Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487

The Board of Education for the City of Toronto Appellant

v.

Ontario Secondary School Teachers’ Federation,

District 15 (Toronto), Owen Shime, Q.C.,

A. S. Merritt and L. A. Jones Respondents

Indexed as: Toronto (City) Board of Education v. O.S.S.T.F., District 15

File No.: 24724.

1996: November 6; 1997: February 27.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Labour relations ‑‑ Grievance arbitration ‑‑ Judicial review ‑‑ Standard of review ‑‑ Teacher discharged by education board after writing abusive and threatening letters ‑‑ Teacher filing grievance alleging that he had been disciplined without just cause ‑‑ Majority of arbitration board ordering teacher’s conditional reinstatement ‑‑ Whether arbitration board’s decision patently unreasonable.

B taught for the appellant Board of Education for nearly 20 years. Between 1981 and 1984, he applied for the position of Vice‑Principal 39 times, but was not promoted. In 1984, he filed a complaint with the Ontario Human Rights Commission alleging that the Board’s hiring practices systemically discriminated against persons of South Asian origin, but following lengthy hearings the board of inquiry appointed to decide the complaint found that his claim had not been made out. While the hearings were still continuing, B wrote a letter to the Board of Education containing a number of very disturbing accusations and what could be perceived as veiled threats to the lives of the Director of Education and others. As a result of these disquieting comments, B was asked to submit to an assessment by a psychiatrist, who found that there were no signs of mental illness and concluded that B had exhibited very bad judgment, but that he “would always limit his aggressive activities to words”. It was his opinion that B was likely to continue to “issue very strong verbal commentaries”. B then wrote a second letter which was equally abusive, and more explicitly threatening than the first. Following a second assessment, the psychiatrist repeated his opinion that B was not likely to be physically violent, but that his verbal harassment would continue. A second opinion obtained from another psychiatrist and a personality assessment by a psychologist confirmed that no mental illness was present, and that B posed no danger of physical violence. The psychologist concluded that B would “continue to be a thorn in the side” of his employers. The Board discharged B “for reasons of unprofessional conduct, poor judgment, and attitudes which indicate he is no longer capable of fulfilling his duties as a Teacher under the Education Act and the Regulations”. B filed a grievance alleging that he had been disciplined without just cause. Before the hearings were scheduled to begin, B wrote a third letter to the Board which, while less abusive and threatening than the earlier ones, continued to exhibit an all‑consuming bitterness. A majority of the arbitration board determined that the employer’s decision to dismiss B should be set aside. They ordered his conditional reinstatement, subject to stringent monitoring and summary dismissal if the previous conduct was repeated. The award was unanimously quashed by the Divisional Court on the basis that there was no evidence before the arbitrators which would support the grievor’s conditional reinstatement. The Court of Appeal unanimously restored the arbitration award.

Held: The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Curial deference is of essential importance in the context of labour relations where the decision of the tribunal is protected by a broad privative clause, as is the case here. A decision as to whether there is “just cause” for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable. At the time the letters were written, B certainly did not meet the standards of conduct set out in s. 264(1)(c) of the Education Act. The essential question before the arbitration board was whether the failure to meet these standards was temporary and whether discharge was appropriate. Since there is no doubt that B was guilty of misconduct, and the arbitrators clearly found that there was “just cause” for discipline, the only question was whether the disciplinary measure of dismissal was too harsh. The opinions expressed and the wording used in B’s letters clearly constituted very significant if not extreme misconduct. The fact that the letters may have been written outside the hours of teaching duty cannot either excuse or alleviate the seriousness of the misconduct. 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.

The arbitration board’s conclusion that B was capable of returning to the classroom was based solely on two key findings of fact: the finding that his unacceptable conduct was temporary because it could be attributed to the stress and frustration of the board of inquiry hearings, and the related finding that B was not beyond redemption. All the evidence before the board not only contradicted the inference made by the majority that his conduct was temporary but rather confirmed that it persisted. The overwhelming evidence that B’s conduct was not temporary can be found in the assessments of the psychiatrists and the psychologist and in the third letter. While the third letter is to some extent “subsequent event evidence” since it was written after B’s dismissal, it was a serious error for the arbitrators not to consider it. Furthermore, B did not demonstrate any remorse for his conduct, or any understanding of its effects on the recipients of the letters. The absence of any evidence to support the conclusion that B’s misconduct was temporary renders the arbitrators’ decision patently unreasonable.

Per L’Heureux‑Dubé J.: Cory J.’s conclusion as regards the applicable standard of review is agreed with, even though the pragmatic and functional approach could very well support a standard closer to that of correctness in this case. The arbitration board failed to address the initial question of whether or not the two letters constituted just cause for discharge, and instead went on to address the subsidiary question of whether the grievor was no longer capable of fulfilling his duties. Once it is found that the conduct in question is deserving of disciplinary action, the appropriate next question is whether the offence was serious enough to warrant discharge. The seriousness of a specific offence may vary depending on the particular occupational group or profession concerned, and on the circumstances and the consequences. In the case of teachers, while it is clear that not every kind of misconduct will be so grave as to warrant the strictest forms of discipline, in some cases a single offence can constitute just cause for discharge. The board should have asked whether the two letters were of a gravity such that the grievor’s status as a role model was seriously prejudiced. Whether or not there is some chance that the grievor’s effectiveness as a teacher may not have been completely destroyed is not the proper test to be applied in the circumstances of this case. Determination of “just cause” does not necessarily imply an automatic acceptance of the employee’s seniority and service record as mitigating factors in all cases. Here the two offensive letters are of such gravity as to seriously prejudice the grievor’s status as a role model, and therefore in themselves constitute just cause for discharge. Accordingly, the subsidiary question as to whether this kind of aberrant behaviour was temporary or permanent is irrelevant. Failure on the part of the arbitration board to formulate the questions properly, to address the primary legal issue, and to make the findings of just cause on the two letters per se was not merely incorrect, but was patently unreasonable.

Cases Cited

By Cory J.

Referred to: Pezim v. British Columbia (Superintendent of Brokers), 1994 103 (SCC), [1994] 2 S.C.R. 557; Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941; Heustis v. New Brunswick Electric Power Commission, 1979 26 (SCC), [1979] 2 S.C.R. 768; Blanchard v. Control Data Canada Ltd., 1984 27 (SCC), [1984] 2 S.C.R. 476; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 88 (SCC), [1993] 2 S.C.R. 316; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 148 (SCC), [1995] 1 S.C.R. 157; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227; Douglas Aircraft Co. of Canada v. McConnell, 1979 51 (SCC), [1980] 1 S.C.R. 245; Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 22 (SCC), [1990] 3 S.C.R. 644; National Corn Growers Assn. v. Canada (Import Tribunal), 1990 49 (SCC), [1990] 2 S.C.R. 1324; Re Etobicoke Board of Education and Ontario Secondary School Teachers’ Federation, District 12 (1981), 1981 4445 (ON LA), 2 L.A.C. (3d) 265; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825; R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171; Re Wellington Board of Education and O.S.S.T.F. (1991), 1991 13368 (ON LA), 24 L.A.C. (4th) 110; Board of Education for City of London and O.S.S.T.F., District 4, October 7, 1986, unreported (Teplitsky), aff’d Ont. Ct. (Gen. Div.) (unreported endorsement); Cie minière Québec Cartier v. Québec (Grievances Arbitrator), 1995 113 (SCC), [1995] 2 S.C.R. 1095.

