Canada: Private School Teacher Termination Upheld

Last Updated: February 6 2017
Article by Gillian Tuck Kutarna and Evan Campbell

This past June, the Ontario Court of Appeal (the "Court of Appeal") overturned a wrongful dismissal decision from the Ontario Superior Court of Justice. Remy Fernandes ("Fernandes") had been teaching at Mississauga Private School (the "School") for over ten years when his employment was terminated without notice in April 2009. The School believed that it had just cause to terminate his employment on the grounds that he had recorded inaccurate marks for students and subsequently lied about doing so. In several instances, the assignments had not even been completed by the students. Administrators at the School asked Fernandes to resubmit the grades on two separate occasions. Both times, he resubmitted the same grades and denied that they were inaccurate. It was not until a third meeting with administrators that Fernandes admitted he had falsified the grades. After his termination, Fernandes began to suffer from depression and anxiety. He was diagnosed with major depressive disorder, along with anxiety neurosis, panic attacks and post-traumatic stress disorder.

Trial Decision

At trial, Justice Lemon found that Fernandes had been wrongfully dismissed by the School. Applying the Supreme Court of Canada decision in McKinley v B.C. Tel., [which set out the test for determining whether employee misconduct is cause for dismissal,] he relied on the fact that Fernandes had been a very well-regarded teacher during his tenure at the School. He noted that because the School still sent out the inaccurate marks when report cards were released, the infraction could not have been serious enough to justify termination. This decision was made despite findings that Fernandes had created false marks and inaccurate grades and that he later lied in an effort to cover up his conduct.

Justice Lemon also found that Fernandes had become disabled during the reasonable notice period. The school was ordered to pay damages in the amount of one year's salary, the loss of long-term disability benefits and costs.

Ontario Court of Appeal Decision

The Court of Appeal overturned the trial court's decision, concluding that the principles from McKinley and the Court of Appeal's prior decision in Dowling v Ontario (Workplace Safety and Insurance Board) had not been applied correctly.

In a reiteration of the McKinley principles, the Court of Appeal stated that it must be determined whether an employee's misconduct gave rise to a true breakdown in the employment relationship. The sanction imposed must be balanced proportionately with the nature of the misconduct.

In Dowling, the Court of Appeal held that the core issue with respect to the appropriateness of terminating an employee is whether the employee's conduct was sufficiently serious that it struck at the heart of the employment relationship. In making this determination, a court must consider:

  • the nature and extent of the misconduct;
  • the surrounding circumstances; and
  • whether any mitigating factors existed.

The Court of Appeal held that teachers occupy a "special position of trust." As a result of his admitted misconduct, the Court of Appeal felt that Fernandes had breached one of his most important obligations as a teacher, that being to evaluate students' work fairly and properly. The Court of Appeal did not agree with Justice Lemon's view that the School's decision to include the incorrect marks in the students' report cards mitigated the seriousness of his actions overall. The Court of Appeal stated that Fernandes' misconduct went "far beyond mere negligence or incompetence," and that his intentional acts constituted serious misconduct. With respect to the surrounding circumstances, the Court of Appeal found it significant that Fernandes had failed to provide the School with any explanation for his misconduct. Lastly, the Court of Appeal held that there were no mitigating factors.

The Court of Appeal also found that the trial court decision failed to consider the impact Fernandes' misconduct could have on his employer, the School. The School must meet its obligation of granting credits properly in order to maintain its accreditation. The Court of Appeal found that, as a result of his misconduct, it was clear any trust the School had in Fernandes had been destroyed.

Given the finding that Fernandes' employment was terminated for cause before he became disabled, the Court of Appeal held that he was not eligible for long-term disability payments.


This case reiterates the important role teachers have in society. A relationship of trust must exist between not only employers and employees, but also teachers, students and parents.

A serious breach of that trust can, in some cases, justify sanctions up to, and including termination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Gillian Tuck Kutarna
Evan Campbell
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