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

Toronto (City) Board of Education v. O.S.S.T.F., District 15
Collection
Supreme Court Judgments
Date
1997-02-27
Report
[1997] 1 SCR 487
Case number
24724
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Labour law
Notes
SCC Case Information: 24724
Decision Content
Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487
The Board of Education for the City of Toronto Appellant
v.
Ontario Secondary School Teachers’ Federation,
District 15 (Toronto), Owen Shime, Q.C.,
A. S. Merritt and L. A. Jones Respondents
Indexed as: Toronto (City) Board of Education v. O.S.S.T.F., District 15
File No.: 24724.
1996: November 6; 1997: February 27.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Labour relations ‑‑ Grievance arbitration ‑‑ Judicial review ‑‑ Standard of review ‑‑ Teacher discharged by education board after writing abusive and threatening letters ‑‑ Teacher filing grievance alleging that he had been disciplined without just cause ‑‑ Majority of arbitration board ordering teacher’s conditional reinstatement ‑‑ Whether arbitration board’s decision patently unreasonable.
B taught for the appellant Board of Education for nearly 20 years. Between 1981 and 1984, he applied for the position of Vice‑Principal 39 times, but was not promoted. In 1984, he filed a complaint with the Ontario Human Rights Commission alleging that the Board’s hiring practices systemically discriminated against persons of South Asian origin, but following lengthy hearings the board of inquiry appointed to decide the complaint found that his claim had not been made out. While the hearings were still continuing, B wrote a letter to the Board of Education containing a number of very disturbing accusations and what could be perceived as veiled threats to the lives of the Director of Education and others. As a result of these disquieting comments, B was asked to submit to an assessment by a psychiatrist, who found that there were no signs of mental illness and concluded that B had exhibited very bad judgment, but that he “would always limit his aggressive activities to words”. It was his opinion that B was likely to continue to “issue very strong verbal commentaries”. B then wrote a second letter which was equally abusive, and more explicitly threatening than the first. Following a second assessment, the psychiatrist repeated his opinion that B was not likely to be physically violent, but that his verbal harassment would continue. A second opinion obtained from another psychiatrist and a personality assessment by a psychologist confirmed that no mental illness was present, and that B posed no danger of physical violence. The psychologist concluded that B would “continue to be a thorn in the side” of his employers. The Board discharged B “for reasons of unprofessional conduct, poor judgment, and attitudes which indicate he is no longer capable of fulfilling his duties as a Teacher under the Education Act and the Regulations”. B filed a grievance alleging that he had been disciplined without just cause. Before the hearings were scheduled to begin, B wrote a third letter to the Board which, while less abusive and threatening than the earlier ones, continued to exhibit an all‑consuming bitterness. A majority of the arbitration board determined that the employer’s decision to dismiss B should be set aside. They ordered his conditional reinstatement, subject to stringent monitoring and summary dismissal if the previous conduct was repeated. The award was unanimously quashed by the Divisional Court on the basis that there was no evidence before the arbitrators which would support the grievor’s conditional reinstatement. The Court of Appeal unanimously restored the arbitration award.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Curial deference is of essential importance in the context of labour relations where the decision of the tribunal is protected by a broad privative clause, as is the case here. A decision as to whether there is “just cause” for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable. At the time the letters were written, B certainly did not meet the standards of conduct set out in s. 264(1)(c) of the Education Act. The essential question before the arbitration board was whether the failure to meet these standards was temporary and whether discharge was appropriate. Since there is no doubt that B was guilty of misconduct, and the arbitrators clearly found that there was “just cause” for discipline, the only question was whether the disciplinary measure of dismissal was too harsh. The opinions expressed and the wording used in B’s letters clearly constituted very significant if not extreme misconduct. The fact that the letters may have been written outside the hours of teaching duty cannot either excuse or alleviate the seriousness of the misconduct. It is essential that arbitrators recognize the sensitivity of the educational setting and ensure that a person who is clearly incapable of adequately fulfilling the duties of a teacher both inside and outside the classroom is not returned to the classroom.
