Constructive Dismissal: Teachers' And School Boards ... · CONSTRUCTIVE DISMISSAL: TEACHERS' AND...

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19 Constructive Dismissal: Teachers' And School Boards' Perspective Prepared and Presented by: Teresa R. Haykowsky Edmonton Catholic Schools Debra A. Tumbach Alberta School Boards Association

Transcript of Constructive Dismissal: Teachers' And School Boards ... · CONSTRUCTIVE DISMISSAL: TEACHERS' AND...

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Constructive Dismissal: Teachers' And

School Boards' Perspective

Prepared and Presented by:

Teresa R. HaykowskyEdmonton Catholic Schools

Debra A. Tumbach

Alberta School Boards Association

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CONSTRUCTIVE DISMISSAL:

TEACHERS' AND SCHOOL BOARDS' PERSPECTIVE

Teresa R. HaykowskyLegal Counsel, Edmonton Catholic Schools

- and-

Debra A. Tumbach,

Senior Staff Lawyer, Legal Services, Alberta School Boards Association

Introduction

Work is one of the most fundamental aspects in a teacher's life. Teachers play a

vital role in our society. As noted by the Supreme Court of Canada a person's

employment is an essential component of his/her sense of identity, self-worth and

emotional being. ̂ This statement applies to teachers as well.

The purpose of this paper is to discuss current issues in the teacher constructive

dismissal jurisprudence rendered by the Alberta Board of Reference and examine how the

doctrine of constructive dismissal is used in general by teachers in Alberta.

At the outset of this paper, we highlight the Board of Reference case law

regarding the imique role played by the school board as an employer. Following that we

discuss the common law in Alberta as to constructive dismissal. Then we examine

teacher constructive dismissal issues based on the Alberta Board of Reference

jurisprudence. Due to the sheer number of constructive dismissal cases, we have limited

the cases in this paper to the key Alberta Board of Reference jurisprudence as well as

important decisions rendered in the area of constructive dismissal by the Alberta courts.

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««''j, .» *•

We then look at some of the school-related scenarios which may give ris'

teacher constructive dismissal allegations as well discuss some case law tea<

constructive dismissal trends. Following that we provide risk management tips

pointers as to how to avoid teacher constructive dismissal claims.

I. The Unique Role of an Albertan School Board as an Employer

The Board of Reference of Alberta has recognized that Alberta school bo£

fulfill a unique role as an employer.^ While the following quote is lengthy, it sets

unequivocally the distinct duties fulfilled by a school board as an employer:

The separation of the legislative, executive, and judicial branches ofsociety, has, until comparatively recently, been a fundamental buildingblock in the development of Canadian society. Attempts by one branch tounduly influence or interfere with the others are vigorously opposed.When distinct entities perform each of the tasks of making rules (thelegislative role), administering them (the executive role), and judgingthose who are alleged to have contravened them (the judicial role), it is, ifnot easy, at least clear who should perform which task, and who shouldnot.

Issues and roles become less clear when one entity is asked to perform twoor more roles. In various ways and at various times the legislature isincreasingly asking rule making bodies to also perform judicial functions.The Alberta legislature has required school boards to perform the triplerole of rule maker, executive decision maker, and the judge of certaindecisions. This puts elected Trustees in an extremely demanding position,because they must act in very different ways depending on the capacity inwhich they are acting. (...)

When a school board must act as judge, another set of rules related toconcepts of fairness and natural justice apply to them. The past experience

' United Food & Commercial Workers, Local 1518 (UFCW) v. Kmart Canada Ltd. [1999] 2 SCR 10831102

^ Durieuxv. Chinook's Edge Regional Division No. 5 unreported Alberta Board of Reference decision(November 20, 1996) Referee David Elliott at 31 and 32.

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of elected trustees may make it difficult for them to switch roles and doeverything that is demanded of them. The fact that judging functions maynot be a common event makes the transformation that much more difficult.

Demand of the legislation

However difficult the transformation a judging function may be, theAlberta legislature has imposed that function and obligation on schoolboards. Having that fimction, school boards are obligated to meet thestandards imposed by them by the Courts in performing their quasi-judicial functions.

Comparatively little account of the difficulties of role transformation -fi-om rule maker to judge - is accorded to trustees. The courts insist onhigh standards of fair play both substantively and procedurally.

