On December 19, 2014, Arbitrator Lorne Slotnick reinstated a York Region teacher who had been criminally charged with sexually assaulting a student. In Re York Region District School Board and ETFO (Ross) (2014), 121 CLAS 305, Arbitrator Slotnick considered the interaction between criminal and labour arbitration proceedings. Arbitrator Slotnick concluded there was insufficient evidence to establish sexual misconduct. The grievance was allowed and the teacher reinstated.

Factual Background

During the 1994-1995 school year, Anthony Ross was working at John McCrae Public School in the Scarborough Board of Education, and he taught a grade 8 student named Michael. When Michael’s father became ill, his mother asked Mr. Ross to keep a close eye on Michael. The two formed a close relationship, which extended to tutoring at Michael’s home and attending his hockey games. Mr. Ross maintained a friendly relationship with the family after that year, eventually coaching volleyball with Michael’s older sister and asking Michael’s two sisters to house-sit while he was on vacation.

In 2010, Michael told his family and then the police that Mr. Ross had sexually abused him during his grade 8 year, 16 years earlier. He alleged that Mr. Ross had kissed him on the cheek and mouth, held hands with him, told him he loved him, and masturbated him. Mr. Ross denied the allegations.

Mr. Ross was charged with five counts each of sexual assault and sexual interference. He was ultimately acquitted of all charges. The trial judge preferred Michael’s evidence to Mr. Ross’s, finding him to be a more believable witness who he strongly suspected was telling the truth; however, the judge was still left with a reasonable doubt of Mr. Ross’s guilt. Because the criminal burden of proof had not been established, he dismissed the charges.

While the criminal proceeding was underway, the York Region District School Board (by then Mr. Ross’s employer) transferred Mr. Ross to another position that did not involve interaction with minors, and then transferred him to home duties. Once Mr. Ross was acquitted, the Board undertook its own investigation. Relying on the different standard of proof required in the civil context, the Board concluded that the evidence showed, on a balance of probabilities, that Mr. Ross had engaged in grooming behaviour, established an inappropriate personal relationship with a student, and touched the student in an intimate and sexual manner.

The Board terminated Mr. Ross’s employment, and he grieved the termination.

Evidence at the Arbitration

The focus of Arbitrator Slotnick’s decision was the testimony of the various witnesses he heard over the course of the arbitration. While noting that the case did not turn on credibility, the arbitrator did need to carefully examine many  of the details raised by the key witnesses in order to determine if just cause existed for Mr. Ross’s termination.

Arbitrator Slotnick noted that there were a number of inconsistencies in Michael’s testimony, including the number of times, the locations, or the time and date that certain acts occurred. Michael also failed to remember details of many incidents he alleged had occurred, and Arbitrator Slotnick found that some of his allegations were too vague or simply implausible. Further, a comparison of Michael’s testimony with that of his sister and mother indicated that not all the family members remembered things in the same way, or at all. In some instances, Michael’s testimony at the arbitration was compared and found to be inconsistent with his testimony at the criminal proceeding.

Another former student, Daniel, testified that Mr. Ross had behaved inappropriately towards him during the 1990s. Arbitrator Slotnick noted that Mr. Ross had replied to Daniel’s testimony by stating that certain allegations – such as kissing on the cheek – were “not his practice”. In contrast, he had outright denied the allegations made by Michael. Further, Arbitrator Slotnick made note of the fact that Daniel was the only person who came forward after police requested information about Mr. Ross; since Mr. Ross had been teaching for over 20 years, Daniel’s solitary appearance was significant.

The arbitrator also noted Mr. Ross’s ongoing relationship with the family:

Mr. Ross’s continuing friendship with the family long after he had any regular contact with [Michael] also casts some doubt on the likelihood that he engaged in sexual abuse. Had he been guilty of sexual abuse, one might have expected him to cut off relations with the family… as his continued friendship might prompt [Michael] to reveal what had occurred; instead, he continued the friendship, which in my view is more consistent with Mr. Ross’s evidence that none of his activities with Michael were sexual.

Similarly, Arbitrator Slotnick questioned why Michael’s sister would continue her relationship with Mr. Ross if she had, as she testified, seen something of concern.

While some of the inconsistencies could be explained by the passage of time or suppression of negative memories, Arbitrator Slotnick concluded there were too many holes in Michael’s story. Though he noted that there is only one civil standard of proof – a balance of probabilities – Arbitrator Slotnick held that an allegation of sexual misconduct does require clear, cogent,  and convincing evidence.

The Arbitrator’s Decision

Arbitrator Slotnick concluded that Michael’s evidence was not sufficiently clear, cogent, and convincing for a finding that sexual abuse occurred on the balance of probabilities. While noting that “common sense demands a high standard of behaviour from teachers… as does the Education Act,” this could not address the problems raised by the fact that the allegations were historical. Arbitrator Slotnick stated:

I have little doubt that [Michael] sincerely believes he was sexually abused by Mr. Ross. But memory is fallible. The issue is not the sincerity of the witness but the reliability of his evidence. A witness who sincerely believes he is truthfully recounting events from long ago may still be entirely or partly wrong. As the criminal trial judge said…“the influences upon the life of a witness over the course of many years also make it difficult to fairly assess an apparent lack of motive to fabricate.”

Arbitrator Slotnick also noted that much of the close relationship between Michael and Mr. Ross could be attributed to the request that Mr. Ross keep a close eye on a student whose father had fallen ill. He concluded that, essentially, Mr. Ross had simply done what was asked of him. While Arbitrator Slotnick did “not fault the school board official for their actions”, since the “board must be seen to be doing its utmost to protect students”, he nonetheless concluded that the evidence, after an eight-day hearing with thorough examinations, did not establish the allegations to the standard required.

Because the employer had not proven its claim that Mr. Ross engaged in sexually inappropriate behaviour with a student, the grievance was allowed and Mr. Ross was ordered to be reinstated with full compensation.

Implications

An allegation of sexual assault is very serious and can end a teacher’s career. On the other hand, the importance of protecting students from such conduct cannot be understated. Careful management of a sexual assault allegation is crucial for a school board, and Arbitrator Slotnick’s decision emphasizes that evidence will be closely scrutinized before a termination decision is upheld or overturned.

The decision also sheds light on the interaction between criminal and civil proceedings. Employer investigations may reach a different conclusion because of the different standard of proof, as the York Region District School Board did in this case. However, even on a civil balance of probabilities test, there must be clear, cogent, and convincing evidence to support a termination.

Finally, this case reflects some of the issues that may arise when a teacher and student form a close relationship outside of the classroom. While often a positive experience, lines may be blurred and the teacher and school may be put at risk for future claims of abuse.

School boards should implement and diligently enforce policies to ensure appropriate teacher- student relationships, as well as adhere to their statutory reporting duties. The Ontario College of Teachers professional advisory on Professional Misconduct Related to Sexual Abuse and Sexual Misconduct identifies the legal, ethical, and professional parameters governing teacher behaviour and aims to prevent sexual abuse of students. School boards are required to report to the College of Teachers whenever a teacher is charged with a sexual offence; has engaged in conduct that the board believes the College should review; or has been terminated, had their duties restricted, or resigned during an investigation for reasons related to professional misconduct.