The arbitration board’s conclusion that B was capable of returning to the classroom was based solely on two key findings of fact: the finding that his unacceptable conduct was temporary because it could be attributed to the stress and frustration of the board of inquiry hearings, and the related finding that B was not beyond redemption. All the evidence before the board not only contradicted the inference made by the majority that his conduct was temporary but rather confirmed that it persisted. The overwhelming evidence that B’s conduct was not temporary can be found in the assessments of the psychiatrists and the psychologist and in the third letter. While the third letter is to some extent “subsequent event evidence” since it was written after B’s dismissal, it was a serious error for the arbitrators not to consider it. Furthermore, B did not demonstrate any remorse for his conduct, or any understanding of its effects on the recipients of the letters. The absence of any evidence to support the conclusion that B’s misconduct was temporary renders the arbitrators’ decision patently unreasonable.
Per L’Heureux‑Dubé J.: Cory J.’s conclusion as regards the applicable standard of review is agreed with, even though the pragmatic and functional approach could very well support a standard closer to that of correctness in this case. The arbitration board failed to address the initial question of whether or not the two letters constituted just cause for discharge, and instead went on to address the subsidiary question of whether the grievor was no longer capable of fulfilling his duties. Once it is found that the conduct in question is deserving of disciplinary action, the appropriate next question is whether the offence was serious enough to warrant discharge. The seriousness of a specific offence may vary depending on the particular occupational group or profession concerned, and on the circumstances and the consequences. In the case of teachers, while it is clear that not every kind of misconduct will be so grave as to warrant the strictest forms of discipline, in some cases a single offence can constitute just cause for discharge. The board should have asked whether the two letters were of a gravity such that the grievor’s status as a role model was seriously prejudiced. Whether or not there is some chance that the grievor’s effectiveness as a teacher may not have been completely destroyed is not the proper test to be applied in the circumstances of this case. Determination of “just cause” does not necessarily imply an automatic acceptance of the employee’s seniority and service record as mitigating factors in all cases. Here the two offensive letters are of such gravity as to seriously prejudice the grievor’s status as a role model, and therefore in themselves constitute just cause for discharge. Accordingly, the subsidiary question as to whether this kind of aberrant behaviour was temporary or permanent is irrelevant. Failure on the part of the arbitration board to formulate the questions properly, to address the primary legal issue, and to make the findings of just cause on the two letters per se was not merely incorrect, but was patently unreasonable.
Cases Cited
By Cory J.
Referred to: Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245; Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Re Etobicoke Board of Education and Ontario Secondary School Teachers’ Federation, District 12 (1981), 2 L.A.C. (3d) 265; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Audet, [1996] 2 S.C.R. 171; Re Wellington Board of Education and O.S.S.T.F. (1991), 24 L.A.C. (4th) 110; Board of Education for City of London and O.S.S.T.F., District 4, October 7, 1986, unreported (Teplitsky), aff’d Ont. Ct. (Gen. Div.) (unreported endorsement); Cie minière Québec Cartier v. Québec (Grievances Arbitrator), [1995] 2 S.C.R. 1095.
By L’Heureux‑Dubé J.
Referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Greenaway v. Seven Oaks School No. 10 (1990), 70 Man. R. (2d) 2, leave refused, [1991] 1 S.C.R. ix; Kraychy v. Edmonton Public School District No. 7 (1990), 73 Alta. L.R. (2d) 69.
Statutes and Regulations Cited
Education Act, R.S.O. 1990, c. E.2, s. 264(1) [formerly s. 235(1)(c)].
School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2, s. 72.
Authors Cited
Stubbs, William. The Constitutional History of England, vol. I, 4th ed. Buffalo, N.Y.: W. S. Hein, 1987 (reprint).
APPEAL from a judgment of the Ontario Court of Appeal (1995), 80 O.A.C. 153, allowing the respondent union’s appeal from a decision of the Divisional Court (1991), 52 O.A.C. 8, 83 D.L.R. (4th) 552, quashing an arbitration award ordering the conditional reinstatement of the grievor. Appeal allowed.
