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Arbitrators' reinstatement of Bhadauria quashed by Supreme Court of Canada
In a decision released on February 27, 1997, the Supreme Court of Canada has upheld the firing of Jag Bhadauria by the Toronto Board of Education. The court held that Bhadauria's conditional reinstatement by the majority of a board of arbitration was patently unreasonable because the board had no evidence on which to base its conclusion that his misconduct was a temporary phenomenon.
Bhadauria, a teacher with the Toronto Board for nearly 20 years, applied unsuccessfully for the position of Vice-Principal 39 times during the 1980's. In 1984, he filed a complaint alleging systemic racial discrimination by his employer with the Ontario Human Rights Commission. In 1990, a Board of Inquiry rejected his claims of discrimination.
TWO DISTURBING LETTERS
In October 1989, before the Board of Inquiry issued its ruling, Bhadauria wrote a letter to his employer containing a number of abusive accusations concerning the way he had been treated. He also included a newspaper article with the headline "Disgruntled Employee Kills ...", and predicted "that such an incident will happen at the [Toronto] board".
Two months later, Bhadauria wrote another letter in which he complained that his treatment by the Toronto Board had turned him into a "blood-thirsty and revengeful devil" and had destroyed his teaching ability. He expressed the wish that the perpetrator of the Montreal Massacre of 14 women had instead committed his crime at the Toronto Board, which he referred to as the "Canadian epicentre for racial bigotry and tokenism". Bhadauria added that he "would not have shed a tear at [the] untimely and gruesome demise of all of you".
Following receipt of each of these letters, Bhadauria was asked to submit to psychological assessments. Two psychologists expressed the opinion that he showed no signs of mental illness and was unlikely to become violent. However, both also believed that he would probably continue to verbally harass his employer.
BHADAURIA IS TERMINATED; WRITES A THIRD LETTER
In January 1990, following the writing of the letters, Bhadauria was terminated from his employment for reasons of unprofessional conduct, poor judgment, and attitudes indicating he was no longer capable of serving as a teacher under the Education Act. Bhadauria grieved his dismissal.
Before his termination hearing took place, Bhadauria, against the advice of his lawyers, wrote a third letter to his employer. While not as extreme as the first two, it showed that he was still consumed with bitterness toward the Toronto Board, which he compared to the apartheid regime in South Africa and Ayatollah Khomeini.
ARBITRATION BOARD: BHADAURIA "NOT BEYOND REDEMPTION"
The majority of a board of arbitration concluded that at the time he wrote the first two letters, Bhadauria was under stress due to the hearings into his human rights complaint and his failure to secure a promotion. The majority went on to hold that there was reason to view his conduct as temporary and not likely to be repeated.
Although the letters demonstrated a lack of judgment and "portrayed a person who ought not to be in the classroom", this had to be balanced against his seniority, lengthy service and good reputation, the majority held. Accordingly, it ordered his conditional reinstatement, stating that Bhadauria was "not beyond redemption" and that "there [was] some chance that [his] effectiveness as a teacher may not have been completely destroyed".
The majority arrived at its decision despite having accepted the evidence of the Director of Education that Bhadauria was unfit to teach, and having rejected Bhadauria's testimony as not being credible. Further, the majority made no mention of Bhadauria's third letter to his employer.
The arbitration board's order was quashed by the Divisional Court, and then restored by the Ontario Court of Appeal. The Toronto Board of Education appealed to the Supreme Court of Canada.
SUPREME COURT: REINSTATEMENT ORDER PATENTLY UNREASONABLE
The Supreme Court unanimously ruled that the order reinstating Bhadauria should be quashed. Writing for seven of his colleagues, Judge Peter Cory ruled that there was no evidence before the arbitration board to support its conclusion that Bhadauria's misconduct was likely to be temporary.
The court noted that the arbitration board's decision was owed a high degree of deference from a reviewing court, and could only be set aside if it was patently unreasonable. In this case, as the parties had agreed that Bhadauria's conduct when he wrote the letters did not meet the standards required of a teacher under the Education Act, the issues before the board were whether this conduct was a temporary aberration and whether discharge was appropriate. If the evidence before the board was incapable of supporting its conclusion that Bhadauria's misconduct would not continue, that conclusion could be overturned by a court as being patently unreasonable.
HIGH STANDARD FOR TEACHERS, INSIDE AND OUTSIDE THE CLASSROOM
The court noted that while the language in the Education Act set an unrealistically high standard for teachers' conduct, the legislation indicated that teachers were expected to meet a higher standard, both during and after teaching hours, than other employees because of their special position in society:
"In their position of trust, teachers must teach by example as well as by lesson, and that example is set just as much by their conduct outside the classroom as by their performance within it. Thus misconduct which occurs outside regular teaching hours can be the basis for discipline proceedings.
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As well, it is essential that arbitrators recognize the sensitivity of the educational setting and ensure that a person who is clearly incapable of adequately fulfilling the duties of a teacher both inside and outside the classroom is not returned to the classroom."
NO EVIDENCE TO SUPPORT BOARD'S FINDINGS
The board had based its decision to reinstate Bhadauria on its findings that his misconduct was temporary and that he was not beyond redemption. For the decision to be reasonable, there had to be some evidence in support of these findings. In this regard, the court noted that the board's reasons contained "disquieting contradictions which are difficult to explain". The board had accepted as "difficult to fault" the employer's evidence that Bhadauria was unsuitable to be a classroom teacher. It had also dismissed Bhadauria's explanation of his conduct as "shallow" and lacking credibility. Further, the evidence of the two psychologists to the effect that Bhadauria would continue to verbally hound his employer was accepted without qualification by the board's majority.
The court observed that it was "curious" that the board had not even referred to Bhadauria's third letter. While less abusive than the first two, the court found that it showed that Bhadauria continued to exhibit the same extreme views and lack of judgment. In the court's view, this letter was "incontrovertible evidence" that Bhadauria's extreme feelings and poor judgment persisted even after the conclusion of his human rights hearing.
In upholding Bhadauria's dismissal, the court stated that, not only was there an abundance of evidence that his misconduct was likely to continue, there was none supporting the board's conclusion that it was a temporary aberration:
"The evidence that Mr. Bhadauria's misconduct was not temporary appears to be overwhelming. Yet that is not sufficient in itself to base a conclusion that the decision of the majority was patently unreasonable. What does lead to that conclusion is that I can find no other evidence capable of supporting the conclusion that the misconduct was a momentary aberration... . Quite simply, the evidence that the arbitrators stated they were relying upon to support their findings pointed to the exact opposite conclusion. The absence of such evidence renders the decision patently unreasonable, and there was simply no basis for the "leap of faith" that he could return to the classroom."
As a result, the court allowed the appeal and quashed the award of the Board of Arbitration.
IN OUR VIEW
The court has once again emphasized that teachers must adhere to a higher standard of conduct than other employees, due to the role they play in the educational system. In this regard, it is worth noting that, in overturning the board decision, the court found it significant that the board majority had made no reference to the effect Bhadauria's letters may have had on public confidence in the school system.
For more information on this subject, please contact Lynn Harnden at (613) 563-7660, Extension 226, or George Rontiris at (613) 563-7660, Extension 275.
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