Newfoundland v. Labrador Teachers' Association, 2022 NLSC 119

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador Teachers' Association v. Newfoundland and Labrador English School District , 2022 NLSC 119 Date : July 19, 2022 Docket : 202101G4964 Between: Newfoundland and Labrador Teachers' Association Applicant And: Newfoundland and Labrador English School District Respondent Before: Justice Katherine O'Brien On Judicial Review From: A Decision of an Arbitration Board made on July 8, 2021 (James C. Oakley, Q.C., Chairperson). Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 4, 2022

Summary: This is an application for judicial review of an arbitration decision involving the discipline of a teacher. The teacher was disciplined for

restraining a student. The arbitration board decided that the school district had disciplined the teacher within the time limit established bythe collective agreement and that her conduct was deserving of sanction. The Court decided that the arbitration board’s decision wasreasonable and dismissed the application. Appearances: Ian S. Patey Appearing on behalf of the Applicant Stephen F. Penney and Robert Bradley Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Canada Post Corp. v.

CanadianUnion of Postal Workers, 2019 SCC 67; NARL Refining LP and USW, Local 9316 (Parsons), Re (2015), 2015 CarswellNfld 319, 125C.L.A.S. 36 (N.L. Arb.); Myers v. Peel (County) Board of Education, (SCC), [1981] 2 S.C.R. 21; Jane Doe v. M.N.,2018 NLSC 162; Johnson v. Ryall (1989), (NL SC), 76 Nfld. & P.E.I.R. 121, 235 A.P.R. 121 (Nfld. S.C. (T.D.));Henry Coaster Memorial School and Achneepineskum (Re), 2000 CarswellNat 6865, [2000] C.L.A.D. No. 37 (Canada Adjudication);College Boreal and OPSEAU, Local 672 (Tremblay) Re, 2015 CarswellOnt 16342, 125 C.L.A.S. 231 (Ont.

Arb.); Upper CanadaDistrict School Board and OSSTF, District No. 26 (Hull), Re, 2004 CarswellOnt 10347, 77 C.L.A.S. 113 (Ont. Arb.); Nova Scotia v.S.S.G.E.U, (NS LA), 1983 CarswellNS 538, 10 L.A.C. (3d) 47 (N.S. Arb.); Dundas v. C.U.P.E., Local 1006, (ON LA), 1972 CarswellOnt 1368, 1 L.A.C. (2d) 161 (Ont. Arb.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: Donald J.M. Brown and David M.

Beatty, Canadian Labour Arbitration, 5th ed. looseleaf (Toronto: Carswell, 2019) REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] Newfoundland and Labrador Teachers’ Association (“NLTA”) has applied for judicial review of an Arbitration Board’sdecision made in response to a grievance. NLTA grieved Newfoundland and Labrador English School District’s (the “School District”)discipline of teacher Lillian Sheppard. NLTA is Ms. Sheppard’s union. [2] Ms. Sheppard is a grade seven teacher. One afternoon, two students (S and

A) reported to her that another student (

K) had useda racial slur toward S, and that he had boasted to friends that he had done so without getting in trouble. Ms. Sheppard asked S and A ifthey would agree to a mediation with K, and they did. Ms. Sheppard brought the three students to the corridor outside her classroom forthe mediation. [3] The mediation lasted approximately 30 minutes but did not end well. K said he was going to run away. Ms. Sheppardphysically restrained him. He struggled to get away and threatened to kill himself if she did not let him go. Other teachers arrived on thescene. Ultimately, K freed himself from Ms. Sheppard’s hold.

He left the school, but returned soon after. [4] A video camera in the corridor recorded events, without audio. It shows the physical struggle lasting for two minutes. [5] Following an investigation, the School District found that Ms. Sheppard was not justified in restraining K and that she put hersafety, and that of K, at risk. It found that her actions were contrary to a safe and caring learning environment and merited discipline of afive-day, unpaid suspension.