Christopher G. Riggs, Q.C., Andrea F. Raso and Timothy P. Liznick, for the appellant.
Maurice A. Green and Margaret Correia, for the respondent Ontario Secondary School Teachers’ Federation, District 15 (Toronto).
//Cory J.//
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 Cory J. -- The sole issue in this appeal is whether the Board of Arbitration made a patently unreasonable decision in ordering that Mr. Bhadauria be conditionally reinstated in his position as a teacher with the appellant Board of Education.
Factual Background
2 The facts must be set out in detail since they will determine the reasonableness of the Board’s decision.
3 The grievor, Jagdish Bhadauria, taught for the appellant Board of Education for nearly 20 years. Between 1981 and 1984, he applied for the position of Vice‑Principal 39 times. Although he was granted several interviews, he was not promoted. In 1984, he filed a complaint with the Ontario Human Rights Commission, alleging that the hiring practices of the appellant Board of Education systemically discriminated against persons of South Asian origin. Hearings before the Board of Inquiry appointed to decide the complaint were lengthy, extending from 1987 to 1990. In April 1990, the Board of Inquiry released its decision. Although it indicated that there were flaws in the hiring process, it found that Mr. Bhadauria’s claim of systemic discrimination had not been made out.
4 On October 17, 1989, while the hearings before the Board of Inquiry were still continuing, Mr. Bhadauria wrote a letter to Dr. E. M. McKeown, the outgoing Director of Education for the appellant Board of Education. A copy of the letter was sent to the Chairman of the Board of Education, the trustees of the Board of Education and “Concerned Political Leaders”. The letter described the Board of Education as “the Reichstag of racial persecution”. It contained a number of very disturbing accusations directed at Dr. McKeown and other management personnel, including the following:
A condemned Jewish person would have received more mercy from Hitler than I got from you. You know that Idi Amin or Pinochet never murdered anyone personally, nor did Noriega sold [sic] drugs himself. The dirty work of these tyrants was done by their hatchet‑men. From the evidence that exists, I have every reason to believe that you never counselled the gang of rogues and rascals including Hayes, Banks, Choma, Sissons, Snell, and others, let alone reprimand them for their atrocities.
. . .
If I were to compare sadist Sissons, Hayes, Choma, Snell, Banks and others to world‑class oppressors, I would place their deeds above the atrocities of Idi Amin, Pinochet, and Marcos, and at a level comparable to that of Hitler and Stalin, both of whom exterminated the dissenters ruthlessly.
. . .
Under your guidance and leadership, the board has built up a huge propaganda machinery that has been very effective in convincing the world that Toronto Board is a pioneer in race relations. Even Goebbels would not have been as successful in performing this feat.
5 The same letter contained what could be perceived as veiled threats to the lives of Dr. McKeown and others that were phrased in this way:
Another newspaper article that I have enclosed for your attention relates to human behaviour when the limit of tolerance is reached. It is entitled, “Disgruntled Employee kills 7, wounds 13.”
This and many more incidents of similar nature that are reported from time to time simply point out the fragility of human tolerance. Based on my extensive experience in human suffering, I can safely predict that such an incident will happen at the board. But at that time it would be too late to rationalize the motives of the assailant.
6 As a result of these disquieting comments, Mr. Bhadauria was asked to submit to a psychiatric assessment. It was conducted by Dr. A. I. Malcolm at the end of October 1989. He found that there were no signs of mental illness. Dr. Malcolm concluded that Mr. Bhadauria had exhibited very bad judgment, but that he “would always limit his aggressive activities to words”. It was his opinion that Mr. Bhadauria was likely to continue to “issue very strong verbal commentaries in diverse media”.
7 On December 15, 1989, Mr. Bhadauria wrote a second letter which was equally abusive, and more explicitly threatening than the first. He referred to the “Montreal Massacre” of 14 women which had recently occurred, identified himself with the victims, and expressed grief over its occurrence. He wrote:
Having overcome the grief, I became extremely disappointed that the massacre occurred in Montreal but not at 155 College Street, the Canadian epicentre for racial bigotry and tokenism. I wish that Lapine [sic] should have lined up you and your crony superintendents, including Snell, Hayes, Sissons, Banks, Choma, and other co‑conspirators, against the wall and shot all of you. That would have been the most satisfying day of my life. I can assure you that I would not have shed a tear at [the] untimely and gruesome demise of all of you.
