South Shore Regional School Board v. Speight, 2012 NSSC 417

SUPREME COURT OF NOVA SCOTIA Citation: South Shore Regional School Board v. Speight, 2012 NSSC 417 Date: 20121129 Docket: Hfx No. 356607 Registry: Halifax Between: The South Shore Regional School Board Applicant v. Peter Speight and Bruce P. Archibald, Q.C., Board of Appeal Respondents DECISION Judge: The Honourable Justice Gerald R. P. Moir Heard: October 23, 2012 Counsel: John C. MacPherson, Q.C. and Katie Roebothan, for applicant Gail L. Gatchalian and Lauren Kautz, for Peter Speight Moir J. : Introduction

[ 1 ] Five years ago, Mr. Peter Speight committed acts of public indecency in a brief period. He was caught and prosecuted. He pleaded guilty, which led to a finding of guilt, but he received a conditional discharge. [ 2 ] Mr. Speight was a teacher with the South Shore Regional School Board. The school board suspended him after he was charged, and it fired him when he pleaded guilty. Mr. Speight appealed the termination. [ 3 ] Sitting as a board of appeal under the Education Act , Professor Bruce Archibald, Q.C. heard evidence and submissions over eight days.

He released an extensive written decision in which he found just cause for discipline but substituted a reduced penalty, a one year suspension without pay. [ 4 ] The school board applied for review. Issues [ 5 ] I must begin by determining whether the court reviews Professor Archibald ’ s decision for correctness or for reasonableness. [ 6 ] So much depends on the nature of a question. For the school board, Mr. MacPherson and Ms. Roebothan propose a series of detailed issues. They say that the standard on the first seven of these is reasonableness and correctness applies on the remaining six. [ 7 ] For Mr.

Speight, there is only one issue after the standard of review is determined: "Was the decision of Mr. Archibald to revoke the discharge of Mr. Speight and vary it to be a one-year suspension reasonable?" [ 8 ] The numerous detailed issues proposed by the school board fall under two general themes:

(1) The decision was unreasonable.

(2) It contains errors on questions of law. [ 9 ] As I see it, the decision is entitled to deference. It must be reviewed for its reasonableness, not correctness. None of the numerous issues raised by the school board are questions apart from those Professor Archibald was required to confront: Did Mr. Speight engage in the alleged misconduct? Does the misconduct provide just cause for discipline? What ought the discipline to be? [ 10 ] None of the numerous issues proposed by the school board can be separated from the assessment of reasonableness. They are not stand-alone questions of law.

So, I shall provide my assessment under the following issues, but such of the subjects raised by the school board as rightly causes some concern with the decision will also be considered in the review for reasonableness.

(1) What is the standard of review?

(2) Is the decision reasonable?

(3) What flaws do the school board's proposed issues reveal, and, if there is a valid criticism, where does it fit in the review for reasonableness? Standard of Review

[11] First, the court ascertains "whether the jurisprudence has already determined in a satisfactory manner the degree of deference tobe accorded with regard to a particular category of question": Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 62. If not, the courtdetermines the standard according to the method in Dunsmuir, modified by Newfoundland and Labrador Nurses' Union v.

Newfoundlandand Labrador (Treasury Board), 2011 SCC 62. [12] Counsel for the school board point out that there are no decisions since simplification of the standards in Dunsmuir thatconsider the standard of review applicable to an appeal board under the Education Act. They say, however, that Hudston v. HalifaxRegional School Board (1999), (NS SC), 177 N.S.R. (2d) 105 (S.C.) and Haché v. Lunenburg County DistrictSchool Board, 2004 NSCA 46 suggest "that a correctness standard should apply to a Board of Appeal decision on judicial review".

However, we have to look at the "category of question" at issue in those cases. [13] The Education Act provides that the superintendent may suspend a teacher, but the suspension must be referred to the schoolboard for confirmation, variation, or revocation. The reference has to happen within deadlines and on notice to the teacher. Otherwise,the suspension "is deemed not to have taken place". [14] Hudston was about an appeal board's

interpretation of these provisions on a preliminary objection. The question was whetherthe school board's failure to meet the reference deadline and notice requirements ended its power to confirm, vary, or revoke. This wentto the very beginning of the process for both the board's decision and the appeal of it. It was a true question of jurisdiction. See Halifax(Regional Municipality) v. Canadian Union of Public Employees, Local 108, 2011 NSCA 41 at para. 22. [15] The question that confronts us in this case is not about jurisdiction. It is about the third of the questions that are at the core ofthe appeal board's function. Those questions are:

(1) Did the teacher do what he is alleged to have done?

(2) If so, does the behaviourprovide just cause for discipline? and

(3) If so, should the teacher be dismissed or is some lower kind of discipline called for? See,Toronto Board of Education v. Ontario Secondary School Teachers' Federation, District 15, (SCC), [1997] S.C.J. 27at para. 49. [16] As will be seen, I do not agree that any of the determinative issues decided by Professor Archibald are pure questions of law.