[ 6 ] NLTA grieved the School District’s decision on two main grounds. The first ground was that the School District failed to discipline Ms. Sheppard within the 10-day time limit established by the collective agreement. The second ground was that Ms. Sheppard’s conduct was not deserving of sanction. [ 7 ] An Arbitration Board dismissed the grievance with written reasons. One of the three members of the Board dissented. [ 8 ] NLTA applied to this Court for judicial review of the Board’s decision on the issues of timeliness of the discipline and whether discipline was merited.

NLTA did not ask this Court to review the Board’s decision on penalty. [ 9 ] The parties agree that the applicable standard of review is reasonableness. [ 10 ] The issues are: a. Should the Board have quashed the School District’s decision to discipline Ms. Sheppard because it was not made within the 10-day time limit for imposing discipline established by the collective agreement? b. If not, is the Board’s decision on the merits unreasonable because it did not apply the civil standard of a “careful or prudent parent” or because it did not adequately explain why it did not apply that standard? c.

Is the Board’s decision unreasonable because it did not properly consider relevant factors or because it considered an irrelevant factor, namely, whether allowing the grievance could be viewed as its condoning Ms. Sheppard’s actions? [ 11 ] I have decided that the Board’s decision with respect to all of these issues was reasonable and should be upheld. As a result, I dismiss the NLTA’s application for judicial review. PrincipLES of Judicial Review on a reasonableness standard [ 12 ] The following principles apply to judicial review on the standard of reasonableness: a.

The starting point for any judicial review is the decision maker’s reasons for decision. b. The burden is on the party challenging the decision to show that it is unreasonable. c. To be reasonable a decision must be acceptable and defensible on the facts and the law in terms of the outcome and the justification or rationale given. d. A r easonableness review is not a line-by-line treasure hunt for error. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic. e.

Reasonable decisions are logically coherent with a rational chain of analysis. They bear the hallmarks of justification, intelligibility, and transparency. They are made within the legal and factual constraints relevant to the decision. f. Reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given. The reviewing court should consider contextual factors such as the governing statutory scheme, the evidence, the submissions of the parties and past practices and decisions. g.

While reviewing courts should ensure the decision under review is justified in relation to the relevant facts, deference to decision makers includes deferring to their findings and assessment of the evidence. Reviewing courts must pay respectful attention to decision makers’ demonstrated expertise when considering whether an outcome reflects a reasonable approach given the consequences and the operational impact of a decision. h.

Before a decision can be set aside for being unreasonable, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. i. If a decision is reviewed on a standard of reasonableness, and it meets this standard, then the court will not interfere and the decision will be upheld. j.

If, having conducted a review based on these principles, the court decides that the administrative decision maker’s decision should not be upheld, then usually the court will remit the matter back to the administrative decision maker for reconsideration. In some limited cases, the court may simply make the decision it determines should have been made. ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 ).

The Decision that 10-Day Time Limit was met [ 13 ] The collective agreement required that discipline be recorded “within ten (10) calendar days of the discovery and verification of the incident by the Employer”. [ 14 ] The parties agree on the following timeline of relevant events: a. February 4, 2020: The incident happened. The School District’s investigation commenced shortly after. The Director of Human Resources, Gary Cahill, was primarily responsible for the investigation. b. February 20, 2020: Mr. Cahill conducted his final interview.

c. March 2, 2020: Mr. Cahill submitted a report of the investigation to Ed Walsh, Associate Director of Education. d. March 9, 2020: In response to an inquiry, the School District advised NLTA that its investigation was concluded and that it was in the process of making a decision. The School District requested an extension of time to March 16, 2020 to make its decision. e. March 10, 2020: NLTA agreed to the extension with the caveat that it was only effective if the 10-day timeline had not passed. f.

Mid-March, 2020: Because of the COVID-19 pandemic, the parties agreed to suspend all disciplinary investigations. g. May 19, 2020: Ms. Sheppard was advised of the School District’s discipline decision. [ 15 ] The parties disagree about the

interpretation of “discovery and verification” and when the 10-day period began to run. The crux of their disagreement is whether the 10 days had passed before March 10, 2020. [ 16 ] NLTA’s position is that the 10 days began to run no later than February 20, when the last interview was completed. The School District’s position is that the 10 days started no earlier than March 2, when the investigation report was given to Mr.

