A substitute teacher (“Plaintiff”) recently won her legal battle against a Québec school board that withdrew her name from the substitute teachers’ list, invoking erotic pictures of her taken some eight years earlier.

The case

Plaintiff was in her fourth and final internship at the Chemin-du-Roy school board, as a substitute teacher, when naked and erotic pictures of her started circulating amongst teachers, support staff and students in a number of the school board’s schools.

A teacher, who was informed of this situation at a school board general assembly, managed to get copies of the pictures from a colleague and provided a copy of them to the school’s principal. The principal, in turn, informed the school board’s HR director that personnel and students from some of the schools were exchanging the pictures. She advised that these pictures were available on the internet and confirmed that she would be meeting with the Plaintiff to gather more information on the situation.

However, before that meeting took place, and immediately following receipt of the pictures, the HR director sent an email to the managers of each of the school board’s establishments, amounting to nearly a hundred recipients. This email strongly suggested not to use the Plaintiff’s services.

Without first confirming the outcome of the meeting with the Plaintiff, the HR director sent a second email at the end of that same day. This email was sent to both the managers of the school board’s establishments and the supervisor of substitute teachers. This second e-mail required the addressees to refrain from using the services of Plaintiff and advised that her name would be withdrawn from the substitute teachers’ list.

The Plaintiff met with the principal the next day, and informed the principal that the erotic pictures had been taken some eight years earlier, when she was only nineteen. The pictures were taken by a professional photographer, as she had then the ambition of becoming a model. Although she initially signed a 4 year contract allowing broadcasting of the pictures, she soon after repudiated the agreement and, in settling the matter, negotiated that the pictures could not be broadcast.

Despite her explanation, the school board maintained its initial decision to withdraw her name from the substitute teachers’ list. The union responded by filing a grievance alleging an abuse of the school board’s rights as well as a violation of the Plaintiff’s privacy rights.

The school board argued that Plaintiff’s conduct did not correspond to the educational values of the school board and further constituted a violation of its Code of Ethics. Furthermore, it claimed that since the Plaintiff was not a permanent employee, but only a substitute teacher, her employment was entirely dependent on the school board’s discretion.

Abuse of rights

The notion of an abuse of rights in Québec stems from the obligation to act in good faith stipulated in Articles 6 and 7 of the Civil Code:

  1. Every person is bound to exercise his civil rights in good faith.
  2. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.

To determine whether or not an employer’s conduct constitutes an abuse of rights, the arbitrator had to determine if the employer had exercised its right in a manner that was not compatible with the behaviour expected from a prudent and diligent person in similar circumstances.

The findings

In this case, the arbitrator found that the decision to withdraw Plaintiff’s name from the substitute teachers’ list and send an alarming email without verification and barely an hour after having received a copy of the pictures was not prudent.

The arbitrator found that the school board was not diligent as it did not verify the authenticity of the facts reported by the principal. The school board’s responses were based entirely on the pictures themselves and on hearsay. In fact, while the school board assumed that the pictures were available on the internet, in fact they were not, but were circulated without the Plaintiff’s knowledge, against her will, by email and between unidentified persons. Even more disturbing was the fact that the school board did not modify its position even after it obtained the Plaintiff’s explanation. Despite being informed of the situation, the school board did not investigate and, ironically, did not verify whether the employees who had circulated the pictures had, themselves, violated the school board’s Code of Ethics.

The arbitrator concluded that the board could not impose its Code of Ethics retroactively upon the Plaintiff for a matter that arose some eight years earlier and which was not immoral or criminal in nature. He ruled that the school board had abused its management rights and tarnished the Plaintiff’s dignity and reputation. The arbitrator voided the school board’s directive to withdraw the Plaintiff’s name from the substitute teachers’ list and reserved his jurisdiction on damages.

This case reminds us of the potential serious consequences of hastily imposing discipline, and the importance of first investigating, gathering all relevant facts and testimony.