Toronto District School Board v. Elementary Teachers’ Federation of Ontario, 2013 ONSC 594

CITATION: Toronto District School Board v. Elementary Teachers’ Federation of Ontario, 2013 ONSC 594 DIVISIONAL COURT FILE NO.: 405/12 DATE: 20130228 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT whalen, molloy and SWINTON JJ. B E T W E E N: ) ) TORONTO DISTRICT SCHOOL BOARD Applicant - and - ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Frank Cesario and Elisha C. Jamieson , for the Applicant Howard Goldblatt , for the Respondent ) )) HEARD at TORONTO: January 15, 2013 Swinton J.: Overview [ 1 ] The Toronto District School Board (“the Board”) has brought an application for judicial review of the award of labour

arbitrator William Marcotte dated July 23, 2012. The Board argues that the award should be set aside because the arbitrator made a fundamental error in stating the applicable standard of proof, as well as making other errors in his treatment of the evidence. [ 2 ] For the reasons that follow, I would dismiss the application for judicial review, as I am satisfied that the arbitrator applied the civil standard of a balance of probabilities and, in doing so, he reached a reasonable result.

Factual Background [ 3 ] The grievor, an elementary school teacher, was dismissed on May 18, 2011 on the grounds that he had struck a student’s hand against a desk, and he had refused to allow a female student to leave the classroom to adjust her hijab, insulting her religion at the same time. These events occurred around June 10, 2010 when the grievor was acting as a supply teacher in the students’ classroom. [ 4 ] A grievance was filed, leading to a seven day arbitration hearing.

Ultimately, the arbitrator held that the Board had not established that either event of misconduct occurred, and he ordered the grievor reinstated. The Arbitration Award [ 5 ] The arbitrator wrote a lengthy award that sets out a detailed recital of the evidence and the arguments made by each party. At a number of points, he noted that credibility was significant for purposes of determining the grievance. [ 6 ] The arbitrator began his analysis at page 53 of the award. He noted that teachers, as professionals, are held to a higher standard of conduct than non-professional employees.

He then stated (at p. 54): The appropriate standard against which the Employer must prove its case is proof on a balance of probabilities. In applying this standard, the seriousness of the allegations are taken into account. [ 7 ] The arbitrator then quoted from Re Board of School Trustees, School District No. 54 (Bulkley Valley) and Bulkley Valley Teachers’ Association (Kelleher, unreported, December 5, 1991), a case cited to him by the Board. The quotation stated that there may be degrees of probability within the civil standard, depending on the subject matter.

The arbitrator also quoted from another arbitration award which stated that “a high degree of probability” is required where a teacher’s professional reputation is at stake. He then said (at p. 55), I agree in the above approach to consideration of the evidence in the instant case. Thus, given the serious nature of the allegations against the grievor and the seriousness of the consequences, the evidence concerning the students’ allegations must be carefully considered to determine whether or not the events occurred.

Accordingly, there must be clear and convincing proof the grievor did slap Student A’s hand and did inappropriately remark upon Student B’s religion. [ 8 ] The arbitrator commented again on the significance of credibility in the case and quoted from an arbitral award that discussed the proper way to assess credibility.

He then began a detailed consideration of the evidence before him: the statements of 13 of the 22 students present in the classroom on Thursday June 10, 2010 (statements that were not written until Tuesday, June 15, 2010); the interviews of seven of the 13 students with the Board’s investigator in the fall of 2010; and the testimony of three students, A, B and I, at the hearing. A was the alleged victim of the slap and B the alleged target of the religious comment. In addition to these three witnesses, the arbitrator heard evidence from the school principal, a union witness and the grievor.

The grievor denied that he hit Student A, although he admitted that he slapped the desk to get students’ attention because of the disruption in the classroom. He denied the hijab incident involving Student B, which was first brought to his attention in February 2011. [ 9 ] The arbitrator came to a number of conclusions about the lack of reliability of the student evidence.

He examined the written statements of the students in light of their interviews with the Board investigator and concluded that many of the students had given a version of events in the written statement based on what they had heard, rather than on what they actually saw on June 10 (Award, p. 59).

[ 10 ] Student B, who had told the investigator that she saw the grievor hit A with a ruler, admitted in her testimony at the hearing that she had not seen the event. Notably, A had never said that she was hit by a ruler, but B and another student added this detail. [ 11 ] The arbitrator concluded that only two students who actually claimed to have seen the slapping were ever subject to questioning: A, the alleged victim, and I.

He also concluded that only two students who claimed to have heard the inappropriate comment about B’s religion were subjected to questioning: B, the alleged victim, and I. [ 12 ] The arbitrator then examined the evidence of these three witnesses closely, pointing out in detail his concerns with their credibility because of the inconsistencies in their evidence and the discrepancies between the versions of events given by each student. [ 13 ] The arbitrator set out his final conclusions at pages 71 through 74 of the award.

At p. 71 he stated, On review of all the relevant evidence before me, I find, on a balance of probabilities, the evidence is not clear and convincing so as to establish the grievor slapped Student A on the hand on June 10, 2010, or, to establish the grievor made an inappropriate comment about Student B’s religion.

