CITATION: Ontario English Catholic Teachers’ Association v. Toronto Catholic District School Board, 2020 ONSC 5953
DIVISIONAL COURT FILE NO.: 267/19
DATE: 2020/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Sachs and Kristjanson JJ.
BETWEEN:
Ontario English Catholic Teachers’ Association
Applicant
– and –
Toronto Catholic District School Board and Barry Stephens
Respondents
Paul J.J. Cavalluzzo, for the Applicant
Eric M. Roher and Maciej Lipinski, for the Respondent
HEARD at Toronto by videoconference: September 15, 2020
H. Sachs J.
Introduction
[1] The Applicant, the Ontario English Catholic Teachers’ Association (“OECTA”) seeks judicial review of two interrelated arbitration awards issued by Arbitrator Barry Stephens, in relation to the Toronto Catholic District School Board’s (the “TCDSB” or the “Board”) decision to terminate the employment of Lisa DeSantis (“the “Grievor”).
[2] In the first award, issued on December 15, 2017 (the “2017 Award”), the Arbitrator found that the Grievor’s termination was unlawful and that the appropriate disciplinary sanction for her conduct was a one-year suspension. Instead of reinstating the Grievor, however, the Arbitrator ordered that she should be awarded damages in lieu of reinstatement.
[3] Following the release of the 2017 Award, the Arbitrator held another hearing to determine the quantum of damages. He issued his decision with respect to this issue on March 21, 2019 (the “2019 Award”).
[4] On this application, OECTA challenges both awards. With respect to the 2017 Award, it submits that the Arbitrator breached the rules of natural justice by ordering damages instead of reinstatement without giving the parties notice that he was contemplating such a remedy. Neither party had requested damages in lieu of reinstatement; the remedy is an unusual one and neither party had the opportunity to call evidence or make submissions concerning the appropriateness of this disposition.
[5] The challenge to the 2019 Award centres on the assertion that the Arbitrator failed to apply the clear principles concerning mitigation that were set out by the Ontario Court of Appeal in Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, 135 O.R. (3d) 561 (“Brake”).
[6] For the reasons that follow, I would dismiss the application. With respect to the 2017 Award, I find that OECTA should have raised their natural justice concerns with the Arbitrator before proceeding with the damages assessment hearing. With respect to the 2019 Award, I find that the situation in this case is distinguishable from the situation in Brake and, thus, the Arbitrator’s assessment of the amount to be deducted from damages as a consequence of the Grievor’s duty to mitigate was reasonable.
Factual Background
[7] The Grievor is an occasional teacher who was employed by the Board for approximately sixteen years, from 1999 until her employment was unilaterally terminated by the Board for cause on September 30, 2015. The same day, OECTA filed a grievance on her behalf challenging the merits of the termination and the Board’s allegation of just cause. OECTA had previously filed three other grievances on behalf of the Grievor in response to the Board’s earlier efforts to address the Grievor’s performance and conduct issues.
The Arbitration Hearing
[8] The hearing that resulted in the 2017 Award took place over seven days from December 11, 2015 to June 16, 2017. At all times during the hearing, the Board took the position that it had just cause to terminate the Grievor’s employment and that the grievance ought to be dismissed. The Board never argued in the alternative that if the Arbitrator found that the termination lacked just cause, the appropriate remedy would be to award the Grievor damages in lieu of reinstatement. OECTA took the position that the Board did not have just cause to terminate the Grievor’s employment and the Grievor should be reinstated with back pay.
[9] At no time before he issued the 2017 Award did the Arbitrator ever raise with the parties the prospect that he might award damages in lieu of reinstatement in the event that he found that the Board did not have just cause to terminate the Grievor.
The 2017 Award
[10] In the 2017 Award, the Arbitrator reviewed the evidence before him with respect to the complaints against the Grievor. On the issue of credibility, he found that the Grievor had “falsely accused” others of lying, provided evidence that was at times “confusing, contradictory or exaggerated”, lied under oath, and demonstrated that she “could not be trusted to tell the truth.” Thus, he determined that it would not be appropriate to give much weight to the Grievor’s testimony, or to prefer the Grievor’s evidence to that of another witness who did not have credibility issues.
