Human Resources

BCCA confirms parameters for teacher freedom of speech in schools

In British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2013 BCCA 241, an appeal was brought by the British Columbia Teachers’ Federation (BCTF) from an Arbitrator’s decision that a school district directive violated teachers’ freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms (Charter), but was allowable as a reasonable limit on the teachers’ rights under section 1 (the Decision of the Arbitrator was reviewed in “Arbitrator holds freedom of expression of teachers may be overridden by the need to protect children from political messages in the classroom”, KC Human Resources Newsletter, October 2012). The question before the Court was the extent to which teachers’ expression of political views on education issues in public schools is protected by the Charter.

The political expressions at issue were messages critical of specific government education policies regarding special needs of students being neglected, school closures, and overcrowding of classes, contained on posters and bulletin boards intended to be seen by the students’ parents. Pursuant to a directive from the school district Director that political information should not be displayed in school hallways, classrooms, or on school grounds, some principals told teachers to stop displaying the posters. The Cranbrook and Fernie Teachers’ Association disagreed with this directive and filed a grievance. The BCTF referred the matter to arbitration.

In denying the grievance, the Arbitrator found that: the instructions to the teachers to not post political material were rationally connected to the pressing and substantial objective of insulating students from political discourse in the classroom and adjacent areas associated with it; which was a source of actual or potential harm. The Arbitrator found the teachers’ freedom of expression was minimally restricted, and that the measures were proportional to the objective. The effect on parents, the intended audience, was at most modest.

On appeal, the Court of Appeal held unanimously that the Arbitrator misinterpreted and misapplied the previous Court decision in British Columbia Public School Employers’ Association v. British Columbia Teachers’ Federation, 2005 BCCA 393, (Munroe). Munroe was indistinguishable on the facts; the question of whether the teachers could post those materials on bulletin boards where both parents and students could see them was concisely decided by the Court. There was no evidence before the Court in Munroe of any actual or potential harm to students from being exposed to the materials about educational issues, nor any facts from which an inference of harm could be drawn. On the contrary, Canadian jurisprudence, including Munroe, was found to stand for the principle that open communication and debate about public, political issues was a hallmark of the free and democratic society the Charter was designed to protect. “Children live in a diverse and multi-cultural society, and exposing them to diverse societal views and opinions was an important part of their educational experience.” Schools had a duty to be places open and receptive to a wide spectrum of views, particularly in political discourse, and a parent-teacher interview was an appropriate forum for a discussion of the need for resources for public schools.

Despite the finding in Munroe, the Arbitrator erred in inferring that the goal of insulating students generally from such messages was a pressing and substantial objective. The Arbitrator also misapplied the tests of minimal impairment and proportionality in not considering, in the context of the minimal impairment test, whether there were other, less restrictive, means to limit the teachers’ expression, and in considering proportionality, he failed to identify any evidence or particulars of harm to students that could result from seeing the material. The law supported teachers’ exercise of their right of free expression in schools, and there was nothing about this case to exclude it from that principle, as developed and applied in Munroe.

However, a concurring decision from one of the three Judges of the Court sought to restrain the limits of this decision, recognizing that teachers’ rights of freedom of expression in schools are not unlimited. “Where the issue upon which teachers chose to exercise their rights to free speech was political, their rights must be balanced against the rights of their students to an education that was free from bias. Exposure to only one view of an issue, where there were legitimate competing views could have represented a failure to uphold the principles of tolerance and impartiality that the education system must promote and foster.”

Though this case was resolved by applying the holding from Munroe, the proportionality aspects of section 1 of the Charter are reserved for another case for a determination of what evidence would establish the boundary where teachers’ rights of freedom of expression in schools must yield to the rights of students.

SCC balances safety and privacy in random alcohol testing

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, the Supreme Court of Canada (SCC) split 6-3 over whether or not the Decision of a Board of Arbitration (Board) was correct in its conclusion that an employer exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use. The majority found that the Board was correct in its decision.

Irving Pulp & Paper, Ltd. (Irving) operated a paper mill. In 2006, it unilaterally adopted a “Policy on Alcohol and Other Drug Use” under the management rights clause of the collective agreement without any negotiations with the union. The policy imposed drug or alcohol testing for employees holding positions designated by Irving as “safety sensitive”. The policy contained a universal random alcohol testing component, whereby 10% of the employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. When a member of the Communications, Energy and Paperworkers Union of Canada, Local 30 (the Union), was chosen for the sample, the Union filed a grievance.

It is important to note that the SCC did not deal with this issue from the perspective of human rights. Indeed, the SCC stated: “At the outset, it is important to note that since we are dealing with a workplace governed by a collective agreement, that means that the analytical framework for determining whether an employer can unilaterally impose random testing is determined by the arbitral jurisprudence. Cases dealing with random alcohol or drug testing in non-unionized workplaces under human rights statutes are, as a result, of little conceptual assistance”. As a result, the SCC focused on labour relations arbitral jurisprudence.

The legal issue at the heart of this case was the interpretation of the management rights clause of a collective agreement. The scope of management’s unilateral rule?making authority under a collective agreement was that any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union must be consistent with the collective agreement and be reasonable. The absence of evidence of any real risk related to alcohol in the workplace led the Board to conclude that there was little benefit to the employer in maintaining the random testing policy. Weighing the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of employees, the Board found the employer had not demonstrated the requisite safety concerns that would justify universal random testing. As a result, the employer exceeded the scope of its rights under the collective agreement and the Board concluded that the random testing policy was unjustified and the grievance was allowed.

The important considerations for the Board were proportionality and reasonableness. An employer could impose a rule with disciplinary consequences only if the need for the rule outweighed the harmful impact on employees’ privacy rights. Where a workplace was “dangerous”, an employer could test an individual employee if there was reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse. A unilaterally imposed policy of mandatory random testing for employees in a dangerous workplace had been overwhelmingly rejected by previous decisions as an unjustified affront to the dignity and privacy of employees 

unless there was evidence of elevated safety risks, such as identified problems with substance abuse in the workplace. The dangerousness of a workplace only triggers the proportionality exercise. It was not an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What needed to be measured were the benefits that would accrue to the employer through the application of the random alcohol testing policy against the harm to the employee’s right to privacy. If the random alcohol testing policy was to be justified, these had to be in proportion.

The majority of the SCC agreed with the test applied by the Board. It also found there was no demonstrated significant safety risk attributable to employee alcohol use in the workplace. In 15 years, only 8 alcohol-related incidents were documented at the mill. It was likely that the employer’s policy would seldom, if ever, identify any employee with a blood alcohol concentration over the policy limit. Therefore, there was little or no concrete advantage to the employer to be gained through the random alcohol testing policy.

