Judge rules ar­bi­tra­tor made cor­rect de­ci­sion in case against jan­i­tor

Cape Breton Post - - News - BY NANCY KING CAPE BRE­TON POST nk­ing@cb­post.com

SYD­NEY — An ar­bi­tra­tor was rea­son­able when she ruled a school jan­i­tor should not have been fired for hav­ing a sex­ual re­la­tion­ship with a 15-year-old girl when he was off-duty, a Nova Sco­tia Supreme Court jus­tice has ruled.

Jus­tice Cindy A. Bour­geois’s 27-page writ­ten de­ci­sion was re­leased Thurs­day.

The Cape Bre­ton-Vic­to­ria Re­gional School Board had ap­plied for a ju­di­cial re­view of the labour ar­bi­tra­tion award.

Dur­ing the ar­bi­tra­tion mat­ter, ar­bi­tra­tor Su­san M. Ashley — who both the board and CUPE Lo­cal 5050 agreed was ex­pe­ri­enced — heard from 10 wit­nesses over four days.

The jan­i­tor, who was not named, was ter­mi­nated Nov. 23, 2007, af­ter work­ing for the board in a cus­to­dial po­si­tion for more than 20 years at sev­eral dif­fer­ent schools, with no prior dis­ci­plinary record.

In his off-duty hours, the man be­gan a per­sonal re­la­tion­ship with a 14-year-old girl in Au­gust 2007. It be­came sex­ual in na­ture that same month, when she turned 15. It wasn’t in con­tention that the man met the girl out­side of the school set­ting, as she wasn’t a stu­dent at any school where he worked. He also didn’t use his job to in­sti­gate or de­velop the re­la­tion­ship.

At the time, the le­gal age of con­sent for sex­ual ac­tiv­ity in Canada was 14. It has since been raised to 16.

The board ar­gued that even if the re­la­tion­ship occurred off­duty, the man breached his duty to the girl, the board and the larger com­mu­nity. The union dis­agreed, say­ing his off-duty con­duct didn’t jus­tify any de­gree of dis­ci­pline, and cer­tainly not fir­ing.

The board was also con­cerned that the man orig­i­nally de­nied the re­la­tion­ship when first ques­tioned about it and said he gave away school prop­erty like garbage bags, pens and cal­cu­la­tors to sev­eral peo­ple.

While she said that the na­ture of the sex­ual con­duct be­tween a man his age and the girl was “dif­fi­cult to con­tem­plate” and “re­pug­nant,” Ashley added it was not ap­pro­pri­ate to “im­pose dis­ci­pline on the ba­sis of moral out­rage alone, or to pun­ish the grievor for be­hav­iour which we find of­fen­sive.”

The ar­bi­tra­tor found there was no ground for dis­ci­pline re­lated to the man’s sex­ual con­duct, but there was for his dis­hon­esty and use of board prop­erty. The ar­bi­tra­tor gave the man a three­month sus­pen­sion, find­ing that fir­ing was too se­vere a penalty given the cir­cum­stances.

The ar­bi­tra­tor erred in fail­ing to ap­ply the duty aris­ing from the man’s po­si­tion of trust, the board ar­gued, by re­quir­ing proof of ac­tual harm to the school board’s rep­u­ta­tion in or­der to jus­tify the fir­ing, and by not find­ing that the fir­ing was jus­ti­fied be­cause the man lied.

Bour­geois said she was able to un­der­stand how and why the ar­bi­tra­tor reached her de­ci­sion, say­ing Ashley cited the ap­pro­pri­ate le­gal tests and un­der­took a clear le­gal anal­y­sis.

“As such, there is a ‘ jus­ti­fi­able, in­tel­li­gi­ble and trans­par­ent rea­son­ing path,’ thus meet­ing the first stage of the rea­son­able­ness anal­y­sis,” Bour­geois wrote.

The Nova Sco­tia Supreme Court can’t sub­sti­tute an al­ter­nate determination un­less it finds that the award was out­side the range of ac­cept­able out­comes. Bour­geois found it was within the range of ac­cept­able out­comes.

There is a jus­ti­fi­able, in­tel­li­gi­ble and

trans­par­ent rea­son­ing path.

Jus­tice Cindy Bour­geois

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