Canadian Employment Law Today

November 21, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Did the teacher quit her employment? OR Was the teacher constructively dismissed? IF YOU SAID the teacher quit her job, you're right. e court found that the al- tercation between DeBon and the stu- dent's mother was "undoubtedly upsetting to all concerned" and the mother's con- duct was "totally unacceptable." However, DeBon didn't fi le an offi cial report under the school's harassment policy and there was no indication the school had a policy about parent-teacher meetings. As a result, though the school didn't try to prevent the mother from attending the initial meeting with the student, there was no evidence to indicate a term of DeBon's employment had been changed or ignored, said the court. e court noted that the principal had good reasons for not inviting DeBon to the follow- up meeting with the student's parents — it was quickly arranged and the principal didn't have much time in which to fi t it. In addition, it probably wouldn't have been productive to have DeBon and the mother to meet so soon after the altercation, said the court. e court also found that the re-marking solution wasn't intended to undermine De- Bon's credibility or integrity, but rather to help defuse a volatile situation. In fact, when DeBon's mark was confi rmed by the other teacher, DeBon should have taken it as vin- dication rather than continuing to feel un- dermined, the court said. As for the insistence of the parents to have later assignments re-marked, these were not part of the principal's solution and were from "external forces that threatened Ms. DeBon's professional integrity," not the school, said the court. e court found that the principal had grown impatient with the confl ict between DeBon and the student's parents and DeBon felt unappreciated. However, these didn't constitute fundamental changes to Debon's employment or her workplace and DeBon was not constructively dismissed. "I conclude that a reasonable person with a dispassionate perspective would not view the teaching environment at (the school) to be untenable for Ms. DeBon to continu- ing teaching there…," said the court. " ere were other options available to Ms. DeBon short of resigning. ese include seeking a teaching position at another school in the private or the public school system." For more information see: • DeBon v. Hillfi eld Strathallan College, 2018 CarswellOnt 16202 (Ont. S.C.J.). Bad parent-teacher relations leads to constructive dismissal complain t THIS INSTALMENT of You Make the Call features a teacher who didn't feel sup- ported in a dispute with a student's mother. Kimberly DeBon was a teacher at a private school in Hamilton, Ont., starting in 2007. She taught English and other related subjects. At the beginning of the 2013/2014 school year, DeBon was told that the mother of a student had expressed concern that DeBon would be the student's teacher in two class- es. e mother complained about a mark DeBon had given the student the previous year which the mother felt was too low. On Oct. 18, 2013, DeBon gave the student 76 per cent on an assignment. e student behaved rudely when she received the mark and requested a meeting to discuss it. DeBon agreed to meet with her the following week, but later learned the student's mother was planning to attend. DeBon told the student it wouldn't be appropriate for her mother to at- tend and, given the past complaints, advised the head of the student success centre and the head of the English department about it. e heads agreed she should schedule a par- ent-teacher interview, but only the student should attend the afternoon meeting. However, the mother attended the meet- ing and, before DeBon had a chance to dis- cuss the assignment, the mother yelled at her, accusing DeBon of mistreating and at- tacking her daughter in class. DeBon sug- gested the mother speak with the head of student success and they stormed out. DeBon informed the principal about the altercation and the principal met with the parents on Oct. 30 without inviting DeBon. e principal decided to have two as- signments marked by another teacher as a response to allegations that DeBon was biased, but he didn't ask for apologies for how the student or parents had acted. e other teacher marked the assignments and agreed with the marks DeBon had given. e parents weren't satisfi ed, however, and asked that the student's later assignments be marked by another teacher. e principal acknowledged there was no bias to DeBon's marking. He also admitted DeBon should have been part of the meeting with the parents but didn't believe her cred- ibility and integrity had been undermined. DeBon gave the student a mark lower than the class average on a November assignment and the student's father requested a meet- ing. DeBon informed the school, wanting to defer it to the department head or principal. e principal replied that he didn't want to be a go-between for DeBon and her students and DeBon should handle communication with the student and her family. DeBon felt bullied, that her employment was in jeopardy, and thought the principal would discipline her if she contacted him again. Over the Christmas holidays, she sent a letter to the principal saying that she had been constructively dismissed because the school hadn't protected her from harass- ment and her job duties were undermined.

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