievor to express remorse and apologize before he or she can be reinstated, the arbitral case law does not support this submission. In TNT Logistics and U.S.W.A., Loc. 9042 (Herbert) (Re) (2003), 118 L.A.C. (4th) 109, Arbitrator Davie dealt with factors to be considered when dealing with appropriate discipline for violence in the workplace. She observed that remorse is a factor, although she did not say it was a determining factor:

Similarly, a grievor who admits to his/her misconduct and tenders a sincere apology is more readily viewed by arbitrators as a candidate deserving of a second chance, and a person who can be reinstated without undue concern that the misconduct will be repeated. (at p. 119)

22It appears from this and other cases that remorse is one of a number of factors to be considered in deciding whether there is just cause for termination (see Cassellholme Home for the Aged for the District of East Nipissing and Canadian Union of Public Employees, Local 146 (Slotnick) (unreported, July 31, 2006); Re Peel District School Board and O.S.S.T.F., District 19 (Mollenhauer) (Re) (2007), 159 L.A.C. (4th) 407 (Howe) at 439-40; Sooke School District No. 62 v. Sooke Teachers’ Assn., [1995] B.C.C.A.A.A. No. 260 (Hope) at para. 166; Hamilton-Wentworth District School Board and O.S.S.T.F., District 21 (Re) (2005), 83 C.L.A.S. 383 (Surdykowski) at para. 157).

23In determining whether discharge is warranted, even in cases of professional misconduct by teachers involving inappropriate conduct and comments, arbitrators weigh a number of factors, including the gravity of the conduct, the intent to harm, whether the misconduct was an isolated incident in the employment history of the grievor, the seniority of the grievor, the risk of repetition of the conduct, the remorse of the grievor, and the degree to which the employer bears some responsibility for the teacher’s situation. The fact that a grievor has not admitted misconduct or shown remorse may give rise to the inference that there is a risk the individual will repeat the misconduct (Sooke, supra, at para. 166). However, that will depend on the overall circumstances of the case.

24Here, the Chair took into account a number of considerations before deciding the grievor should be given a second chance. While he found there were three incidents of misconduct, he concluded that the Board had not proved other serious allegations – for example, the allegation that she had pulled V up from a sitting position by her ponytail and then pushed her down into a chair and pushed her face on the table. The Chair found the Board had not established the allegations of misconduct with respect to students B, E and S. He also rejected allegations of “yelling and screaming” at students, commenting that the Board had not established just cause for discipline, although this might be an appropriate area for observation and counselling by the administration.

25The Chair also considered the grievor’s excellent teaching record and lack of any intent to cause harm. There was no proof of actual harm caused. She had been under considerable stress at the time, but understood the need to improve her communication skills and her relationship with other teachers. As well, the school administration bore some responsibility for failing to investigate properly and to take steps that might have prevented an escalation.

26The Board submits this is a case like Bhadauria: given the Chair’s finding that the grievor did not express remorse about her conduct, it was unreasonable to reinstate her. As in Bhadauria, it would be a leap of faith to conclude she would act properly in the future.

27The facts in Bhadauria are very different from the facts in the present case. Mr. Bhadauria, a teacher, had written two letters critical of officials of the Toronto Board of Education. The language used was abusive and threatening. His employment was terminated, and he grieved. Before his grievance was heard, he sent a third abusive letter. The arbitration board accepted evidence that Mr. Bhadauria was not fit to teach, but ordered that he be reinstated with conditions, inferring that the conduct was temporary and the result of stress.

28The Supreme Court of Canada held the penalty was patently unreasonable. The evidence that the misconduct was not temporary was overwhelming, and there was no evidence reasonably supporting the conclusion the misconduct was a momentary aberration (at para. 78). Given the arbitration board had accepted that just cause was established, the order of reinstatement was quashed.

29Similarly, in Conseil Scolaire des écoles séparées catholiques du district de Sudbury v. Association des enseignantes et des enseignants franco-ontariens (Sudbury séparé) (1997), 101 O.A.C. 37 (C.A.) (“Sudbury”), an arbitration award reinstating a teacher was held to be patently unreasonable. The teacher had pleaded guilty to eight counts of assault against students. The arbitration board concluded he had learned from this experience that the conduct was improper.