(...)Accepting that a trustee may well have been involved in or have priorknowledge of the matters the subject of a quasi-judicial proceeding, thetrustee must make full disclosure of that past involvement and knowledge.The reason for this is to allow the person appearing before the schoolboard to know what information the trustees have about the case and givethe person an opportunity to answer or explain the information the trusteesalready have.

One Board of Reference^ described the role of the school board as follows in relation to

teacher terminations:

There seems to be some confusion over the Board's role in terminating teacherswhich I thought was well settled in this Province but bears repeating. I findfavour and so quote fi-om the decision of Madam Justice McFadyen inCasagrande and Hinton Roman Catholic Separate School District No. 155(1987), 79 A.R. 241, and which I quoted in an earlier decision of mine in BlazinaV. Calgary R.C. Separate School District No. 1 (1989) 101 A.R. 35 (Board ofReference). Madam Justice McFadyen at page 22, says:

The school board is the employer of the teacher within its jurisdiction,and in the case of termination proceedings, is the party that is seekingto terminate the contract of employment. While the school board mustact fairly towards the teachers in considering termination, the school

GUberg v. Rocf^ View School Division No. 42 [1992] AJ No. 1289 Rawlins, J. (Alta QB) at para.3 (QL)

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board is not constituted as an impartial and an independent tribunalestablished to judge a dispute between two unrelated parties . . . Itmust make the decision to give notice of its intention to terminate acontract of employment. It must decide that substantial grounds existto support their termination before giving notice. (...) While some ofthe functions of the board may be performed by AdministrativeOfficers employed by it, these officers are not independent of theboard. These officers act as employees of the board and in its name.

The board's duty of reasonableness and faimess must be viewed in thiscontext. Strict rules which are imposed upon independent tribunalscannot apply to hearings before a school board. The school board doesnot lose its character of an employer who is seeking to terminate thecontract of employment because the duty of faimess or reasonablenessis imposed upon it.

What can one take from these decisions? A school board does not lose its

character of an employer who is seeking to terminate the contract of employment because

the duty of faimess or reasonableness is imposed upon it.^

11. Legislative Backdrop of Teacher Terminations in Alberta

a. School Act Provisions regarding Teacher Termination

The Court of Queen's Bench of Alberta, acting as the Board of Reference^ has

recognized that termination of a teacher's employment with a school board may come

about in various ways:

mutual agreement;termination by a teacher;termination by a board.

^ Casagrande v. Hinton Roman Catholic Separate School District No. 155 [1987] AJ No. 315»fMcFadyen, J.) (QL)Fort McMurray School District No. 2833 v. Duperron, [1989] AJNo. 631, Veit, J. (Alta QB) (QL).

Appeal from decision of Chamber Judge (Veit, J.) hearing motion for judicial review of Board ofReference. Duperron appealing alleged forced resignation. The Court of Appeal held that it was proper ofthe Chamber Judge to refuse judicial review and uphold result of Board of Reference. Appeal dismissed at[1990] AJ No. 609 (Alta CA), Cote JA for the Court (QL)

b •

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Here is how the School Act, R.S.A. 2000, c. S-1 (the ''School Act") deals with the

issue of teacher termination in Alberta:

Termination of Contract

106(1) A contract of employment between a board and a teacher automaticallyterminates at the time that

(a) the certificate of qualification of the teacher is suspended or cancelled bythe Minister, or

(b) the certificate of qualification of the teacher expires.

(2) A contract of employment between a board and a teacher or a designationof a teacher made pursuant to section 19, 95, or 96 may be terminated bymutual consent.

Termination by board

107(1) Whether or not the board has suspended a teacher under section 105 andwhether or not the suspension, if any, has been appealed to the Board ofReference, a board may terminate

(a) a contract of employment with a teacher, or(b) a designation of a teacher made pursuant to section 19,95 or 96,

after giving the teacher written notice of termination not less than 30 daysprior to the effective date of termination.

(2) In terminating a contract of employment or a designation, the board shallact reasonably.

(3) A notice of termination of a contract of employment or a designation shallspecify the reasons for the termination.

(4) Where a teacher has been served with a notice of termination of a contractof employment or a designation, the board may suspend the teacher fi-omthe performance of the teacher's duties in accordance with the notice.

