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Teacher’s leave for appeal to SCC regarding wrongful termination dismissed
February 28, 2017
Author(s): Andrew R. McDaniel

The Supreme Court of Canada recently denied leave to appeal sought by a dismissed teacher from a decision of the Ontario Court of Appeal. In Fernandes v. Peel Educational & Tutorial Services Limited (Mississauga Private School), 2016 ONCA 468, the Court allowed the appellant school’s appeal from a trial decision which found that the school had wrongfully terminated the respondent teacher. Despite finding the respondent had committed acts of misconduct, including the creation of false marks, inaccurate grades, as well as lying to cover up the improprieties, the trial judge found the termination was unwarranted. The respondent was ordered to pay damages for wrongful dismissal (amounting to one-year’s salary), as well as damages for loss of income and long-term disability benefits.

On appeal, the Court found that the trial judge erred in finding that the respondent had been unjustly dismissed. Specifically, the trial judge erred in his application of the legal principles regarding whether an employee’s misconduct gives rise to just cause for summary dismissal (i.e. the McKinley analysis).  This test asks whether the employee’s misconduct gave rise to a breakdown in the employment relationship, and should be undertaken with an assessment of the context of the alleged misconduct. Underlying this approach is the principle of proportionality, or, achieving an effective balance between the severity of an employee’s misconduct and the sanction imposed.

In misapplying these principles, the trial judge failed to fully assess the seriousness of the respondent’s actions, making only a single comment regarding one instance of misconduct. Teachers occupy a special position of trust and have a professional obligation to fairly and properly evaluate and assess student progress and achievement.  In the circumstances, the Court found that the respondent’s conduct in failing to assign marks and evaluate progress, falsifying grades and repeatedly lying to his employer, went “far beyond mere negligence or incompetence”. The trial judge also failed to consider the fact that the respondent offered no explanation for his misconduct.  Given that the respondent’s actions occurred over a period of approximately two months, placed the appellant’s continued operation as an accredited private school into jeopardy and destroyed the trust the appellant reposed in the respondent, the Court found there was just cause for dismissal and allowed the appeal.

This case reinforces the notion that a court must consider the misconduct of a dismissed employee in context and that a failure to do so will constitute legal error. The appellant is a private school whose accreditation depends upon meeting obligations in respect of granting credits towards an Ontario Secondary School Diploma. If the appellant failed to comply with the assessment and evaluation standards, it could have lost this right to grant such credit and suffered serious harm as a result. In other words, the respondent’s misconduct exposed the  appellant to this potential harm, and the respondent was aware of this fact. What the trial judge neglected was the potential impact of the respondent’s conduct on the employer. The fact that the school did not actually suffer any harm as a result is not the point. It is the severity of the potential harm that must be considered.

Questions about the content of this article may be directed to Michael Hancock.