While it may seem somewhat academic, the applicable standard of proof to which the parties to a labour arbitration will be held is an important consideration and one that can have a significant impact on the outcome of the case. That said, since the Supreme Court of Canada decision in F.H. v. McDougall (2008) SCC 53 (CanLII), this issue was settled, or so it seemed.
The issue was recently considered by the Ontario Divisional Court in Toronto District School Board v. Elementary Teachers’ Federation of Ontario, (2013) ONSC 594 (CanLII).
In this case, the grievor, an elementary school teacher, was dismissed on May 18, 2011 on the grounds that “he had struck a student’s hand against a desk, and he had refused to allow a female student to leave the classroom to adjust her hijab, insulting her religion at the same time. These events occurred around June 10, 2010 when the grievor was acting as a supply teacher in the students’ classroom.”
The arbitrator held that the Board had not established that either event of misconduct occurred, and he ordered the grievor reinstated.
The Applicable Standard of Proof
In discussing the applicable standard of proof, the arbitrator noted:
The appropriate standard against which the Employer must prove its case is proof on a balance of probabilities. In applying this standard, the seriousness of the allegations are taken into account.
He observed that teachers, as professionals, are held to a higher standard of conduct than non-professional employees and then observed that “there may be degrees of probability within the civil standard, depending on the subject matter” and, in quoting from another arbitration award where it was stated that “a high degree of probability” is required where a teacher’s professional reputation is at stake. The arbitrator then observed:
I agree in the above approach to consideration of the evidence in the instant case. Thus, given the serious nature of the allegations against the grievor and the seriousness of the consequences, the evidence concerning the students’ allegations must be carefully considered to determine whether or not the events occurred. Accordingly, there must be clear and convincing proof the grievor did slap Student A’s hand and did inappropriately remark upon Student B’s religion.
The Arbitrator concluded that:
On review of all the relevant evidence before me, I find, on a balance of probabilities, the evidence is not clear and convincing so as to establish the grievor slapped Student A on the hand on June 10, 2010, or, to establish the grievor made an inappropriate comment about Student B’s religion.
Based on the totality of the relevant evidence before me, I find that the Employer has not borne the onus on it to prove, on a balance of probabilities, on clear and convincing evidence, the grievor slapped Student A’s hand on June 10, 2010, and, around June 10, 2011 [sic], made an inappropriate remark about Student B’s religion.
The Divisional Court considered the Supreme Court of Canada decision in F.H. v. McDougall (2008) SCC 53 (CanLII) (which was not cited to the arbitrator). This case held that there was one standard of proof in civil matters and that standard of proof was on a balance of probabilities. As Justice Rothstein put it:
In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.
As to the cogency of the evidence, he stated:
Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again there is no objective standard to measure sufficiency.
The Court found that, given McDougall, the arbitrator erred in suggesting an intermediate standard of proof, though the Divisional Court held that this error was not fatal to the decision that he reached because, looking at the reasons as a whole, the arbitrator did not apply that wrong standard:
When the reasons of this arbitrator are read as a whole, I am satisfied that he did not apply the wrong standard of proof. Notably, he stated twice, in his summary at the end of the award, that he was applying the balance of probabilities test. In his opinion, the evidence presented by the Board was not sufficiently cogent and convincing to establish the Board’s allegations against the grievor.
The language of “clear and convincing” evidence does not indicate that the arbitrator made an error in law. Indeed, the fact he sought clear and convincing evidence in order to decide whether the employer met its burden is fully consistent with the instructions from McDougall that evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (at para. 46). The arbitrator is not to be faulted because he examined the evidence very carefully in the present case, where credibility was so important and where there were many inconsistencies in the evidence.
The Arbitrator was very concerned with the credibility of the Board’s key witnesses and the inconsistencies in the evidence that became pronounced.
The Divisional Court affirmed that the standard of proof in civil cases is on a balance of probabilities. The Court read the arbitration decision as a whole, and found on that liberal reading, it was saved from the errors that the Court found to have been made. Further, because the Arbitrator reached his decision as a result of credibility findings and determinations that some of the Board’s witnesses were unreliable, matters uniquely within his abilities, the Court concluded that “his conclusion was within a range of possible, acceptable outcomes, given the evidence before him”. The Board’s application for judicial review was dismissed.