30The Court of Appeal held the evidence did not support such a conclusion, making reference to the teacher’s application for employment insurance in which he suggested that the accusations of the students were lies and exaggerations. The teacher denied the assaults to which he had pleaded guilty. Moreover, the Court held the board had given insufficient consideration to the gravity of the conduct, its duration and the impact on the public’s confidence in the education system if the teacher were reinstated.

31These cases are distinguishable from the present case. The grievor here, while initially charged with criminal offenses, was never convicted. The Chair made an express finding she had no intent to harm the students, and no actual harm occurred. She was an excellent teacher for a number of years.

32This is not a case like Bhadauria or Sudbury where there was no evidence to support the arbitrator’s reasons for choosing the lesser penalty imposed. Here, there is evidence supporting a range of factors the Chair weighed against the gravity of the grievor’s misconduct when determining the appropriate penalty. It is not the role of this Court, on judicial review, to re-weigh the evidence.

Failure to Consider Relevant Factors

33The Board also argues that the decision is unreasonable because the Chair failed to address certain important factors: the special role of teachers in our society and the vulnerability of the group of students affected by the reinstatement of the grievor.

34With respect to the role of teachers, the Board relies on s. 264(1)(c) of the Education Act, R.S.O. 1990, c. E.2, which states that the teacher’s duty is

to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard to truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.

As well, the Board made reference to the Ministry of Education Code of Conduct, the Board’s Code of Conduct, and the standards of professional conduct of the Ontario College of Teachers, as well as extracts from cases such as Bhadauria, supra, which speak of the special role of the teacher.

35When the reasons of the Chair are read as a whole, it is evident the Chair did consider the vulnerability of the students. His opening paragraph described the students of the Life Skills program, while individual students were described in the parts of the reasons dealing with particular allegations against the grievor. Their vulnerability was clearly in his mind.

36Moreover, the severe penalty imposed on the grievor recognizes the important role of a teacher and the seriousness of the proven professional misconduct.

37The task of this Court is to determine whether the penalty was reasonable, in the sense that it fell within a range of reasonable outcomes, and whether there is a line of analysis to be found in the reasons of the Chair. The arbitration board heard 25 days of evidence. The Chair was in a much better position than this Court to assess the gravity of the misconduct, the harm caused, the grievor’s potential for rehabilitation, and other relevant factors. The penalty imposed – effectively, a suspension without pay for four and one half years – is severe. It cannot be said to be unreasonable.

38Moreover, an arbitration board has a discretion pursuant to s. 48(17) of the Labour Relations Act, S.O. 1995, c. 1, Sch. A to substitute such lesser penalty for discharge as “seems just and reasonable in all the circumstances”. The substitution of a lesser penalty than discharge was reasonable in all the circumstances.

The Failure to Deal with the Union Concession

39The Board also submits the decision is unreasonable because the Chair failed to deal with a concession by the union respecting mitigation. This concession is set out in the dissenting reasons of the Board nominee, who stated,

In the opening part of his argument Union Counsel postulated that if the Arbitration Board determines there is just cause for termination, he would be making no argument about mitigation of penalty. (Board Nominee’s Dissent, pp. 3-4)

40The Board submits there is only one reasonable interpretation of this sentence: Union counsel conceded he would not seek mitigation of penalty if the arbitration board determined there was “just cause for discipline” (emphasis added).

41I do not accept the Board’s interpretation of the concession. Union counsel, at most, stated that if there were just cause for termination, he would not seek mitigation of the penalty. The Chair of the arbitration board concluded there was not just cause for discharge considering all the circumstances. He went on to assess the appropriate penalty in the circumstances and in light of his findings on misconduct. I see nothing unreasonable in his failure to address this so-called “concession”.

Conclusion

42The application for judicial review is dismissed. As agreed by the parties, costs to the respondent are fixed at $5,000.00 inclusive of GST and disbursements.

Swinton J.

Carnwath J.

Bellamy J.