They are questions of fact to which "deference will usually apply automatically" or questions "where legal and factual issues areintertwined", which usually attract the same standard: Dunsmuir, para. 53. [17] The road travelled to modernize Canadian administrative law began with Canadian Union of Public Employees Local 963 v.New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227. The highest level of deference had to be accorded to alabour tribunal's

interpretation of a statutory provision it was called upon to apply. The review of an arbitrator's determination of"whether the disciplinary measure of dismissal was too harsh" also had to be conducted at that level of deference: Toronto Board ofEducation v. Ontario Secondary School Teachers' Federation, District 15. See also, Cape Breton-Victoria Regional School Board v.Canadian Union of Public Employees, Local 5050, 2011 NSCA 9 at para. 40. [18] Dunsmuir does not invite us to take a fresh look at established levels of deference. Especially, it does not take us to a placebefore C.U.P.E. v.

New Brunswick Liquor Corp. The deference accorded to an arbitrator's discretion to substitute a lower penaltydemanded by Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 continued after Dunsmuir withoutresort to a fresh standard of review analysis: Cape Breton-Victoria Regional School Board at para. 40. [19] The differences are not great between an appeal board under the Education Act and labour arbitrators who determine just causeand disciplinary penalty.

In the field of labour law, questions of the kind determined by Professor Archibald have long been recognizedas demanding deference on review. [20] I conclude that the appeal board is, on established authority, entitled to deference. The review is for the reasonableness ofProfessor Archibald's determination, not its correctness. Reasonableness

Reasonableness [ 21 ] Reasoning Path . A court reviewing a decision for its reasonableness is required not to merely submit to the tribunal's reasons, but to pay "respectful attention to the reasons offered or which could be offered in support of the decision", in the words of Professor Dyzenhaus adopted at para. 48 of Dunsmuir . [ 22 ] The point made by the phrase "or which could be offered" was emphasized in Newfoundland and Labrador Nurses' Union .

We begin by taking a close look at the tribunal's stated reasons, but that leads us to the ultimate question, "whether the result falls within a range of possible outcomes": para. 15. That is to say, flaws in the stated reasons are not a sufficient reason for finding that the decision lacks the "justification, transparency and intelligibility" called for by Dunsmuir . See, Newfoundland and Labrador Nurses' Union , paras. 13 and 14 . [ 23 ] The charge to which Mr.

Speight pleaded guilty involved three incidents during the fall of 2007 in which he stopped his car, hailed a woman on the sidewalk, and masturbated in front of her when she came to the driver's window. Professor Archibald accepted Mr. Speight's testimony that these were the only occasions on which he did such a thing.

He also admitted to his employer shortly after the guilty plea, and when he testified before Professor Archibald, that these incidents culminated from a strange habit he had gotten into for about two years in which he would go for drives and privately masturbate when he saw an attractive woman. [ 24 ] Professor Archibald provides an extensive discussion of the positions of the parties from paras. 52 to 77 of the decision. In doing so, he provides his appreciation of the significant authorities and statutory references. [ 25 ] First off is the decision in Millhaven Fibres Ltd. v.

Oil, Chemical and Atomic Workers International Union, Local 9-670 , [1967] O.L.A.A. No. 4 (J. C. Anderson, Chair). Professor Archibald observed that "arbitral jurisprudence makes a distinction between cases where employee misconduct occurs at the workplace ... and those cases where the conduct occurs off-site but still has such an impact on the employer that discipline is nonetheless warranted": para. 53.

Continuing at that same reference, he refers to paras. 19 and 20 of Millhaven Fibres as the "classical starting point": 19 There are a number of arbitration cases which deal with disciplinary matters arising out of the conduct of an employee at a time when he is not in the Plant.

Generally speaking, it is clear that the right of management to discharge an employee for conduct away from the Plant, depends on the effect of that conduct on Plant operations. 20 In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away form the place of work, there is an onus on the Company to show that: (1) the conduct of the grievor harms the Company's reputation or product (2) the grievor's behavior renders the employee unable to perform his duties satisfactorily (3) the grievor's behavior leads to refusal, reluctance or inability of the other employees to work with him (4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees (5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

That case was decided forty-five years ago. Professor Archibald made two points about developments since then. Firstly: "thesubsequent cases, and the parties here, agree that demonstration of a serious breach of any one of these factors could lead to discharge ...." Also, para. 53. [26] With emphasis on "discharge" in "the right of management to discharge an employee for conduct away from the Plant" inMillhaven Fibres, the school board submits that Professor Archibald "ducked" the issue raised by Millhaven Fibres by failing to decideproof of a factor and to consequentially confirm the discharge.

I do not read the decision that way. [27] The full text of the general observation in para. 53 about developments after Millhaven Fibres reads: The subsequent cases, and the parties here, agree that demonstration of a serious breach of any one of these factors could lead todischarge, but the jurisprudence also demonstrates that these constitute an over-lapping set of concerns which must be balanced todetermine whether termination or some other form of discipline is appropriate in the circumstances.

The decision then provides reference to Brown & Beatty at 7:3010 and to Professor Archibald's decision in Bell Aliant RegionalCommunication L.P. and C.E.P. Atlantic Communications Council, Local 2289 (2010), 104 C.L.A.S. 359. [28] I take it that the power of arbitrators to substitute a lower disciplinary penalty became established after Millhaven Fibres.

Thatis why it refers to management's right to discharge, where more modern authorities refer to the right to discipline, for just cause. [29] The decision under review contains a discussion of the school board's position from a second paragraph 53 to paragraph 61. That discussion includes references to two decisions of the Supreme Court of Canada that emphasize the importance of a teacher's role inrelation to misconduct outside of their work: Attis v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R.825 and Toronto Board of Education v.

Ontario Secondary School Teachers' Federation, District 15, (SCC), [1997] 1S.C.R. 487.