[11] With respect to the three grievances involving the Board’s previous actions in response to the Grievor’s conduct, the Arbitrator denied two of the grievances and dismissed one on the basis of a technicality. With respect to the grievance that challenged the Grievor’s termination on the basis of just cause, the Arbitrator dismissed certain allegations against the Grievor because the basis for those allegations was entirely hearsay evidence. He found that other allegations of misconduct had been established. These allegations involved inappropriate failure to supervise the students in her class, engaging in inappropriate interactions with school principals, bullying and abusive behaviour to colleagues and recurring issues of lateness. He found that all of these allegations were serious and were compounded by the fact that when confronted with her behaviour, instead of changing, the Grievor accused others of “fabricating or exaggerating stories.” As put by the Arbitrator at para. 131 of the 2017 Award:
In my view, the issue at the heart of the grievor’s disciplinary problem is her inability or refusal to be comply (sic) with the basic requirements of her job, including punctuality, maintaining respectful interpersonal relationships, and fulfilling her classroom management obligations. In short, all of the evidence calls into question the grievor’s ability to maintain a proper employment relationship. While the recent disciplinary record I have accepted is not deep, the grievor has persistently denied or minimized her conduct, and added a wholly unnecessary extra layer of difficulty for herself by wrongly accusing principals she has worked with of fabrication of evidence and giving false testimony. Given the grievor’s admitted dishonesty while testifying under oath, the irony of these baseless accusations does not escape me. In addition, these false allegations against her colleages (sic) create a serious impediment to reinstatement, which I will address below. Suffice it to say that, given these factors, it is difficult to see how the grievor can rebuild a viable employment relationship with the TCDSB.
[12] Weighed against these findings was the fact that there was a six-year period after the Grievor signed Minutes of Settlement in 2006 where there were no misconduct incidents. In addition, the Arbitrator discounted five of the eight allegations of misconduct that the Board relied upon to justify its decision to terminate the Grievor. On this basis, the Arbitrator found at para. 133:
However, I have concluded that the lack of a disciplinary suspension in the grievor’s recent record, coupled with the lack of any disciplinary record for the period from 2006 to 2013 must be given due weight, and it is my finding that termination was not appropriate. In my view, the grievor should have received a lengthy suspension.
[13] As noted previously, the Arbitrator found that the appropriate length of that suspension was one year.
[14] He also directed himself to the question of whether the Grievor should be reinstated since the suspension he imposed had expired by the time of the hearing. On this issue he found as follows:
[136] As set out above, I feel constrained by the well-established principles of progressive discipline, as well the apparent period of non-discipline that followed the 2006 MOS, to find that the termination of the grievor was premature. However, given the circumstances, particularly the grievor’s dishonesty under oath, her decision to falsely accuse others of fabricating evidence, her reliance on unconvincing excuses for her lateness, her attempt to bully a colleague during the arbitration process, and her inability or refusal to accept the need for change, I believe that it would be an exercise in futility to reinstate her to her position at the TCDSB. Her actions in response to the discipline, and particularly her allegations at the hearing, have completely undermined the trust necessary to establish working relationships with her managers and peers. I think it is appropriate to conclude that there would be few, if any, Board employees who would be able to work with the grievor with the necessary confidence that they could trust her professionalism and her commitment to her work. I cannot, in good conscience, reinstate her to a position where all indications are that she has no intention of changing her approach to her job, and with the virtual certainty that she will engage in future misconduct that could potentially put both parties through yet another arbitration process.
[138] Having reached this conclusion, I have also concluded that the grievor has so undermined the employment relationship through her responses to the discipline and the criticisms of her performance, especially by falsely accusing others of fabricating evidence against her, there is no reasonable prospect that the employment relationship can be resurrected, and that payment-in-lieu of reinstatement is the best outcome for all concerned.
