Edmonton School District No. 7 v. Dorval, (2016) 609 A.R. 280

• Judge: Picard, Paperny and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 03, 2015
• Citations: (2016), 609 A.R. 280;2016 ABCA 8

Edmonton Sch. Bd. v. Dorval (2016), 609 A.R. 280; 656 W.A.C. 280 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. JA.070

Edmonton School District No. 7 (appellant/respondent on cross-appeal)

(respondent) v. Lynden Dorval (respondent/appellant on cross-appeal)

(applicant)

(1403-0232-AC; 2016 ABCA 8)

Indexed As: Edmonton School District No. 7 v. Dorval

Alberta Court of Appeal

Picard, Paperny and Rowbotham, JJ.A.

January 13, 2016.

Summary:

Dorval was a high school teacher with Edmonton School District No. 7. The District terminated Dorval's employment because he refused to follow his principal's order requiring him to use letter codes describing student behaviour rather than a mark of zero for students who did not complete assignments. Dorval appealed. A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation. The District appealed. Dorval cross-appealed, arguing that he should be reinstated.

The Alberta Court of Appeal dismissed the appeal and the cross-appeal.

Education - Topic 6157

Teachers - Employment - Status of teacher - [See first Education - Topic 6252 ].

Education - Topic 6252

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - With cause - Dorval was a high school teacher with Edmonton School District No. 7 - The District terminated Dorval's employment because he refused to follow his principal's order requiring him to use letter codes describing student behaviour rather than a mark of zero for students who did not complete assignments - A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation - The District appealed, arguing that the Board did not identify or apply the proper legal test for workplace discipline - It asserted that the Board was required to determine if Dorval did what was alleged, whether the conduct warranted discipline, and whether the discipline selected was appropriate - The Alberta Court of Appeal rejected this argument - There was a distinction between employees who were required to obey lawful orders from persons in authority and professional employees with legal obligations who might be expected to exercise a degree of independent judgment in the performance of their duties - The Board found that while Dorval did commit some of the acts alleged, termination was not reasonable given his status as a professional and his explanations for his actions - The Board made no reviewable error - See paragraphs 47 to 51.

Education - Topic 6252

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - With cause - Dorval was a high school teacher with Edmonton School District No. 7 - The District terminated Dorval's employment because he refused to follow his principal's order requiring him to use letter codes describing student behaviour rather than a mark of zero for students who did not complete assignments - A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation - The District appealed, arguing that the Board erred by requiring the District to prove that Dorval's misconduct was deliberate - The Alberta Court of Appeal rejected this argument - The Board held that intention was not necessary to prove misconduct, but that the absence of it would serve to lessen the seriousness of the conduct - The Board made no reviewable error - See paragraph 52.

Education - Topic 6252

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - With cause - Dorval was a high school teacher with Edmonton School District No. 7 - The District terminated Dorval's employment because he refused to follow his principal's order requiring him to use letter codes describing student behaviour rather than a mark of zero for students who did not complete assignments - A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation - The District appealed, arguing that the Board erred by failing to recognize that insubordination could take several forms other than refusing to comply with an order from a person in authority - The Alberta Court of Appeal rejected this argument - The Board concluded that disagreement did not necessarily constitute insubordination - It also found that the principal's order was not reasonable, and therefore failing to obey it was not insubordination requiring discipline - The Board's decision was reasonable - See paragraphs 53 to 57.

Education - Topic 6252

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - With cause - Dorval was a high school teacher with Edmonton School District No. 7 - The District terminated Dorval's employment because he refused to follow his principal's order requiring him to use letter codes describing student behaviour rather than a mark of zero for students who did not complete assignments - A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation - The Alberta Court of Appeal dismissed the District's appeal - The substantive elements of the termination that the Board found unreasonable included, inter alia, (1) the principal ordered Dorval to use codes despite the fact that the policy of the high school and school board supported involvement of teachers' professional judgment and consultation; (2) the order was simply announced with little or no consultation; (3) questions or concerns were ignored; and (4) Dorval was singled out for discipline when other teachers who also challenged and refused to follow the principal's order were not disciplined - The Board also found that procedural elements of the termination were unreasonable - The Board's decision was reasonable - See paragraphs 66 to 70.