By L’Heureux‑Dubé J.

Referred to: U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554; Pezim v. British Columbia (Superintendent of Brokers), 1994 103 (SCC), [1994] 2 S.C.R. 557; Heustis v. New Brunswick Electric Power Commission, 1979 26 (SCC), [1979] 2 S.C.R. 768; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825; Greenaway v. Seven Oaks School No. 10 (1990), 1990 11267 (MB CA), 70 Man. R. (2d) 2, leave refused, [1991] 1 S.C.R. ix; Kraychy v. Edmonton Public School District No. 7 (1990), 1990 5495 (AB QB), 73 Alta. L.R. (2d) 69.

Statutes and Regulations Cited

Education Act, R.S.O. 1990, c. E.2, s. 264(1) [formerly s. 235(1)(c)].

School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2, s. 72.

Authors Cited

Stubbs, William. The Constitutional History of England, vol. I, 4th ed. Buffalo, N.Y.: W. S. Hein, 1987 (reprint).

APPEAL from a judgment of the Ontario Court of Appeal (1995), 1995 1065 (ON CA), 80 O.A.C. 153, allowing the respondent union’s appeal from a decision of the Divisional Court (1991), 1991 8232 (ON SCDC), 52 O.A.C. 8, 83 D.L.R. (4th) 552, quashing an arbitration award ordering the conditional reinstatement of the grievor. Appeal allowed.

Christopher G. Riggs, Q.C., Andrea F. Raso and Timothy P. Liznick, for the appellant.

Maurice A. Green and Margaret Correia, for the respondent Ontario Secondary School Teachers’ Federation, District 15 (Toronto).

Cory J.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1 Cory J. -- The sole issue in this appeal is whether the Board of Arbitration made a patently unreasonable decision in ordering that Mr. Bhadauria be conditionally reinstated in his position as a teacher with the appellant Board of Education.

Factual Background

2 The facts must be set out in detail since they will determine the reasonableness of the Board’s decision.

3 The grievor, Jagdish Bhadauria, taught for the appellant Board of Education for nearly 20 years. Between 1981 and 1984, he applied for the position of Vice‑Principal 39 times. Although he was granted several interviews, he was not promoted. In 1984, he filed a complaint with the Ontario Human Rights Commission, alleging that the hiring practices of the appellant Board of Education systemically discriminated against persons of South Asian origin. Hearings before the Board of Inquiry appointed to decide the complaint were lengthy, extending from 1987 to 1990. In April 1990, the Board of Inquiry released its decision. Although it indicated that there were flaws in the hiring process, it found that Mr. Bhadauria’s claim of systemic discrimination had not been made out.

4 On October 17, 1989, while the hearings before the Board of Inquiry were still continuing, Mr. Bhadauria wrote a letter to Dr. E. M. McKeown, the outgoing Director of Education for the appellant Board of Education. A copy of the letter was sent to the Chairman of the Board of Education, the trustees of the Board of Education and “Concerned Political Leaders”. The letter described the Board of Education as “the Reichstag of racial persecution”. It contained a number of very disturbing accusations directed at Dr. McKeown and other management personnel, including the following:

A condemned Jewish person would have received more mercy from Hitler than I got from you. You know that Idi Amin or Pinochet never murdered anyone personally, nor did Noriega sold [sic] drugs himself. The dirty work of these tyrants was done by their hatchet‑men. From the evidence that exists, I have every reason to believe that you never counselled the gang of rogues and rascals including Hayes, Banks, Choma, Sissons, Snell, and others, let alone reprimand them for their atrocities.

If I were to compare sadist Sissons, Hayes, Choma, Snell, Banks and others to world‑class oppressors, I would place their deeds above the atrocities of Idi Amin, Pinochet, and Marcos, and at a level comparable to that of Hitler and Stalin, both of whom exterminated the dissenters ruthlessly.

Under your guidance and leadership, the board has built up a huge propaganda machinery that has been very effective in convincing the world that Toronto Board is a pioneer in race relations. Even Goebbels would not have been as successful in performing this feat.

5 The same letter contained what could be perceived as veiled threats to the lives of Dr. McKeown and others that were phrased in this way:

Another newspaper article that I have enclosed for your attention relates to human behaviour when the limit of tolerance is reached. It is entitled, “Disgruntled Employee kills 7, wounds 13.”

This and many more incidents of similar nature that are reported from time to time simply point out the fragility of human tolerance. Based on my extensive experience in human suffering, I can safely predict that such an incident will happen at the board. But at that time it would be too late to rationalize the motives of the assailant.

6 As a result of these disquieting comments, Mr. Bhadauria was asked to submit to a psychiatric assessment. It was conducted by Dr. A. I. Malcolm at the end of October 1989. He found that there were no signs of mental illness. Dr. Malcolm concluded that Mr. Bhadauria had exhibited very bad judgment, but that he “would always limit his aggressive activities to words”. It was his opinion that Mr. Bhadauria was likely to continue to “issue very strong verbal commentaries in diverse media”.

7 On December 15, 1989, Mr. Bhadauria wrote a second letter which was equally abusive, and more explicitly threatening than the first. He referred to the “Montreal Massacre” of 14 women which had recently occurred, identified himself with the victims, and expressed grief over its occurrence. He wrote:

Having overcome the grief, I became extremely disappointed that the massacre occurred in Montreal but not at 155 College Street, the Canadian epicentre for racial bigotry and tokenism. I wish that Lapine [sic] should have lined up you and your crony superintendents, including Snell, Hayes, Sissons, Banks, Choma, and other co‑conspirators, against the wall and shot all of you. That would have been the most satisfying day of my life. I can assure you that I would not have shed a tear at [the] untimely and gruesome demise of all of you.

For eight years, Count Dracula‑Hayes and the draconian gang under your guidance sucked my blood and turned me into an emotionless human stone for whom the massacre of all or some of the gang would be a just and acceptable revenge.

8 He referred to the effect of the perceived discrimination against him on his personality and his teaching ability:

I was one of the most competent, caring, and kind teachers until the scoundrel superintendents began their heinous atrocities against me. Eight years of continual persecution has transformed me into a blood‑thirsty and revengeful devil. The persecution has totally destroyed my teaching ability, my memory, and my gentleness.

9 The conclusion of the letter was extremely disturbing. He wrote:

This is the Christmas Season, a season filled with joy, happiness, and understanding. For me, I have suffered ten agony‑filled Christmas seasons. Lépine should have changed all this. May be [sic] somebody else will at some time in the future.

Now that you are leaving the board, I will make sure that you never forget what you and your gang did to me. It is not a threat, but a promise that as long as you live, I will haunt you and remind you at every Christmas that you were the funeral director of my career. For you there will be no escaping from this yearly reminder.

10 Not surprisingly, after the second letter, Mr. Bhadauria was again asked to submit to a psychiatric assessment. Dr. Malcolm saw him at the end of December 1989. In his second report, Dr. Malcolm noted that he did not believe Mr. Bhadauria’s claim that he had not intended to frighten Dr. McKeown or the others mentioned in the letter. Dr. Malcolm was of the opinion that “the whole purpose of the letter was to engender uncertainty and fear in the minds of the retiring director and other members of the Board”. Nonetheless, he remained of the view that Mr. Bhadauria was not likely to be violent, and that although his harassment would continue, it would be verbal in nature. However, he was concerned with his conclusion and recommended that a second opinion be obtained from another psychiatrist and that a personality assessment be made by a psychologist.

