CITATION: Toronto District School Board v. Elementary Teachers’ Federation of Ontario, 2013 ONSC 594
DIVISIONAL COURT FILE NO.: 405/12
DATE: 20130228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
whalen, molloy and SWINTON JJ.
B E T W E E N:
TORONTO DISTRICT SCHOOL BOARD
Applicant
- and -
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Respondent
Frank Cesario and Elisha C. Jamieson, for the Applicant
Howard Goldblatt, for the Respondent
HEARD at TORONTO: January 15, 2013
Swinton J.:
Overview
[1] The Toronto District School Board (“the Board”) has brought an application for judicial review of the award of labour arbitrator William Marcotte dated July 23, 2012. The Board argues that the award should be set aside because the arbitrator made a fundamental error in stating the applicable standard of proof, as well as making other errors in his treatment of the evidence.
[2] For the reasons that follow, I would dismiss the application for judicial review, as I am satisfied that the arbitrator applied the civil standard of a balance of probabilities and, in doing so, he reached a reasonable result.
Factual Background
[3] The grievor, an elementary school teacher, was dismissed on May 18, 2011 on the grounds that he had struck a student’s hand against a desk, and he had refused to allow a female student to leave the classroom to adjust her hijab, insulting her religion at the same time. These events occurred around June 10, 2010 when the grievor was acting as a supply teacher in the students’ classroom.
[4] A grievance was filed, leading to a seven day arbitration hearing. Ultimately, the arbitrator held that the Board had not established that either event of misconduct occurred, and he ordered the grievor reinstated.
The Arbitration Award
[5] The arbitrator wrote a lengthy award that sets out a detailed recital of the evidence and the arguments made by each party. At a number of points, he noted that credibility was significant for purposes of determining the grievance.
[6] The arbitrator began his analysis at page 53 of the award. He noted that teachers, as professionals, are held to a higher standard of conduct than non-professional employees. He then stated (at p. 54):
The appropriate standard against which the Employer must prove its case is proof on a balance of probabilities. In applying this standard, the seriousness of the allegations are taken into account.
[7] The arbitrator then quoted from Re Board of School Trustees, School District No. 54 (Bulkley Valley) and Bulkley Valley Teachers’ Association (Kelleher, unreported, December 5, 1991), a case cited to him by the Board. The quotation stated that there may be degrees of probability within the civil standard, depending on the subject matter. The arbitrator also quoted from another arbitration award which stated that “a high degree of probability” is required where a teacher’s professional reputation is at stake. He then said (at p. 55),
I agree in the above approach to consideration of the evidence in the instant case. Thus, given the serious nature of the allegations against the grievor and the seriousness of the consequences, the evidence concerning the students’ allegations must be carefully considered to determine whether or not the events occurred. Accordingly, there must be clear and convincing proof the griev