The 2019 Award
[15] OECTA submitted that the Grievor’s damages should be fixed at $385,757.83 plus interest. The Board argued that the more appropriate amount was $10,000.00. Both parties agreed on the approach the Arbitrator should use to calculate damages – an approach known in the case law as the “Hay River” approach. Under this approach, one of the factors to be considered is mitigation of damages.
[16] While working as an occasional teacher for the Toronto Catholic District School Board, the Grievor had also been working for the public school board as an occasional teacher. After her termination she continued to work for the public board. The issue on mitigation was how many of her days working for the public school board after termination should be deducted from any damages awarded to her in this case. OECTA argued that any reduction for the Grievor working for the public school board after termination should be adjusted to account for the fact that she worked for that board prior to termination. According to OECTA, prior to termination, her schedule at the TCDSB allowed her to work 31 days at the public board and, therefore it is only the difference between the actual days she worked at the public board after termination and 31 days that should be deducted from her damages because of the duty to mitigate. The Arbitrator deducted 20 days, not 31 days.
[17] The Arbitrator’s reasoning on this issue was as follows:
[32] The grievor had been working for the public board for time (sic) prior to her termination. Given her daily rate and her average earnings outlined above, the union calculated that she worked on average 157 days per year with the Catholic Board, and I accept that, on average, she had approximately 31 work days available to take shifts at the public board prior to her termination.
[33] I do not accept the union’s argument that the grievor’s work with the public board should be adjusted to account for the fact that she could have worked more hours at the public board when she was still with the Catholic board. It strikes me that it is more accurate to take the approach that the average number of days worked with each board is the best evidence as to the baseline of how much the grievor worked, and how much she could work given the work offered by the school boards and her availability. There was no evidence that the grievor booked every available day with the public board. She testified that it was difficult to book shifts with the public board due to greater competition for work and the fact that she did not own a car. As with the Catholic board, she was restricted to working in those schools she could reach by means of public transit. Given these facts, I have used an estimate of an average of 20 days per year to account for the time the grievor previously worked for the public board, and any days worked beyond should be considered mitigation.
[18] The overall impact on the 2019 Award of the Arbitrator’s decision to only deduct 20 days and not 31 was $14,000.00.
The 2017 Award – Was There a Breach of Natural Justice?
[19] On this issue no standard of review analysis is necessary. A decision is either procedurally fair or it is not.
[20] OECTA submits that, applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, it was entitled to a high degree of natural justice and procedural fairness which, at a minimum, required the Arbitrator to provide the parties with notice of and an opportunity to call evidence and make submissions on a remedial issue that was not argued by either party before him. In particular, the Arbitrator decided on a remedy of damages in lieu of reinstatement when neither party had sought that remedy and the Arbitrator did not give either party notice that he was considering ordering that remedy. Because of this, OECTA submits that it was denied the opportunity to make submissions or call evidence on the issue. This was a denial of natural justice.
[21] The Board makes three arguments in response to OECTA’s position. First, it submits that if OECTA had a problem with the Arbitrator’s 2017 Award, it was obliged to raise the matter before the Arbitrator after he issued that award and before he went on to hold and decide the damages hearing. Having failed to do so, it cannot come to Divisional Court and ask for relief. Second, the Board argues that this court should refuse to hear this aspect of OECTA’s application on the basis of delay. Third, it asserts that on the facts of this case, the duty of procedural fairness was satisfied. While neither party chose to ask for damages in lieu of reinstatement, this is a well-known remedy that can be issued by arbitrators in situations where one party seeks termination and the other seeks reinstatement. The grounds for ordering this type of relief are clear and set out in the case law. In this case there were many “red flags” that should have alerted OECTA to the fact that reinstatement may well not be ordered, even if the Arbitrator found that the Board should not have terminated the Grievor.
[22] With respect to the issue of delay, I agree with OECTA that if this argument is, in effect, an assertion that OECTA should have come to the Divisional Court after the 2017 Award and before the damages hearing, then the argument has no merit. The court would likely have found that such an application was premature.