He then described the problems with the evidence, including the fact that the credibility of the students’ evidence suffered greatly because they had discussed the events in the days between June 10 and June 15, when they wrote their statements. [ 14 ] He also made comments about particular witnesses, saying with respect to A (at p. 72): As well, I do not find her reason for not informing Ms. Thomas of the alleged slap when Ms.

Thomas entered the classroom after the event is said to have occurred to be credible given her willingness to express herself, as she testified, to the grievor on June 10, 2010 and on the occasion of being asked to leave the classroom. [ 15 ] Similarly, he did not find B credible, as she had not told the truth in her written statement when she said she saw the grievor slap A, and she did not tell the truth to the investigator when she said the grievor hit A with a ruler. [ 16 ] With respect to I, the arbitrator pointed out a number of inconsistencies in her evidence and her failure to remember certain details, including an altercation between A and another student that occurred in class a few days before the alleged slap.

As well, her evidence was weakened because she had discussed the alleged slap before writing her statement. [ 17 ] With respect to the hijab incident, the arbitrator pointed out problems with B’s evidence, including the fact that she had given different versions in her written statement and interview. For example, she did not mention in the statement that she had left the classroom and when she returned, the grievor pushed her to prevent her from entering the room.

None of the other written statements mention this version of events. [ 18 ] The arbitrator then stated (at p. 74), Based on the totality of the relevant evidence before me, I find that the Employer has not borne the onus on it to prove, on a balance of probabilities, on clear and convincing evidence, the grievor slapped Student A’s hand on June 10, 2010, and, around June 10, 2011 [sic], made an inappropriate remark about Student B’s religion. Did the Arbitrator Apply the Wrong Standard of Proof?

[ 19 ] The Board argues that the arbitrator’s decision on the standard of proof should be reviewed on the standard of correctness. The Board submits that the arbitrator made a fundamental error, because he adopted a standard of proof higher than the civil standard and, indeed, approached the criminal standard of “beyond a reasonable doubt” in his treatment of the evidence. [ 20 ] The Elementary Teachers’ Federation of Ontario (“the Union”) agrees with the Board that the standard of review of correctness applies to the determination of the proper standard of proof.

However, the Union argues that the arbitrator did not apply an incorrect standard when his reasons are read as a whole. [ 21 ] The starting point in analyzing this issue is the decision of the Supreme Court of Canada in F.H. v. McDougall , 2008 SCC 53 , a decision which was not cited to the arbitrator.

Indeed, all the cases cited to the arbitrator were cited by the Board and, with one exception, they pre-dated McDougall . [ 22 ] In McDougall , the Supreme Court of Canada clearly rejected the argument that there is an intermediate standard of proof in some civil cases that is somewhere between the civil standard of a balance of probabilities and the criminal standard of beyond a reasonable doubt. In Canada, there is only one civil standard: proof on a balance of probabilities (at para. 40).

However, in reaching that conclusion, Rothstein J. stated for the Court, Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.

However, these considerations do not change the standard of proof. [ 23 ] As to the suggestion that evidence should be more closely scrutinized in serious cases, Rothstein J. stated (at para. 45): To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case.

There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge. [ 24 ] As to the cogency of the evidence, he stated (at para. 46): Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again there is no objective standard to measure sufficiency. [ 25 ] Rothstein J. summarized his conclusions at para. 49: In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [ 26 ] Given McDougall , the arbitrator erred in expressing approval of the passage in the Bulkley case that suggested an intermediate standard of proof applies in some civil cases. The question that now arises is whether this error is fatal to the decision he reached.

The Board, relying on McDougall (at para. 54 )¸ argues that the arbitrator, having articulated the wrong standard of proof, is presumed to have applied the wrong standard. [ 27 ] In my view, such a presumption can be rebutted, if an examination of the reasons as a whole leads to the conclusion that the decision maker did not apply the wrong standard of proof. When the reasons of this arbitrator are read as a whole, I am satisfied that he did not apply the wrong standard of proof. Notably, he stated twice, in his

summary at the end of the award, that he was applying the balance of probabilities test. In his opinion, the evidence presented by the Board was not sufficiently cogent and convincing to establish the Board’s allegations against the grievor.

[ 28 ] The language of “clear and convincing” evidence does not indicate that the arbitrator made an error in law. Indeed, the fact he sought clear and convincing evidence in order to decide whether the employer met its burden is fully consistent with the instructions from McDougall that evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (at para. 46).

The arbitrator is not to be faulted because he examined the evidence very carefully in the present case, where credibility was so important and where there were many inconsistencies in the evidence. [ 29 ] The arbitrator found that there were significant inconsistencies in the testimony of A, B and I, and their stories changed. B, for example, agreed that she had not seen the grievor hit A, let alone with a ruler, even though she had written in her June 2010 statement that she saw the grievor hit A and told the investigator that A was hit with a ruler.

According to the arbitrator’s notes, “Student B said she had not intended to lie, but agreed she had intended to misrepresent the facts” (at p. 20). [ 30 ] The arbitrator was also concerned that the evidence of many students, including I, was tainted by discussions among the students before they gave their written statements. He was also concerned about I’s inability to recall certain details. [ 31 ] Ultimately, the arbitrator rejected the evidence of A, B and I as unreliable and not credible.