(5) A notice of termination of or the termination of a designation does notterminate a contract of employment.

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(6) A teacher who has been suspended under this section must be paid theteacher's salary until the effective date of the termination of the teacher'scontract of employment or the designation.

(7) If a teacher is served with notice of termination under subsection (1) andthe teacher has been suspended under section 105 before the notice isserved, an appeal, if any, to the Board of Reference in respect of thesuspension shall not be proceeded with but is merged with the appeal, ifany, to the Board of Reference in respect of the termination under thissection.

Termination by teacher

108(1) A teacher may terminate

(a) a contract of employment with a board, or(b) a designation of the teacher made pursuant to section 19, 95 or 96,

by giving the board 30 days' written notice of the teacher's intention toterminate that contract or designation.

(2) If a teacher has terminated the teacher's contract of employment with aboard before rendering any service under the contract, the teacher shall notbe employed by another board unless the board with which the teacher'scontract was terminated gives its prior approval to the teacher's employmentwith the other board.

Section 107(2) is clear that upon proper notice, a school board, acting reasonably, may

terminate a contract of employment with a teacher.^

b. The Board of Reference in Alberta

The Alberta Court of Appeal has recognized that the Alberta courts have no

jurisdiction to adjudicate on a dispute between a teacher and the school board where the

School Act provides a method to resolve teacher-related termination disputes arising

® Paul Green v. Edmonton Public School District No. 7 unreported Alberta Board of Reference decision(October 27, 1992) Leferud, J. at 4

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from legislation, employment contract or a collective agreement.^ This is because the

School Act appeal provisions constitute statutory remedies which must be pursued in the

labour law context.

In Alberta the Board of Reference is charged with the responsibility, upon appeal

to it, to determine whether a Board of Trustees has made out its statutory School Act

requirements in the case of a termination.^

The Board of Reference is a creature of statute. Section 132 of the School Act

provides that a teacher who is dissatisfied with the termination of a contract may appeal

to the Board of Reference. The School Act provides a general right of appeal whenever a

disagreement arises between a board and a teacher with respect to a termination of a

contract of employment. The Board of Reference has held that its statutory authority to

address teacher termination appeals extends to cases of constructive dismissal.^

' Sorochan v. St Albert Protestant Separate School District No. 6 [2004] AJ No. 42 (Alta CA) at para. 11(QL)

Clay V. Calgary Board ofEducation [1986] AJ No. 1032 Hutchinson, J. (QL)' Myroniuk v. Minburn (County Board of Education No. 27) [1986] AJ No. 629 (QL); Gilson v. FtMcMillan School Division unreported Alberta Board of Reference decision (June 26,1985) McFadyen, J.;Myroniuk v. County ofMinburn Virtue J., (1986) 46 Alta Law Reporter (2d) 152; Nowosad andDumkaV. County of Vulcan No. 2 unreported Alberta Board of Reference decision, (May 2,1989) Virtue, J.;Dumka vs. County of Vulcan No. 2 unreported Alberta Board of Reference judicial review of Dumka,supra (September 21,1995) Veit, J. (Alta QB); Board of Education of the County of Vulcan No. 2 v.Nowosady unreported Alberta Board of Reference judicial review of Nowosad, suproy Veit J.; FortMcMurrity School District No. 2833 v. Duperrony supra note 2; Grovum v. Northland School DivisionNo. 6i [1991] AJ No. 703 (Alta CA) (QL); Watson v. The Board of Trustees of Edmonton Public SchoolDistrict No. 7 unreported Alberta Board of Reference decision (June 20,1996) Referee Gwen Randall at13; Rear v. Board of Trustees ofSturgeon School Division No. 24 y unreported Alberta Board of Referencedecision (Septeihber 9,1994) Referee Andrew Sims at 39 (Appeal dismissed, see [1998] AJ No. 1000 (AltaCA) (QL). The Court endorsed the findings of the Board of Reference on the transfer hearing before theBoard of Trustees.)

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While the Alberta Teachers' Association ("ATA") usually assists by providing

counsel for the teacher, it is the teacher who has the right of appeal (as opposed to the

The Board of Reference is a civil administrative tribunal." The standard applied

in law by the Board of Reference is balance of probabilities.^^ Section 132 reads as

Appeal

132(1) This section does not apply to a superintendent, chief deputysuperintendent, deputy superintendent, associate superintendent oiassistant superintendent.