The minority judgment found that in striking down the policy, the Board departed from an arbitral consensus that had attempted to strike a balance between competing interests in privacy and safety in the workplace. In so doing, it came to an unreasonable decision. To the extent a particular arbitral award was unreasonable, it should have been set aside on judicial review.

Split decisions always raise questions as to the precedential value of the decision. Nevertheless, the SCC majority decision circumscribes the ability of employers in a unionized environment to implement random alcohol (or drug) testing in safety-sensitive working environments, which would be even more difficult to implement in the absence of safety issues.

In addition, decisions in the human rights context have also come to similar conclusions restricting significantly the ability of employers to implement random alcohol or drug testing.

NBCA determines services to special-needs children are an “essential service”

In Canadian Union of Public Employees, Local 2745 v New Brunswick (Board of Management), 2013 NBCA 42, the New Brunswick Court of Appeal (Court of Appeal) held that it was reasonable for the Labour and Employment Board of New Brunswick (Board) to declare the services provided by teachers’ assistants and student attendants an “essential service”. The Board’s Decision was justified as such services were necessary in the interest of the health, safety, and security of children with special needs (or “exceptional pupils” under the Education Act).

Under the Public Service Labour Relations Act (PSLRA), the Board is authorized to designate employees of a bargaining unit as those who provide an “essential service”, which is defined in terms of a service that is in the “interests of health, safety or security of the public”. Employees who are so designated are thereafter precluded from participating in a lawful strike.

The teachers’ assistants and student attendants at issue provide assistance to exceptional pupils who require extra assistance because of physical, intellectual and/or behavioural needs. In November, 2002, the Board issued an Order determining that the services such individuals provide qualify as an “essential service”. In January, 2009, the Union filed an application to amend that Order, claiming that the law on essential service had evolved since the Order issued.

The New Brunswick Court of Queen’s Bench initially set aside the Decision of the Board. The Board had relied on a directive issued by the Minister of Education declaring that schools would not close in the event members of the bargaining unit were to strike. The Board accepted this declaration as proof that schools would remain open in the event of a strike, which thereafter was woven into the Board’s Decision to declare the services an “essential service”.

The Court held that the Board should not have relied upon the Minister’s declaration as it was essentially a “self-serving document”. The Court also held that the Board’s reasoning was incompatible with the purpose of declaring members of a bargaining unit an “essential service”. Thus, the Court concluded such individuals did not provide an “essential service”.

While the Court of Appeal agreed that it was an error on the part of the Board to rely on the Minister’s declaration, such an error did not justify the Court’s intervention as the Board’s reasons and existing jurisprudence were capable of supporting its final Decision.

The pivotal issue in the case was whether the law on essential services had been altered by the Court of Appeal’s Decision in Canadian Union of Public Employees, Local 1253 v New Brunswick (Board of Management) (Re), 2006 NBCA 101 (the “Custodian case”). In that case, the School Board decided that custodians offered an essential service since, in the event they withdrew their services while schools stayed opened, the health, safety and security of students would be compromised.

However, the Court of Appeal found the decision of the Board in the Custodian case unreasonable because: 1) the Board mistakenly assumed that a child’s right to an education meant that schools had to remain open; 2) the Board relied on earlier decisions with substantially different facts; and 3) the focus of the Board was too broad in considering whether custodians impact the health of students; they should have focused narrowly on the ultimate effect a withdrawal of service may have on the health, safety, and security of students.

In the present case, the Court of Appeal noted that the question of whether schools would remain open in the event teachers’ assistants and student attendants withdrew their services was not self-evident, but that “the Board had to assess whether there is a plausible or real risk: 1) that schools might stay open notwithstanding a withdrawal of services; 2) that the parents of exceptional students might elect to have their children remain in the classroom; and 3) that, in such circumstances classroom teachers might be unable to attend to the needs of both regular and exceptional students”. In making such assessments, “[t]he Board is entitled to draw reasonable inferences and make a final determination with respect to risk assessment by embracing the premise that it is entitled to ‘err on the side of caution’ ”.

The Court of Appeal determined that the Board was alive to the issue of risk assessment and “made a finding of fact that schools would remain open in circumstances where the Board need only have drawn a reasonable inference of such a risk”. Assuming that there is not an overwhelming majority of students that qualify as “exceptional”, it was reasonable for the Board to infer that there was a real risk that schools would remain open in the event of a strike.

As noted by the Court of Appeal:

“A reasonable inference is that classroom teachers may be forced to assume the duties being performed by Teachers’ Assistants and Student Attendants. If so, it is proper to ask whether teachers would be able to meet the needs of both the exceptional and non-exceptional student. Having regard to the guiding premise that the Board should err on the side of caution, it was reasonable for the Board to affirm its earlier decisions that a withdrawal of services might reasonably compromise the health, safety or security of the exceptional student. In brief, the withdrawal of services poses a real risk of harm”.

The Court of Appeal thus upheld the decision of the Board, finding that the Board was correct in 6

holding that the provision of services by teachers’ assistants and student attendants to exceptional children within the educational system is necessary in the interest of health, safety or security of the exceptional students.

Court confirms compensation owed to woman discriminated against on basis of childcare obligations

In Canadian National Railway v. Seeley, 2013 FCJ No. 97, [2013] ACF no 97, the Federal Court (Court) upheld the Canadian Human Rights Tribunal’s (Tribunal) award of compensation to a woman whose employment was terminated because child care issues prevented her from reporting for work.

Seeley was employed by CN as a freight train conductor in Alberta. She was on laid off status and was recalled by CN for a temporary work assignment to cover a major shortage in Vancouver.

Upon recall she sent a letter to CN outlining her current family situation. She had two children, a six year old in kindergarten, and a 21 month old. There was no immediate family living nearby to help care for the children, while the services of a nearby daycare only covered daily business hours. Her husband was also a railroader and could potentially be away for periods of between 14 to 24 hours at a time. She requested extra time to report so that she could investigate childcare options. CN granted her request.

Shortly before the new deadline for reporting, she wrote another letter to CN asking that she be relieved from duty on compassionate grounds, as permitted under the collective agreement. CN never responded to this request, nor did it provider her any information about the duration of her recall or any other details of her assignment. It did however, further extend the reporting deadline.

CN later requested that Seeley advise within a further 10 days whether she would report for duty to cover the shortage. CN informed her that a failure to report would result in her termination. She advised that she was awaiting a decision on her request for compassionate relief, and asked for a further extension until such a decision had been made. CN terminated her employment shortly afterward for her failure to cover the shortage.

Seeley then filed a Complaint with the Canadian Human Rights Commission, where the matter proceeded to the Tribunal, which allowed the Complaint. The Tribunal found that “family status”, as protected under the Canadian Human Rights Act (Act), included parental child care obligations. Seeley was unable to participate in employment due to CN’s rules and practices, which interfered with her parental duties and obligations, which CN failed to accommodate.