Cahill. [ 17 ] The Board interpreted the collective agreement to mean that the 10-day time period starts once the School District has investigated the complaint and determined whether the employee has done something that is deserving of sanction. It found that Mr. Walsh was the School District’s decision maker and that the earliest the time could have started to run was when he received the investigation report: March 2.

Analysis of the Board’s decision regarding time limit [ 18 ] NLTA submits that the Board’s decision is unreasonable because it cannot be justified in relation to the relevant legal and factual constraints that bear on it. [ 19 ] More specifically, NLTA submits that the Board erred in creating a “false equivalency” between the language it was considering (“verification of the incident”) and language that was considered in NARL Refining LP and USW, Local 9316 (Parsons), Re (2015), 2015 CarswellNfld 319, 125 C.L.A.S. 36 (N.L. Arb.) (“determine an infraction”) .

NLTA submits that wrongly equating the two phrases led the Board to erroneously conclude that “verification of the incident” requires that the School District determine whether the employee has done something deserving of sanction. [ 20 ] Additionally, NLTA submits that the Board’s decision is illogical in that it has the effect of giving the School District an unspecified time to determine if discipline is warranted which, in its view, is expressly contrary to the mandated 10-day time limit. [ 21 ] Although ably argued, I am not persuaded by either submission. [ 22 ] First, NLTA overstates the Board’s reliance on Parsons .

The Board undertook a thorough analysis of the timeliness issue (Decision, at paras. 43 – 67). It identified the key issue as being the date of the “discovery and verification of the incident”. It considered arbitral authority with respect to imposing discipline in a timely manner and the policy goals that underlie such clauses.

It reviewed a number of precedents in which similar clauses were interpreted, not just Parsons . [ 23 ] Although the Board found that in most cases collective agreement language has been interpreted to allow the employer to conduct an investigation to determine whether there is culpable conduct (Decision, at para. 52), it specifically noted that the prior arbitration awards did not consider language identical to the present case (Decision, at para. 60).

Although it noted a similarity between the language of its case and that considered in Parsons , in that both “expressly contemplated” employer action, Parsons did not govern its analysis. [ 24 ] The Board’s analysis was primarily governed by the ordinary meanings of the words “discovery” and “verification”.

Having reviewed a dictionary definition of “verify” submitted to it by NLTA, the Board concluded that the “ordinary meaning” of the collective agreement clause is that the 10-day period begins once the Employer has had time to investigate the complaint to determine whether the employee has done something that is deserving of discipline. [ 25 ] Second, the Board directly addressed that the collective agreement did not give any time limit for the employer to investigate and verify the complaint. In the absence of an express limit, it concluded that the employer is entitled to a “reasonable” amount of time.

It went on to consider whether the time taken in this case was “reasonable”. This is not illogical. The Board identified the issue and addressed it. [ 26 ] Additionally, NLTA’s argument that the Board’s decision is illogical because it results in the employer having an unspecified time to do its work, does not depend on the Board’s

interpretation of “verification”. If I accept NLTA’s position as to when the 10-day clock starts to run, the employer still has an unspecified amount of time to collect evidence and conduct interviews.

The Board’s consideration of the 11 days [ 27 ] NLTA has also submitted that the Board’s finding that 11 days from the last interview to the submission of the investigation report was a reasonable period is unreasonable because it is not founded in the evidence. [ 28 ] To determine the reasonableness of the period, the Board considered the nature of the complaint, the nature of the investigation evidence, the extent of analysis required to determine if the conduct was culpable, and any potential prejudice to Ms. Sheppard (Decision, at paras. 61 and 65).

The Board also reviewed a number of activities it considered reasonable for Mr. Cahill to have undertaken in his review of the evidence (Decision, at para. 61). NLTA contends that the only evidence as to what was actually done by Mr. Cahill during the 11 days was that summarized by the Board as: “he reviewed the information gathered and prepared a report” (Decision, at para. 62).