. . .
For eight years, Count Dracula‑Hayes and the draconian gang under your guidance sucked my blood and turned me into an emotionless human stone for whom the massacre of all or some of the gang would be a just and acceptable revenge.
8 He referred to the effect of the perceived discrimination against him on his personality and his teaching ability:
I was one of the most competent, caring, and kind teachers until the scoundrel superintendents began their heinous atrocities against me. Eight years of continual persecution has transformed me into a blood‑thirsty and revengeful devil. The persecution has totally destroyed my teaching ability, my memory, and my gentleness.
9 The conclusion of the letter was extremely disturbing. He wrote:
This is the Christmas Season, a season filled with joy, happiness, and understanding. For me, I have suffered ten agony‑filled Christmas seasons. Lépine should have changed all this. May be [sic] somebody else will at some time in the future.
Now that you are leaving the board, I will make sure that you never forget what you and your gang did to me. It is not a threat, but a promise that as long as you live, I will haunt you and remind you at every Christmas that you were the funeral director of my career. For you there will be no escaping from this yearly reminder.
10 Not surprisingly, after the second letter, Mr. Bhadauria was again asked to submit to a psychiatric assessment. Dr. Malcolm saw him at the end of December 1989. In his second report, Dr. Malcolm noted that he did not believe Mr. Bhadauria’s claim that he had not intended to frighten Dr. McKeown or the others mentioned in the letter. Dr. Malcolm was of the opinion that “the whole purpose of the letter was to engender uncertainty and fear in the minds of the retiring director and other members of the Board”. Nonetheless, he remained of the view that Mr. Bhadauria was not likely to be violent, and that although his harassment would continue, it would be verbal in nature. However, he was concerned with his conclusion and recommended that a second opinion be obtained from another psychiatrist and that a personality assessment be made by a psychologist.
11 Mr. Bhadauria was evaluated by Dr. Ruth Bray, a psychologist, in January 1990. Her conclusions were that he had no conscious intention to cause physical harm to those he had mentioned in the letter. She expressed some concerns about his personality “adjustment” but thought that it would not be productive to recommend therapy or counselling. She then concluded that “Mr. Bhadauria will continue to be a thorn in the side of those whom he perceives as either taking advantage of minorities or not giving them their due”. She agreed that there was no identifiable mental illness.
12 Subsequently, Mr. Bhadauria saw a psychiatrist, Dr. G. A. da Costa. His report confirmed that no mental illness was present, and that Mr. Bhadauria posed no danger of physical violence.
13 On January 25, 1990, after both letters had been received, the Board of Education discharged Mr. Bhadauria. The reasons for this decision were set out in a letter to him from Ms. Joan Green who was then the Director of Education. It stated:
Further to my letter dated January 18, 1990 I wish to advise that the Board, at its regular meeting on January 25, 1990, approved the following recommendations:
(a) That Jagdish Bhadauria, a permanent Teacher assigned to West Toronto Secondary School, be suspended with pay, effective January 2, 1990;
(b) That the Board terminate the permanent contract of Jagdish Bhadauria, effective August 31, 1990;
(c) That Jagdish Bhadauria be advised, in writing, that his permanent contract is terminated for reasons of unprofessional conduct, poor judgment, and attitudes which indicate he is no longer capable of fulfilling his duties as a Teacher under the Education Act and the Regulations. . . .
14 On February 16, 1990, Mr. Bhadauria filed a grievance under the governing collective agreement alleging that he had been disciplined without just cause. The matter was heard by a tripartite Board of Arbitration in October 1990. On August 25, 1990, before the hearings of the Board of Arbitration were scheduled to begin, Mr. Bhadauria wrote a third letter to the Board of Education. The letter began:
In spite of the advice of my counsels [sic] to refrain from writing any letters to the board’s administrators, I am unable to curb my natural urge of putting my thoughts on paper and sending them to the concerned parties on this occasion.