Given his findings on the credibility of these key witnesses, he concluded that the evidence was not sufficiently clear and convincing to meet the balance of probabilities standard. That was a reasonable conclusion, given the problems in the evidence that he detailed. [ 32 ] The Board relies on Miners’ Memorial Manor v. International Union of Operating Engineers, Local 968B , 2010 NSSC 464 , where an arbitrator was found to have applied the incorrect standard of proof (see paras. 40-42).

It appears that the arbitrator there used the language of “conclusive” evidence, which the arbitrator in the present case does not use. In contrast, the arbitrator in the present case sought clear and convincing evidence in the application of the balance of probabilities standard. [ 33 ] In

summary, while the arbitrator misstated the law in the early part of the analysis, a reading of the award as a whole leads me to the conclusion that he applied a civil standard of proof to the evidence before him. The arbitrator instructed himself properly on the assessment of credibility. He undertook that process thoroughly and properly, finding the evidence of the Board unreliable and inconsistent as discussed. In my view, based on this assessment of the evidence, it could not pass the balance of probabilities standard at any level, irrespective of the arbitrator’s mistaken approval of the Bulkley passage.

Did the Arbitrator Err in Drawing an Adverse Inference Against the Board? [ 34 ] Student H might well have been an important witness, as she was identified by Student B as having seen the hijab incident. However, she had made no mention of the hijab incident in her written statement. [ 35 ] The Board explained that it chose not to call H as a witness because her parents objected to her being questioned. It is the Board’s policy to respect the parents’ wishes. [ 36 ] The arbitrator did not accept the Board’s explanation for failing to call H and drew an adverse inference.

He concluded that the grievor’s right to a fair hearing takes precedence over the Board’s policy (Award, p. 67). [ 37 ] Even if the arbitrator unreasonably concluded that H’s evidence would not have assisted the Board’s case, the adverse inference was not significant to his conclusions. It is evident from his reasons, read as a whole, that the result would have been the same without the adverse inference, given the divergent accounts by the students about the hijab incident, the fact that the students’ evidence was tainted by discussions among them, and B’s changing story and lack of credibility.

Moreover, he had H’s written statement, and he considered it. Did the Arbitrator Unreasonably Reject Similar Fact Evidence? [ 38 ] The Board argues that the arbitrator unreasonably rejected similar fact evidence put forth by it. The evidence consisted of the grievor’s past disciplinary record, which was said to show that he had engaged in similar incidents with students in the past that had led to discipline. Both of the disciplinary actions occurred in 2006 and involved an angry outburst by the grievor. One student was pinched

in the arm, while another was the subject of a racialized comment. [ 39 ] The arbitrator cited no cases, but concluded that the evidence should not be admitted. He stated, correctly, that evidence proffered only to show bad character or disposition is not admissible (Award, p. 71). [ 40 ] In my view, the arbitrator was right to reject this evidence. While he did not mention the case law respecting similar fact evidence, the prior disciplinary events would not be admissible pursuant to the analysis prescribed by the Supreme Court of Canada in R. v. Handy , 2002 SCC 56 .

Similar fact evidence is presumptively inadmissible unless its probative value outweighs its prejudicial value ( Handy at para. 56 ). The essence of probative value is the similarity between two acts (at paras. 81-82). [ 41 ] Here, the past disciplinary events that occurred approximately four years earlier are not sufficiently similar to be probative in the present case. Moreover, such evidence was clearly prejudicial and rightly excluded. Conclusion [ 42 ] When the award of the arbitrator is read as a whole, it is evident that the case turned on the assessment of the credibility of the key student witnesses.

Having found the evidence of students A, B and I unreliable, the arbitrator reasonably concluded that the Board had failed to meet the onus of proving the case against the grievor on a balance of probabilities. The assessment of credibility was a task he was well suited to carry out, as he heard the witnesses testify, and he was alert to the inconsistencies in the evidence. His conclusion was within a range of possible, acceptable outcomes, given the evidence before him.

Accordingly, the application for judicial review is dismissed. [ 43 ] The Board shall pay costs of $6,000.00, an amount agreed upon by the parties. ___________________________ Swinton J. ___________________________ Whalen J. Molloy J. (dissenting): Overview

[ 44 ] I have had the benefit of reviewing the reasons of Swinton J., concurred in by Whalen J., but am unable to agree with the conclusion they have reached. Three issues were raised on this judicial review: (1) standard of proof; (2) adverse inference; and (3) similar fact evidence.

Essentially, my colleagues find that: (1) the arbitrator identified the wrong standard of proof, but that does not matter because he actually applied the correct standard of proof; (2) the arbitrator unreasonably drew an adverse inference against the Board for failing to call a particular witness, but that does not matter because he would have reached the same result without drawing any inference; and (3) the arbitrator failed to state the legal test he was applying for similar fact evidence, but that does not matter because if he had applied the correct test the evidence would not have been admissible anyway. [ 45 ] I would be less concerned about issues (2) and (3) if they had occurred in isolation.

However, in my view, the first issue is an insurmountable obstacle to upholding the decision of the arbitrator. Nothing could be more critical to a decision maker’s findings of fact than the standard of proof upon which he made his ultimate conclusion on the evidence before him. In this case, the arbitrator incorrectly stated the standard of proof. Further, he appears to have applied that incorrect standard of proof, and should be taken to have applied it. He is required to be correct on this fundamental issue, and he was not. I consider this to be fatal to his determinations of fact on the evidence.