[29] I cannot conclude from this that the Board made findings that were not founded in the evidence. Although I do not have atranscript of the hearing, to summarize the evidence the Board must have had some evidence to work with. It was not required to recite indetail the evidence it relied on to come to its conclusion. Additionally, reasons must be read with due sensitivity to the administrativeregime in which they were given. The Board was appointed in accordance with the collective agreement and is expected to haveexperience and knowledge of the school environment and workplace investigations and discipline.

I must respect the Board’s collectiveexpertise and give deference to its factual findings. Did the Board make inconsistent findings of fact? [30] NLTA alleges that the Board made inconsistent findings of fact that were critical to its finding that the time limit had notexpired. Specifically, NLTA refers to the Board’s finding that Mr. Cahill’s investigation report did not include any recommendation ondiscipline (Decision, at para 21).

NLTA submits that this is inconsistent with the Board’s statement when considering the reasonablenessof the time taken to verify the complaint: “With respect to whether the Grievor’s restraint of the student was deserving of discipline, itwas necessary to consider what standard applied to the Grievor’s conduct and to apply that standard” (Decision, at para. 64). NLTAconsiders this inconsistent because if Mr.

Cahill did not make a recommendation on discipline, the activity of considering the standardand applying it (as part of the verification process) could not have been done in the 11 days prior to his submitting the investigationreport. [31] Given that the Board did not find that the 10-day period started with the submission of the report to Mr. Walsh, but only thatthis was the earliest it could have started, I am not convinced this is an inconsistency. Reading the decision in its entirety, it is clear thatthe Board found that Mr.

Cahill did not make a recommendation on discipline and that the discipline decision fell to Mr. Walsh. Theearliest Mr. Walsh could have considered the standard (as part of verifying the complaint) would have been the same day he receivedMr. Cahill’s report. [32] Yet even if I accept NLTA’s assertion, this minor discrepancy is not sufficient to render the decision unreasonable. A judicialreview is not a treasure hunt for error and, if this is a flaw, it is not fatal. The Board’s reasoning and logic on the issue of timeliness isdetailed, coherent, justified, and easy to follow. The Standard applied to Ms.

Sheppard’s conduct [33] Before the Board, the NLTA submitted that Ms. Sheppard’s conduct met the standards applicable in criminal and in civilliability cases (Decision, at para. 81). The criminal standard that NLTA referenced is in

section 43 of the Criminal Code, R.S.C. 1985, c.C-46, which allows a teacher to use force against a student by way of correction “if the force does not exceed what is reasonable underthe circumstances”. The civil standard that NLTA referenced is that applied in negligence claims as the standard of care to be exercisedby school authorities in supervising students: that of the careful or prudent parent (Myers v. Peel (County) Board of Education, (SCC), [1981] 2 S.C.R. 21). [34] The Board found that neither standard applied.

The criminal standard did not apply because the case did not concern a criminalcharge for the use of force by way of correction. The civil standard did not apply because a teacher’s civil liability for the supervision ofstudents is “a different issue” from the discipline of teachers (Decision, at paras. 81 and 83). [35] The Board found that civil liability cases had limited value when reviewing the School District’s discipline decision. However,it found that a standard analogous to the criminal standard was appropriate: was Ms.

Sheppard’s use of force reasonable, having regard tothe range of reasonableness and taking into account all of the circumstances (Decision, at paras. 81-83)? [36] Before this Court, NLTA argued that the Board erred in not applying the civil standard of “careful or prudent parent”. It alsosubmitted that the Board failed to adequately justify its departure from this standard, which NLTA submitted has been used to assessteacher’s behavior in similar, prior cases. [37] NLTA correctly states that precedents on an issue before a tribunal, or on a similar issue, constrain what a tribunal canreasonably decide.