The Tribunal awarded Seeley reinstatement with uninterrupted seniority, compensation for lost wages and benefits, and damages for pain and suffering. The Tribunal also awarded compensation for CN’s reckless conduct, while also ordering the company to work with the Canadian Human Rights Commission in developing accommodation policies. CN then applied to the Federal Court for judicial review of the Tribunal’s decision.

The Federal Court dismissed CN’s application. The Court held that the Tribunal did not err in finding parental childcare obligations came within the meaning of “family status". This finding was necessary to give the human rights enunciated under the Act full recognition. It was also consistent with previous human rights and labour decisions.

CN argued that the Tribunal erred in deciding that “family status” included personal choices as to how a parent addresses his or her parental obligations. CN referred to the case of Health Services Association of British Columbia v Campbell River and North Island Transition Society, 2004 BCCA 260, where the British Columbia Court of Appeal said that family status “cannot be an open-ended concept” because “that would have the potential to cause disruption and great mischief in the workplace”. Thus, a case of discrimination should be difficult to make out. However, the Federal Court held that determining whether there was discrimination requires a consideration of the facts of the individual’s circumstances since discrimination based on family status can arise in many different situations.

CN never provided the information necessary for Seeley to explore the availability or feasibility of childcare options in British Columbia. An assessment of her familial circumstances showed that she would have substantial difficulty in fulfilling her childcare obligations while responding to an indefinite recall assignment. CN, through its failure to respond to Seeley’s concerns, denied her the opportunity to realistically address childcare options, or accessing accommodation if otherwise available under CN’s own policies or the collective agreement.

It was essential that CN engage in discussions with Seeley by responding to her requests for information that it alone had about the working conditions and accommodations that might be available. Providing extra time to research childcare options was not a meaningful response to the request for accommodation. The Tribunal's award of compensation was thus reasonable and upheld by the Court.

This case highlights that child care responsibilities are clearly recognized as part of “family status” and employers have a duty to have meaningful discussions with employees requiring accommodation on such issues. ?

Compensation awarded for homophobic work environment amounting to harassment and discrimination

In Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Ranger Grievance), [2013] OGSBA No. 116, the Ontario Grievance Settlement Board (Board) determined the appropriate compensation payable by the employer, the Ministry of Community Safety and Correctional Services (Ministry), to the Grievor following a prior finding of discrimination and harassment made by the Board. The Grievor was represented by the Ontario Public Service Employees Union (Union).

The prior Decision recognized that the Grievor had suffered “discrimination, harassment and a poisoned workplace” while employed at the Ottawa Carleton Detention Centre as a result of his sexual orientation. Over a 10-year period, the Grievor suffered repeated taunting, while the Ministry did nothing to address the homophobic atmosphere in the workplace. As a result, the Grievor suffered from a variety of illnesses, including severe depression and anxiety.

The Board’s prior Decision found that the employer breached the collective agreement, the Ontario Human Rights Code (Code), and its internal workplace discrimination and harassment-prevention policy. The employer also failed in its duty to accommodate the Grievor. Following that Decision, the worker returned to an accommodated position consistent with his prior level of pay. The parties had agreed upon the amount of lost wages as being $244,000.00.

At issue in the present hearing was whether further compensation was owed.

The Union argued that “the remedy must send a message that the Board will not tolerate behaviour that violates the Code, the collective agreement and the right to be free from discrimination and harassment in the workplace”. Thus, the Union felt a significant award of $3.5 million was justified based on the severity of harm the Grievor had suffered. The Union also sought to have twenty-two weeks of vacation credited to the Grievor, and an apology from the employer.

The employer argued that the jurisprudence supported modest damages totaling $17,500.00. Furthermore, the employer argued that it did “attempt to accommodate Mr. Ranger and conceded that it did not go well at times but that at no time did the employer ignore its duty to accommodate”.

The Board decided that it “must objectively assess the impact of the breaches and the harm suffered in deciding the appropriate damage award”. The Board was to be guided by the “make whole principle”, which states that the “aggrieved person is to be placed, as nearly as possible, in the position he would have been in, had it not been for the wrong done to him”. However, the Board was also attentive to the fact that awards for human rights violations that are too low trivialize the important of human rights, in effect creating a “license fee to discriminate”.

The Board determined that further compensation was owed as the discrimination and harassment endured by the worker was “vile” and “humiliating”. There was extensive medical evidence showing that the harassment and discrimination made him very ill, causing him to suffer from depression and anxiety. He also lost self-respect, his finances were in disarray, and he became a distrustful and bitter person. All such harm was “foreseeable” and appeared to be “permanent”.

He lost the work he wanted to do as a Correctional Officer as the medical evidence noted that he could never return to work in a correctional institution. The employer’s actions had also contributed to issues of substance abuse and the breakdown of his spousal relationship.

The employer did almost nothing to address the homophobic atmosphere of the workplace, despite their knowledge of the harassment taking place. The employer was unable to prove they had exercised due diligence, and thus bore the responsibility for the poisoned workplace. There was also no justification for the employer's delay in investigating the worker's complaints. Additionally, the medical evidence showed that the delay itself contributed to his illness.

The Board awarded total compensatory damages in the amount of $98,000.00: $45,000.00 was awarded for the discrimination, harassment and poisoned workplace, all of which were breaches of the Code. The Board acknowledged that the amount “is the largest amount that this Board has ever awarded”, however the “compensation is necessary in all the circumstances for the extensive damage to Mr. Ranger's dignitary interest”; $35,000.00 was awarded for the employer’s failure to accommodate between 2003 and 2005, where the evidence showed the employer was reluctant to return the Grievor to work and significant periods of time passed where the employer did nothing to find a suitable position for the Grievor. A further $18,000.00 was awarded for failures to accommodate between 2008 and 2010.

Punitive damages were not awarded as the employer’s conduct was not malicious or outrageous, which is required for an award of punitive damages. Furthermore, the “significant award of compensatory damages … clearly denounces the breaches of the Code and collective agreement”, and thus served the purpose underlying a punitive damage award.

The Board refused to award damages incurred when Ranger took on a home improvement loan while he was away on sick leave to “give him a project to do”. This was an “imprudent decision” which was inconsistent with his obligation to mitigate the losses he was then suffering as a result of the breach of his employment contract.

The Board did however award twenty-two weeks of vacation credits that the Grievor had used to top up sick leave pay, which were thus lost for vacation purposes. Finally, while the Board believed Ranger was owed an apology, the Board believed it was inappropriate to order an apology as a matter of principle, and so declined to do so.

The quantum of the damage awards for breaches of Code obligations is noteworthy and employers who fail to recognize their human rights obligations may face similar consequences.

