Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 "visualization" with a counsellor, which in- volved him telling his story and visualizing the details as they "popped into my head." is was used to explain some of the in- consistencies in the story, such as when and where some of the abuse happened. In December 2012, the school board de- termined Ross engaged in grooming behav- iour, established an inappropriate personal relationship with influence over a student, and touched the student "in an intimate and sexual manner." As a result of the findings, the school board terminated Ross' employ- ment. Ross grieved the termination. e arbitrator found the accounts of Ross and the former student were "diametrically opposed," but the onus of proof was on the school board to prove the events constitut- ing sexual abuse happened in order to justify termination. Former student's recollection called into question e arbitrator found there were incon- sistencies in the accounts of the former student and his sister – part of this could be their youth and the length of time that passed. e arbitrator deemed the sister's account of finding them in the basement differed from the former student's and if she had really seen something of concern, she wouldn't have been so friendly with Ross as she grew older — including stay- ing at his house while he was on vacation — or wondering why her brother avoided Ross. In addition, the former student's mother said she had no memory of be- ing told about it, which is something she probably would have remembered, said the arbitrator. e arbitrator found flaws with other ele- ments of the former student's evidence. For the most serious charge, that Ross mastur- bated him, the former student variously said it happened "a lot of times" and "four or five times," but could only specifically remember the details of one occasion. His details on other actions were also vague, and one story he gave that Ross invited him to an athletic club to go in the Jacuzzi nude was "implau- sible," said the arbitrator. In addition, the arbitrator noted Ross continued a close friendship with the for- mer student's family even after his regular contact with the former student ended. is "casts some doubt on the likelihood that he engaged in sexual abuse," said the arbitrator, and supported the idea that Ross didn't see any of his activities as sexual. "Had he been guilty of sexual abuse, one might have expected him to cut off relations with the family once his daily access to (the former student) ended, as his continued friendship might prompt (the former stu- dent) to reveal what had occurred," said the arbitrator. However, the arbitrator also found Ross tended to minimize the relationship he had with the former student, as it was likely clos- er than he admitted. Ross acknowledged go- ing to hockey games, holding his hand, and telling him he cared for him. But this was not necessarily sexual behaviour and there was no proof Ross intended it as such, said the arbitrator. e arbitrator found that much of the former student's evidence was inconsistent and, though Ross in hindsight may have act- ed inappropriately in some ways, there was not sufficiently clear and cogent evidence proving he sexually abused the student. e arbitrator also pointed out that the relation- ship wasn't initiated by Ross, but rather by the former student's mother, who asked the teachers to watch him closely. Ross' response to that request could be interpreted in an- other context as grooming, but not in those circumstances, said the arbitrator. e arbitrator acknowledged the school board was acting in its role to protect stu- dents and was wary about a teacher charged with sexual assault of a student. However, the evidence did not prove on a balance of probabilities that Ross was guilty of the mis- conduct. e school board was ordered to reinstate Ross with full compensation. For more information see: • York Region District School Board and ETFO (Ross), Re, 2014 CarswellOnt 18225 (Ont. Arb.). February 4, 2015 | Canadian Employment Law Today AbouT THe AuTHoR JEFFrEY r. SMITh Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. cRedit: BaRtek ZycZynSki/ShutteRStock

• Cover