Legal News

arbitrator upholds dismissal despite acquittal
November 19, 2000

In a recent arbitration award, Board of School Trustees of School District No. 51 (Boundary) and Kettle Valley Teachers’ Association, unreported, October 31, 2000, considered a grievance by a teacher who was terminated by the School Board in 1991.

This case had a unique history. The allegations which led to the termination of the teacher related to alleged acts of sexual touching which took place in 1983, 1984 and 1985. At the time these incidents occurred, the complainants were in Grades 4 and 5, and were taught by the grievor.

Most of the allegations which formed the basis of the teacher’s dismissal were not raised by the complainants until 1990. In August 1990, the grievor was charged with six counts of sexual assault and two counts of touching for a sexual purpose. The teacher was suspended pursuant to Section 15(4) of the School Act. On October 4, 1991, the grievor was convicted by a Supreme Court jury of five counts of sexual assault. Subsequent to his conviction, the grievor was terminated.

The grievor appealed his acquittal and on November 16, 1995, the Supreme Court of Canada overturned the grievor’s conviction and remitted the matter back for a new trial in the Supreme Court of BC. A new trial was held in the Fall of 1997 before a judge and without a jury. In written reasons dated September 8, 1997, the court acquitted the grievor on all of the criminal charges.

After the grievor’s acquittal, grievances which had been held in abeyance pending the resolution of the criminal process were revived, and the matter scheduled for arbitration. In a preliminary ruling, the arbitrator found that the Board was not precluded from attempting to establish its case on the merits by virtue of the grievor’s acquittal.

Arbitrator Marguerite Jackson, Q.C. found that there was insufficient evidence to allow her to conclude that the allegations made by two of the three complainants had been established to the requisite degree of probability. However, with respect to one of the complainants, the arbitrator found that the allegations had properly been made out to a high degree of probability.

In making her determination, the arbitrator conducted an extensive review of expert evidence called by the Employer regarding the nature of children’s memory, and the reporting of incidents of sexual abuse. The arbitrator ruled that inconsistent statements which were provided by the complainant to the police at the time of initial disclosure were not sufficient to affect her finding that the student’s allegations had been proven. The arbitrator held that the inconsistent responses provided by the student were a result of improper questioning by the RCMP officer, in that leading questions were posed to the student which produced inaccurate responses. The arbitrator also found that the trial judge’s reasoning in rejecting the complainant’s allegations was suspect. In particular, the trial judge failed to properly review a statement provided to the police officer at the time the complaint was initially advanced, and reached factual conclusions which were not supported by the transcript of this interview.

The arbitrator ruled that the grievor’s lengthy discipline-free service with the school board was insufficient to justify his reinstatement. The arbitrator found that the behaviour engaged in by the grievor was not a minor act of misconduct but a significant breach of trust towards a young child in his care. Factors which would ordinarily have mitigated in favour of the grievor were outweighed by the nature and seriousness of the offence which he committed. The dismissal was upheld and the grievance was dismissed.