Reinstatement.

• Author: Bowal, Peter

Introduction

Many Canadians will remember the case of Lynden Dorval, the Edmonton public school teacher, who was fired by his school board for dispensing marks of zero to students who did not do their assignments. Recently the case reached the Alberta Court of Appeal on the question of whether Mr. Dorval should be reinstated to his old teaching job.

In addition to cases where wrongful dismissal has been found (especially in labour relations scenarios), reinstatement is authorized under work-related legislation, such as occupational health and safety and human rights legislation.

This article will describe that case and the circumstances where reinstatement can be an appropriate legal remedy, and where it will not be ordered.

Facts

Mr. Dorval, a teacher with an excellent performance record over 35 years, was terminated from his job because he refused to follow his principal's order requiring him to use letter codes describing "student achievement, lack of participation, or behavior related to completion of an assigned task." Since the code was not a recognizable grade, it played no part in evaluation of the student's performance. Students who did not complete assignments might have inflated grades compared to their peers who did the assignments, which reduced the incentive to do the assignments.

Instead Mr. Dorval gave a "replaceable zero" to students who did not complete assignments. Students were still encouraged to hand in late assignments for a grade that replaced the zero. This motivated students, promoted accountability and resulted in a work-based evaluation. Mr. Dorval was not the only teacher who defied his principal, but he was the only one disciplined for doing so. On May 17, 2012 he was suspended. Four months later he was fired. Other issues were eventually put forward, such as missing a staff meeting, not grading exams on time, returning to school property without permission and displaying an insubordinate attitude. Over the course of that disciplinary action, hostility had developed between the teacher and his administrative superiors. [Edmonton School District No 7 v Dorval, 2016 ABCA 8 (CanLII), http://canlii.ca/t/gmw5d].

Legal Outcomes

Mr. Dorval appealed his termination. The reviewing tribunal found he had been wrongfully dismissed and ordered the school board to pay him compensation. The Edmonton Public School Board took the case to the Alberta Court of Appeal where Mr. Dorval also asked to be reinstated to a teaching...