The beginning of summer break for students across Ontario also
means the release of their final grades. While student evaluation
is only one part of a teacher's job, it is crucial for the
integrity of the school system and for students' post-secondary
education opportunities. In the recent decision Fernandes v
Peel Educational & Tutorial Services Ltd., the Ontario
Court of Appeal stressed the importance of proper grading
techniques for teachers in private schools.
Mr. Fernandes was employed as a teacher at a private school in
Mississauga offering pre-kindergarten to grade 12 classes. During
the course of his employment, Mr. Fernandes failed to provide
grades in a timely manner, made errors in his calculations of the
grades, and failed to follow the school's grading policy
regarding incomplete assignments. When asked to submit corrected
grades, Mr. Fernandes fabricated grades for students, including
marks for assignments that he had not yet graded. He was dismissed
without notice in April 2009 for failure to comply with his
employment duties and responsibilities. Mr. Fernandes brought a
lawsuit against the school, alleging that he had been wrongfully
dismissed. While the trial judge found that Mr. Fernandes had
falsified grades and attempted to cover up his misconduct from
school administration, the conduct was not serious enough to
warrant dismissal without notice.
The Court of Appeal overturned the trial judge's decision.
Justice E. E. Gillese referred to the test for dismissing an
employee for misconduct laid out in McKinley v BC
Tel: whether the employee's misconduct gave rise to a
breakdown in the employment relationship. Justice Gillese went on
to stress that teachers occupy a special position trust when it
comes to performance of their jobs. One of the most important
professional obligations of a teacher is to fairly and properly
evaluate and assess student progress and achievement. Mr.
Fernandes' failure to properly evaluate his students and
falsify marks were intentional acts of serious misconduct and
grounds for dismissal and amounted to a complete breakdown of the
employment relationship. The decision is an important reminder that
employees who occupy positions of trust can be held to a higher
Written with the assistance of Olga Lenova, summer
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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