(2) Except where this Act prohibits an appeal, if a disagreement arisesbetween a board and a teacher with respect to

(a) a termination of a contract of employment,(b) a suspension of the teacher,(c) a termination of a designation of a teacher, or(d) the refusal of a board to give an approval pursuant to section

108(2),

the board or the teacher may appeal the matter by sending to the Minister znotice of appeal in accordance with section 133.

Under this statutory appeal process, the school board or the teacher may appeal tc

the Minister of Learning, who then refers the appeal to the Board of Reference.'^ A

Board of Reference may investigate and hear the appeal. The School Act sets out the

mechanism by which the reference is initiated and deals with the responsibilities of the

Board of Reference, its powers and the effect of its decision.

Supra note 6 at para. 11." Nandv. Edmonton Public School District No. 7 [1994] AJNo. 675 Lieberman, J. (Conrad JAconcurred. Harradance JA delivered separate reasons) (Alta CA) at para. 4Nand, Ibid, at para. 17. (See separate reasons by Harridance, J. at para 43 to 64.)

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Faced with an appeal based upon a constructive dismissal allegation, a Board of

Reference hears and listens to the evidence of the parties and makes a decision as to the

allegations of constructive dismissal.

Does a Board of Reference have to consider the common law of Alberta when it

renders its decision? This question was assessed by Andrekson, J. in John Clark v. The

Board of Education of the County of Thorhild No, T'^. The teacher argued that the

Board of Reference should not follow the common law as it pertains to dismissal issues

but the Board of Reference should be persuaded by the arbitration decisions, which

interpret collective agreements, and that since the Board of Reference is a unique

legislative entity, it should not be bound to follow Supreme Court of Canada decisions.

Andrekson, J. disagreed noting that he could not accede to the request to set aside the

common law as it pertains to dismissal issues;

If the legislator had so desired, the legislation would reflect such a desire.If the parties to a collective agreement had so agreed, then it might be adifferent matter. I propose to follow the common law.^^

The statutory powers of the Board of Reference in relation to a claim of

constructive dismissal are as follows:

Order of Board

138 In deciding the matter being appealed, the Board of Reference may makean order doing one or more of the following:

(a) conjhrming the termination, suspension or refusal to give an approval;(b) changing the termination date of a contract of employment or of a

designation;

" Jason V. Ponoka (County) Board of Education No. 3 [1988] A3 No 441, Murray, J. (AltaQB) (QL)unreported Alberta Board of Reference decision (January 27,1986) Andrekson, J.ibid, at 14

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(c) directing the boardi. to reinstate the contract of employment or the designation of j

teacher, or

ii. to give the approval;(d) removing the suspension;(e) confirming the suspension and authorizing the board to terminate tb

contract of employment of the teacher;(f) directing a board to pay to the teacher an amount of money equivalent t(

the teacher's salary for a specified period;(g) authorizing a board not to pay salary to the teacher for a specified period;(h) providing for any matter not referred to in clauses (a) to (b) that the Boan

considers just in the circumstances.

The powers of the Board of Reference are very broad. In Mars v. Lakelam

Catholic School District No. 150^^, Foster, J. acting for the Board of Reference noted tb

breadth of these powers. The power of the Board of Reference is not limited to commoi

law remedies as in an action for wrongful dismissal where damages in lieu of notic

would be if the remedy were available. The Board of Reference may not only order

payment of money but may reinstate the teacher, alter the date of termination or mak

any order it considers just with respect to the appeal.

That being stated, the Board of Reference does not have an unfettered discretion

The Board of Reference must act within the confines of the statutory parameters. ̂ ®

III. The Law of Constructive Dismissal in Alberta

a. Common law

From a colloquial point of view, constructive dismissal may be described a

follows, "A deal's a deal - one party can't change it without the other's consent.

[1985] AJ No. 517 Foster, J. (QL)" Jason, supra note 13

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The leading constructive dismissal case is the Supreme Court of Canada decision

in Farber v. Royal Trust Co. [1997] 1 SCR 846.