11 Mr. Bhadauria was evaluated by Dr. Ruth Bray, a psychologist, in January 1990. Her conclusions were that he had no conscious intention to cause physical harm to those he had mentioned in the letter. She expressed some concerns about his personality “adjustment” but thought that it would not be productive to recommend therapy or counselling. She then concluded that “Mr. Bhadauria will continue to be a thorn in the side of those whom he perceives as either taking advantage of minorities or not giving them their due”. She agreed that there was no identifiable mental illness.

12 Subsequently, Mr. Bhadauria saw a psychiatrist, Dr. G. A. da Costa. His report confirmed that no mental illness was present, and that Mr. Bhadauria posed no danger of physical violence.

13 On January 25, 1990, after both letters had been received, the Board of Education discharged Mr. Bhadauria. The reasons for this decision were set out in a letter to him from Ms. Joan Green who was then the Director of Education. It stated:

Further to my letter dated January 18, 1990 I wish to advise that the Board, at its regular meeting on January 25, 1990, approved the following recommendations:

(a) That Jagdish Bhadauria, a permanent Teacher assigned to West Toronto Secondary School, be suspended with pay, effective January 2, 1990;

(b) That the Board terminate the permanent contract of Jagdish Bhadauria, effective August 31, 1990;

(c) That Jagdish Bhadauria be advised, in writing, that his permanent contract is terminated for reasons of unprofessional conduct, poor judgment, and attitudes which indicate he is no longer capable of fulfilling his duties as a Teacher under the Education Act and the Regulations. . . .

14 On February 16, 1990, Mr. Bhadauria filed a grievance under the governing collective agreement alleging that he had been disciplined without just cause. The matter was heard by a tripartite Board of Arbitration in October 1990. On August 25, 1990, before the hearings of the Board of Arbitration were scheduled to begin, Mr. Bhadauria wrote a third letter to the Board of Education. The letter began:

In spite of the advice of my counsels [sic] to refrain from writing any letters to the board’s administrators, I am unable to curb my natural urge of putting my thoughts on paper and sending them to the concerned parties on this occasion.

15 Although the letter was less abusive and threatening than the earlier ones, it continued to exhibit an all‑consuming bitterness. Mr. Bhadauria expressed anger at his dismissal, and accused the Board of Education of lawlessness. Comparisons were made between the Board of Education and oppressive regimes such as those in South Africa and Russia. He compared his dismissal to “the punishment meted out by the late tyrant Ayatollah Khomeini to Salman Rushdie”.

16 When the grievance was heard, two members of the Arbitration Board determined that the employer’s decision to dismiss Mr. Bhadauria should be set aside. They ordered his conditional reinstatement, subject to stringent monitoring and summary dismissal if the previous conduct was repeated. The dissenting member would have upheld the dismissal.

17 The appellant Board of Education sought judicial review of the award in the Divisional Court alleging that jurisdictional and patently unreasonable errors had been made by the arbitrators. The award was unanimously quashed by the Divisional Court on the basis that there was no evidence before the arbitrators which would support the conditional reinstatement of the grievor: (1991), 1991 8232 (ON SCDC), 52 O.A.C. 8, 83 D.L.R. (4th) 552. The respondent union appealed this finding to the Ontario Court of Appeal, which unanimously restored the arbitration award: (1995), 1995 1065 (ON CA), 80 O.A.C. 153.

Applicable Legislation

18 The high professional standards that teachers are required to meet are set out in the Education Act, R.S.O. 1990, c. E.2, particularly s. 264(1), which provides:

264.‑‑(1) It is the duty of a teacher and a temporary teacher,

(a) to teach diligently and faithfully the classes or subjects assigned to the teacher by the principal;

(b) to encourage the pupils in the pursuit of learning;

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

19 The relationship of the parties is governed by a collective agreement, which sets out the procedure for settling grievances arising during its term. The following provisions of the agreement are relevant:

1.4.11.0.0. . . . The arbitrator or the arbitration board shall hear and determine the grievance, shall issue a decision and the decision shall be final and binding on the parties. . . .

1.4.21.0.0. A Teacher may be disciplined only for just cause.

1.4.22.0.0. If a grievance concerns the discipline of a Teacher, including disciplinary dismissal, or discharge for incompetence, or just cause, the arbitration board may confirm the decision of the Board or reinstate the Teacher with or without full compensation or otherwise modify the penalty.

20 The collective agreement in turn is governed by the School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2, which provides a complete code governing collective bargaining relationships for teachers in Ontario. All collective agreements covered by the Act must contain a clause for the submission of disputes to arbitration for final and binding resolution. The decisions of the arbitrators are protected by a strong privative clause, set out in s. 72:

72. Except in respect of section 51, no decision, order, determination, direction, declaration or ruling of the Commission, a fact finder, an arbitrator or board of arbitration, a selector or the Ontario Labour Relations Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, application for judicial review or otherwise, to question, review, prohibit or restrain the Commission, fact finder, arbitrator or board of arbitration, selector or the Ontario Labour Relations Board or the proceedings of any of them.

Decisions Below

Board of Arbitration

Owen B. Shime, Q.C. (Chairperson) and L. A. Jones (Nominee for the Federation)

21 The majority of the Board of Arbitration noted first that the decision made by the Board of Inquiry in Mr. Bhadauria’s claim for systemic discrimination constituted agreed facts between the parties. The arbitrators were therefore able to take note of the Board of Inquiry’s extensive findings relating to the earlier excellent teaching record of Mr. Bhadauria. However, the majority also took into account the Board of Inquiry’s observation that the failure to receive a promotion had detrimentally affected him. This was demonstrated in part by his discontinuance of all extra‑curricular school activities, by his separation from his wife and by his seeking treatment from a psychiatrist.

22 The majority referred only to the first two letters written by Mr. Bhadauria. They considered as well the reports of the various medical professionals who evaluated Mr. Bhadauria after these letters were written. They specifically accepted the evidence of Ms. Joan Green, the current Director of Education, who was of the opinion that the grievor was not fit to teach. Further, they stated that they were not prepared to accept Mr. Bhadauria’s testimony.

23 Nonetheless, the majority was of the view that the length of the proceedings before the Board of Inquiry, Mr. Bhadauria’s disappointment and frustration at his failure to receive a promotion, and the resulting stress caused him to lose perspective. They then concluded that since the proceedings before the Board of Inquiry were no longer hanging over the grievor’s head, that “there is a good chance that the grievor will return to a calmer state”. Further, the majority held that:

It is a reasonable inference from the evidence that the grievor’s aberrant conduct took place at a time of great stress and that it was conduct which was temporary and not likely to be repeated in the future.

24 In light of the grievor’s long history of teaching and his excellent reputation, the majority concluded that dismissal was too harsh a penalty. They observed that although the letters were threatening, demonstrated a lack of judgment, and “portrayed a person who ought not to be in the classroom”, these factors had to be balanced against the grievor’s lengthy service and seniority. The majority were therefore of the view that “the grievor is not beyond redemption”, and “there is some chance that the grievor’s effectiveness as a teacher may not have been completely destroyed”. As a result, the penalty of dismissal was overturned. Mr. Bhadauria was reinstated, subject to stringent conditions, including a suspension without pay, monitoring of his teaching for two years, and summary dismissal if he repeated his misconduct.