Safety risk to students too great to accommodate teacher’s disability

In AA v Halifax Regional School Board, [2013] NSSC 228, the Nova Scotia Supreme Court (Court) dismissed an application for judicial review filed by a Teacher (Applicant) who was terminated by a School Board (Board) for having inappropriate email communications with one of his students. The Applicant had an undiagnosed bipolar II disorder at the time of the communications, but was undergoing treatment at the time of his termination.

The Applicant was a male teacher, employed by the School Board for approximately fifteen years. He had an excellent reputation and no disciplinary record. Inappropriate email communications with a female student were discovered on the student’s computer by her parents. The Applicant’s comments in these emails included criticisms and insults directed at her parents, a recommendation that she kill her parents, a reference to rescuing her from her parents, a suggestion that she purge food for the sake of her weight, and an invitation for a drive to the ocean.

A meeting between school officials and the Applicant was held, following which he saw his family physician, various psychologists and mood disorder specialists. He was diagnosed with bipolar II disorder, following which he began treatment.

After several meetings and hearings, the School Board terminated his employment on the basis that he “had been in a position of trust and that his conduct damaged the student’s impression of herself and her relationship with her parents and friends”. He also breached his duties under the Education Act by failing to refer her to counsellors or health professionals.

The School Board acknowledged that although his judgement was impaired because he was suffering from hypomania, his judgement was not altogether eliminated; he still “knew what he was doing”. Finally, the School Board held that there was a risk to the safety of students if another hypomanic episode occurred and that such a risk could not be reasonably accommodated and controlled without undue hardship.

The Applicant appealed the Decision to a one person Appeal Board appointed by the Minister of Education under the Education Act, which confirmed the termination. The Appeal Board found that he “was suffering from bipolar disorder when the aberrant conduct took place, and will continue to have the condition indefinitely”, that there was “strong linkage between the bipolar condition and the aberrant conduct”, and that there was “sufficient displacement of responsibility to render the conduct less culpable”. However, given that he will continue to have the condition indefinitely and the difficulty of detecting symptoms, “the problems of detection and potentially serious damage, in the circumstances, led to an unacceptable level of risk”.

The Court dismissed the application for judicial review. The Court decided that it had to show deference to the Appeal Board’s decision rather than conduct its own analysis. The Court felt justified in taking such an approach given the expertise of the Appeal Board in determining such issues, considering human rights law is closely connected to the Appeal Board’s mandate and the Appeal Board encounters human rights issues frequently.

The Nova Scotia Human Rights Act prohibits discrimination in employment on the basis of mental disability, except where the discrimination is based on a bona fide occupational requirement. The employer must demonstrate that the discriminatory conduct was “reasonably necessary” in order to accomplish a broader goal. The employer must also demonstrate that alternative approaches were investigated and it could not have acted in any other reasonable or practical way without causing “undue hardship”.

The Court noted that “[w]here there is a safety risk involved, it is necessary to consider both the magnitude of the risk and the identity of those who bear the risk as an element of hardship”. The Appeal Board acknowledged that there was a prima facie case of discrimination based on the Applicants mental disorder. However, allowing the Applicant to return to work would create a risk to students, given the probability of recurrence. Such a risk was sufficient to constitute undue hardship.

The School Board’s concerns regarding the safety risk were based on both medical evidence and the actual behaviour that occurred. The Court noted that the Appeal Board was aware of the evidence that could be regarded as barriers to the suggested forms of accommodation. The Court noted the “School Board was entitled to consider, from its vantage point of expertise and experience, whether accommodation was possible in the school context”, while it was “the Appeal Board’s prerogative to assess the reasons and accept or reject the evidence provided”.

The Court concluded that both the School Board and Appeal Board had considered proposed monitoring measures and reasonably concluded that they were impractical. The problems associated with detecting another episode in conjunction with the potential serious damage it might cause amounted to an unacceptable level of risk of harm to students. As such, the Applicant could not be accommodated. The Court thus dismissed the Application and upheld the decision of the Appeal Board.

This is an example of a Court recognizing the importance of safety in a school setting.

Custodian’s sexual assault on young girl “just cause” for suspension and termination despite inconsistent evidence

In Edmonton Public Schools v Canadian Union of Public Employees (JS Grievance), 2013 AGAA No. 8, a Union grieved the suspension and termination of a head Custodian employed by the Edmonton Public School Board (Board) who was charged criminally with the sexual assault of a thirteen year old girl. The Grievor was eventually acquitted of all charges.

The Grievor had no prior disciplinary record and was a long-time friend of the victim’s family. The main allegation was that the Grievor walked into the victim’s home one day during the summer holidays while she was home alone and sexually assaulted her. The victim did not attend the school at which the Grievor worked.

The Board argued that there was just cause for the suspension and subsequent termination. The Union argued there was no just cause and the Board mishandled the situation. They believed that he should not have been disciplined before his criminal trial concluded. Furthermore, although the Union conceded a sexual assault may have taken place, there was no proof the Grievor was responsible given the conflicting evidence of the victim and witnesses.

The Union also raised concerns about the process followed by the Board in pursuing discipline. The Union argued that the collective agreement made it necessary to hold a meeting before the Board undertook any disciplinary action. Part of the collective agreement read that “[a]n employee shall have the right to have a Union representative present at a meeting which involves disciplinary action and it likely to result in … suspension … or … termination”. However, the Panel held that such representation is contingent upon a meeting being held in the first place. Furthermore, a separate provision in the agreement provided for suspension or discharge for just cause, but did not make a meeting mandatory.

In any case, the failure to meet was not the fault of the Board. The Board offered to meet with the Grievor, who instead took sick leave time away from work. The Panel interpreted this as a deliberate attempt to avoid a meeting; being too sick to work did not necessarily mean being too sick to meet.

The Union also argued that the Board relied inappropriately on a perceived threat to its reputation, which was speculative since the alleged misconduct happened while the Grievor was off-duty and there was a publication ban on the criminal trial. The Panel held that the Board was entitled to consider whether the presence of the Grievor could present a reasonably serious and immediate risk to the Board’s interests, including the Board’s responsibility for student welfare. This entitled the Board to consider the potential for harm to students as opposed to whether there was any actual harm.

The Panel determined that “the Board was reasonable in its conclusion that a fair-minded and well informed member of the public might think that allowing a person charged with sexual intercourse with a 13 year old girl to work amongst similarly aged girls was inappropriate and contrary to the Board’s duty” to provide students with a safe and caring environment.

The Union also argued that the suspension should be set aside because the Grievor was on sick leave at the time and should have been allowed to continue receiving benefits as long as he was ill. The Panel interpreted sick leave as a means to temporarily replace the wages of an employee who would otherwise be paid. An employee suspended without pay would not otherwise be paid, and thus was not due any sick leave benefits.