15 Although the letter was less abusive and threatening than the earlier ones, it continued to exhibit an all‑consuming bitterness. Mr. Bhadauria expressed anger at his dismissal, and accused the Board of Education of lawlessness. Comparisons were made between the Board of Education and oppressive regimes such as those in South Africa and Russia. He compared his dismissal to “the punishment meted out by the late tyrant Ayatollah Khomeini to Salman Rushdie”.
16 When the grievance was heard, two members of the Arbitration Board determined that the employer’s decision to dismiss Mr. Bhadauria should be set aside. They ordered his conditional reinstatement, subject to stringent monitoring and summary dismissal if the previous conduct was repeated. The dissenting member would have upheld the dismissal.
17 The appellant Board of Education sought judicial review of the award in the Divisional Court alleging that jurisdictional and patently unreasonable errors had been made by the arbitrators. The award was unanimously quashed by the Divisional Court on the basis that there was no evidence before the arbitrators which would support the conditional reinstatement of the grievor: (1991), 52 O.A.C. 8, 83 D.L.R. (4th) 552. The respondent union appealed this finding to the Ontario Court of Appeal, which unanimously restored the arbitration award: (1995), 80 O.A.C. 153.
Applicable Legislation
18 The high professional standards that teachers are required to meet are set out in the Education Act, R.S.O. 1990, c. E.2, particularly s. 264(1), which provides:
264.‑‑(1) It is the duty of a teacher and a temporary teacher,
(a) to teach diligently and faithfully the classes or subjects assigned to the teacher by the principal;
(b) to encourage the pupils in the pursuit of learning;
(c) to inculcate by precept and example respect for religion and the principles of Judaeo‑Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues;
19 The relationship of the parties is governed by a collective agreement, which sets out the procedure for settling grievances arising during its term. The following provisions of the agreement are relevant:
1.4.11.0.0. . . . The arbitrator or the arbitration board shall hear and determine the grievance, shall issue a decision and the decision shall be final and binding on the parties. . . .
1.4.21.0.0. A Teacher may be disciplined only for just cause.
1.4.22.0.0. If a grievance concerns the discipline of a Teacher, including disciplinary dismissal, or discharge for incompetence, or just cause, the arbitration board may confirm the decision of the Board or reinstate the Teacher with or without full compensation or otherwise modify the penalty.
20 The collective agreement in turn is governed by the School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2, which provides a complete code governing collective bargaining relationships for teachers in Ontario. All collective agreements covered by the Act must contain a clause for the submission of disputes to arbitration for final and binding resolution. The decisions of the arbitrators are protected by a strong privative clause, set out in s. 72:
72. Except in respect of section 51, no decision, order, determination, direction, declaration or ruling of the Commission, a fact finder, an arbitrator or board of arbitration, a selector or the Ontario Labour Relations Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, application for judicial review or otherwise, to question, review, prohibit or restrain the Commission, fact finder, arbitrator or board of arbitration, selector or the Ontario Labour Relations Board or the proceedings of any of them.
Decisions Below
Board of Arbitration
Owen B. Shime, Q.C. (Chairperson) and L. A. Jones (Nominee for the Federation)
21 The majority of the Board of Arbitration noted first that the decision made by the Board of Inquiry in Mr. Bhadauria’s claim for systemic discrimination constituted agreed facts between the parties. The arbitrators were therefore able to take note of the Board of Inquiry’s extensive findings relating to the earlier excellent teaching record of Mr. Bhadauria. However, the majority also took into account the Board of Inquiry’s observation that the failure to receive a promotion had detrimentally affected him. This was demonstrated in part by his discontinuance of all extra‑curricular school activities, by his separation from his wife and by his seeking treatment from a psychiatrist.
22 The majority referred only to the first two letters written by Mr. Bhadauria. They considered as well the reports of the various medical professionals who evaluated Mr. Bhadauria after these letters were written. They specifically accepted the evidence of Ms. Joan Green, the current Director of Education, who was of the opinion that the grievor was not fit to teach. Further, they stated that they were not prepared to accept Mr. Bhadauria’s testimony.