Further, his decision as to drawing an adverse inference, while perhaps less significant standing alone, becomes more important when considered against the backdrop of an unduly high standard of proof. In my opinion, the decision cannot stand. The Correct Standard of Proof [ 46 ] As noted by my colleagues, there is no issue as to the applicable standard of proof. All counsel agree that the correct standard of proof is the balance of probabilities and that there is no sliding scale for that standard depending on the seriousness of the allegations or the consequences for the parties.

That issue was clearly settled by the Supreme Court of Canada’s 2008 decision in McDougall , also noted by my colleagues. [ 47 ] All counsel also agree that the applicable standard of review by this Court on the standard of proof issue is correctness. In other words, an arbitrator is required to be correct in the standard of proof that he or she applies in reaching a decision. Indeed, I believe that principle is also accepted by my colleagues in the majority decision. Where I

part company with the majority is on whether the arbitrator can fairly be seen as having applied the correct standard of proof, even though he said he was applying a standard of proof which we have found to be incorrect. [ 48 ] In McDougall , the Supreme Court of Canada reviewed the evolution of the intermediate standard of proof for cases which, although not criminal, were nevertheless considered to be sufficiently serious in nature that a simple balance of probabilities standard of proof would not suffice.

The Court noted that one of the situations in which this enhanced standard had typically been applied was in cases involving professional discipline or misconduct: see McDougall at paras. 26-40 .

The Court then resoundingly rejected that shifting standard of proof in favour of only one civil standard, the balance of probabilities. [ 49 ] In its review of the “shifting standard” of proof in civil cases, the Supreme Court noted some of the language used in cases propounding the enhanced standard, such as a requirement to “scrutinize the evidence with greater care” and a requirement of “clear, convincing and cogent” evidence.

Having rejected the notion of a shifting standard of proof, the Supreme Court was careful to point out that this did not mean that evidence no longer needed to be scrutinized with care, nor that evidence did not need to be clear, convincing or cogent. The Court stated, at paras. 45-46: To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care.

I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge. Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency.

In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision.

If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.[Emphasis added] [ 50 ] I recognize that an adjudicator has not necessarily applied the wrong standard of proof merely because he refers to “scrutinizing evidence with care,” or concludes that evidence is not “sufficiently clear, convincing, or cogent” to meet the standard of proof.

As the Supreme Court noted, a proper analysis of evidence requires careful scrutiny and nobody should base a finding of fact on evidence that is unclear, unconvincing and not cogent. However, the fact remains that such language was used in the past to signify a higher (and incorrect) standard of proof and a reviewing court must be cognizant of that fact.

The Arbitrator Said He Would Apply a “High Degree of Probability” Standard [51] In the first 53 pages of his decision, the arbitrator stated the nature of the grievance filed and summarized all of the evidencecalled by both parties at the grievance hearing. At p. 54 he stated that a teacher’s conduct must be measured against a higher standard ofconduct than the conduct of non-professional employees. Everyone agrees with that principle. The arbitrator then specifically turned hismind to the standard of proof he should apply in assessing the evidence.

He stated that the employer was required to prove its case on abalance of probabilities, and elaborated on that standard by stating (at p. 54), “In applying this standard, the seriousness of the allegationsare taken into account.” [52] The arbitrator cited two authorities for the proposition that a higher degree of probability was required because of the natureof the case before him: Bater v. Bater, [1950] 2 All E.R. 458 (C.A.) and Re Board of School Trustees of School District No. 33 (Chilliwack) and Chilliwack Teachers Association (1990), (BC LA), 16 L.A.C. (4th) 94.

He set out quotations fromboth of these cases, which in turn had been quoted in Re Board of School Trustees School District No. 54 (Bulkley Valley) (December 5,1991) unreported (Kelleher) at pp. 56-7 and 58. Clearly, all three decisions were determined well before the Supreme Court of Canadadecision in McDougall and reflect a now out-moded approach to the standard of proof. In fairness, I should point out that the BulkleyValley decision was not cited by counsel at the hearing for this particular point, and that there was no argument before the arbitrator as tothe standard of proof he was required to apply.

However, it is clear that the arbitrator relied upon these cases as valid authority for thestandard of proof he was required to apply. He quoted from those cases as follows (at pp. 54-55): In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within thatstandard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases.The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degreedepends on the subject-matter.

A civil court, when considering a charge of fraud, will naturally require a higher degree of probabilitythan that which it would require if considering whether negligence were established.

It does not adopt so high a degree as a criminalcourt, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensuratewith the occasion. [from Bater at p. 459, with the arbitrator noting that the emphasis was in Bulkley Valley, but not in Bater] Allegations of impropriety made against teachers by their students are not uncommon and their vulnerability to suchallegations requires that care be taken in any adjudicative process to ensure that the rights of the teacher are preserved with the samescrupulous care that the rights of students, parents and society generally are preserved.

