Court of Appeal for Ontario

Date: 2019-05-17 Docket: C66066

Judges: Sharpe, Pepall and Roberts JJ.A.

Between

Kimberly DeBon Plaintiff (Appellant)

and

Hillfield Strathallan College Defendant (Respondent)

Counsel

C. Andrew Haber and Christopher J. Haber, for the appellant

William P. Dermody and Heather E. Watson, for the respondent

Heard

May 14, 2019

On appeal from the judgment of Justice Emery of the Superior Court of Justice, dated September 28, 2018.

Reasons for Decision

[1] The appellant's claim for constructive dismissal from her employment as a teacher at a private school was dismissed by way of summary judgment. The appellant alleged that the respondent school altered the terms of her employment contract by failing to protect her from a confrontation with the parents of a student over a mark the appellant had given the student, by undermining her authority by having assignments read and marked by another teacher, and by the principal assigning passing grades to students who had failed to complete all assignments.

[2] The motion judge found that the appellant had failed to discharge the evidentiary burden of establishing a genuine issue for trial.

[3] The appellant acknowledged that the motion judge applied the correct legal test for constructive dismissal. We agree. We are not persuaded that he erred in law or made a palpable and overriding error of fact in dismissing the appellant's claim or that there are any issues of credibility requiring a trial.

[4] There is no evidence to support the allegation that the school altered the appellant's terms of employment or failed to follow any policy with respect to the confrontation with the parent. No one from the school, except the appellant, was involved in the confrontational meeting. The appellant did not anticipate that the parent would be present at the meeting and it is difficult to see how the school could have done so. When the appellant reported the incident to the principal, he offered to meet to discuss the situation. There is no evidence that the appellant asked anyone at the school to sanction or censure the parent for her conduct at the confrontational meeting. The school's Human Resources Manager offered to meet with the appellant to discuss the process of making a complaint of violence and "to determine a policy for moving forward with all of the issues you identified". The appellant postponed any meeting and then announced that she was leaving the school.

[5] The school's response to the appellant's complaint regarding the confrontational meeting with the parent was measured and reasonable. While the confrontation with the parent was undoubtedly unpleasant and unsettling for the appellant, it is difficult to see what the school could have done to prevent or mitigate the confrontation. We see no error in the motion judge's conclusion that this incident and the way the school handled it did not amount to a breach of any school policy or of the appellant's contract of employment.

[6] There is no evidence to suggest that having another teacher read and grade assignments was contrary to school policy. Moreover, the appellant reluctantly agreed to the process and, as the mark assigned by the appellant was confirmed, she was supported rather than being undermined. In his communications with the parents and the student, the principal was supportive of the appellant's skill and integrity as a teacher. He assured the appellant that he would advise the student to take advantage of the appellant's "teaching excellence". He clearly set out the strategy he proposed to follow with the parents to resolve their concern regarding bias. The school never intimated or suggested that the appellant change the grade she had assigned. The principal admonished the student for her attitude and negative body language when dealing with the appellant and encouraged the student to take a more positive attitude towards the appellant and the courses she was teaching. He made it clear that if the disputed mark was confirmed by the second teacher, that would put an end to the allegation of bias and the mark was confirmed. There is no evidence that the school implemented the limited co-marking strategy as a permanent measure.

[7] Nor is there evidence to support the contention that the principal altered the terms of the appellant's employment when he assigned final passing grades to students who had not completed all assignments. Two of these incidents preceded the incident discussed above that forms the core of the appellant's case. Both of these involved students who had experienced health issues that prevented them from completing all assignments. The principal did not alter a grade assigned by the appellant but, rather, assigned a final grade based on the grade given by the appellant for the work that had been completed. The appellant failed to adduce any evidence that the principal had acted contrary to school policy or to his statutory authority by assuming responsibility for assigning the final grade in these circumstances. The third incident involved the school's request that the appellant assign a "predictive" mark to a student needed so that the student could apply for a program. The appellant did not assign the predictive grade and no further action was taken.

[8] In our view, the motion judge's conclusion, at para. 80, "that a reasonable person with a dispassionate perspective would not view the teaching environment at HSC to be untenable" for the appellant and that the evidence did not establish that the school had made the workplace poisonous for her is amply supported by the record.

[9] Accordingly, the appeal is dismissed, with costs to the respondent fixed in the agreed amount of $15,000, inclusive of disbursements and taxes.

"Robert J. Sharpe J.A."

"S.E. Pepall J.A."

"L.B. Roberts J.A."