A. S. Merritt (Nominee for the Board) (dissenting)

25 Mr. Merritt stressed the extreme, cruel and vitriolic nature of the letters. He emphasized the grievor’s own description of himself as a “revengeful beast” and questioned the ability of such a person to teach children. In his opinion, the timing of the letters demonstrated a striking lack of judgment in that they jeopardized the human rights hearing that the grievor believed would vindicate his claims.

26 A significant factor for Mr. Merritt was the failure of the grievor to show any remorse or contrition for writing the letters, either before or during the arbitration hearings. Mr. Bhadauria’s only expressions of regret appeared to relate to the fact that his actions had placed his livelihood at risk. Further, Mr. Bhadauria had admitted in cross‑examination that the views expressed in the letters were not appropriate for a person responsible for teaching young people.

27 The dissenting member was also of the view that the evidence did not show that the grievor’s feelings were temporary in nature or that they were momentary aberrations. Rather, he believed that the contrary was demonstrated when the grievor wrote the third letter following his dismissal.

28 Mr. Merritt considered the professional standards for teachers embodied in s. 264(1)(c) of the Education Act (formerly s. 235(1)(c)). Although he recognized that these standards establish goals rather than absolute requirements, they nonetheless reflect the fact that parents entrust their children to teachers in loco parentis, and require them to lead by example. He expressed concern that the anger, bitterness and hatred expressed in the letters would emerge in subtle ways in the classroom. As a result, he was unable to agree “with the great leap of faith which one must take to agree to his reinstatement”. He would have upheld the employer’s dismissal of the grievor.

Divisional Court

29 Steele J., writing for the court, examined the applicable law and concluded that the arbitration board had the jurisdiction to overturn the dismissal of the grievor and substitute a different penalty. The only question was whether the decision to do so was patently unreasonable.

30 Steele J. canvassed the evidence that formed the basis for the arbitral award, and concluded (at p. 12 O.A.C.) that there “was no evidence to support the temporary nature of the conduct. In fact the evidence was non‑existent or entirely to the contrary.” He noted that the arbitrators gave no credence to Mr. Bhadauria’s own testimony. As well the evidence as to the grievor’s good reputation ended in 1984, and the grievor himself indicated that his personality changed in that year. Further, the grievor showed no remorse, and the psychiatric evidence indicated that his conduct was likely to continue.

31 He observed that if there was evidence on which the Board of Arbitration could conclude that the grievor was fit to teach at the time of the hearing, then it would have been open to the arbitrators to exercise their discretion as to whether the grievor would be allowed to do so. However, since the letters demonstrated that he was not fit to teach, and there was no evidence to indicate that this was temporary, the substitution of the penalty by the arbitrators could not be upheld. Steele J. therefore quashed the award.

Ontario Court of Appeal

32 The appeal from this decision was allowed by the Court of Appeal on the basis that “in applying the ‘patently unreasonable’ test, the Divisional Court permitted itself to review the merits to a greater extent than is appropriate under the definition of ‘patently unreasonable’ stipulated by the Supreme Court of Canada” (p. 154). The court determined that although a reviewing court might not agree with the arbitrators’ conclusion, it was not patently unreasonable. The order of the majority of the Board of Arbitration was therefore restored.

Issues

33 The sole issue to be decided on this appeal is whether the decision of the Board of Arbitration to overturn the employer’s dismissal of the grievor is patently unreasonable.

Analysis

Duty of Deference Owed to All Administrative Tribunals

34 At the outset, it should be stressed that no new principle of law arises in this appeal. Rather, it must be resolved by the application of established principles. A brief review of the applicable principles may be of assistance. In Pezim v. British Columbia (Superintendent of Brokers), 1994 103 (SCC), [1994] 2 S.C.R. 557, Iacobucci J., on behalf of the Court, considered the degree of judicial deference owed to the various categories of administrative tribunals. He described the position that should be adopted by courts in this way at pp. 589‑90:

There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal’s role or function. Also crucial is whether or not the agency’s decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.

Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause is deciding a matter within its jurisdiction and where there is no statutory right of appeal. . . .

At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal’s jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights.

Very High Degree of Deference Owed to Labour Arbitration Boards

35 Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941 (PSAC No. 2), emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal, like the Board of Arbitration in the instant appeal, is protected by a broad privative clause. There are a great many reasons why curial deference must be observed in such decisions. The field of labour relations is sensitive and volatile. It is essential that there be a means of providing speedy decisions by experts in the field who are sensitive to the situation, and which can be considered by both sides to be final and binding.

36 In particular, it has been held that the whole purpose of a system of grievance arbitration is to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer. This is a basic requirement for peace in industrial relations which is important to the parties and to society as a whole. See for example Heustis v. New Brunswick Electric Power Commission, 1979 26 (SCC), [1979] 2 S.C.R. 768, at p. 781; Blanchard v. Control Data Canada Ltd., 1984 27 (SCC), [1984] 2 S.C.R. 476, at p. 489, per Lamer J. (as he then was).

37 It was for these reasons that PSAC No. 2 stressed that decisions of labour relations tribunals acting within their jurisdiction can only be set aside if they are patently unreasonable. That is very properly an extremely high standard, and there must not be any retreat from this position. Anything else would give rise to the endless protraction of labour disputes resulting in unrest and discontent. Indeed the principle of judicial deference is no more than the recognition by courts that legislators have determined that members of an arbitration board with their experience and expert knowledge should be those who resolve labour disputes arising under a collective agreement.

Jurisdiction of Arbitration Boards to Determine “Just Cause” and the Propriety of the Disciplinary Action of the Employer

38 A decision as to whether there is “just cause” for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable. See the reasons of Beetz J. (for the majority) and the separate concurring reasons of Lamer J. in Blanchard, supra, at pp. 479 and 491‑92.

39 In this case, the only unique aspect of the assessment of “just cause” and the determination of the appropriate penalty is that the arbitrators were required to interpret a provision of the Education Act. Section 264(1) of that Act sets out the standards of conduct for teachers. It is against the background of these provisions that the concept of “just cause” in the collective agreement must be considered. It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of “outside” legislation. The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard. See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 88 (SCC), [1993] 2 S.C.R. 316, at pp. 336‑37. An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result. See Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 148 (SCC), [1995] 1 S.C.R. 157, at p. 187, per Iacobucci J.

40 However, the resolution of this appeal does not require a determination as to whether the arbitrators hearing Mr. Bhadauria’s grievance were required to be correct in deciding whether the grievor’s misconduct breached the standards of conduct set out in s. 264(1)(c) of the Education Act. This is so since both the appellant and the respondent union agree, correctly in my view, that at the time that the letters were written, Mr. Bhadauria certainly did not exhibit the characteristics statutorily required of a person who is responsible for teaching young people. The essential question before the Board was whether the failure to meet these standards was temporary and whether discharge was appropriate. These issues were within the jurisdiction of the Board. Thus their decision can only be set aside if it was patently unreasonable.

What Constitutes a Patently Unreasonable Decision?

41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law.

42 Where a tribunal is interpreting a legislative provision, the test is:

. . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227, at p. 237.

43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”: Bradco, supra, at p. 341.

44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 51 (SCC), [1980] 1 S.C.R. 245, at p. 277:

. . . a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review.

45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J.

