In the fall of 2014, Justice Lemon of the Ontario
Superior Court of Justice decided that a private school had
wrongfully dismissed a teacher who had committed academic fraud by
submitting grades he knew to be inaccurate and then lied about
it. The decision seemed all the more egregious as, in
addition to awarding the teacher 12 months' salary and
benefits, the Court also found the teacher became disabled
following the termination of his employment and was entitled to
disability benefits in addition to $130,000 of legal costs awarded
on a substantial indemnity basis.
In a June 2016 2:1 split decision, the Ontario Court
of Appeal has reversed this decision and reinforced the test for
just cause. In particular, the Court of Appeal reinforced
that the "core question" is whether the employee's
misconduct is sufficiently serious to strike "at the heart of
the employment relationship". In this case, the Court of
Appeal found that the trial judge failed to assess the seriousness
of the teacher's misconduct in a meaningful way. The
majority of the Court of Appeal found that "one of a
teacher's most important professional obligations is to fairly
and properly evaluate and assess student progress and
achievement". The teacher's misconduct here was
intentional and, therefore constituted serious misconduct and there
were no circumstances to excuse or mitigation the misconduct.
The other critical finding on the part of the
majority of the Court of Appeal is that the school could have
suffered serious harm because of the teacher's misconduct and
what was most important was the severity of the potential harm, not
that it was not actually suffered. As the teacher's
misconduct put the school's continued operation as an
accredited private school in jeopardy and destroyed the trust
essential for an important relationship, the misconduct struck at
the very heart of the employment relationship amounting to just
cause for dismissal.
The majority of the Court of Appeal dismissed the
action and awarded the school $105,000 in costs for the trial and
(See Fernandes v. Peel Educational & Tutorial
Services Limited, 2016 ONCA 468 (CanLII).)
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