AA v. Halifax Regional School Board

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: Boudreau, J.
• Citation: (2013), 332 N.S.R.(2d) 361 (SC),2013 NSSC 228
• Date: 15 January 2013

AA v. Halifax School Bd. (2013), 332 N.S.R.(2d) 361 (SC);

    1052 A.P.R. 361

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JL.037

"AA" (applicant) v. Halifax Regional School Board (respondent)

(Hfx. No. 408234; 2013 NSSC 228)

Indexed As: AA v. Halifax Regional School Board

Nova Scotia Supreme Court

Boudreau, J.

July 12, 2013.

Summary:

The Halifax Regional School Board terminated the applicant's employment as a teacher for improper internet (email) contact with one of his female students. The applicant had undiagnosed bipolar II disorder at the time of the emails, but he was under treatment when terminated. A one person Board of Appeal appointed by the Minister of Education under the Education Act upheld the School Board's decision. The applicant applied for judicial review to quash the decision and remit the matter to another Board of Appeal.

The Nova Scotia Supreme Court applied a reasonableness standard of review and dismissed the application.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Administrative Law - Topic 9102 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - A School Board terminated the applicant's employment as a teacher for improper internet (email) contact with one of his female students - The applicant had undiagnosed bipolar II disorder at the time of the emails, but was under treatment when terminated - The School Board concluded that there was a risk to the safety of students if another "hypomanic episode" occurred and that such risk could not be reasonably accommodated and controlled without undue hardship to the School Board - A one person Appeal Board upheld the decision - The applicant applied for judicial review to quash the Appeal Board's decision and remit the matter to another Appeal Board - The Nova Scotia Supreme Court determined that, based on the case law, the standard of review was reasonableness even though human rights issues were involved in this termination matter - See paragraphs 12 to 41 - Alternatively, on a Dunsmuir analysis, reasonableness was still the review standard - See paragraphs 42 to 47.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - A School Board terminated the applicant's employment as a teacher for improper internet (email) contact with one of his female students - The applicant had undiagnosed bipolar II disorder at the time of the emails, but was under treatment when terminated - The School Board concluded that there was a risk to the safety of students if another "hypomanic episode" occurred and that such risk could not be reasonably accommodated and controlled without undue hardship to the School Board - A one person Appeal Board upheld the decision - The applicant applied for judicial review to quash the Appeal Board's decision and remit the matter to another Appeal Board - The Nova Scotia Supreme Court dismissed the application, holding that the decision was reasonable - The Appeal Board applied the proper tests in coming to its conclusions on both the issues of "level of risk" and the requirements and "burden of proof" to establish a Bona Fide Occupational Requirement by the employer - The court was not convinced that the Appeal Board's reasoning path was unintelligible or led to a result outside the range of justifiable, possible or rational results - The court stated that its decision should not be interpreted as confirming that the School Board had just cause, in the traditional sense, to terminate the applicant - This might still be a contentious issue, particularly keeping in mind the comments made about the culpability of his behaviour in relation to his illness - See paragraphs 48 to 98.

Education - Topic 6252

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - With cause - [See Civil Rights - Topic 998 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 14].

Falkenham (C.R.) Backhoe Services Ltd. v. Human Rights Board of Inquiry (N.S.) et al. (2008), 264 N.S.R.(2d) 281; 847 A.P.R. 281; 2008 NSCA 38, refd to. [para. 17].

Hudston v. Halifax School Board (1999), 177 N.S.R.(2d) 105; 542 A.P.R. 105 (S.C.), refd to. [para. 19].

Haché v. Board of Education of Lunenburg County District (2004), 222 N.S.R.(2d) 354; 701 A.P.R. 354; 2004 NSCA 46, refd to. [para. 20].

South Shore Regional School Board v. Speight, 2012 NSSC 417, refd to. [para. 21].

Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108 (2013), 330 N.S.R.(2d) 40; 1046 A.P.R. 40; 2013 NSSC 164, refd to. [para. 23].

Communications, Energy and Paperworkers Union, Local 440 v. Kimberley-Clark, Nova Scotia (2000), 185 N.S.R.(2d) 145; 575 A.P.R. 145 (S.C.), refd to. [para. 24].

Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108 (2011), 303 N.S.R.(2d) 156; 957 A.P.R. 156; 2011 NSCA 41, refd to. [para. 25].

Canadian Union of Postal Workers v. Canada Post Corp. (1999), 23 B.C.T.C. 131 (S.C.), refd to. [para. 26].

Telecommunications Workers Union v. TELUS Advanced Communications et al., [2011] B.C.T.C. Uned. 1761; 2011 BCSC 1761, refd to. [para. 27].

Ottawa Hospital v. Ontario Public Service Employees Union, Local 464 (2009), 247 O.A.C. 201 (Div. Ct.), refd to. [para. 28].

CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816 (2009), 246 Man.R.(2d) 100; 2009 MBQB 252, refd to. [para. 29].

Lethbridge Regional Police Service et al. v. Lethbridge Police Association (2013), 542 A.R. 252; 566 W.A.C. 252; 2013 ABCA 47, refd to. [para. 31].

Irving Pulp and Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2011), 375 N.B.R.(2d) 92; 969 A.P.R. 92; 2011 NBCA 58, refd to. [para. 34].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2013), 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 40].

Melanson et al. v. Board of School Commissioners of Halifax (City) et al. (1977), 20 N.S.R.(2d) 74; 27 A.P.R. 74 (C.A.), refd to. [para. 43].

Cape Breton (Regional Municipality) v. Canadian Union of Public Employees, Local 933 (2006), 245 N.S.R.(2d) 219; 777 A.P.R. 219; 2006 NSCA 80, refd to. [para. 43].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 48].

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 49].

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 50].

ADGA Group Consultants Inc. v. Lane et al., 2007 HRTO 34, varied (2008), 240 O.A.C. 333; 295 D.L.R.(4th) 425 (Div. Ct.), refd to. [para. 51].

Gordy v. Oak Bay Marine Management Ltd., 2004 BCHRT 225, refd to. [para. 52].

Shuswap Lake General Hospital v. British Columbia Nurses' Union, [2002] BCCAAA No. 21; 67 C.L.A.S. 264 (Arb.), refd to. [para. 54].

Way v. New Brunswick (Minister of Education), [2011] NBHRBID No. 1, refd to. [para. 56].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union et al. (1999), 82 L.A.C.(4th) 1; 1999 CarswellNat 3322 (Arb.), refd to. [para. 62].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 65].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 90].

Authors and Works Noticed:

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 90].

Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 90].

Counsel:

Gail L. Gatchalian and Bettina Quistgaard, for the applicant;

Ian Pickard and Leah Kutcher, for the respondent.

This application was heard on January 15, 2013, at Halifax, N.S., by Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 12, 2013.