Education - Topic 6264

Teachers - Dismissal - General - Investigation by board of reference - [See Education - Topic 6324 ].

Education - Topic 6270

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - Remedies - [See Education - Topic 6327 ].

Education - Topic 6278

Teachers - Dismissal - Grounds - Professional misconduct - [See second Education - Topic 6252 ].

Education - Topic 6280

Teachers - Dismissal - Grounds - Planning and teaching strategy - [See first and fourth Education - Topic 6252 ].

Education - Topic 6281

Teachers - Dismissal - Grounds - Insubordination - [See third Education - Topic 6252 ].

Education - Topic 6324

Teachers - Dismissal - Statutory appeals - Evidence - Dorval was a high school teacher with Edmonton School District No. 7 - The District suspended Dorval in May 2012 and terminated him in August 2012 - Dorval did not appeal the suspension, but he did appeal the termination - A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation - The District appealed, arguing that Dorval's failure to appeal the suspension meant that Board was not entitled to consider the events leading up to the suspension - The Alberta Court of Appeal rejected this argument - First, s. 135 of the School Act authorized the Board to make any investigation it considered necessary - Second, all aspects of the suspension process, including the position of the parties, were the subject of considerable focus at the termination hearing - Third, there was a clear nexus between the suspension and the termination - But for the events leading up to the suspension, the events relied on for the termination would not have occurred - Fairness mandated that the suspension events be considered when assessing Dorval's termination - See paragraphs 41 to 45.

Education - Topic 6327

Teachers - Dismissal - Statutory appeals - Remedies - Reinstatement - Dorval was a high school teacher with Edmonton School District No. 7 - The District terminated Dorval's employment because he refused to follow his principal's order requiring him to use letter codes describing student behaviour rather than a mark of zero for students who did not complete assignments - A Board of Reference concluded that Dorval was terminated without just cause and awarded him compensation - Dorval filed a cross-appeal, arguing that he should be reinstated - The Alberta Court of Appeal dismissed the cross-appeal - Given the deterioration of the relationship between Dorval and the District, and in light of Dorval's equivocal evidence regarding whether he would be willing to work for the District again, the Board's decision to award damages rather than reinstatement was reasonable - See paragraphs 72 to 75.

Cases Noticed:

Board of Education of Grande Yellowhead Regional Division No. 35 v. Leeson (1997), 209 A.R. 214; 160 W.A.C. 214; 1997 ABCA 392, refd to. [para. 35].

Bruse v. Board of Education of Calgary School District No. 19 (2011), 510 A.R. 125; 527 W.A.C. 125; 2011 ABCA 196, refd to. [para. 35].

Edmonton School District No. 7 v. Alberta Teachers' Association (2013), 544 A.R. 367; 567 W.A.C. 367; 2013 ABCA 155, refd to. [para. 35].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 36].

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. 37].

Wood Buffalo (Regional Municipality) v. Energy and Utilities Board (Alta.) et al. (2007), 417 A.R. 222; 410 W.A.C. 222; 2007 ABCA 192, refd to. [para. 38].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 39].

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. 39].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 40].

Alberta Teachers' Association v. Board of Education of Pembina Hills Regional Division No. 7 (2008), 442 A.R. 140; 2008 ABQB 87, refd to. [para. 67].

Gazdarica v. Board of Trustees of the Calgary Roman Catholic Separate School District No. 1 (1988), 91 A.R. 194; 60 Alta. L.R.(2d) 378 (Bd. Ref.), refd to. [para. 67].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 74].

Counsel:

T.R. Haykowsky, G.J. Seifner and J.C. Lingwood, for the appellant/respondent on cross-appeal;

A.K. Akungor and D. Adams, for the respondent/appellant on cross-appeal.

This appeal and cross-appeal were heard on November 3, 2015, before Picard, Paperny and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Edmonton, Alberta, on January 13, 2016.