In that context, it is appropriate to require proofto a high degree of probability of any allegations made against the professional reputation of a teacher, bearing in mind not only thedisciplinary consequences of finding such allegations to be true, but the implications in terms of professional reputation. [from Chilliwack Teachers Association at p. 119, emphasis added by me] [53] Clearly, both cases were cited by the arbitrator for the proposition that a higher degree of probability is required forallegations of misconduct against a teacher.

Having set out those excerpts, the arbitrator then immediately stated, “I agree in the aboveapproach to consideration of the evidence in the instant case.” He then stated two conclusions that flowed from that, as follows (at p. 55of the decision): “Thus, given the serious nature of the allegations against the grievor and the seriousness of the consequences, the evidenceconcerning the students’ allegations must be carefully considered to determined whether or not the events occurred.”“Accordingly, there must be clear and convincing proof the grievor did slap Student A’s hand and did inappropriately remark uponStudent B’s religion.” [54] It seems clear to me that in setting out these two conclusions, the arbitrator was extrapolating from the case law he had citedand was instructing himself that in applying the “high degree of probability” standard, it was necessary to find “clear and convincingproof.” Indeed, as I have previously noted, this type of language was commonly used in older case law to describe the “enhanced” or“sliding scale” standard of proof for serious civil cases. [55] Having set out these propositions of law at pp. 54-55 of his decision, the arbitrator then turned to his analysis of the evidence.

Again, it seems clear to me, from the arbitrator’s express words, that he intended to analyze that evidence based on the higher degree of

probability he had just identified. The Arbitrator Actually Applied a “High Degree of Probability Standard” [56] From pages 56-74 of the decision, the arbitrator set out his analysis of the evidence before him.

Having reviewed thatevidence, he stated (at p. 71): On review of all the relevant evidence before me, I find, on a balance of probabilities, the evidence is not clear andconvincing so as to establish the grievor slapped Student A on the hand on June 20, 2010, or to establish the grievor made aninappropriate comment about Student B’s religion. [57] He repeated that conclusion at the end of his reasons, at p. 74, as follows: Based on the totality of relevant evidence before me, I find the Employer has not borne the onus on it to prove, on abalance of probabilities, on clear and convincing evidence, the grievor slapped Student A’s hand on June 20, 2010, and, around June 10,2011, made an inappropriate remark about Student B’s religion. [58] In stating his conclusions in this regard, the arbitrator took pains to use almost exactly the same language as he set out at p. 55of his reasons in defining the high degree of probability standard that he intended to apply (see the second bullet in my para. 53 above).

Thus, he said what he believed the test was, he said he was going to apply it by requiring “clear and convincing” evidence, he conductedhis analysis, and then he confirmed that he had made his decision based on that same standard. [59] I take the arbitrator at his word. I see no basis in law, nor in the arbitrator’s decision, to conclude that he did anything otherthan what he said he was going to do.

He considered the evidence based on a “high degree of probability” standard, which is theincorrect standard of proof. [60] Usually when a reviewing court is called upon to consider whether the correct standard of proof has been applied, either thetrier of fact has failed to specifically state what standard is being applied, or there is some inconsistency between what standard is statedand how the trier of fact actually analyzed the evidence.

We were not referred to, and I am not aware of, any case in which a trier of factstated an incorrect standard of proof, but was nevertheless found to have applied a different, and correct, standard of proof. [61] The Supreme Court of Canada in McDougall seems to take it as a given that if a trial judge states the wrong standard of proof,that is the end of the matter. The Court held, at para. 54: Rowles J.A. was correct that failure by a trial judge to apply the correct standard of proof in assessing evidence wouldconstitute an error of law.

The question is how such failure may be apparent in the reasons of a trial judge. Obviously in the remoteexample of a trial judge expressly stating an incorrect standard of proof, it will be presumed that the incorrect standard was applied. Where the trial judge expressly states the correct standard of proof, it will be presumed that it was applied. Where the trial judge doesnot express a particular standard of proof, it will also be presumed that the correct standard was applied: Trial judges are presumed to know the law with which they work day in and day out. (R. v.

Burns, (SCC), [1994] 1 S.C.R. 656, at p. 664, per McLachlin J. (as she then was)) Whether the correct standard was expressly stated or not, the presumption of correct application will apply unless it can bedemonstrated by the analysis conducted that the incorrect standard was applied. However, in determining whether the correct standardhas indeed been applied, an appellate court must take care not to substitute its own view of the facts for that of the trial judge.[Emphasisadded.]

[62] Swinton J. held (at para. 27 above) that the presumption of an incorrect application of the law once there is an incorrectstatement of the law, as referred to in McDougall, is a rebuttable one. I concede that might be theoretically possible. However, in myview, it would be a very rare case in which such a presumption could be rebutted. Perhaps it might arise where the standard is statedincorrectly in one place, but stated correctly elsewhere. That is not the situation in the case before us.

Here the arbitrator consistentlyused the same language to describe the standard he was intending to apply—and that standard was incorrect. [63] I recognize the point made by Swinton J. (at paras. 29-31 above) that the arbitrator did a very thorough review of the evidenceand noted many inconsistencies in the testimony of the students called to testify for the Board. I also recognize that the arbitratorrejected the evidence of key witnesses as being unreliable and not credible. With respect, I cannot see how that can support a conclusionthat the arbitrator therefore applied a correct standard of proof.

