Student Witnesses Might be Necessary to Prove Case

November 30, 2011 | Nadya Tymochenko

In a recent arbitral decision involving the Peterborough Victoria Northumberland and Clarington Catholic District School Board and Ontario English Catholic Teachers’ Association, the sufficiency of evidence was considered by an arbitrator when evaluating the discipline imposed on a teacher. The school had chosen not to call any student witnesses. The arbitrator found that, based on the evidence called by the school board, the allegations which formed the basis of the grievor’s discipline could not be upheld in their entirety.

The grievor was suspended for three days for yelling and using profanity toward a sixteen year old student.  The school board relied on several verbal and written statements from students who were in the vicinity when the incident occurred, but these students were not called as witnesses.  The school board also chose not to call the student at issue, and relied on the evidence of four adult employee witnesses, none of whom had witnessed the alleged conduct.

OECTA argued that the school board’s failure to call the students as witnesses was fatal to proving the essential elements of its case.  However, the arbitrator did not go so far as to find that no elements of the case had been proven by the school board.

In coming to its conclusions regarding the discipline to be imposed, the school board also relied on its interview of the grievor and an email forwarded by the grievor regarding the incident.  In his email and a subsequent discussion, the grievor indicated that he had used profanity, but he claimed to have used it to reflect language previously used by the student when speaking to the grievor.  The school board indicated that, in either case, a teacher using profanity in a classroom setting when speaking to a student was deserving of discipline.

The school board argued that,

it would be a disaster to rule in all cases that student have to be called to testify in arbitration proceedings and that to do so would open a very dangerous door in an educational context

and urged the arbitrator to use his authority to accept evidence that might not be admissible in a court of law. OECTA argued that, if the grievor’s email was to be admitted as an exception to the hearsay rule, then the entire email, including the context in which the grievor indicated the profanity was said, must be accepted by the arbitrator.

The arbitrator refused to rely entirely on hearsay evidence to support the essential facts.  But, the arbitrator disagreed with OECTA’s assertion that the grievor’s email must be accepted in its entirety.

The arbitrator did find that the grievor engaged in wrongful conduct for which discipline was warranted.  The arbitrator found that the grievor used profanity in speaking with a student and rejected the argument that it was used as a teachable moment.  The arbitrator found that the use of the language with a student was prima facia inappropriate.

While the arbitrator acknowledged that employers have a reasonable degree of latitude when justifying the range of discipline to be imposed, he chose to amend the discipline record and reduce the suspension without pay from three days to one day, given the impact that a written disciplinary record can have on the future prospects of a professional, such as a teacher.

School boards are frequently faced with the challenge of proving their case without significantly impacting on the welfare of student witnesses.  The age and abilities of students as well as the underlying incident must all be given careful consideration.  Affidavit and commission evidence may, in some cases, assist to reduce the stress that a student faces.  However, such options might not always be appropriate or sufficient and difficult decisions regarding the defence of a school board’s decision might need to be made.


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