It also includes a detailed review of the school board's arguments on each of the five Millhaven Fibres "factors",culminating in: "The Respondent submits that all five Millhaven Fibres factors have been met, even though only one would be sufficientto justify the Appellant's discharge." Note the reference to discharge, rather than discipline. [30] The school board's submission, now and then, is that proof of one of the five criteria in Millhaven Fibres against a teacherwhose conduct was criminal takes one straight to dismissal, avoiding any power to consider a lesser penalty.

Professor Archibaldspecifically considered this submission. For example, at para. 75 he summed up the submission as "there is no free pass for teachersinvolved in criminal behavior". [31] The decision does not "duck" this submission. It rejects the submission. The breach is one thing, the degree of the consequence or penalty for breach is another matter.

The "no free pass" label is a misnomerand misleading – second chances are a part of reasonable, proportional labour relations approaches to corrective discipline. (para. 87) Millhaven Fibres is understood in light of modern authorities about the power to revoke or vary a discharge, a subject I will discuss inconnection with the range of reasonable outcomes. [32] Nor does the decision "duck" Millhaven Fibres in its application to the issue of just cause for discipline. [33] With the same attention to detail as was accorded to the school board's position, the decision reviews Mr.

Speight's position,starting at para. 62 and going to para. 72. This sum-up is at para. 71: The first approach is to assert that there was no ground for disciplining the Appellant and that he should simply be reinstated with

reimbursement for lost income, and with recognition of lost service and seniority. The second line of argument, in the alternative, was that a suspension should be substituted for the discharge, if some discipline is deemed to be warranted, but reinstatement to employment is deemed tenable. [ 34 ] Professor Archibald did not find it necessary to provide much discussion about the argument against just cause. He said "... discipline for this conduct, even though away from the workplace, is appropriate ...": para. 78. At various points the misconduct is referred to as "wrongful" and "criminal". See for example, para. 45 and para. 99. The

summary tone persists in the express rejection of Mr. Speight's submission at para. 83: "[T]his position on the facts is not sustainable." [ 35 ] So, the reasoning path involved a

summary style determination that the misconduct was just cause for discipline and a rejection of the argument that the cause precluded any kind of discipline except discharge. [ 36 ] References in para. 83 to "the interpretive contexts" and "the broad context" require an appreciation of modern authorities on the powers to revoke or vary a discharge, which I shall discuss in connection with the range of rational outcomes.

That understood, the paragraph displays the reasoning path to this point in high definition: This brings us to a consideration of the Millhaven Fibres factors in the light of the interpretive contexts advanced by both sets of parties in this Appeal. Firstly, the parties agree that the broad context for the application of the Millhaven Fibres factors is the standard set of three questions that an arbitrator or an appeal board such as this one must ask:

(1) Did the Appellant engage in the conduct alleged?

(2) Was the conduct deserving of disciplinary action? And

(3) Was the offence serious enough to warrant discharge? In this case the first question was not in dispute: the Appellant admitted to the criminal conduct. Despite the Appellant/NSTU's initial assertion that question two could be answered in the negative, this position on the facts is not sustainable. There is not doubt in my mind that a reasonable person apprised of all the circumstances would conclude that discipline of the Appellant by the Respondent would be justified in relation to his misconduct even if it was not at the workplace and did not involve students or children.

The real controversy is around question 3, and the issue of whether the offence was sufficient to warrant discharge, or whether the authority of this Board of Appeal to vary the termination to some other form of discipline is appropriate. This, the parties agree, should be determined by an enlightened approach to the Millhaven Fibres factors.

I agree that this is appropriate, though not entirely unproblematic. [ 37 ] From that point forward the decision explains why dismissal is not appropriate and why a variation to a lengthy suspension is appropriate, but we need to return to the review of the evidence to clearly see the path of reasoning. [ 38 ] The decision records findings about Mr. Speight's work performance, starting at para. 8. When the charges were laid he had been on permanent contract for eight months and had been employed for three and three-quarters years.

He was "not a long term employee" (para. 8). [ 39 ] He was found to have been "a teacher with considerable ability and excellent promise". This finding, and the review of the evidence in support of it, are found at para. 9. [ 40 ] At para. 21, Professor Archibald wrote: [T]his case raises the question of the extent to which a labour relations adjudicator should be bound or influenced by a sentencing judge's disposition or factual findings where the criminal conduct of someone like the Appellant is the basis for the discipline or discharge.

In paras. 20 to 24, the decision explains why the sentencing judge's "findings and views" (para. 23) are relevant but not binding. The decision of his Honour Judge Marc Chisholm, which accepted a joint recommendation for a conditional discharge, is reproduced at para. 25. [ 41 ] One of the school board's issues is based on the proposition that the sentencing decision was irrelevant. That might have been

[ 41 ] One of the school board's issues is based on the proposition that the sentencing decision was irrelevant. That might have been so had the proceeding been in this court, but the parties presented Professor Archibald with much opinion evidence about the impact of Mr. Speight returning to work. The lines of relevancy were drawn broadly, and arbitrators have flexibility when they apply rules of evidence. [ 42 ] Next, the decision reviews the opinions given in testimony by the district superintendent and the school board chair against reinstatement and somewhat contrary opinions given by Mr.