23 Nonetheless, the majority was of the view that the length of the proceedings before the Board of Inquiry, Mr. Bhadauria’s disappointment and frustration at his failure to receive a promotion, and the resulting stress caused him to lose perspective. They then concluded that since the proceedings before the Board of Inquiry were no longer hanging over the grievor’s head, that “there is a good chance that the grievor will return to a calmer state”. Further, the majority held that:
It is a reasonable inference from the evidence that the grievor’s aberrant conduct took place at a time of great stress and that it was conduct which was temporary and not likely to be repeated in the future.
24 In light of the grievor’s long history of teaching and his excellent reputation, the majority concluded that dismissal was too harsh a penalty. They observed that although the letters were threatening, demonstrated a lack of judgment, and “portrayed a person who ought not to be in the classroom”, these factors had to be balanced against the grievor’s lengthy service and seniority. The majority were therefore of the view that “the grievor is not beyond redemption”, and “there is some chance that the grievor’s effectiveness as a teacher may not have been completely destroyed”. As a result, the penalty of dismissal was overturned. Mr. Bhadauria was reinstated, subject to stringent conditions, including a suspension without pay, monitoring of his teaching for two years, and summary dismissal if he repeated his misconduct.
A. S. Merritt (Nominee for the Board) (dissenting)
25 Mr. Merritt stressed the extreme, cruel and vitriolic nature of the letters. He emphasized the grievor’s own description of himself as a “revengeful beast” and questioned the ability of such a person to teach children. In his opinion, the timing of the letters demonstrated a striking lack of judgment in that they jeopardized the human rights hearing that the grievor believed would vindicate his claims.
26 A significant factor for Mr. Merritt was the failure of the grievor to show any remorse or contrition for writing the letters, either before or during the arbitration hearings. Mr. Bhadauria’s only expressions of regret appeared to relate to the fact that his actions had placed his livelihood at risk. Further, Mr. Bhadauria had admitted in cross‑examination that the views expressed in the letters were not appropriate for a person responsible for teaching young people.
27 The dissenting member was also of the view that the evidence did not show that the grievor’s feelings were temporary in nature or that they were momentary aberrations. Rather, he believed that the contrary was demonstrated when the grievor wrote the third letter following his dismissal.
28 Mr. Merritt considered the professional standards for teachers embodied in s. 264(1)(c) of the Education Act (formerly s. 235(1)(c)). Although he recognized that these standards establish goals rather than absolute requirements, they nonetheless reflect the fact that parents entrust their children to teachers in loco parentis, and require them to lead by example. He expressed concern that the anger, bitterness and hatred expressed in the letters would emerge in subtle ways in the classroom. As a result, he was unable to agree “with the great leap of faith which one must take to agree to his reinstatement”. He would have upheld the employer’s dismissal of the grievor.
Divisional Court
29 Steele J., writing for the court, examined the applicable law and concluded that the arbitration board had the jurisdiction to overturn the dismissal of the grievor and substitute a different penalty. The only question was whether the decision to do so was patently unreasonable.
30 Steele J. canvassed the evidence that formed the basis for the arbitral award, and concluded (at p. 12 O.A.C.) that there “was no evidence to support the temporary nature of the conduct. In fact the evidence was non‑existent or entirely to the contrary.” He noted that the arbitrators gave no credence to Mr. Bhadauria’s own testimony. As well the evidence as to the grievor’s good reputation ended in 1984, and the grievor himself indicated that his personality changed in that year. Further, the grievor showed no remorse, and the psychiatric evidence indicated that his conduct was likely to continue.
31 He observed that if there was evidence on which the Board of Arbitration could conclude that the grievor was fit to teach at the time of the hearing, then it would have been open to the arbitrators to exercise their discretion as to whether the grievor would be allowed to do so. However, since the letters demonstrated that he was not fit to teach, and there was no evidence to indicate that this was temporary, the substitution of the penalty by the arbitrators could not be upheld. Steele J. therefore quashed the award.
