Harassment is an Objective Test & Arbitrator Making Findings Necessary

October 28, 2011

The Divisional Court recently set aside the decision of arbitrator David Starkman with respect to the dismissal of a teacher from the Thames Valley District School Board. In its decision, the Divisional Court confirmed that harassment should be evaluated not in a subjective manner, but rather in an objective manner. The decision also identified the steps that must be taken in coming to any decision regarding just cause.

The teacher was dismissed for engaging in inappropriate behaviour towards another employee of the Board. The Union grieved, arguing that the Board did not have just cause for dismissal. The Arbitrator allowed the grievance and reinstated the teacher without loss of seniority and with compensation.

The Board sought judicial review arguing that the Arbitrator failed to make findings of fact and credibility, applied the wrong test for harassment and focused on whether the conduct constituted harassment instead of whether it gave rise to just cause for dismissal. The parties agreed that the generally appropriate standard of review was reasonableness. The Board, however, argued that with respect to the failure to assess credibility and make findings of fact, the standard was correctness or that such a failure should be considered a jurisdictional error and therefore, no standard would apply.

The Arbitrator in his decision identified several allegations about which he was unable to reach a conclusion. The Board submitted that an arbitrator cannot refuse to make findings by failing to make judgements about credibility. The Divisional Court found that it was not clear from the decision why the Arbitrator failed to make findings with respect to the allegations. Nevertheless, the Court held that the Arbitrator was mandated to make findings of fact and his failure to do so was an error going to jurisdiction. As such, the Divisional Court found that the failure did not meet either the standard of reasonableness or correctness.

Further, the Divisional Court held that the definition of harassment should be an objective standard consistent with the definition in the Human Rights Code, and found that the Arbitrator applied a subjective standard that considered whether or not the teacher intended to harass the employee.

Finally, the Divisional Court found that the Arbitrator failed to determine whether the behaviour proven was sufficient just cause for dismissal. Instead, after finding that the teacher did not intend to harass the employee, the Arbitrator stopped his analysis and did not determine whether or not the behaviour was, nevertheless, sufficient just cause for dismissal.

As a result, the Divisional Court set aside the decision for the matter to be heard by another arbitrator. Thus, the Divisional Court has confirmed that the definition of harassment is objective and therefore, intent is not necessary in order to cause harm giving rise to discipline or termination. This case also highlights the requirement to make findings of credibility, findings of fact and to determine whether or not, on a balance of probabilities, the evidence supports the allegations. Not only must judges and arbitrators apply such analysis in coming to a decision about a matter, but so too must Trustees when sitting as a discipline committee. This decision highlights that the process of making such findings and decisions can be difficult, regardless of whom the decision maker might be.


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