Speight's principal and a retired teacher of thirty-six years experience, who were called by Mr. Speight. See paras. 26 to 29 and para. 47. [ 43 ] Mr. Speight presented expert opinion evidence from a psychologist who had been treating him since he got caught. The school board presented expert opinion evidence from another psychologist retained on a review engagement. The discussion of their evidence is at paras. 30 to 41. It is evident that Professor Archibald accepted the treating psychologist's opinions. See for example, para. 79.

On the essential differences, he preferred the treating psychologists' opinions over those of the reviewing psychologist: para. 40. [ 44 ] The treating psychologist provided encouraging evidence about Mr. Speight's insight into the causes of his misbehaviour, and his positive response during therapy. He was of the opinion that Mr. Speight "does present with very little risk of re-offending" and, "There is no evidence that P.S. presents a significant risk to sexually re-offend." [ 45 ] Mr. Speight's testimony is reviewed at para. 42 to para. 52.

Professor Archibald found him to be credible in light of the expert's testimony, the evidence of his colleagues, reference letters from former principals, performance evaluation records, and Mr. Speight's own testimony: para. 81. He testified for two days, including a lengthy cross-examination. [ 46 ]

Section 34 of the Education Act provides for discharge of a teacher by the school board.

Section 35 gives the board power to vary or revoke its own discharge. Subsection 36(3) requires an appeal board to "inquire into the ... discharge or termination", and it requires the appeal board to "make an order confirming, varying or revoking the ... discharge". [ 47 ] While Professor Archibald expressed some criticisms of the school board's decision to discharge Mr. Speight (see for example, paras. 78 to 80), these criticisms were not essential to the decision about penalty.

Professor Archibald had his own decision to make "confirming, varying or revoking the ... discharge". [ 48 ] The part of the decision titled "Reasons for Decision and Order" is mainly about the third of the three core questions, penalty. [ 49 ] Generally speaking, Professor Archibald found Mr. Speight's evidence to provide "an appropriate basis on which to order reinstatement" (para. 81). However, Mr.

Speight's "criminal behavior" meant that "the termination of the Appellant's employment must be varied to a lengthy suspension to reflect the fact that significant discipline is warranted" (para. 99). [ 50 ] More specifically, the reasons refer to Justice L'Heureux-Dubé's concurring reasons in Toronto Board of Education about teachers as role models and misconduct as preclusive of such.

On that subject, Professor Archibald wrote at para. 84: The question is whether the Appellant's criminal misconduct is of such gravity that his status as a role model is seriously prejudiced and such that public trust and confidence are undermined. Are the Respondent SSRSB's fears in this regard justified? I have concluded and find as a fact that a reasonable person fully apprised of all the facts and circumstances surrounding the Appellant's situation would not reach such a conclusion. Role models come in many guises. In some instances it may be leading a life of unblemished success and exemplary achievement.

In other instances a positive role model may embody rising to challenges of disability or adversity. As Mr. L.P. suggests in this case, a positive role model may consist in overcoming a fall from grace, and demonstrating that despite one's mistakes one can recover one's sense of direction and purpose, transcend the difficulties which led to the error and regain the trust and admiration which follows from being such a role model.

As B.B., the Appellant's Principal suggested, this approach is taken to students in the PEBS program, and there is no reason why such an approach cannot be an aspect of corrective discipline in appropriate cases. There is no reason to think that among reasonable and well-informed members of the community, a role model of the latter sort cannot

enhance public confidence in the school system. He went on, in para. 85, to point out that s. 173(1)(

a) is a

summary conviction offence with a maximum penalty of eighteen months injail. Parliament classified this offence at the lowest level of seriousness. (Contrast that with impaired driving, which is a dual procedureoffence.) The offence "is not of the sort of gravity or moral turpitude that negates the possibility of the rehabilitated, repentant andapologetic Appellant being a positive role model ...". [51] The decision considers the Millhaven Fibres factors in the context of the penalty issue. Here the reasoning is guided by CapeBreton-Victoria Regional School Board v.

C.U.P.E., Local 5050, 2011 NSCA 9, the underlying decision of Arbitrator Ashley, andOttawa-Carleton District School Board v. Ontario Secondary School Teachers' Federation, District 25 (2006), (ON LA), 154 L.A.C. (4th) 387. See para. 78. [52] Professor Archibald explains how these modern authorities affect the Millhaven Fibres assessment at para. 86: Concerning factors (1) and (4), what does it mean to say that conduct "harms the company's reputation or product" or "injures thegeneral reputation of the company or its employees"?

Both parties agree that these factors are to be evaluated on an objective standard: a reasonable and well-informed person evaluating the situation. However, an application of this objective standard must also mean thatit cannot be that any trivial or transitory adverse impact on reputation, product or employees, or an uninformed or biased perspectiveexaggerates such impact, can be determinative. Discharge in these circumstances would not be reasonable.

Similar concerns arise inrelation to factors (2), (3) and (5) which all have to do, ultimately, with the employer's ability to manage its activities and direct itsworkforce in an efficient manner. Some minor interference with the Appellant's ability to do his job, an unreasonable reluctance orrefusal of others to work with him, or some inconvenience to the way in which the Respondent manages its activities or conducts itsaffairs cannot justify a termination. In these cases, there must be a balancing of the offending employee's interests against the degree ofharm to the Respondent's interests.