Ontario Court of Appeal
32 The appeal from this decision was allowed by the Court of Appeal on the basis that “in applying the ‘patently unreasonable’ test, the Divisional Court permitted itself to review the merits to a greater extent than is appropriate under the definition of ‘patently unreasonable’ stipulated by the Supreme Court of Canada” (p. 154). The court determined that although a reviewing court might not agree with the arbitrators’ conclusion, it was not patently unreasonable. The order of the majority of the Board of Arbitration was therefore restored.
Issues
33 The sole issue to be decided on this appeal is whether the decision of the Board of Arbitration to overturn the employer’s dismissal of the grievor is patently unreasonable.
Analysis
Duty of Deference Owed to All Administrative Tribunals
34 At the outset, it should be stressed that no new principle of law arises in this appeal. Rather, it must be resolved by the application of established principles. A brief review of the applicable principles may be of assistance. In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, Iacobucci J., on behalf of the Court, considered the degree of judicial deference owed to the various categories of administrative tribunals. He described the position that should be adopted by courts in this way at pp. 589‑90:
There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal’s role or function. Also crucial is whether or not the agency’s decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.
Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause is deciding a matter within its jurisdiction and where there is no statutory right of appeal. . . .
At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal’s jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights.
Very High Degree of Deference Owed to Labour Arbitration Boards
35 Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 (PSAC No. 2), emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal, like the Board of Arbitration in the instant appeal, is protected by a broad privative clause. There are a great many reasons why curial deference must be observed in such decisions. The field of labour relations is sensitive and volatile. It is essential that there be a means of providing speedy decisions by experts in the field who are sensitive to the situation, and which can be considered by both sides to be final and binding.
36 In particular, it has been held that the whole purpose of a system of grievance arbitration is to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer. This is a basic requirement for peace in industrial relations which is important to the parties and to society as a whole. See for example Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768, at p. 781; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 489, per Lamer J. (as he then was).
37 It was for these reasons that PSAC No. 2 stressed that decisions of labour relations tribunals acting within their jurisdiction can only be set aside if they are patently unreasonable. That is very properly an extremely high standard, and there must not be any retreat from this position. Anything else would give rise to the endless protraction of labour disputes resulting in unrest and discontent. Indeed the principle of judicial deference is no more than the recognition by courts that legislators have determined that members of an arbitration board with their experience and expert knowledge should be those who resolve labour disputes arising under a collective agreement.
Jurisdiction of Arbitration Boards to Determine “Just Cause” and the Propriety of the Disciplinary Action of the Employer
38 A decision as to whether there is “just cause” for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable. See the reasons of Beetz J. (for the majority) and the separate concurring reasons of Lamer J. in Blanchard, supra, at pp. 479 and 491‑92.
39 In this case, the only unique aspect of the assessment of “just cause” and the determination of the appropriate penalty is that the arbitrators were required to interpret a provision of the Education Act. Section 264(1) of that Act sets out the standards of conduct for teachers. It is against the background of these provisions that the concept of “just cause” in the collective agreement must be considered. It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of “outside” legislation. The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard. See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pp. 336‑37. An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result. See Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at p. 187, per Iacobucci J.
40 However, the resolution of this appeal does not require a determination as to whether the arbitrators hearing Mr. Bhadauria’s grievance were required to be correct in deciding whether the grievor’s misconduct breached the standards of conduct set out in s. 264(1)(c) of the Education Act. This is so since both the appellant and the respondent union agree, correctly in my view, that at the time that the letters were written, Mr. Bhadauria certainly did not exhibit the characteristics statutorily required of a person who is responsible for teaching young people. The essential question before the Board was whether the failure to meet these standards was temporary and whether discharge was appropriate. These issues were within the jurisdiction of the Board. Thus their decision can only be set aside if it was patently unreasonable.
What Constitutes a Patently Unreasonable Decision?
41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law.
42 Where a tribunal is interpreting a legislative provision, the test is:
. . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?
See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 237.
43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”: Bradco, supra, at p. 341.
44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene wher