46 All these tests are strict: see Blanchard, supra, at p. 481 per Beetz J. and at p. 493 per Lamer J. In PSAC No. 2, supra, it was put in this way at pp. 963‑64:

It is said that it is difficult to know what “patently unreasonable” means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary “patently”, an adverb, is defined as “openly, evidently, clearly”. “Unreasonable” is defined as “[n]ot having the faculty of reason; irrational. . . . Not acting in accordance with reason or good sense”. Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

Yet courts also have a duty to protect parties from a decision which is patently unreasonable.

The Review of the Record

47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.

48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings.

Application of these Principles to the Case at Bar

Finding of “Just Cause” for Discipline

49 The first step in any inquiry as to whether an employee has been dismissed for “just cause” is to ask whether the employee is actually responsible for the misconduct alleged by the employer. The second step is to assess whether the misconduct gives rise to just cause for discipline. The final step is to determine whether the disciplinary measures selected by the employer are appropriate in light of the misconduct and the other relevant circumstances. See Heustis, supra, at p. 772.

50 There is no doubt that Mr. Bhadauria was guilty of misconduct. Furthermore, the arbitrators clearly found that there was “just cause” for discipline. The only question was whether the disciplinary measure of dismissal was too harsh.

51 The standards of conduct that everyone agrees were breached by Mr. Bhadauria are set out in s. 264(1)(c) of the Education Act. It may be helpful to set out that section once again:

264.‑‑(1) It is the duty of a teacher and a temporary teacher,

(a) to teach diligently and faithfully the classes or subjects assigned to the teacher by the principal;

(b) to encourage the pupils in the pursuit of learning;

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

52 The language is that of another era. The requirements it sets for teachers reflect the ideal and not the minimal standard. They are so idealistically high that even the most conscientious, earnest and diligent teacher could not meet all of them at all times. Angels might comply but not mere mortals. It follows that every breach of the section cannot be considered to infringe upon the values that are essential to the make‑up of a good teacher. However, the section does indicate that teachers are very properly expected to maintain a higher standard of conduct than other employees because they occupy such an extremely important position in society. The function of the section was aptly described in Re Etobicoke Board of Education and Ontario Secondary School Teachers’ Federation, District 12 (1981), 1981 4445 (ON LA), 2 L.A.C. (3d) 265, at p. 271, in these words:

. . . even though s. 229(1)(c) [now 264(1)(c)] cannot be enforced to the letter by use of disciplinary sanctions, it does stand as an exhortation to teachers to aspire to the impossible role assigned to them. The legislation, properly understood, does not require teachers to be saints; it does, however, indicate the need for a higher standard of conduct than that required of other employees. Such high standards are not uncommon in the professions, nor is it uncommon that a failure to achieve them results in the loss of professional status or employment.

53 It follows that an employer will only be justified in disciplining a teacher in cases of a significant breach of the section. There can be no doubt that the opinions expressed and the wording used in the letters of Mr. Bhadauria constituted very significant if not extreme misconduct. The letters did not simply express dissatisfaction with working conditions; they were threats of violence. The fact that they may have been written outside the hours of teaching duty cannot either excuse or alleviate the seriousness of the misconduct.

Significance of Misconduct Outside the Classroom

54 Section 264(1)(c) requires teachers to inculcate by precept and example the highest regard for truth, justice, loyalty, love of country, humanity and benevolence. These are values that all parents wish their children to learn. In their position of trust, teachers must teach by example as well as by lesson, and that example is set just as much by their conduct outside the classroom as by their performance within it. Thus misconduct which occurs outside regular teaching hours can be the basis for discipline proceedings.

55 Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825, upheld the portions of an order by a Board of Inquiry under human rights legislation that required a Board of Education to dismiss a teacher who publicly espoused and published extreme anti‑Semitic views. La Forest J., writing for the Court, emphasized the sensitive environment of a school and the need to hold teachers to high standards of professional conduct inside and outside the school. At pp. 856‑58 he wrote:

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the Board of Inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it.

Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community’s perception of the ability of the teacher to fulfill such a position of trust and influence, and upon the community’s confidence in the public school system as a whole. . . .

By their conduct, teachers as “medium” must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to “choose which hat they will wear on what occasion” (see Re Cromer and British Columbia Teachers’ Federation (1986), 1986 143 (BC CA), 29 D.L.R. (4th) 641 (B.C.C.A.), at p. 660); teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off duty.

The same principles were affirmed in R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171.

56 A conviction for a criminal offence is a common example of “off duty” conduct that gives rise to professional disciplinary measures for teachers. See for example Re Wellington Board of Education and O.S.S.T.F. (1991), 1991 13368 (ON LA), 24 L.A.C. (4th) 110, at p. 115, where it was held that “a school board may discipline and even discharge a teacher for off‑duty conduct because of the particular position he or she occupies in the community”. See also Board of Education for the City of London and O.S.S.T.F., District 4, October 7, 1986, unreported (Teplitsky), upheld on judicial review to the Ontario Divisional Court (unreported endorsement).

57 In deciding whether there is just cause for the imposition of the particular form of discipline selected by the employer, arbitrators must assess the seriousness of the misconduct in the context of the existing circumstances. These circumstances include, where appropriate, such matters as the seniority and the past performance of the teacher. As well, 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. It is significant that the majority of the Board made no reference to the effect the letters of Mr. Bhadauria might have had upon public confidence in the education system. In reviewing the decision of this Board of Arbitration to reinstate Mr. Bhadauria it is therefore necessary and indeed essential to ensure that there was a reasonable basis for concluding that Mr. Bhadauria was fit to return to teaching.

Was the Decision to Return Mr. Bhadauria to the Classroom Patently Unreasonable?

58 In making their “leap of faith” and holding that Mr. Bhadauria should be given another chance to demonstrate that his teaching ability had not been “completely destroyed”, the majority of the Board of Arbitration made two key findings of fact. These findings are, in my view, the sole basis for the Board’s conclusion that the grievor was capable of returning to the classroom. The first was the finding that his unacceptable conduct was temporary because it could be attributed to the stress and frustration of the Board of Inquiry hearings. The second and related finding was that Mr. Bhadauria was “not beyond redemption”. If these findings were patently unreasonable in that there was no evidence upon which they could be based, then the decision of the arbitrators should be quashed.

59 In light of the importance of the role of teachers in our society, it was simply not open to the Board to conclude both that the grievor was unfit to be in the classroom and that he should be allowed to return in the absence of evidence that he was fit to do so. If there was any evidence that his conduct was temporary and aberrant, then it was certainly open to the Board to exercise its discretion and reinstate Mr. Bhadauria, with or without conditions. Alternatively, it could have concluded that the breach of professional standards was so grave that he should be dismissed, regardless of his ability to perform his duties. The reasonableness of the decision by the majority of the Board of Arbitration to return Mr. Bhadauria to his teaching duties hinges entirely on the inference made by the majority that his conduct was temporary.

60 It is essential to recall the salutary caution expressed by Lamer J. in Blanchard, supra, at p. 499:

. . . courts should always be mindful of the fact that an arbitrator is in a far better position to assess the impact of the award. . . . Often, too, the administrative “judge” is better trained and better informed on the area of his jurisdiction, and has access to information which more often than not does not find its way into the record submitted to the court. To this must be added the fact that the arbitrator saw and heard the parties.