It is equally consistent with the incorrect standard of proof, and one musttherefore assume that he was applying the standard he said he was applying. Further, whether or not the arbitrator’s conclusions as toreliability and credibility can be said to be “reasonable” (as stated by Swinton J. at para. 31 above) does not, in my view, advance theanalysis. The question is not whether the conclusions are reasonable, but whether the standard of proof applied was correct in law.

I amalso mindful of the Supreme Court of Canada’s cautionary words in McDougall that in determining whether a correct standard of proofhas in fact been applied, a reviewing court “must take care not to substitute its own view of the facts for that of the trial judge.” [64] I readily accept that the use of words such as “clear and convincing” or subjecting evidence to “careful scrutiny” are notnecessarily indicative of applying an incorrect standard of proof. If that was all the arbitrator had done here, I do not think his decisioncould be faulted. However, context is everything.

The arbitrator did not simply use the terms “balance of probabilities” and “clear andconvincing proof” in a vacuum. He did so within the context of having stated the incorrect standard of proof and declaring he was goingto apply it. In the context in which the words “clear and convincing proof” were used, they were like buzzwords, or a short form for thearbitrator’s statement of the law as to the applicability of the “high standard of proof.” He then concluded by using these same words inhis application of the standard to the evidence, as he had used at the beginning in describing that standard.

I can see no basis forconcluding from this that the arbitrator, notwithstanding his clear statement to the contrary, applied a different test from the one he setout to apply and which he believed to be correct. [65] I find the decision of the Nova Scotia Supreme Court in Miners’ Memorial Manor to be directly on point and compelling.

Idisagree with my colleagues that it is distinguishable from the case before us, although I recognize, of course, that it is not binding. [66] In Miners’ Memorial Manor a labour arbitrator was considering a grievance from an employee who had been dismissed basedon allegations that she had abused a resident in a long-term care facility. The arbitrator in that case first recognized the high standard ofconduct imposed on employees in such a facility (much as the arbitrator in this case held with respect to teachers).

Next, the arbitrator inMiners’ Memorial Manor, at para. 32, went on to describe the standard of proof as requiring employers “to present clear, cogent andconvincing evidence to support allegations of abuse.” He then, at para. 33, expressly adopted the test articulated in a 1988 decision(Juan de Fuca Hospital Society v.

Hospital Employees Union, Local 180 (1988), (BC LA), 35 L.A.C. (3d) 289),which included the statement that “[t]here are levels or degrees of probability and the applicable one in any case will depend on thesubject matter being adjudicated.” Again, this is strikingly similar to what the adjudicator in the case before us did. [67] On judicial review, Duncan J. of the Nova Scotia Supreme Court, relying upon McDougall, held that the arbitrator erred inlaw by articulating the incorrect standard of proof.

Duncan J. rejected the submission of the grievor that the arbitrator applied the correcttest even though he had stated the wrong test, stating at para. 39: I respectfully disagree with the position advanced by the respondent. First, the language Arbitrator MacDonald used indescribing the standard, together with his unreserved adoption of the language of Arbitrator Dorsey in the Juan de fuca case, leaves nodoubt that he intended to apply a standard that was inconsistent with the law.

That is a sufficient response to this ground. [68] However, Duncan J. did go on to consider the respondent’s argument that the language used by the arbitrator supported anargument that he had applied the correct standard of proof. Again, Duncan J. rejected that argument for the following reasons as set outin paras. 40-42: Second, there is evidence that supports the conclusion that the arbitrator rejected the employer’s evidence while applyinga higher test than the law calls for. The arbitrator concluded that there was a lack of “any conclusive evidence” that “cares” were notbeing performed (Award at pp. 6-7).

In relation to allegations of unplugged buzzers and/or deliberately placing them out of the reach ofresidents, he concluded that there was no “clear evidence offered in support thereof” (Award at p. 7). In relation to suggestions of verbalabuse/inappropriate comments, he concluded that “… there is simply nothing that could be considered clear and cogent evidence tosupport that it amounted to verbal abuse. It was more in the nature of JL having spoken in a disdainful tone of voice” (Award at p. 8).

At page 9 of the Award he says: “I am strongly influenced in my determinations by the fact that there are no specific events that can be said to have clearly indicated an intention to mistreat the residents.” The arbitrator does not have to state in relation to each finding that he has applied the correct standard of proof. However, when, as here, the arbitrator initially adopted an incorrect test, then there should be some discussion that demonstrates that he has correctly instructed himself as he applied the test to the facts as found. That did not happen here.

Instead the language used is more consistent with his incorrect conclusion that there was a higher threshold to meet in view of the nature of the allegations. [ 69 ] I do not see this case as distinguishable from the case now before this court. The arbitrator in the Miners’ Memorial case said he was going to apply the higher standard, and then used words consistent with that standard as he had defined it at the outset.

The fact that the arbitrator in Miners’ Memorial at one point used the word “conclusive” (as noted by Swinton J. in para. 32 above), does not in my view detract from the principle applied in that case and does not make it distinguishable. [ 70 ] We were not referred to, and I am not aware of any Ontario decision directly on point. However, MacTavish J., of the Federal Court, dealt with a similar issue on a judicial review from the decision of an immigration officer in Masangabise v. Canada ( Minister of Citizenship and Immigration , 2004 FC 993 , 256 F.T.R. 166.

