Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2015 School board ordered to reinstate teacher acquitted of sexual assault charges Teacher was fired after school board felt there was enough evidence to show inappropriate behaviour, but arbitrator found former student's account was flawed By JEFFrEy r. SmiTh A n arbitrator has reinstated an Ontario teacher who was fired after being charged with and later acquitted of sexually abusing a student. Anthony Ross, 50, was a teacher with the York Region District School Board. His career as a teacher started in 1992 and he joined the York board in 2003, where he had a clean disciplinary record and good performance assessments. Early in Ross' teaching career — dur- ing the 1994-95 school year — Ross taught Grade 8 at a school in Scarborough, Ont. One of his students, a 13-year-old boy, had his father diagnosed with cancer. e stu- dent's mother contacted the school and asked for the teachers to keep a close eye on him because she was focused on her hus- band. Ross took this instruction to heart and forged a close relationship with the student and his family, including tutoring at the student's home. After the student graduated Grade 8, Ross maintained a close relationship with the family, including coaching a volleyball team with the student's older sister and of- fering his home for both of the student's sis- ters for use while he was on vacation with his wife. Over the years, Ross attended sev- eral family events where he encountered the former student. In November 2010, the student told his family and police that Ross had sexually abused him during that Grade 8 year, 16 years previous. He claimed Ross told him he loved him, kissed him, held his hand on occasion and masturbated him a couple of times. Ross denied the allegations, but po- lice charged him with five counts of sexual assault and sexual interference. Ross said he was shocked with the alle- gations, since he had been friends with the family for years. e school board trans- ferred him to another position that didn't involve interaction with minors until his trial, as required by his bail conditions. Ross went on trial in December 2011 and was acquitted of all charges. In its decision, the court stated it suspected the former stu- dent was telling the truth, but there were enough inconsistencies in his story that es- tablished reasonable doubt. Employer conducted own investigation after trial e school board launched its own inves- tigation and assigned him to stay at home while being paid during the investigation. e former student claimed the sexual abuse started with Ross consoling him in the hallway at school and hugging him. is led to hand-holding and Ross telling him he loved him, the former student said. Some- times it happened at the student's house during tutoring sessions, though they were never alone together. Eventually it escalated to kissing and Ross putting his hands in the student's pants and masturbating him. e former student initially said the latter hap- pened "four or five times" but could only recall the location of the first instance. e former student also said he once rode in the back seat of the car after a hockey game and his mother told Ross not to come to the games anymore. Afterwards, she said she had seen Ross holding the boy's hand. Ross said he recalled putting his hand on the student's hand to encourage him briefly, but did not hold it. He said he thought noth- ing of it at the time but it could be viewed differently nowadays. e former student's younger sister testi- fied she once went into the basement at her house when Ross was tutoring the student and she saw the student sitting in Ross' lap. When she reported it to her parents, the student at the time said he had lost his bal- ance and fallen into Ross' lap. Ross denied ever tutoring the student in the basement. Ross denied touching the former student sexually, or any physical contact other than hugging. He admitted he "might have" told the student he loved him, but only because the student was having a tough time due to his father's illness. Ross also acknowledged he didn't consider his actions inappropriate at the time but by today's standards they could be viewed that way. e former student claimed that over the years, he had avoided Ross at family events when Ross was there, and thought he would keep the abuse a secret. He encountered Ross at his older sister's wedding about six years after Grade 8, and he claimed Ross asked him if he missed and still loved him. e former student said Ross' friendship with his family began affecting him and, af- ter reading the autobiography of a former hockey player who was sexually abused by his coach, broke down one day and told his wife about his own sexual abuse. He then told his family and the police, leading to the charges. e former student said he hadn't re- membered details of the abuse until he used CaSe iN PoiNt: WRONGFUL DISMISSAL TEAchErS have significant responsibility and expectations placed on them, and as a result the standard for their conduct is high. If even a hint of sexual misconduct involving students comes up, it becomes a major problem for everyone involved due to the elements of trust given to teachers and the vulnerability of students. When such an allegation is made, there are usually repercussions for everyone. And it can ruin a teacher's career, even if the allegations aren't proven. It can be a delicate balance for the employer of a teacher accused of sexual abusing a student, as it must do its best to protect students but also ensure the teacher, as an employee, is given a fair shake and a reasonable investigation to determine what really happened. And while it might be tempting to jettison a teacher with the baggage of allegations, it's not so easy without definitive proof of misconduct. BAcKGrOUND

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