Nonetheless, I am of the view that, although the reasons of the majority of the Board of Arbitration are adequate from a legal perspective, they do contain a number of disquieting contradictions which are difficult to explain. These contradictions are obvious from a review of the significant items of evidence on which the arbitration board relied in making its determination.

61 All the evidence before the Board not only contradicted the inference made by the majority that his conduct was temporary but rather confirmed that it persisted. First, the majority of the Board of Arbitration accepted Ms. Green’s evidence that Mr. Bhadauria was not capable of fulfilling the duties of a teacher, and they rejected Mr. Bhadauria’s evidence explaining his conduct. Second, the medical evidence indicated that while Mr. Bhadauria was not likely to be physically violent, he was likely to continue his verbal attacks. Third, the majority had before them the third letter of Mr. Bhadauria which demonstrated a shocking lack of judgment and exhibited the same feelings of hatred and bitterness which prompted the first two letters.

i) The Testimony of Mr. Bhadauria and the Employer

62 The majority of the Board unequivocally accepted and agreed with the testimony of Ms. Green, the current Director of Education, that the grievor had failed to live up to the standards required of a teacher under s. 264(1)(c). They found her evidence to be “straightforward” and “difficult to fault”. She testified “that the grievor was incapable of providing for the emotional growth and desirable self‑esteem that was required when teaching young people and accordingly that he was unsuitable to be a classroom teacher”. She added that as a parent she did not want her children in a classroom with a person such as Mr. Bhadauria, in light of his views and the hatred that he expressed in the letters.

63 By contrast, the majority emphatically rejected Mr. Bhadauria’s explanations of his conduct. They dismissed them as “shallow” and unable to “withstand the able cross examination of counsel for the Board”. As a result, the majority was not prepared to “give any credence to the grievor’s testimony in that regard”. In fact, counsel for the appellant obtained an admission from the grievor on cross‑examination that his actions in writing the first two letters were not those of a person who should be teaching young people. In light of this it is not surprising that the majority concluded that the grievor’s testimony was not credible.

64 It is significant that the grievor himself stated in his letters that he was unfit to be in a classroom. He indicated that eight years of discrimination had turned him into “an emotionless human stone” and “a blood‑thirsty and revengeful devil.” He wrote that “persecution has totally destroyed my teaching ability, my memory, and my gentleness”. Furthermore, Mr. Bhadauria promised at the end of the second letter that he would “haunt” Dr. McKeown, and remind him yearly at Christmas that he was the “funeral director” of Mr. Bhadauria’s career and that “there [would] be no escaping” this reminder. The letters themselves suggest that his conduct will continue, and that he is therefore unfit to teach.

65 Despite this apparently overwhelming evidence, the majority concluded that the grievor’s conduct could be attributed to the stress of the hearings before the human rights Board of Inquiry. They expressed the opinion that now that the Inquiry was over, it was likely that he would “return to a calmer state”. In my view, this could only be a reasonable inference if some of the statements made by the experts who examined Mr. Bhadauria are taken out of context, and if the grievor had not sent the third letter. Evidence of Mr. Bhadauria’s good character and teaching record, regardless of its duration, does not assist in determining if his incapacity to fulfill his duties as a teacher was temporary. The fact is that there was overwhelming evidence both in the medical reports and from other sources which indicated that even if the actions of Mr. Bhadauria had been caused by the stress of the Board of Inquiry hearings, his actions were not a temporary lapse. His personality, in his own words, had radically changed. There was no evidence that would suggest that his feelings of bitterness and resentment had dissipated after the Board of Inquiry found that there was no discrimination in the hiring practices of the appellant Board of Education. In fact, all the evidence was to the contrary.

ii) The Psychiatric and Psychological Assessments

66 The overwhelming evidence that Mr. Bhadauria’s conduct was not temporary can be found in part in the assessments of the psychiatrists and the psychologist who assessed Mr. Bhadauria’s mental state after he wrote the first two letters. Although the reports of these experts specifically addressed the question as to whether Mr. Bhadauria was likely to become physically violent, they contain statements that refer generally to his state of mind.

67 Dr. Malcolm’s first report did attribute Mr. Bhadauria’s actions to the stress of the hearings before the Board of Inquiry and to the perception, real or imagined, that he had been the victim of discrimination. But Dr. Malcolm certainly did not say that Mr. Bhadauria would return to his prior state once the aggravating factors were removed. Dr. Malcolm considered the likelihood of Mr. Bhadauria manifesting physical violence and concluded that he “would always limit his aggressive activities to words”. However he went on to express the opinion that Mr. Bhadauria would very likely continue to “issue very strong verbal commentaries in diverse media because that is his style”.

68 These two statements, which do not appear to have been challenged before the Board, are a strong indication that despite the threatening tone of the letters Mr. Bhadauria was not likely to become physically violent. Nevertheless, it is clear that he was going to continue to express these extreme positions in verbal attacks. It was the threatening manner in which he expressed his extreme views and sentiments and the total lack of judgment he demonstrated in sending the letters, rather than his potential for physical violence, that were the basis for the conclusion that Mr. Bhadauria was not fit to teach.

69 After the grievor sent the “Montreal Massacre” letter, he was assessed again by Dr. Malcolm. That report was also accepted by the majority. Dr. Malcolm concluded that in sending this letter Mr. Bhadauria had intended to engender fear in its recipients. He repeated his opinion that Mr. Bhadauria was not likely to be physically violent, but that his verbal harassment would continue. He certainly gave no indication that this situation would be one of short duration. Rather, the conclusion of Dr. Malcolm was that although it would be out of character for Mr. Bhadauria to be physically violent, it was clearly not out of character for him to express and to continue to express his feelings verbally.

70 The report of the psychologist Dr. Ruth Bray was also accepted unconditionally by the majority. She too concluded that he would “continue to be a thorn in the side” of his employers.

71 All of this evidence, accepted without qualification by the majority, indicates that Mr. Bhadauria would continue his verbal harassment.

iii) The Third Letter

72 The final significant item of evidence which leads to the conclusion that the grievor’s conduct was not temporary is the third letter. It was written several months after the Board of Inquiry’s decision had been rendered, and a month and a half before the hearing before the Board of Arbitration was to begin. Curiously, the majority did not even refer to it.

73 The respondent submitted in argument that the appellant did not seek leave to appeal on the issue of the failure to refer to the third letter, and that this issue was not raised before either the Divisional Court or the Court of Appeal. However, the appellant sought and obtained judicial review before the Divisional Court on the basis that there was a lack of evidence to support the findings of fact of the Board of Arbitration. This same ground was maintained before the various appellate courts. The third letter was part of the evidence before the Board of Arbitration. Thus, it is appropriate to consider it in determining whether there was a basis for the inference drawn by the majority that Mr. Bhadauria’s conduct was temporary.

74 It is true that the third letter is, to some extent, “subsequent-event evidence” since it was written after the dismissal of Mr. Bhadauria. However it has been decided that such evidence can properly be considered “if it helps to shed light on the reasonableness and appropriateness of the dismissal”: Cie minière Québec Cartier v. Quebec (Grievances Arbitrator), 1995 113 (SCC), [1995] 2 S.C.R. 1095, at p. 1101. In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a serious error for them not to do so.

75 Although the third letter is less objectionable than the first two, it continues to exhibit the same extreme views, hyperbolic comparisons and total lack of judgment. The lack of judgment is demonstrated by the opening words of the letter:

In spite of the advice of my counsels [sic] to refrain from writing any letters to the board’s administrators, I am unable to curb my natural urge of putting my thoughts on paper and sending them to the concerned parties on this occasion. After a long interval of nearly eight months, I cannot resist and control my impulse of using the power of the pen. . . . [Emphasis added.]