In that case, MacTavish J. noted that the standard of review for decisions of immigration officials is usually reasonableness, but that the question of the standard of proof to be applied was a question of law on which the standard was correctness. She found that the immigration officer had failed to consider the impact of the applicant’s claim that she would face further persecution as a failed refugee claimant.

She then held it was unnecessary to decide whether that error, on its own would be sufficient to warrant setting aside the decision because the error was compounded by the officer having applied an “unduly high standard of proof:” paras. 17-18. MacTavish J. further held that the immigration officer had applied an incorrect, and unduly high, standard of proof in assessing the claim before him.

Given those two errors, she found that the decision “must be set aside and the matter remitted to a different immigration officer for redetermination”: paras. 24-25. [ 71 ] In my opinion, the arbitrator in this case both articulated and applied the wrong standard of proof. I am further of the view, as I will develop below, that this is a fundamental legal error that undermines the decision itself, such that it must be set aside.

The Arbitrator Unreasonably Drew an Adverse Inference [ 72 ] With respect to the hijab incident, the arbitrator drew an adverse inference from the failure of the Board to call Student H as a witness. Clearly, H would have been a relevant and important witness because B (who was the subject of the alleged hijab incident) had testified that H was there at the time of the incident and heard the remark made by the teacher.

Further, both A and B testified that it was H who wrote the note that was given to the principal on their behalf reporting both the incidents that resulted in the teacher’s dismissal and which were the subject of the hearing before the arbitrator in this case. Obviously, the Board’s case would have been assisted if H testified and corroborated the testimony of B. In that sense it was damaging to the Board’s case that this potentially corroborative evidence was not there. [ 73 ] However, the Board explained its reason for not calling H as a witness. She was 14 years old at the time.

Her parents denied permission for her to be interviewed by the Board’s investigator, refused to allow her to meet with counsel for the Board in preparation for the hearing, and would not permit her to testify at the hearing.

In these circumstances, the Board elected not to compel her attendance by serving her with a subpoena, which is in accordance with Board policy. [ 74 ] The Adjudicator was aware of those circumstances, but held that (at p. 67) “the requirement for a fair hearing takes precedence over an Employer policy.” He then drew an adverse inference that the H’s testimony “would not be helpful to the Employer’s cause.” [ 75 ] An adverse inference should only be drawn where it is reasonable to infer that the failure to call the witness is because the evidence would not be helpful.

It is not appropriate to draw such an inference where an adequate explanation is given for not calling the witness. In this case, there was a valid and understandable reason provided for not calling the witness and no basis for concluding that the Board did not call her because her evidence would not be helpful to the Board. The fairness of the hearing does not require drawing such an inference, since there is no reason to believe H’s testimony would support the teacher’s position. In these circumstances, I believe it was unreasonable for the arbitrator to draw the inference that he did: Audmax Inc. v.

Ontario Human Rights Tribunal , 2011

ONSC 315 , 328 D.L.R. (4th) 506 (Div.Ct.), at para. 99 ; Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 3d ed. (Markham, Ont.: LexisNexis Canada, 2009), at p. 377. [ 76 ] The majority concluded (at para. 37 above) that even if the drawing of an adverse inference was unreasonable, the arbitrator would have reached the same result without it.

I am not confident that the result would necessarily have been the same. [ 77 ] In the result, the arbitrator did not find the evidence of B to be sufficiently reliable and credible to support a conclusion that the hijab incident occurred as she described. Part of the reason the arbitrator did not accept the evidence of B was because he drew an adverse inference against the Board, concluding that the Board did not call this witness because her evidence would not assist the Board’s case.

He concluded in his Reasons (at pp. 73-74) that H’s testimony would not support B’s version of the hijab incident, a decidedly more damaging conclusion for the Board’s case than merely an observation that B’s version was not corroborated. [ 78 ] Also, the arbitrator commented, on A’s “insistence” that H drafted the June 10, 2010 note to the principal, indicating (at p. 72) that this is “belied by the obvious differences between the penmanship of the note and the penmanship of Student H’s June 15, 2010 written statement.” Both notes were included in the record before us.

The arbitrator considered this to be a factor weighing against the credibility of A. While there are some differences in the handwriting, it must be remembered that the first note was likely written with considerably more care and attention than the second one. Also, there are startling similarities between the two notes, including the idiosyncratic style of some of the letters, the circles over the “i”s, and the same misspelling of the teacher’s surname (spelling it “Muscial” instead of “Musial”). There was no expert evidence as to the handwriting.

Based on the appearance of the notes alone, I would have thought they were authored by the same person, although I would not have been sure of that. I recognize that it is not my role to make such determinations of fact. However, given the similarities between the two notes, it appears to me that the adverse inference drawn with respect to H’s testimony likely affected the arbitrator’s conclusion that H did not author the first note. [ 79 ] Thus, the arbitrator’s view of the two key witnesses, A and B, was negatively affected by the adverse inference he drew with respect to H.

Given the pivotal role of credibility in the case, I cannot say that the result would be the same without the adverse inference. [ 80 ] The majority also noted (at para. 37 above) that the arbitrator did consider H’s June 15 note. It is true that the arbitrator did consider the note, but he did not accept it as true.