Additionally, a tribunal’s failure to explain or justify a departure from a binding precedent may make its decisionunreasonable (Vavilov, at para. 112). [38] However, NLTA has not shown that the Board failed to follow any binding precedent. In Myers, the case that established the“careful or prudent parent” standard, a student sued a school board for negligence. The student was injured using gymnastics equipmentand alleged that the school had been negligent in supervising him. NLTA filed two cases from this jurisdiction that also involvednegligence claims related to inadequate supervision of children (Jane Doe v.

M.N., 2018 NLSC 162; Johnson v. Ryall (1989), (NL SC), 76 Nfld. & P.E.I.R. 121, 235 A.P.R. 121 (Nfld. S.C. (T.D.)). These cases do not address the standard to beapplied against a teacher who has used force against a student in the context of workplace discipline. [39] NLTA filed five additional cases which it stated relied upon, applied, or referred to Myers as the relevant standard of care inemployment grievances. However, none of these cases consider issues similar enough to Ms. Sheppard’s to be considered bindingprecedents. Of the five, only three considered grievances related to workplace discipline.

In two of those, Myers was cited as beingsubmitted by a party but not applied by the decision maker (Henry Coaster Memorial School and Achneepineskum (Re), 2000CarswellNat 6865, [2000] C.L.A.D. No. 37 (Canada Adjudication); and College Boreal and OPSEAU, Local 672 (Tremblay) Re, 2015CarswellOnt 16342, 125 C.L.A.S. 231 (Ont. Arb.). These cases do not demonstrate teachers’ conduct being measured against a standardof “careful or prudent parent”. [40] In one of the cases relied upon by NLTA, a discipline panel did apply the test of “careful or prudent parent” to assess ateacher’s actions.

In Upper Canada District School Board and OSSTF, District No. 26 (Hull), Re, 2004 CarswellOnt 10347, 77 C.L.A.S.113 (Ont. Arb.), the employer had disciplined a teacher because it alleged that he was negligent in his duty to supervise an industrial artsstudent who was injured using machinery. The parties to the grievance agreed that the appropriate standard for supervision was that of acareful or prudent parent. I do not know if the Board was aware of Upper Canada District.

However, even if it was, I cannot find that theissue in Upper Canada District was similar enough to that before the Board to require it to specifically explain or justify its decision not

to follow it. Ms. Sheppard was not alleged to have been negligent in supervising K; she was alleged to have intentionally, but wrongfully,physically restrained him. [41] The School District filed authorities in which the test for civil negligence was rejected by tribunals considering the discipline ofemployees whose actions were generally described as “negligent” (Nova Scotia v. S.S.G.E.U, (NS LA), 1983CarswellNS 538, 10 L.A.C. (3d) 47 (N.S. Arb.); Dundas v. C.U.P.E., Local 1006, (ON LA), 1972 CarswellOnt 1368,1 L.A.C. (2d) 161 (Ont. Arb.). In addition to these cases, it filed an excerpt from Donald J.M.

Brown and David M. Beatty, CanadianLabour Arbitration, 5th ed. looseleaf (Toronto: Carswell, 2019) at §7.36: Generally, arbitrators have taken the view that in order to satisfy the burden of proof, an employer does not have to show the samestandard of misconduct that is embraced in the common law concept of negligence. [42] The Board considered the civil test for negligence and rejected it. Its reasons for rejecting it were not lengthy but clarified thatit considered Ms. Sheppard’s discipline to be a different issue from civil liability for the negligent supervision of students.

In the contextof the allegations against Ms. Sheppard, this finding did not require much elaboration. I cannot find the Board’s decision unreasonablesimply because the Board could have given more detailed reasons on this point. [43] NLTA has not shown that the Board’s decision with respect to the applicable standard was unreasonable. The Board had todetermine a standard against which to consider Ms. Sheppard’s conduct. It considered two that were suggested by NLTA. It rejected bothfor similar reasons – the context of Ms.