[23] OECTA’s reply to the Board’s assertion that it should have raised its natural justice concerns before the Arbitrator is that after he issued the 2017 Award, which was a final award, the Arbitrator was functus officio, and had no jurisdiction to alter his award. OECTA also argues that if it had asserted a breach of procedural fairness before the Arbitrator before the damages hearing, this might have negatively impacted its chances of success at the damages hearing.
Was the Arbitrator Functus Officio After He Issued the 2017 Award?
[24] The leading case on this issue is the decision of the Supreme Court of Canada in Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, 62 D.L.R. 577. In that case, Sopinka J., writing for the majority of the court, reviewed the doctrine of functus officio and confirmed that a final decision of a court (as opposed to an administrative tribunal) cannot be reopened after the formal judgment had been drawn up, issued and entered unless “there had been a slip in drawing it up” or “there was an error in expressing the manifest intention of the court” (at p. 860). In reviewing the doctrine, Sopinka J. held that its rationale was that “the power to rehear was transferred by the Judicature Acts to the appellate division” (at p. 860).
[25] Sopinka J. then went on to discuss whether functus officio has application to administrative tribunals and held as follows at pp. 861-62:
Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before an administrative tribunal. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of the court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
[26] Justice Sopinka went on to canvass when it would be appropriate to allow a tribunal to reopen or reconsider a decision. The first situation is when its statute authorizes it to do so. The second is when the tribunal still has jurisdiction or has retained jurisdiction to dispose of an issue it has not yet disposed of. The third is when the tribunal has made a decision that is a nullity. In the third situation the tribunal “has been permitted to reconsider the matter afresh and render a valid decision” (at p. 862). In expanding on this principle, Sopinka J. quotes McLachlin J. (as she then was) in Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 1983 411 (BC SC), 147 D.L.R. (3d) 637 (B.C.S.C.) where she summarizes the law at p. 643 of her decision as follows:
I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 1978 343 (BC SC), 9 B.C.L.R. 232 (B.C.S.C.); Posluns v. Toronto Stock Exchange et al. (1968), 1968 6 (SCC), 67 D.L.R. (2d) 165, [1968] S.C.R. 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid’s reasons for judgment in Ridge v. Baldwin, [1964] A.C. 40 at p. 79, where he said:
I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.
Sopinka J. continued:
If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 1978 343 (BC SC), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, 1968 6 (SCC), [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect.
[27] In the most recent edition of Judicial Review of Administrative Action in Canada (Thomson Reuters Canada, 2019) (WL), Brown and Evans set out the current law as follows at para. 12:6244:
Where a tribunal recognizes that it has made a mistake that has deprived it of jurisdiction, and thus rendered its decision null and void, it need not wait until a party has obtained an order from a court formally quashing the decision before it rehears the matter, and decides it again. In this regard, the Supreme Court of Canada has adopted the following statement of the law by Lord Reid: "I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid…"
With this in mind, where a first decision was vitiated by a breach of the duty of fairness, the jurisdiction of a tribunal to redecide a matter has often been upheld. However, to date a tribunal's ability to reopen an erroneous decision that has not been set aside or declared invalid by a court appears to be limited to procedural errors, and more particularly, to breaches of the duty of fairness. Thus, there is no inherent power in an administrative agency to rehear a matter to overcome other types of error of law. Nor does it permit a rehearing only to hear new facts, unless the failure to hear the evidence itself amounted to a breach of the duty of fairness. [Citations omitted.]
[28] Relying on Chandler, the federal courts have confirmed that administrative tribunals not subject to a right of appeal “may always reopen a proceeding if there was a denial of natural justice which vitiates or nullifies it” (Chopra v. Canada (Attorney General), 2013 FC 644, at paras. 64-65, aff’d 2014 FCA 179, leave to appeal to SCC refused, 360901 (29 January 2015). See also Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35).
[29] In Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005, the Divisional Court applied Chandler to find that “[t]he doctrine of functus officio does not operate to preclude a decision maker from curing a procedural defect. It exists to give finality to judgments from courts which are subject to appeal. It does not apply to prevent an administrative decision-maker from reconsidering a decision where there is no right of appeal” (at para. 45, citations omitted).