Indeed, he drew a further adverse inference from the fact that H did not mention the hijab incident in the second note. [ 81 ] When the unreasonable adverse inference is coupled with the arbitrator having applied an incorrect and overly high standard of proof in a case turning entirely on credibility, I am not satisfied that the result would have been the same without this error.

The Arbitrator Failed to Apply the Correct Test for Prior Discreditable Conduct [ 82 ] The arbitrator’s reasons with respect to the prior misconduct by the teacher do not demonstrate that he appreciated the nature of the test for the admissibility of such evidence. Indeed, he seemed not to be aware of the factors that should be taken into account. I share the views of my colleagues that the application of the proper test, as identified in R. v. Handy , might well have resulted in the evidence being excluded in any event.

However, given the other difficulties with the standard of proof and the unreasonable adverse inference, I have a concern about the cumulative effect of these multiple errors, causing me to conclude that it is not safe to have confidence in the ultimate conclusions reached by the arbitrator. Conclusions [ 83 ] In my opinion, the impugned decision cannot stand. My main concern is the application of the wrong standard of proof. There is a reason that a correctness standard of review is imposed on the standard of proof to be applied by the arbitrator.

In almost all other respects, considerable deference is accorded to arbitrators, as is appropriate given the nature of their decision-making. The imposition of a correctness requirement on the standard of proof underscores the fundamental importance of this issue. There were no findings of credibility made with respect to the testimony of the teacher in this case. The arbitrator based his decision on the failure of the students’ evidence to satisfy him to the degree he required.

In this context, the unreasonable adverse inference, particularly given its impact on the credibility findings against the two key witnesses, takes on a more important role. Also, the standard of proof applied becomes even more pivotal.

[84] I find the reasoning of the Ontario Court of Appeal decision in Dysart (Municipality) v. Reeve (2000), (ON CA), 136 O.A.C. 292 to be instructive, even though that case involved an appeal from the decision of a justice of the peace, ratherthan judicial review of an administrative tribunal. In Dysart, the justice of the peace had convicted the appellants of breaching a zoningby-law by operating campgrounds too close to adjacent cottage lots. The by-law and its technical breach were not disputed, but thecampground owners had claimed a defence based on a legal non-conforming use.

The justice of the peace correctly held that the burdenof proving the non-conforming use was on the campground owners, but held that they must prove this beyond a reasonable doubt. At theCourt of Appeal, the prosecutor acknowledged that the justice of the peace had applied an incorrect standard of proof, and that thecorrect standard of proof on this issue is the balance of probabilities. However, the Crown invited the Court to apply the statutorycurative provision that enables the appellate court to uphold a conviction notwithstanding legal error if no substantial wrong ormiscarriage of justice would result.

The Court of Appeal held that this would not be appropriate and that the convictions must be setaside. Laskin J.A. described the application of an incorrect standard of proof as a “fundamental error” (para 29) and held, at para. 31: I would not apply this curative provision. Whether the defendants can establish a legal non-conforming use dependslargely on credibility. The evidence of the defence witness Jeannette Shields, if accepted, might be enough to make out a legal non-conforming use on a balance of probabilities.

I therefore cannot conclude that the result would necessarily have been the same had thecorrect standard of proof been applied. [85] In my view, it is not appropriate for this court to determine what result would have followed if the arbitrator in this case hadapplied the correct standard. This was not a minor legal error, but rather a fundamental one that undermined the ultimate conclusionsmade by the arbitrator. There is no curative provision with respect to decisions of this tribunal, as was the situation before the Court ofAppeal in Dysart.

On the contrary, deference to the tribunal, and in particular to the fact-finding role of the tribunal, provides furtherreason for a reviewing court to avoid making findings of fact, including findings of what the tribunal would have done if it had appliedthe correct legal standard. A standard of correctness is required on the issue of standard of proof, a standard that is rarely imposed on atribunal of this nature.

Deference to the tribunal requires that factual determinations must be made by the tribunal, and the reviewingcourt must not impose its own view of the witnesses or the evidence. [86] However, even if the test applied by the Court of Appeal in Dysart is applied in this situation, I would reach the same result. The result in this case was entirely dependent upon credibility, reliability, and the weight that could or should be given to evidence thatwas often conflicting. The arbitrator approached the case with the mindset that a higher standard of proof was required than wasappropriate.

I find it impossible to say what the result would have been if he had approached the case with the correct standard andapplied that standard to his analysis of the evidence. I certainly cannot say that the result would necessarily have been the same. [87] Accordingly, I would have allowed the application and remitted this matter for a new hearing before a different arbitrator. ___________________________ Molloy J. Released: February 28, 2013 CITATION: Toronto District School Board v. Elementary Teachers’ Federation of Ontario, 2013 ONSC 594 DIVISIONAL COURT FILE NO.: 405/12 DATE: 20130228

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT WHALEN, MOLLOY AND SWINTON JJ. B E T W E E N: TORONTO DISTRICT SCHOOL BOARD Applicant - and - ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO Respondent REASONS FOR JUDGMENT _________________________________________ Swinton J. (Whalen J. concurring), Molloy J. dissenting Released: February 28, 2013