76 This letter is an admission by Mr. Bhadauria that he was still unable to control either his feelings or his impulse to express those feelings, however inappropriate they may be. It provides incontrovertible evidence that Mr. Bhadauria had not returned to a “calmer state” several months after the Board of Inquiry process came to an end, and that his extreme feelings and lack of judgment persisted. In the face of this letter, it was patently unreasonable for the arbitrators to conclude that his conduct was temporary and to return him to the classroom.

77 In addition to the three factors stressed above that overwhelmingly contradict the findings of the majority that the conduct was temporary, I note one final issue that was mentioned by the dissenting member of the Board of Arbitration, but was not raised by the appellant in argument. It was noted by Mr. Merritt that the grievor did not demonstrate any remorse for his conduct, or any understanding of its effects on the recipients of the letters. The regret he expressed related entirely to himself, and to the fact that the letters jeopardized not only the Board of Inquiry hearing that had occupied so much of his time, energy and hope, but also his very livelihood. He was unable to appreciate that the letters were bound to engender fear in the recipients. Nor did he recognize the extreme nature of his views. Only before the Board of Arbitration did he concede that the views expressed were inappropriate for a person responsible for teaching young people. Even at this late stage no apologies were forthcoming and no contrition was apparent. This is yet another indication that Mr. Bhadauria’s conduct was not temporary, and that there was no basis for the conclusion that he was “not beyond redemption”.

78 The evidence that Mr. Bhadauria’s misconduct was not temporary appears to be overwhelming. Yet that is not sufficient in itself to base a conclusion that the decision of the majority was patently unreasonable. What does lead to that conclusion is that I can find no other evidence reasonably capable of supporting the conclusion that the misconduct was a momentary aberration. There was certainly no onus on the employee to demonstrate that his misconduct was temporary. The reasons of the majority clearly indicate, however, that they accepted the employer’s evidence that just cause had been established and that the employer had discharged its onus in that regard. Quite simply, the evidence that the arbitrators stated they were relying upon to support their findings pointed to the exact opposite conclusion. The absence of such evidence renders the decision patently unreasonable, and there was simply no basis for the “leap of faith” that he could return to the classroom.

Disposition

79 In the result, the appeal is allowed, the decision of the Court of Appeal is set aside, and the award of the Board of Arbitration is quashed. In light of the lengthy prior record of good conduct on the part of the teacher, there will be no order as to costs.

L’Heureux-Dubé J.

The following are the reasons delivered by

80 L’Heureux-Dubé J. -- I concur with the result my colleague Justice Cory reaches but I cannot share his views on the questions the board should have asked itself.

81 The principle of judicial deference is not automatic. This case is crying out for an application of the pragmatic and functional approach expounded in U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, and Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, and followed in Pezim v. British Columbia (Superintendent of Brokers), 1994 103 (SCC), [1994] 2 S.C.R. 557. This test ascertains whether the legislator intended the question to be within the jurisdiction conferred on the tribunal. Whether the board or a court should answer the question depends upon an assessment of the rationale for deference, which is determined by an examination of the enabling statute, the specialization of the board and the nature of the problem under scrutiny. Although, in my view, the pragmatic and functional approach could very well support a standard of review closer to that of correctness in this case, I do not disagree with my colleague as regards the standard he applies.

82 A review of the way the arbitration board addressed the questions is in order. In this case, the principal cause for discharge is not that the offensive behaviour is permanent, but that the two letters, standing alone, are a critical incident. The fact that the two letters are the cause for the grievor’s discharge was recognized by the three members of the arbitration board:

The grievor . . . was discharged . . . because of two letters. . . . The [employer] considered the contents of the letters as indicative of a person whom it felt to be inappropriate as a teacher. [Majority]

It was this [second] letter which finally caused the [employer] to discharge the grievor. At this juncture it is important to note that the [employer] did not discharge the grievor because it was concerned about violent conduct on his part, rather, it was the contents of the letter which the [employer] considered inappropriate for a person teaching students and which was inimical to the concept of education which the [employer] wished to foster. [Majority]

Nothing can really justify those most bloodthirsty statements showing as they do the gravest lack of judgment, lack of empathy, and deep-rooted hatred for innocent people. One can hardly wonder that in the face of these letters, the [employer] dismissed [the grievor]. [Dissent]

and by the Divisional Court (1991), 1991 8232 (ON SCDC), 52 O.A.C. 8, at p. 11:

The [arbitration] Board acknowledged, in its reasons, that the [employer] did not discharge the grievor because of concern about violent conduct, but rather because of its concern that the contents of the letters were inappropriate for a person teaching students and this was inimical to the concept of education that the [employer] wished to foster. [Emphasis added.]

83 Thus, it is agreed that the employer discharged the grievor primarily for the following cause: the two letters, because of their contents, are inappropriate for a teacher and inimical to the employer’s concept of education. The grievor alleged in his grievance that “the Toronto Board of Education has . . . discharged me without just cause”. Therefore, the first question that was properly before the arbitration board was: “are the two letters, in themselves, just cause for discharge?”.

84 The employer also alleged a subsidiary ground for discharge: in the alternative, the two letters indicate that the grievor is no longer capable of fulfilling his duties (see reasons of the Divisional Court, at p. 10). Thus, the subsidiary question that was properly before the arbitration board was: “if the two letters, in themselves, are not just cause for discharge, then, in the alternative, is the grievor no longer capable of fulfilling his duties? If this condition is permanent, then there is just cause for discharge.”

85 But the arbitration board failed to address the first question and, instead of answering whether or not the two letters constituted just cause, went on to address the subsidiary question as to whether the offensive behavior was temporary or permanent. Before dealing with this subsidiary question, which I will do infra, it is necessary first to answer the question as to whether the two letters, in themselves, constitute just cause for discharge.

86 The test for “just cause to discharge”, set forth by Dickson J. in Heustis v. New Brunswick Electric Power Commission, 1979 26 (SCC), [1979] 2 S.C.R. 768, at p. 772, is formulated as follows:

First, did the employee engage in the conduct alleged? Second, was the conduct deserving of disciplinary action on the part of the employer? Third, if so, was the offence serious enough to warrant discharge? [Emphasis added.]

87 Thus, once it is found that the conduct is “deserving of disciplinary action”, the appropriate next question is not, as my colleague Cory J. puts it at para. 50: “is dismissal too harsh?”. The appropriate ensuing question is: “was the offence serious enough to warrant discharge?”. The seriousness of a specific offence may vary depending on the particular occupational group or profession concerned, and it may also vary depending on the circumstances and the consequences. As far as teachers are concerned, while it is clear that not every kind of misconduct will be so grave as to warrant the strictest forms of discipline, I must emphasize that, in some cases, a single offence can constitute just cause for discharge. Hence, in the present case, the primary issue is: “was the single offence of writing these two letters serious enough to warrant the discharge of a teacher?”