The Union argued further that the Board failed to properly investigate the circumstances or assess options other than a suspension. However, a Board representative attended the preliminary inquiry of the Grievor’s criminal trial and reported that she felt the charges were valid. Furthermore, the representative watched taped interviews of the victim with police in addition to personally interviewing the victim. Thus, the Panel determined that the Board had sufficiently investigated the circumstances before issuing a suspension and termination.

As the case involved an alleged sexual assault and a denial of the assault, issues of credibility and probability were very important. Despite the inconsistencies in the evidence, the Board argued there was an essential consistency to the core of the story, making it more likely than not that the alleged events took place. The Panel was also urged to remember the Board’s duty to ensure the safety and welfare of each child. The Union argued there were simply too many contradictions to ignore.

The Panel reminded itself that its job was not to decide which amongst various conflicting accounts was the most probable, but whether the Board had just cause for terminating the Grievor’s employment.

The Panel pieced together what it felt was the likeliest version of events, concluding that it was more probable than not that a sexual encounter occurred and involved the Grievor as the perpetrator. Given that determination, the Panel found that the Board had demonstrated that the Grievor engaged in conduct contrary to his continued employment. Thus, the Grievances were dismissed. There was a brief dissent by one member of the Panel who would have allowed the Grievances because the evidence was too inconsistent to be relied upon. Also, the employee could have been transferred to a position where he would not be in contact with similarly aged girls or where there was a level of supervision, thus reducing any risk. This decision reaffirms the different standards of proof in the criminal and civil context.

Saskatchewan CA confirms constitutional principle of “judicial independence” does not apply to administrative boards

In Saskatchewan Federation of Labour v. Saskatchewan (Attorney General), [2013] S.J. No. 336, 2013 SKCA 61, the Saskatchewan Court of Appeal (Court of Appeal) considered whether the government’s decision to terminate members of the Labour Relations Board was an unconstitutional violation of the principle of ‘judicial independence’. The Court of Appeal held that it was not.

Saskatchewan’s Interpretation Act empowered the provincial Cabinet, on a change of government, to end the term of office of any member of any appointed body of the Government of Saskatchewan, including any board. Four months following the Saskatchewan general election, the Provincial Cabinet issued an Order terminating the office of the chairperson and two vice-chairpersons of the Labour Relations Board.

The Board argued that the Order was void because it violated the unwritten constitutional principle of judicial independence. They argued that this principle, which applied to the courts to protect judges from arbitrary removal from office, applied to the chairperson and vice-chairpersons of the Board.

The Application Judge who first heard the case held that the principle did not apply because the Board’s function was more administrative than judicial as it was primarily responsible for formulating and implementing policies concerning the regulation of trade union representation and the supervision of collective bargaining.

The Court of Appeal stated that there was a fundamental distinction between courts and administrative tribunals. While the independence of a court is constitutionally secure, administrative tribunals only benefit from constitutional security where proceedings before it engage the rights of “life, liberty, and security of the person”, or the presumption of innocence, as guaranteed by the Canadian Charter of Rights and Freedoms. Otherwise, it is for the legislature “to determine the composition, structure, and degree of independence of administrative tribunals”.

The Applicants did not rest their arguments on any Charter rights, but instead, the unwritten constitutional principle of judicial independence. The Court noted that:

“Judicial independence generally means the capacity of the courts to function without actual or apparent interference by anyone, including in particular the legislative and executive branches of government…the hallmarks or essential conditions of judicial independence are three-fold: (i) security of tenure, (ii) financial stability, and (iii) administrative freedom in relation to the exercise of their judicial duties”.

The Applicants argued that the chairperson and vice-chairperson were imbued with the same type of powers enjoyed by a judge since they also enjoyed security of tenure for five years, and financial stability. The Application Judge earlier noted that they were appointed for "fixed terms of office" rather than "at pleasure" of the Crown, which meant that they could only be terminated “for cause”. This ensured a certain degree of independence from the government. However, the Application Judge noted that it is open for the Legislature to narrow the scope of this independence for every and any administrative tribunal it creates.

At the Court of Appeal, the Board argued that the Application Judge erred by failing to recognize that the chairperson and vice-chairpersons of the Board adjudicated disputes in the same way as judges. Where judges resolve disputes in areas of law generally, the Board resolves disputes in the field of labour relations. The Board thus argued that judicial independence extended and applied to the chairperson and vice-chairpersons of the Board since they were responsible for quasi-judicial decision-making.

The Court of Appeal reviewed the Supreme Court of Canada’s decision Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] SCC 52, 2 SCR 781, wherein the Supreme Court rejected a similar argument. The Court in Ocean Port noted that, as a matter of principle, the rationale for locating a constitutional guarantee of judicial independence for the courts did not extend to administrative tribunals. Although administrative tribunals may possess adjudicative functions, they operate under the mandate of the Legislature and so do not occupy the same constitutional role as courts. Thus, the Board could not rely on the unwritten principle of judicial independence. The Court of Appeal did however indicate that it had some sympathy with the Board’s argument that it was more judicial in nature than the Liquor Board at issue in Ocean Port, which was more administrative because of its licensing responsibilities. As such, the Labour Relations Board ought to be given greater constitutional protection. Although the Court noted some merit in the submission, it felt itself bound by the decision in Ocean Port and so could not accept the distinction. The Court of Appeal raised some important procedural implications for administrative tribunals.

Ontario CA upholds conviction of tutor for sexual exploitation

In R v Aird, 2013 ONCA 447, the Court of Appeal (Court) heard an appeal by Aaron Aird (Aird) from his convictions for Sexual Exploitation. Aird was 28 years old and attending teachers college when he was hired to tutor a 16 year old female student (the complainant) in grade 12 math. The important issue before the Court was whether or not, as a tutor, Aird was in a position of trust towards the complainant when a consensual sexual relationship developed between them.

The crime of Sexual Exploitation is set out in Section 153 (1) of the Criminal Code. This section states that:

“Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person and who…for a sexual purpose, touches…or invites, counsels or incites a young person to touch…the body of any person.”

Section 153(2) defines a “young person” as “a person 16 years of age or more but under the age of eighteen years.” Section 153(1) thus bans any sexual contact between an adult and a young person within any of the four relationships enumerated in the section. That the young person consents, does not appear vulnerable, or does not subjectively view the relationship as one of trust, authority, or dependency or as exploitative is irrelevant.

The Courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include: the age difference between the accused and the young person; the evolution of their relationship; the status of the accused in relation to the young person; the degree of control, influence or persuasiveness exercised by the accused over the young person; and the expectations of the parties affected, including the accused, the young person and the young person’s parents. No one consideration is determinative; each one may play a role. “Trust”, must be interpreted in accordance with its primary meaning: confidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.