Sheppard’s discipline was different from both criminal liability for use of force and civil liabilityfor negligent supervision. The Board chose a standard that was similar to that used in the criminal context but that considered the rangeof reasonable conduct and took into account all of the circumstances. An administrative decision maker may reasonably adapt equitableor common law doctrines to its administrative context (Vavilov, at para. 113). The Board’s chain of analysis leading to this choice waslogical and coherent.

Its reasons for rejecting the civil standard were brief, but intelligible in the context of the facts and law before it.The Board did not fail to consider or follow binding legal precedents. FACTORS THE BOARD CONSIDERED IN APPLYING THE STANDARD [44] Although raised as an issue in its application, NLTA’s submissions did not focus on whether the Board had adequatelyconsidered relevant factors in deciding whether Ms. Sheppard’s actions were reasonable in the circumstances. This is not surprisingbecause the Board gave detailed consideration to numerous factors, including Ms.

Sheppard’s knowledge of K at the time of events,when during their interactions he told her that he had previously run away, and when he said he would kill himself if she did not let go ofhim. It also considered Ms. Sheppard’s explanation, the reasonableness of her beliefs, other options that were reasonably available to her,the risk of harm created, and the extent and duration of the restraint. Its analysis was thorough. [45] NLTA’s submissions focused on whether the Board had considered an irrelevant factor: not wanting to condone Ms.Sheppard’s conduct.

Following its consideration of the factors I have summarized above, and following its conclusion that Ms.Sheppard’s conduct was a departure from the expected standards of teachers and provided just cause for discipline, the Board wrote atparagraph 88: The Arbitration Board also notes that if the Board found that the Employer did not have just cause for discipline, then the Board’sdecision could be interpreted as condoning the Grievor’s actions. The Association submits that the Grievor was justified in her actions.The Grievor did not admit any wrongdoing in her restraint of the student.

To find that the Employer did not have just cause to disciplinethe Grievor would send a message that the Grievor was justified in her decision to restrain the student, and justified in her actions tocontinue the restraint in an intense manner for a lengthy period.

However, having regard to the risk of harm caused by the restraint, itwould not be appropriate to condone the Grievor’s actions. [46] Although NLTA acknowledges that the Board could rightfully consider condonation with respect to its consideration ofpenalty, it submits that it was inappropriate for the Board to consider it with respect to its analysis of just cause. NLTA submits that byconsidering condonation as it did, the Board rendered its decision unreasonable. [47] Respectfully, I do not agree with NLTA’s submission.

I substantially agree with the School District’s submissions on this point. [48] First, the location of the paragraph that addresses condonation in the decision suggests that condonation was not considered bythe Board in coming to its conclusion that the School District had just cause to discipline Ms. Sheppard. The paragraph is located afterthe Board has reviewed all other factors and made its finding regarding the unreasonableness of Ms. Sheppard’s conduct. Thecondonation paragraph precedes the Board’s consideration of the appropriate penalty.

In context, the paragraph appears to be an aside orincidental expression of opinion, something akin to obiter dicta in a judicial context. [49] Second, even if the Board considered condonation as a factor, NLTA has not provided any authority that establishes or suggeststhat such a consideration would be inappropriate. [50] Finally, even if it was a wrong or irrelevant consideration, I cannot find that it is a fatal flaw in the Board’s overarching logic. Ifit is a shortcoming, it is not sufficiently serious to render the decision unreasonable.

The Board gave a thorough consideration of anumber of factors that lead to its conclusion and condonation was, at most, a minor consideration. Conclusion [51] NLTA has not established that the Board’s decision is unreasonable. The decision explains the Board’s reasons for concludingas it did with respect to: the timeliness of the discipline, the standard it applied, and its ultimate finding that the School Districtestablished that it had just cause to discipline Ms. Sheppard as it did. I do not find that the decision is illogical or that it is unjustified interms of relevant legal or factual constraints.

Generally, it is thorough, understandable, and well explained. [52] As a result, NLTA’s application for judicial review is dismissed. The School District shall have its costs taxed on the Rules of

the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D, Rule 55 , Appendix 1, Scale of Costs, Column 3. _____________________________ Katherine O'Brien Justice