[30] The Divisional Court made a similar ruling in the context of a labour arbitration under the Canada Labour Code. In Canada Post Corporation v. Canadian Union of Postal Workers, 2008 32313 (Ont. Div. Ct.), the arbitrator fixed the date for calculating damages without asking for submissions from the parties. When the parties could not agree on implementation, they returned to the arbitrator. The arbitrator then heard submissions on changing the calculation date from the union, while Canada Post argued he was functus. The arbitrator changed the date in his original order, finding that his first award had been in error due to incomplete information. On application for judicial review, the court held as follows:
[18] For the arbitrator to have made a decision of real significance to the parties, without providing the parties with an opportunity to make submissions or present evidence, and as a result coming to a mistaken belief of the facts would amount to a denial of natural justice.
[19] In our opinion, to avoid that result the arbitrator had the power, and indeed the duty to revisit the issue.
[20] We find he was correct to do so. He was not functus.
[31] In this case, there was no right of appeal from the Arbitrator’s decision. Further, while his decision regarding what type of remedy he was going to award was a “final” decision on that issue, he was still seized of the matter for the purpose of holding a hearing on the quantum of damages. In my view, based on the reasoning in Chandler, he was not functus.
[32] Instead of indicating to the Arbitrator at the first opportunity that it wished him to reopen the question of remedy so that they could make further submissions, OECTA participated in a second hearing before the Arbitrator and made extensive submissions regarding the calculation of the quantum of the award. According to OECTA, it did so in order not to anger the Arbitrator by suggesting that he breached the rules of natural justice. Its hope was to obtain a good result at the damages hearing. It was only once it did not achieve the result it hoped for that it raised the natural justice issue by way of an application for judicial review.
[33] The Arbitrator, as an administrative decision maker, is presumed to be impartial. Further, decision makers who participate in the administration of justice are often faced with having to make rulings on issues that challenge their authority and even their integrity. They are presumed to have the ability to do so without personalizing what is said and without allowing the claims to influence the way they subsequently deal with the matter. Thus, as with allegations of bias, OECTA was obligated to raise its natural justice issue with the Arbitrator, rather than staying silent and only complaining once it did not get the result it wanted. If it had done so, at the very least, this court would have had the benefit of the Arbitrator’s reasons on the issue. Further, if the Arbitrator was persuaded that OECTA had a point, based on Chandler, the Arbitrator could have reopened the proceedings, thus saving all the parties the delay inherent in a judicial review proceeding. Delay is antithetical to the goal of effective labour relations.
[34] For these reasons, I find that the Arbitrator was not functus after he issued the 2017 Award and that having failed to raise the natural justice issue before the Arbitrator, OECTA cannot raise it before this court on a judicial review application. As put in Bart v. McMaster University, 2016 ONSC 5747 (Div. Ct.) at para. 151, to find otherwise would “encourage applicants to make a tactical choice of holding on to a potential ground for judicial review and raising it only if they receive an unfavourable decision.”
[35] In view of this finding, it is not necessary to deal with the issue of whether the 2017 Award satisfied the requirements of procedural fairness.
Was the 2019 Award Reasonable?
[36] Both parties agree that the standard of review applicable to the Arbitrator’s 2019 Award is reasonableness.
[37] As already noted, the only aspect of the 2019 Award that OECTA asserts is unreasonable is the deduction related to mitigation. According to OECTA, in calculating this deduction the Arbitrator ignored binding authority from the Court of Appeal in Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402. In Brake, Ms. Brake had worked a second job with Sobey’s while working full-time for the appellant employer. She continued in this job after her termination. The trial judge found that she had been wrongfully terminated and was entitled to notice. He did not deduct the amount Ms. Brake earned at Sobey’s during the notice period from her damages. The Court of Appeal upheld the trial judge’s findings in this regard and stated the following at para. 140:
In a wrongful dismissal action, an employer is generally entitled to a deduction for income earned by the dismissed employee from other sources during the common law notice period. However, as Rand J. explained in Karas v. Rowlett, 1943 53 (SCC), [1944] S.C.R. 1, at p. 8, for income earned by the plaintiff after a breach of contract to be deductible from damages, “the performance in mitigation and that provided or contemplated under the original contract must be mutually exclusive, and the mitigation, in that sense, is a substitute for the other.” Therefore, if an employee has committed herself to full-time employment with one employer, but her employment contract permits for simultaneous employment with another employer, and the first employer terminates her without notice, any income from the second employer that she could have earned while continuing with the first is not deductible from her damages.