The Court found this relationship existed when it considered that Aird was hired by the complainants mother to tutor the complainant because Aird was a student teacher and because he had a university degree in mathematics. She relied on Aird’s position in the teaching community and his integrity when she hired him. Aird was a professional tutor in the sense that he had the credentials and was paid for his work. Also, his position as a tutor led to his introduction to the complainant. Aird’s university degree in mathematics, the fact that he was a student teacher and 28 years of age gave Aird significant status in relation to the complainant. The nature of the tutor/student relationship between Aird and the complainant created an opportunity for Aird to use his status and the persuasive and influencing factors he held in their relationship to effectively groom her into a sexual relationship.

Although the relationship between Aird and the complainant differed from the traditional teacher/student relationship in a school, that difference did not undermine the finding of a relationship of trust. “Teachers often stand not only in a position of trust towards their students, they also stand in a position of authority towards them. Positions of trust and authority are related concepts, but they are different and provide separate routes to the offence of Sexual Exploitation.” An accused not in a position of authority towards a young person may nonetheless be found to be in a position of trust.

The Court upheld Aird’s conviction and his sentence of one year imprisonment.

This is another decision which confirms the expectations for teachers, including teacher candidate tutors, with respect to relationships with students.

Panel erred in failing to consider prejudice created by significant delay in proceedings against teacher for sexual misconduct

In Robertson v. British Columbia (Teachers Act, Commissioner), [2013] BCJ No. 2033, 2013 BCSC 1699, Robertson sought judicial review in the British Columbia Superior Court (Court) of a Disciplinary Panel’s (Panel) refusal to stay disciplinary proceedings against him. The Court sent the matter back to the Panel to reconsider whether a stay should be granted in accordance with the observations offered by the Court.

Robertson, a 62-year-old teacher, was the subject of disciplinary proceedings before the Teacher Regulation Branch of the Ministry of Education. In August 1976, the Richmond School Board (RSB) investigated allegations Robertson had engaged in sexual relations with three students. RSB suspended his employment, following which he resigned, all the while understanding that the Department of Education (Department) may take further action. He then applied for a teaching position with the Vancouver School Board (VSB) where he was hired as a substitute teacher and worked until 2006.

Robertson did not hear from the Department again, and after a year, on the advice of his lawyer, concluded that they had decided not to take action against him. He moved on with his career, the balance of which saw positive performance reviews and no further complaints.

In 2005, one of the students involved in the initial allegations learned that Robertson was still teaching, following which she complained to the VSB. In December 2006, he resigned his position with the VSB, while the VSB, following the completion of its investigation, reported the matter to the College of Teachers (“College”). The College then commenced its own investigation.

In September 2010 the College issued a report followed by a citation against Robertson. The citation alleged that he had inappropriate sexual relationships while working for the RSB. It also alleged that he made misrepresentations to the VSB during his employment interview by failing to disclose that he was under investigation at the time.

Following the citation, Robertson sought judicial review, arguing for a stay of the proceedings on the grounds of res judicata (that is, that the matter had already been decided and should not be heard again), abuse of process and delay. The Panel dismissed the res judicata argument on the basis that there was “no final decision made by the appropriate governing body after an adjudicative process”. It dismissed the delay argument because “he had not established sufficient prejudice”.

The Court considered the following issues: (1) whether the request for judicial review was premature; (2) the standard of review that applied to the Panel’s decision not to stay the proceedings; (3) whether the Panel’s decision meet that standard; and (4) what order the Court should make.

The Court noted that, “as a general rule, and absent exceptional circumstances, courts should be slow to intervene in judicial review before a tribunal has completed its process and made a final decision”, especially where that decision is a discretionary one. The Court was attentive to the fact that the Panel had not yet held a hearing, had made no determinations about whether the procedure followed was fair, nor had it made any determination on the merits of the complaint. However, the Court considered “the historical nature of the complaints, the legal issues at stake, and the manner in which they were raised to be exceptional circumstances that justify intervention”.

The Court determined that it ought to give deference to the facts as determined by the Panel where they pertain to issues of prejudice and the impact of the delay on the hearing. However, the Court would scrutinize more carefully whether the Panel used the appropriate legal principles in applying those facts to the claims of abuse of process and the denial of a fair hearing.

The Court noted that res judicata has two main policy objectives: “the community interest in the termination of disputes and the finality of judicial decisions, and the individual interest in protection from repeated suits and prosecutions for the same cause”. The Court noted that there was no evidence that the allegations against Robertson were ever decided on their merits. Thus, the Panel was justified in finding that Robertson could not establish that there had been any kind of final decision.

The Court also upheld the Panel’s conclusion that “a stay was not justified on the basis of abuse of process by re-litigation”, since the absence of a final decision meant the issue was not being re-litigated. However, the court did express concern that the Panel ignored facts that were important to the issue of delay.

The Court noted that “whether a delay amounts to an abuse of process…two things must be proven: (1) the delay was unacceptable or inordinate, determined in the context of the proceedings; and (2) the delay caused prejudice of a magnitude that affects the fairness of the haring or the community’s sense of decency and fairness”. The Court determined that the Panel failed to consider personal or psychological prejudice Robertson may have incurred as a result of the lengthy delay.

The Court thus concluded that the Panel “erred in several respects, resulting in unreasonable findings on the issue of prejudice”. In particular, the Panel failed to consider “evidence of significant prejudice both to the fairness of the hearing process itself and to Robertson personally in having to address matters now that he reasonably concluded had been put behind him over 30 years ago”.

Whether such a delay was so unacceptable as to result in an abuse of process required Robertson to establish that “the damage to the public interest in the fairness of the administrative process should the proceedings go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”. The Panel had concluded that a failure to proceed would bring the regulation of teachers in the province into disrepute. The Court however, felt that conclusion could not stand since the “wish to re-activate the matter after so long has damaged the public interest in the fairness of the professional disciplinary process”. These were considerations the Panel failed to bear in mind. This failure led to an unreasonable result.

Although the Panel appreciated the correct legal principles, it failed to apply them properly. Rather than deciding the matter itself, the Court felt that the Panel was better equipped to decide whether damage to the public interest in the fairness of the disciplinary process exceeded the harm to the public interests if the proceedings were halted. Thus, the Panel’s decision to deny the stay was quashed and the matter was returned to the Panel for reconsideration.

Arbitrator confirms sanctions for teacher who created Facebook posts calling principal “homophobic”

In Ontario Secondary School Teachers’ Federation v. Simcoe County District School Board, (2013) CanLII 62014 (Sept. 2013, Ont. L.A.), Arbitrator James Hayes ordered a Teacher to apologize to his school’s Principal for Facebook posts wherein the Teacher claimed the Principal was homophobic. Arbitrator Hayes also ordered the suspension of the Teacher reduced to three days with appropriate compensation.