This is clearly the message of the analysis in CB-VRSB v. CUPE (re H.D.) discussed above whichrequires a proportionality principle to be invoked when balancing the Millhaven Fibres factors. [53] Paragraph 88 concludes the reasons on this subject, except for a comparison of the facts in Mr. Speight's case with those innumerous cases relied on by the parties. The conclusion reads: As is evident, I have concluded that the Appellant must be reinstated on terms to be outlined below.

I find that the nature of the offenceis not so grave as to require the Appellant to be discharged from his employment in order to save the reputation of the RespondentSSRSB and public confidence in its operations. I also find that, given the Appellant's successful therapy, he does not constitute asignificant risk to children, female colleagues or parents such that the Respondent employer will have a teacher incapable of carrying outhis duties, or one with whom reasonable colleagues would refuse to work, or one in relation to whom extraordinary measures must betaken to manage its activities or workforce.

The Appellant is a fine young teacher whose wrongful conduct ought not to deprive him ofthe opportunity to continue to bring his caring attitude and respected skills to the education of his students and to the benefit of hisemployer. Discharge is an unreasonable and disproportionate discipline in this case. [54] To summarize.

The decision under review notes the admissions regarding "Did the Appellant engage in the conduct alleged?" It , almost summarily, determines "Was the conduct deserving of disciplinary action?" It rejects the school board's contention that ateacher who engages in the admitted misconduct is automatically precluded from lesser penalties and concentrates on the contentiousissue of penalty. [55] On the contentious issue, the decision provides a detailed review of the evidence. It assesses the offence as seriousmisconduct, but not so serious as to preclude the lesser penalty of a lengthy suspension.

The decision recognizes the special role ofteachers and the need for vigilance against teacher misconduct, but concludes that this teacher is able to continue in the special role. [56] Several of the findings of fact were said to make discharge unreasonable, in the sense of being disproportionate to the gravity of

the misconduct. These include: • Although not a long term employee, Mr. Speight was "a teacher of considerable ability and excellent promise." Put another way, he is a "fine young teacher" who brings a "caring attitude and respected skills to the education of his students". • Mr.

Speight has insight into the causes underlying his misconduct and he underwent extensive therapy in which his response was encouraging. • He is rehabilitated, repentant, and apologetic. • There is little risk of re-offending. • He was credible, and suspicions about his trustworthiness are misplaced. • The school board's reputation can be protected by giving a second chance to a teacher whose own reputation is tarnished by misconduct of this kind. In any event, the offence is not so grave that discharge is necessary to save reputation. • Mr.

Speight is unlikely to re-offend and, especially, does not constitute a risk at school. A lengthy suspension was found to be the penalty that is proportionate to the misconduct in circumstances that include these findings. [ 57 ] In my assessment, the reasoning path is clear. It clearly states the justification for its ultimate conclusion. It is intelligible. And, this is not a case for inquiring into additional reasons "which could be offered". [ 58 ] Range of Rationally Possible Outcomes . This is not a discrete issue on a review for reasonableness.

Assisted by the effort to track the tribunal's reasoning path, a reviewing court goes on to determine whether the outcome is in the range of rationally possible outcomes. The subject is discussed by Fichaud, J.A. at paras. 36 to 39 of Cape Breton Island Building & Construction Trades Council v. Nova Scotia Power Inc. , 2012 NSCA 111 . [ 59 ] The school board relies heavily on Justice L'Heureux-Dubé's reasons in Toronto Board of Education .

At para. 88, she wrote: In my view, the conduct of a teacher bears directly upon the community's perception of his or her ability to fulfill such a position of trust and influence, and upon the community's confidence in the public school system as a whole.

Thus, where a teacher commits acts of a gravity such that his or her status as a role model is seriously prejudiced, the relationship of trust and confidence which must exist between the school board and the teacher is undermined and there is just cause for discharge, even where there might be positive evidence that the teacher could be fit to return to teaching duties... .

She distinguished between just cause for discipline and just cause for discharge, the later being determined by whether the misconduct is "of a gravity such that the grievor's status as a role model is seriously prejudiced": para. 89. [ 60 ] For Justice L'Heureux-Dubé, a negative answer on the question of a seriously prejudiced role model would be preclusive of lesser discipline.

"If a single offence, standing alone, is serious enough to constitute just cause for discharge ... then an employee's past record or his potential for future rehabilitation cannot turn that just cause into an unjust one": para. 91. [ 61 ] These reasons were concurring in the sense that they led to the same result. However, they do not leave room for deference to an arbitrator's powers of reinstatement and variation in cases of serious teacher misconduct and they constrain the statutory discretion by

imposing two kinds of just cause. Justice L'Heureux-Dubé explicitly rejected the core reasons given on behalf of the rest of the court: para. 80. Her remarks do not describe the state of the law. [62] Justice Cory wrote for the other eight members of the court. At para. 49, he reiterated Heustis v. New Brunswick (ElectricPower Commission), (SCC), [1979] 2 S.C.R. 768: The first step in any inquiry as to whether an employee has been dismissed for "just cause" is to ask whether the employee is actuallyresponsible for the misconduct alleged by the employer.

The second step is to assess whether the misconduct gives rise to just cause fordiscipline. The final step is to determine whether the disciplinary measures selected by the employer are appropriate in light of themisconduct and the other relevant circumstances. [63] The state of the law is that, even in cases of serious teacher misconduct, penalty depends on the misconduct "and the otherrelevant circumstances".