[38] In this case the Grievor worked at the public board while she was employed by the TCDSB. After termination she continued to work at the public board. It was accepted that while she worked at the TCDSB there were 31 teaching days that she could have worked at the public board. Therefore, according to OECTA, applying Brake, the Arbitrator should only have deducted from damages for mitigation the amount the Grievor earned from the public board that exceeded 31 days. Instead, he deducted the amount that exceeded 20 days.
[39] In Brake, it was clear that Ms. Brake’s work with the appellant employer did not impact on her ability to work for Sobey’s. Her hours with the appellant in that case were set and they were different from her hours with Sobey’s. In other words, the two jobs “were not mutually exclusive” (para. 144).
[40] The situation in the case at bar was different. The Grievor’s hours at the TCDSB and at the public board were not set. She did not work full-time at the TCDSB and due to the scheduling of the school day, could not have taken on an additional assignment at the public board without losing a corresponding opportunity to take on an assignment at the TCDSB. The evidence disclosed that her calls for employment could come on short notice. Thus, if she accepted an offer from the TCDSB, she would not be available if a call came in from the public board. Thus, the Grievor’s employment with the TCDSB and the public board were not mutually exclusive in the manner addressed in Brake. This is a significant distinguishing feature.
[41] Further, as the Arbitrator found at paras. 33-34 of his decision, there was no evidence that the Grievor booked every available day with the public board. In fact, the Grievor had testified that it was difficult for her to book work with that board because of the competitive nature of that work and the fact that she did not own a car. There was no evidence of this kind in the Brake case.
[42] Therefore, the Arbitrator decided that the more appropriate approach was to calculate the actual number of hours the Grievor had worked with the public board while she was employed by the TCDSB. This decision was a reasonable one.
[43] Having decided on this approach, the Arbitrator estimated that the number of days that the Grievor could have worked for the public board prior to her termination was 20 days. OECTA asserts that the Arbitrator provided “no explanation” for how he arrived at that estimate. This is not accurate. At para. 33 of his decision the Arbitrator sets out his reasons for picking that number. For ease of reference that paragraph is reproduced again below:
There was no evidence that the grievor booked every available day with the public board. She testified that it was difficult to book shifts with the public board due to greater competition for work and the fact that she did not own a car. As with the Catholic board, she was restricted to working in those schools that she could reach by means of public transit. Given these facts, I have used an estimate of an average of 20 days per year to account for the time the grievor previously worked for the public board, and any days worked beyond should be considered mitigation.
[44] OECTA submits that the Arbitrator had no direct evidence before him as to the number of days that the Grievor actually worked at the public board while she was with the TCDSB. This was evidence that OECTA was in the best position to supply. Having not received such evidence, the Arbitrator rendered a justifiable, transparent and intelligible estimate based on the information made available to him.
Conclusion
[45] For these reasons I find that the application for judicial review should be dismissed. As agreed by the parties, the Board is entitled to its costs as the successful party, fixed in the amount of $10,000.00, all inclusive.
H. Sachs J.
I agree _______________________________
Aston J.
I agree _______________________________
Kristjanson J.
Released: October 2, 2020
CITATION: Ontario English Catholic Teachers’ Association v. Toronto Catholic District School Board, 2020 ONSC 5953
DIVISIONAL COURT FILE NO.: 267/19
DATE: 2020/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Sachs and Kristjanson JJ.
BETWEEN:
Ontario English Catholic Teachers’ Association
Applicant
– and –
Toronto Catholic District School Board and Barry Stephens
Respondents
REASONS FOR JUDGMENT
H. SACHS J.
Released: October 2, 2020