The Teacher was an openly gay man employed by the Simcoe County District School Board (Board) in a small community. He believed he had been the object of discrimination by his school’s Principal. The Board asserted that a third party investigation concluded that the claims were unfounded.

The Teacher had posted the following on Facebook:

“We’ve failed yet again. I’m ashamed that this happens in Ontario schools. It’s difficult enough being an openly gay high school Teacher in a small community. I can’t imagine being an LGBQT student. I strive every day not be part of the problem. From this day forward I will be part of the solution. To the homophobic Principal who told me that she didn’t think a gay Teacher should be part of the GSA [gay straight alliance] — we need real leaders, not sheep”.

The Board took exception to the post on several grounds, including the fact that, the Principal did not do what the Teacher suggested. The Board was also concerned with both personal and professional damage to its reputation, as well as the reputation of the Principal.

The Teacher was hired as an occasional teacher in 2004 and had a discipline free record, having been counselled (not disciplined) only once before for harassing and gossiping about another teacher. The Board took this into consideration when issuing its suspension.

Counsel for the Teacher’s Federation admitted the posting was “intemperate” but suggested that it needed to be understood in the context of “the tragic student suicide in Ottawa that was referenced in the posting”, which was said to have disturbed the Teacher. Furthermore, the Teacher held an “honest perception” that he had been the object of discrimination, which Arbitrator Hayes noted was a factor to consider.

Arbitrator Hayes noted that the Teacher’s Facebook settings were generally of a private nature, he did not use the Principal’s name, and the “like” received by the post was generated by a childhood friend. He also noted that the Teacher was remorseful and had a clear record with more than 10 years of service.

Arbitrator Hayes found that “the Board had legitimate reason to impose discipline in this case” since the “nexus between [the Teacher’s] off-duty Facebook posting and his employment was patent”. Thus, “the Board had every right to be concerned about the content of the posting, as did the Principal who had every right to be personally upset and angry”.

It would have taken no effort to identify the Principal as the Teacher’s school was identified on his Facebook wall. Thus, the Board’s concern about damage to reputation was not misplaced or exaggerated. The Teacher had no right to attack his Principal, and implicitly his employer, in such a way.

The Teacher’s actions were “intemperate, but wrong” and if he thought he was acting in private he was mistaken. If “he had concerns about he believed to be discriminatory treatment, there were appropriate avenues open to him and a Federation to advise him properly”. Instead, what he did “was definitely reckless and far out of line”.

Arbitrator Hayes also considered certain mitigating factors, such as the Teacher’s sincere regret of his actions and his significant service and prior discipline free record. Arbitrator Hayes also found it problematic that the Board considered prior non-disciplinary counselling in determining the length of suspension.

Thus, the discipline was reduced to a letter of apology and three-day suspension with appropriate compensation.

The Arbitrator confirmed the importance for School Board Staff to be very cautious of statements made on social media.

Human Rights Commission cannot rely on investigator’s report of related Complaint

In Bergeron v. Canada (Attorney General), [2013] FCJ No. 343, [2013] ACF no 343, the Federal Court (Court) granted judicial review for one of two related Decisions of the Canadian Human Rights Commission (Commission). The Commission had previously dismissed the two Complaints as trivial, vexatious or made in bad faith because they allegations contained therein had already been addressed through a formal Grievance process.

The Applicant, Bergeron, was hired as a lawyer by the Department of Justice (DOJ) in 1999. She worked for the DOJ until May 2001 when she was forced her to leave work due to a chronic illness. In 2005, Bergeron and the DOJ began discussing a return to work. Her physician provided the DOJ with a medical certificate supporting a return to work, while the DOJ referred her to a physician of Health Canada (HC) for an assessment.

The HC physician's recommendation was that Bergeron gradually return to full-time hours over a seven month period, a recommendation with which Bergeron's physician and psychiatrist substantially agreed. Later, the HC physician also recommended that a work stoppage would be necessary if Bergeron was either unable to maintain the required hours or additional concerns became apparent. Bergeron and her doctors expressed concern about both a pre-determined date of return to full-time work and the work stoppage clause. No consensus was reached between the doctors on these issues.

In 2007, the DOJ extended three separate invitations to meet with Bergeron to discuss her return, all of which were refused because she wished to have an agreement in place prior to any meeting. She also refused the proposed dates of return because she would be putting her health at risk. The DOJ then made a final offer and informed her that they otherwise intended to staff her position if she declined the offer. When the offer was rejected the DOJ staffed her position.

Bergeron then filed a Grievance, alleging ongoing discriminatory conduct and a failure to provide ability-appropriate accommodations. She also sought both a reversal of staffing of her position and a restoration of herself to that position. 

She subsequently filed a human rights complaint under the Canada Human Rights Act (CHRA) alleging discrimination on the basis of disability since the DOJ had denied her the chance to attempt a return to work in accordance with plan preferred by her and her physicians. In February 2009, the DOJ proposed a different return to work plan, which she again rejected.

Bergeron then filed a second Grievance complaining about the DOJ's refusal to extend her leave of absence without pay. She claimed this constituted disciplinary action. She also complained that their refusal to continue making pension contributions and benefit premium payments amounted to a financial penalty and discrimination. She further alleged that such actions were discriminatory and retaliatory and amounted to constructive dismissal. She then filed a second human rights complaint with the Commission alleging that she had been subject to retaliatory conduct by the DOJ as a result of filing her initial complaint.

The Grievances were decided before the Commission could review either of the Complaints. Her first Grievance resulted in a finding that the decision to staff her position was not disguised discipline or a violation of the CHRA since the DOJ had to meet their ongoing service requirements and had unsuccessfully tried to coordinate her return to work. Following this determination, the DOJ extended another invitation to come to an agreement on a return to work plan, and again extended her leave-without-pay period.

The DOJ subsequently made another offer on July 13, 2009 to which they did not receive a response until two-days before the extended leave period was set to expire. The response stated that the DOJ must agree to a back-to- work plan devised by Bergeron's doctors, compensatory damages, legal costs, human rights damages for pain and suffering, a written apology, and sensitivity training for the department's representatives. The DOJ’s response urged her to provide a more meaningful response in advance of a return to work.

The second Grievance was also dismissed as being unfounded, following which the DOJ made another offer for her to return to work, while inviting her to offer her own proposed solution on a return to work schedule. Bergeron’s response reiterated her earlier position of demanding compensation and a schedule in accordance with her doctor’s recommendations. She also asked for a further extension of the leave period. The DOJ finally responded saying that it had no further comments to make and considered the process closed.

The Commission dismissed Bergeron's Complaints, finding that all of the issues raised in the Complaints were considered and addressed in the Grievance decisions. Bergeron then sought judicial review of the Commission’s Decisions.