The majority held that reinstatement was patently unreasonable, not because the misconduct exceeded a rolemodel standard, but because reinstatement hinged "entirely on the inference ... that his conduct was temporary" when there was noevidence from which to draw that inference: paras. 58 to 61. [64] The decision in Toronto Board of Education supports the proposition that, depending on the relevant circumstances, a lesserpenalty than discharge may be a possible outcome in a case of serious teacher misconduct. [65] In fact, "The two questions - cause for some discipline and substitution of penalty - are 'distinct' and warrant 'separateassessment' ": Cape Breton-Victoria Regional School Board, at para. 44.

Although the wording of s. 43(1)(

d) of the Trade Union Act isdifferent from s. 36(3) of the Education Act, they are functionally the same. [66] The school board argues that the offences committed by Mr. Speight are such that dismissal is the only possible outcome for ateacher. However, the Education Act requires the appeal board to consider "confirming, varying or revoking the ... discharge". There isno catalogue of misconduct for which a varied penalty is prohibited by the statute. [67] Professor Archibald had to consider both the circumstances of the offence and the circumstances of the offender.

The findingsof fact on those subjects are such that substitution of a lengthy suspension was within the bounds of possible outcomes in the appealboard's endeavour to strike a proportional penalty. School Board's Issues [68] "Did the Board of Appeal err in law in determining that the potential for rehabilitation can change a 'for cause' terminationinto an 'unjust' termination?" This assumes that the L'Heureux-Dubé approach involving two levels of just cause is the law. Asdiscussed, it is not.

Determination of cause and determination of penalty are distinct questions requiring separate assessment. [69] "Did the Board of Appeal err in law in deciding that Speight's re-instatement ... fell within the range of reasonable outcomesgiven Speight's position as an elementary school teacher and the actions of Speight which led to his termination?" The school board'sargument under this heading relies on the fact that "Teachers occupy positions of trust and confidence": Attis v.

New Brunswick SchoolDistrict No. 15, at para. 43, such that "They are important role models": Wellington Board of Education and O.S.S.T.F. (1991), (ON LA), 24 L.A.C. (4th) 110 at para. 18. It says that there was evidence showing Mr. Speight's misconduct wasinconsistent with the status of a teacher as a role model. Therefore, termination was the only available penalty. [70] The school board says that the decision under review "is contrary to the jurisprudence". It relies on three decisions to support

that conclusion. [71] In Kraychy v. Edmonton Public School District No. 7 (1990), (AB KB), 73 A.L.R. (2d) 69 (Q.B.) theteacher was convicted of numerous indictable offences for fraud and forgery. She faced a maximum penalty of fourteen yearsimprisonment and was sentenced to nine months. A board of reference dismissed her and the reviewing court said "The dismissal wasreasonable in the circumstances of this case" at para. 27. [72] Newfoundland and Labrador School Boards Assn. (District 5) v.

Newfoundland and Labrador Assn. of Public and Private Employees (2004), (NL LA), 137 L.A.C. (4th) 180 a school bus driver had sex with two students, who were minors. Arbitrator Brown determined that this constituted just cause.

He said, at para. 39: "My second responsibility is to decide whether theGrievor's misconduct warranted the disciplinary penalty of discharge." The learned Arbitrator referred to mitigating and aggravatingfactors and concluded "In these circumstances, it would neither be just nor equitable to change [the board's decision to discharge]" (para.41). [73] In Wellington Board of Education and O.S.S.T.F., an arbitration board reviewed a school board's decision to discharge a teacherwho had been convicted of indecent exposure.

In addition to the conviction "... the school board also relied on his behavior surroundingthe incident". The teacher had picked up a hitchhiker, propositioned her for sex, and exposed himself. [74] The award refers to cases in which teachers received less than a discharge after having been convicted of committing acts ofgross indecency.

It also refers to a case in which a teacher served thirty days for assault causing bodily harm and was reinstated by anarbitrator. [75] In Wellington, the board's only function was to determine whether the school board's decision to discharge the teacher "fellwithin the range of reasonableness" (para. 23). It did not suggest that a lesser penalty would have been unreasonable. [76] I respectfully disagree with the submission that these cases show that the decision under review is contrary to thejurisprudence.

As I read them, they show that discharge does not automatically follow conduct inconsistent with a teacher's role or withthe trust imposed on a teacher. Rather, they show that the decision about penalty is circumstantial. [77] Also under this issue, the school board makes an argument that the decision under review was not transparent because therewas an ulterior reason. I reject that argument. I should do so emphatically. [78] After having determined to impose a lengthy suspension instead of discharge, Professor Archibald turned to Mr.

Speight'ssubmission that the board of appeal should "direct the parties to develop a kind of 'back to work protocol' ": para. 101. [79] Professor Archibald referred to a provision in the Education Act that permits a board of appeal to attempt to effect a settlement,and he said that restorative workplace conferences "have been shown to be highly successful in circumstances like this one": para. 102. Facilitators with experience and education are available.

He recommended a back to work protocol based on restorative techniques. [80] The school board submits that "the Board of Appeal's interest in restorative justice inappropriately influenced his reasoning inthis Decision." It goes so far as to accuse the learned board of appeal of having "reached the conclusion to reinstate Speight, inaccordance with restorative justice principles, first and then fashioned his reasoning in order to reach this result". In other words, thereasons are not honest. [81] Nothing in the decision supports the school board's accusation.