88 In my view, the conduct of a teacher bears directly upon the community’s perception of his or her ability to fulfill such a position of trust and influence, and upon the community’s confidence in the public school system as a whole. Thus, where a teacher commits acts of a gravity such that his or her status as a role model is seriously prejudiced, the relationship of trust and confidence which must exist between the school board and the teacher is undermined and there is just cause for discharge, even where there might be positive evidence that the teacher could be fit to return to teaching duties: Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825; see also generally Greenaway v. Seven Oaks School No. 10 (1990), 1990 11267 (MB CA), 70 Man. R. (2d) 2 (C.A.), leave to appeal refused, [1991] 1 S.C.R. ix; Kraychy v. Edmonton Public School District No. 7 (1990), 1990 5495 (AB QB), 73 Alta. L.R. (2d) 69 (Q.B.).

89 In view of the above, the questions the arbitration board should have asked itself in the case at bar are the following:

1. “Did the grievor engage in the conduct alleged?”;

2. “Was the conduct deserving of disciplinary action?”;

3. “Was the offence serious enough to warrant discharge -- that is:

3a. Are the two letters of a gravity such that the grievor’s status as a role model is seriously prejudiced?”. If so, the offence is serious enough to warrant discharge and there is just cause. If the offence is not serious enough for discharge, the next step is to ask:

4. “Are the circumstances such that a lesser penalty would be warranted?”. At that stage, substitution of a lesser penalty would not come automatically: there might still be just cause for discharge, for instance where the offence is a culminating incident. If there is no just cause for discharge, then:

5. “What lesser penalty would be appropriate, having regard to the circumstances?”.

90 But the arbitration board skipped questions 3, 3a and 4, and, without first making a determination as to whether or not the two letters, in themselves, constituted just cause for discharge, set out to decide what lesser penalty should be awarded:

Should then, a lengthy and positive career, be overthrown just short of retirement by two letters written by the grievor in late 1989, considering his state of mind and the lengthy and protracted proceedings that he was subjected to and which no doubt exacerbated the difficulties. There is no doubt that the letters were threatening, were lacking in judgment and portrayed a person who ought not to be in the classroom. But these letters must be looked at against the very positive reputation that the grievor enjoyed for twenty years as a teacher. Any concept of just cause must weigh in the balance the grievor’s lengthy seniority and positive service with the [employer] as well as the incidents which prompted his dismissal. In our view the grievor is not beyond redemption. The purpose of discipline is not to punish the grievor but to correct his conduct. If the conduct cannot be corrected or the grievor is beyond rehabilitation he ought to be dismissed.

In this case, there is some chance that the grievor’s effectiveness as a teacher may not have been completely destroyed. . . . Accordingly, it is our view that the grievor should be reinstated but subject to very stringent conditions. [Emphasis added.]

91 Whether or not “there is some chance that the grievor’s effectiveness as a teacher may not have been completely destroyed” is not the proper test to be applied in the circumstances of this case. If a single offence, standing alone, is serious enough to constitute just cause for discharge under any circumstances whatsoever, then an employee’s past record or his potential for future rehabilitation cannot turn that just cause into an unjust one. Therefore, contrary to the proposition set forth by the arbitration board, a “concept of just cause” does not necessarily imply an automatic acceptance of the employee’s seniority and service record as mitigating factors in all cases. There can be some cases where an offence is so grave that no factor would be sufficient to mitigate the discharge, and other circumstances where an offence is so critical to the employment relationship that mitigation simply cannot come into play.

92 In my opinion, in the case at bar, the two offensive letters are of such gravity as to seriously prejudice the grievor’s status as a role model, hence undermining the necessary relationship of trust and confidence. Therefore, the two letters, in themselves, constitute just cause for discharge and this penalty is warranted.

93 The gravity of the offence stems from the following underlying considerations. Since the ancient times, our polity has embodied a fundamental principle of peaceful conflict-resolution which was expressed thus: “no man may redress his own wrongs until he has appealed to the guardians of the peace for justice. Hence the peace is the great check on the practice of private war, blood feuds, and the so-called lex talionis”: W. Stubbs, The Constitutional History of England (4th ed. 1987), vol. I, at p. 198. Hence, in our modern society, where one feels disappointed with the existing conflict-resolution systems, the next step is not to engage in a personal vendetta, but to bring about changes through the appropriate political processes.

94 However, instead of properly seeking redress as a law-abiding citizen, the grievor portrayed an incensed renegade who set out to “take justice in his own hands”. In doing so, he crossed the line between what could perhaps be permissible for an employee -- vigorously, but lawfully, hauling his employer before the court -- and what was impermissible for a teacher: resorting to rather unsightly intimidation tactics calculated to shock individual officers of his employer, not qua officers, but in their capacity as private citizens. The grievor, of his own volition, seriously prejudiced his own status as a role model.

95 Serene conflict-resolution -- indeed, one of the facets of the rule of law -- lies within the most fundamental core values that the school system is trying to inculcate. It is self-evident that capriciously “taking justice in one’s own hands” when a remedy is a long time coming is not a subject that should be part of any school’s curriculum. As the grievor said himself: “Human rights has been my passion for 30 years . . . I’m a human rights crusader . . . I make no compromise” (emphasis added). What the school system is trying to inculcate is exactly the opposite: one may embark on a human rights crusade but this is subject to the compromise that, in doing so, one will respect the rule of law.

96 In the context of the present case, because of their gruesome character, the two letters are per se sufficient evidence for a finding that the grievor has seriously prejudiced his status as a role model, and for the consequential finding of just cause for discharge. Accordingly, the subsidiary question as to whether this kind of aberrant behaviour was temporary or permanent is irrelevant in this case. Failure on the part of the arbitration board to formulate the questions properly, to address the primary legal issue, and to make the findings of just cause on the two letters per se, was not merely incorrect, it was patently unreasonable.

97 Indeed, the arbitration board’s failure to address the primary question as to whether the two letters were, per se, just cause for discharge was one of the grounds for judicial review that were submitted to the Divisional Court:

(d) The majority of the board of arbitration exceeded its jurisdiction by failing to address the issue before it, namely whether the contents of the letters were inappropriate for a person teaching students and inimical to the concept of education which the Applicant wished to foster; [Emphasis added.]

98 The Divisional Court did not address this ground at all. Rather, it focused exclusively on the subsidiary issue of the findings of fact concerning the future behaviour of the grievor (pp. 10, 12). The Divisional Court granted the application “on the ground that there was no evidence upon which the Board could have found that the conduct of the grievor was temporary” (p. 14).

99 With respect, I am unable to agree with the Divisional Court’s reasoning. Asking for positive evidence to support the temporariness of the grievor’s conduct disregards the fact that the employee has no burden of proving the temporariness of his conduct. It is trite law that the employer has the burden of proving just cause. If the employer does not satisfy its burden of proving “permanence”, then this ground for just cause fails, even in the absence of any evidence of “temporariness”. In my view, the arbitration board found that the subsidiary ground of “permanence” failed and, seeing no just cause for discharge, it exercised its discretion to substitute a lesser penalty. However, as stated above, the primary ground -- the two letters per se -- did constitute just cause for discharge, which makes the subsidiary ground of “permanence of conduct” redundant. Accordingly, I am not expressing any opinion as to whether or not, in this case, that subsidiary ground would constitute just cause for discharge.

100 Subject to the above considerations, I would dispose of the appeal as proposed by my colleague.

Appeal allowed without costs.

Solicitors for the appellant: Hicks Morley Hamilton Stewart Storie, Toronto.

Solicitors for the respondent Ontario Secondary School Teachers’ Federation, District 15 (Toronto): Golden, Green & Chercover, Toronto.