The Federal Court reviewed the Commission’s Decisions. The Court stated that the “reasons” for a Commission’s Decision consist in both the actual reasons provided to the parties as well as the reasons contained in the investigator’s report prepared for each individual Complaint, provided that the reasons in the report are explicitly adopted by the Commission. The Commission had adopted the reasons of the investigator’s report in relation to the first Complaint as the reasons for its Decision in both the first and second Complaints.

The Court found that the Commission's decision with respect to the first Complaint was reasonable since Bergeron raised the same issues in her first Complaint as in her first Grievance and sought the same relief. She presented her case, received a decision, and there was no evidence that the process was not impartial. However, the Court took issue with the Commission’s Second Decision.

The Commission excerpted a section of the investigator's report prepared in connection with the first Complaint as its reasons for dismissing the second Complaint. Although many of the issues were the same, additional issues were raised in the second Complaint that were not addressed in the first report. For instance, there was no mention of whether the DOJ had retaliated against Bergeron for filing the initial Complaint. Such unaddressed issues rendered the Commission's reasons for dismissing the second Complaint “irrelevant and unintelligible”. Thus, it was unreasonable for the Commission to determine that the second Complaint was “trivial, frivolous, vexatious or…in bad faith”.

Thus, the Court quashed the second Decision of the Commission and sent the matter back to the Commission for further consideration.

When multiple complaints are filed, it is important to carefully analyze the issues raised when considering an appropriate response.

Courts confirm principles for punitive damages and malice

Pate v. Galway-Cavendish (Township) comprised a series of judicial Decisions addressing the wrongful dismissal and malicious prosecution of John Pate (Pate) by the amalgamated Township of Galway-Cavendish (Township). Pate had served as the Chief Building Official (CBO) for the Township of Galway and Cavendish for about 9 years and then as a building inspector for the amalgamated Township of Galway-Cavendish and Harvey for about three months before being dismissed without notice. Allegations were made that discrepancies had been uncovered with respect to permit fees, which the Township alleged were received by Pate, but not forwarded to the Township. Based upon the evidence of the then CBO John Beaven (Beaven), charges were laid against Pate. Following a criminal trial regarding the allegedly withheld permit fees, Pate was acquitted of all charges but, as a result: he had suffered harm to his reputation; his marriage dissolved; his family business was forced to close and he was unable to find further employment.

In the First Decision, 2009 CanLII 70502, the Trial Court found that Beaven had clearly provided only evidence that inculpated Pate, having withheld exculpatory information from the police, and the police admitted that had they been made aware of the information, no charges would have been laid. The Township acknowledged prior to the Decision that the dismissal was wrongful, and the issues left to be decided were: whether the actions of the Township were malicious; should a Wallace bump be applied to the damages (employers who show bad faith, and cause humiliation, embarrassment and damage to an employee’s self-esteem during termination should pay additional damages in the form of additional notice); and should aggravated and/or punitive damages be awarded (additional damages to compensate for the additional harm caused by reprehensible or outrageous conduct on the part of the employer), and if so, what was the appropriate quantum.

The Parties in this case had agreed Pate deserved twelve months pay. The Trial Court took into account all of the indicia of bad faith on the part of the Township and awarded four more months of pay as Wallace damages. The Trial Court declined to award damages for malicious prosecution, finding the actions of the Township fell short of the requirement that no reasonable and probable grounds existed for the failed prosecution against him, and also that the Township intended to subvert or abuse the criminal justice system. The Trial Court did award general and aggravated damages in the amount of $75,000 as the nature of the Defendant’s conduct warranted it. The Trial Court awarded $25,000 in punitive damages as further monetary damages were appropriate to punish the Township. An additional $7,500 was awarded for special damages for the cost of defending the criminal charges.

On appeal, the Court of Appeal, in the second Decision, 2011 ONCA 329, was asked to reconsider the decision to not find the Township liable for malicious prosecution, and whether $25,000 was appropriate for punitive damages. The Court of Appeal found the Trial Court erred in not finding malice, and that the quantum for punitive damages was too low and needed to be reconsidered. Each issue was sent back to the Trial Court for a separate trial.

The Court of Appeal found that the Trial Court erred in its First Decision when it found that “principles of proportionality” prevented it from awarding a higher amount. The Court of Appeal agreed that punitive damages were appropriate in the case, and ordered a new trial to reconsider the proper quantum for the punitive damages. In the new trial, the Third Decision, Pate v. Galway-Cavendish and Harvey (Township), 2011 ONSC 6620, the Trial Court found this time that “punitive damages, when added to compensatory damages, must produce a total sum which is rationally required to punish the defendant. The amount of the award must be proportionate to the blameworthiness of the defendant’s conduct such that the more reprehensible the conduct, the higher the rational limits to the potential award.”

The Trial Court took notice that no evidence had been provided that the Township had apologized or in any way accepted responsibility for the conduct of its municipal officer, nor had it in any way accepted responsibility for the result of these actions. Viewed through the eyes of the average citizen, there was no doubt the citizen would view the conduct of the Township as offensive and morally repugnant. The Trial Court considered relevant to its decision: the findings of significant misconduct on the part of the Township; the fact it continued approximately over a ten year period; the Township’s actions in the case and in the criminal proceedings that had a devastating impact on Pate’s life, employability, and marriage; and the fact that these were intentional and foreseeable actions undertaken by the Township. Upon consideration of these facts, previous case law, and with the guidance of the Court of Appeal, the Trial Court fixed the quantum of punitive damages in the amount of $550,000.

On the final remaining issue of malicious prosecution, the Court of Appeal found the Trial Court set the threshold for proving malice too high. It was improper to apply the test a Court would use for proving malicious prosecution against a Crown prosecutor to the Township, or another private individual. The Trial Court, in the First Decision, had found clear evidence of malice on behalf of the Township in concluding aggravated damages were warranted. It did not matter that it was the police, and not the Township that decided to lay the charges as knowingly withholding evidence that would prevent the laying of charges could constitute initiating proceedings. As a result, the Court of Appeal ordered a new trial to determine whether if, in withholding the information, Beaven prevented the police from conducting an independent investigation and whether or not but for the withholding the police would have laid charges anyway. In the new trial, the Fourth Decision in the series, Pate Estate v. Galway-Cavendish (Township), 2012 ONSC 6740, the Trial Court did find this time that the Township was guilty of malicious prosecution as the police would not have laid charges but for the actions of Beaven, and ordered the Township to pay $1.00 in damages and $20,000.00 in costs to Page, which the Parties agreed was the appropriate remedy (having already been awarded $550,000.00).

This case provides significant guidance on the principles applicable to wrongful dismissal cases with respect to possible additional damages. The multiplicity of Court processes would be daunting and costly for employee and employer. That alone should be a message to employers to act appropriately with respect to dismissal cases.