In a hundred lengthy paragraphs, the decision provides all thatis necessary to understand its conclusion. The decision responds to a request for directions in the event of that very conclusion. Insteadof directing anyone, the decision offers a suggestion. No fair reading of the decision could read more than this into the suggestion ofusing restorative techniques.

[ 82 ] "Did the Board of Appeal err in law in determining that the 'critical question' to be considered was the likelihood of a recurrence of Speight's criminal behaviour, rather than considering the impact of Speight's admitted actions on the Applicant's reputation?" The decision does not refer to likelihood of recurrence as "the" critical question. It refers to it as "A critical question for all concerned": para. 29.

This is said by way of introduction to Professor Archibald's extensive review of the expert opinions on likelihood of recurrence offered by experts, including the school board's expert. [ 83 ] "Did the Board of Appeal err in law by finding that Speight's criminal misconduct, which the Board of Appeal found breached his duty of trust to the Applicant and had the potential to adversely affect the Applicant's reputation, did not constitute just cause for termination?" The board of appeal found that there was just cause for discipline.

Professor Archibald provided a separate assessment on penalty, as he is required by law to do. [ 84 ] "Did the Board of Appeal err in law in concluding that the criminal actions of Speight would not preclude him from being a role model for a school community and would not negatively impact the reputation of the Applicant and public confidence in its operations?" If such conclusions had been drawn against Mr. (he is entitled to the address) Speight, they would have been findings of fact. [ 85 ] Read as a whole, the decision explains why Mr. Speight could continue to be a role model.

Read as a whole, the decision recognizes the potential for impact on reputation. On both subjects, the decision suggests a more broad minded approach than that of the school board. [ 86 ] This proposed issue does not assist us to examine the reasoning path. It invites us to interfere with fact-finding. [ 87 ] "Did the Board of Appeal err in law by misapplying the ' Millhaven Fibres Test' ?" Millhaven Fibres sets five propositions that could be called criteria on the issue of just cause for discipline and factors on the issue of penalty.

Their application is a question of fact, not law. [ 88 ] As already discussed, Professor Archibald applied a "proportionality principle" in "balancing the Millhaven Fibres factors": para. 86. He provided extensive comments explaining his application of the principle and the factors. The reasoning on this is clear. [ 89 ] Beyond that, this issue invites us to interfere with the application of the principle and the factors.

To go beyond tracing the reasoning path and assessing rational potential outcomes. [ 90 ] "Did the Board of Appeal err in law in finding that Speight's breach of his statutory obligations as a teacher under the Education Act , section 26(1)(

k) and (m), did not constitute just cause for termination?" These paragraphs in the Education Act impose on teachers duties about an "orderly and safe learning environment" and "the dignity and welfare of each student". The school board says that Mr. Speight breached these duties when he committed the offences away from work. To this court, it says the breach "disqualified him from continuing to work as a teacher and, therefore, justified the Applicant's decision to terminate for just cause." It complains that "The Board of Appeal did not address the SSRSB's argument with respect to

section 26 in its Decision." [ 91 ] The board of appeal did address the school board's argument with respect to s. 26. The present issue raises nothing against finding a justifiable, intelligible, and transparent reasoning path in this case. [ 92 ] To the board of appeal, the school board advanced s. 26(1)(

k) and (m) "as an interpretative guide": para. 54. "The Respondent argued that the educational context, and indeed the N.S. Education Act itself, may alter the applicability of the ' Millhaven Factors' ": para. 53. The board also relied on the Code of Ethics of the Nova Scotia Teachers' Union for similar "interpretative" effects.

[ 93 ] Professor Archibald did not ignore the board's submissions on s. 26. He considered "the Millhaven Fibres factors in light of the interpretative contexts advanced by both sets of parties": para. 83. He held that, like the Millhaven Fibres factors, "concerns about reasonableness and proportionality must suffuse any analysis of a breach of a teacher's duties under the Education Act ": para. 87. He said it was easy to agree that Mr.

Speight's misconduct set a bad example contrary to s. 26(1)(m), "But the point is what to do about it": same reference. [ 94 ] "Did the Board of Appeal err in law by wrongfully concluding that the Applicant's decision to terminate Speight was based on 'negative stereotypes about sexual offenders', a 'Victorian notion' of morality and a negative, fearful and 'gun-shy' 'assessment of community reaction' ?" The school board says Professor Archibald "wrongfully drew inferences without evidence to support those inferences". [ 95 ] First, these words are in a passage that provides more of an editorial comment than a concrete finding of fact.

It begins, "It is hard not to conclude ...". [ 96 ] Second, we do not have a transcript. We do have a record in the decision under review, and it does show that expectations and views on negative public reaction were covered in the testimony of various witnesses. [ 97 ] Third, "it was immaterial to Mr. Archibald's decision whether or not the School Board was influenced by these facts", in the words of a submission for Mr. Speight.

Professor Archibald had his own decision to make and, if the passage under attack signifies anything about that, it shows his reasonable conclusion that the level of the criminal offences, Mr. Speight's qualities as a teacher, and the other positive findings about him had to be considered in the effort to make a balanced assessment toward a proportionate penalty. [ 98 ] "Did the Board of Appeal err in law by wrongfully concluding that Speight had the confidence of his colleagues, his students and their parents?" The decision contains no such inference.

It refers, in para. 80, to the criminal proceedings, the discharge hearing, and the appeal and says: In these contexts, representatives of the Respondent SSRSB, because of the Appellant's guilty plea ... had apparently closed their minds to the possibility that, despite this bizarre criminal behavior, they might be dealing with a troubled, but essentially honest and decent young teacher, who had the confidence of his students, his immediate colleagues and the parents of his students, and who should be given an opportunity to maintain that confidence.

The finding of fact is about possibilities to which representatives of the school board had "apparently" closed their minds.

As I said, criticisms of the school board's decision making are not central to the decision under review. [ 99 ] "Did the Board of Appeal err in law by failing to consider the impact that the re-instatement of Speight would have on students, their parents and other teachers, the operational difficulties for the Applicant resulting from such a re-instatement, and the impact of reinstatement on the Applicant's reputation?" As I read the decision, Professor Archibald dealt with these subjects. [ 100 ] Further, on this and the remaining issues Professor Archibald is said to have erred in law "by failing to take into account relevant considerations and/or taking into account or relying on irrelevant considerations".

Respectfully, that departs from Dunsmuir . [ 101 ] Once the nature of question under review is understood and the deferential standard is found to apply, the reviewing court's obligation is to trace the reasoning path and consider the range of rational outcomes. Deference is accorded to the tribunal's assessment of the evidence. [ 102 ] "Did the Board of Appeal err in law by relying on the findings of the Provincial Court Judge at Speight's sentencing hearing in determining whether the Applicant had just cause to terminate Speight?" Let us take a closer look at this than we did when the reasoning path was traced.

During the lengthy hearing, Professor Archibald asked for a transcript of Judge Chisholm's sentencing decision. One of the parties got it for him.

[ 103 ] In its written submissions for this review, the school board argued that findings on sentencing are irrelevant to the issues the board of appeal had to determine. In oral submissions, it added that the findings were not helpful to Mr. Speight. [ 104 ] Professor Archibald recognized that the issues on sentencing and the issues on employment discipline are not identical: para. 22. He took the view, however, that Toronto v.

C.U.P.E., Local 79 , 2003 SCC 63 meant that "a labour relations adjudicator's findings ought not to be wildly at odds with a criminal sentence in a factual matter which also underpins workplace discipline." [ 105 ] Professor Archibald concluded, "Judge Chisholm's findings and views are relevant to consider, though not determinative or binding ...": para. 23. He said the findings were relevant to four issues:

(1) How "serious" was the Appellant's conduct?

(2) Would a reasonable and fair-minded person, knowing the relevant facts, conclude that the Appellant's continued employment was untenable?

(3) How ought one to balance the interests of the Appellant with the interest of the Respondent in maintaining its reputation and the trust of the school community; and

(4) How ought one to balance the assessment of risk in such circumstances? [ 106 ] The school board submits "the Board of Appeal should not have relied on the Sentencing Judge's findings to determine Speight's actions in the context of his employment relationship ...". Criminal and employment contexts are radically different. [ 107 ] The response for Mr. Speight reads: The School Board is asking this Court to address a very narrow question: did Mr. Archibald err in finding the sentencing decision to be relevant? This is not a proper question in assessing Mr. Archibald's decision on a standard of reasonableness.

The question for this Court is: does Mr. Archibald's reasoning path demonstrate why he concluded that were was no just cause for discharge? Even if you remove his consideration of the sentencing decision from his reasons, there is still a clear reasoning path leading to his conclusion. For the same reasons as expressed in the end of the discussion of the previous issue, I agree with this submission. [ 108 ] Whether I would draw the same conclusion about Toronto v. C.U.P.E., Local 79 , is not the issue. [ 109 ] Further, Professor Archibald pointed out that numerous other opinions were expressed in testimony.

In the context of a regime that permits such, the relevancy of Judge Chisholm's opinions would be assessed differently than in court. [ 110 ] On the submission that the findings do not favour Mr. Speight, it would be surprising to find any sentencing decision that did not express disapproval. Further, Judge Chisholm did have some positive things to say about the joint recommendation, and his findings on the criteria for a conditional sentence obviously favour Mr.

Speight. [ 111 ] "Did the Board of Appeal err in law by determining that the Applicant's decision to terminate Speight prior to Speight's sentencing hearing was a relevant and important issue to be considered in determining whether the Appellant had just cause to terminate Speight's employment?" That is not what the board of appeal said. Professor Archibald wrote that, had school board members waited for Judge Chisholm's decision on sentencing, they may have taken “ [the superintendent's] report in a different light". [ 112 ] Again, criticism of the school board's decision was not central.

[ 113 ] The school board says that the conditional discharge, and Mr. Speight's status as a person with no conviction, did not interest it. The admission that came with the guilty plea was all that mattered. However, Professor Archibald had his own decision to make.

And, it deserves deference. [ 114 ] "Did the Board of Appeal err in law by finding that the Applicant based its decision to terminate on the contents of certain police reports which the Applicant did not receive until subsequent to Speight's termination?" At para. 79, Professor Archibald wrote: On the strength of the Appellant's guilty plea, and police reports, which were never proved in court (or on this hearing) the Respondent SSRSB clearly over-estimated the seriousness of the Appellant's misconduct.

Apparently, the school board did not have any police reports until afterwards. [ 115 ] The mistake is immaterial. Criticism of the school board's decision was not central to Professor Archibald's decision. Those remarks were not part of the reasoning path because Professor Archibald had his own decision to make independently. Conclusion [ 116 ] I will make an order dismissing the school board's application. The parties may make submissions in writing about costs. J.