Where an employer unilaterally makes a fundamental or substantial change to an

employee's contract of employment that violates the terms of the employment contract,

the employer commits a fundamental breach of the contract that results in its termination

and entitles the employee to consider himself or herself constructively dismissed.

The Farber decision was adopted by the Alberta Court of Appeal in Patha/^^ v.

Jannock Steel Fabricating Co. where the **test" was set out as follows:

The question which must be answered is whether a reasonable person inthe same situation as the appellant would have felt that the essential termsof the employment contract were being substantially changed. If theanswer is affirmative then the respondent has committed a fundamentalbreach and the appellant is entitled to consider himself constructivelyterminated.^^

Pathak tells us, in part, that a constructive dismissal analysis requires an

examination of the contractual relationship between the parties^^ because the legal

concept of constructive dismissal is grounded in the law of contract.^^

A change unilaterally imposed by an employer, upon which an employee

reUes to claim constructive dismissal, must be fundamental, severe, serious,

unilateral and substantial so as to result in the employee performing a different

Riabov v. Lac la Biche School Division No. 51 unreported Alberta Board of Reference decision (July 101985) McDonald, J. at 12M. Certosimo, Employee Perceptions and Constructive Dismissal Workplace News (October 2003) at

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^[1999] AJ No. 19 (Alta CA) (QL) at para 15^'The Ontario Court of Appeal applied Farber, supra note 20, to the common law cases: R^nolds v.Inopac Inc. (1998) 37 OR (3rd) 577 (CA); Schumacher v. Toronto Dominion Bank (1999) 173 DLR (4"')577 (OntCA), leave to appeal to S.C.C. denied (1999) SCCA No. 369, January 20,2000.^ Schumacher, supra note 21; Orst v. MacDonald DeitweUer and Associates Ltd. (1986) 16 CCEL 41(BCCA); Smith v. Viking HeUcopter Ltd. (1989) 24 CCEL 113 (Ont. CA)

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job. Minor or reasonable changes will not amount to fundamental change in

essential contractual terms.^^

To decide whether an employee has been constructively dismissed the court will

determine the following (we have framed it from the perspective of a teacher):

1. the exact terms of the teacher's employment contract (i.e. the schoolboard's exact contractual obligations to the teacher), which may beexpress or implied;

2. whether the school board has breached any of these terms (i.e. is theschool board's breach sufficiently serious to be characterized asrepudiatory in nature?); and

3. whether the breach is fundamental, entitling the teacher to consider thecontract repudiated (i.e. has the teacher elected to terminate the contract ina timely fashion or has he/she condoned or affirmed the school board'salleged breach?)

Most constructive dismissal cases depend on an evaluation of the specific facts -

what job was the teacher hired to do and how, if at all, has the teacher's job evolved?

The onus is on the teacher to prove, on a balance of probabilities, the terms of the

contract and that the breach has occurred.^^ As noted in one Board of Reference

decision, to make his/her case, a teacher cannot simply argue that the school board was

wrong in the way it acted. The teacher must prove constructive dismissal. While the

following admonition of Mr. Justice Kerans was rendered in a different context, it is

nonetheless applicable to the issue at hand acting as the Board of Reference:

I have the impression that Mr. Harris has the view that he might succeedhere if he could convince me that he was right and the Board was wrong.If that was his view, this indicates an unfortunate misunderstanding as to

Ahlbergv. 0 and K Orenstein and Koppel Inc. [2001] AJNo. 1437 (Alta. QB) Perras J. at para. 9 (QL)Ziflcin V. Axa Insurance (Canada) (1996) 20 CCEL (2d) 272 Nash J. (Alta QB) at para. 28Scaffold Connection Corporation [2001] No. 1091 (Alta QB) Wachowich CJQB at para 21 (QL)Zifkin, supra note 24; Walker v. International Telefilm Enterprises Limited (1994) 4 CCEL (2d) 147

(BCSC), Ahlberg, supra note 23 at para. 13

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my role. I am not the Minister of Education. I will not attempt to usurpthe function of either. I do not run schools. I do not determine

educational policy. (...)

When there is no evidence regarding the employment contract, the plaintiff will

not be successful in an allegation of constructive dismissal

From school board perspective, a school board requires flexibility to modify job

assignments, work schedules, teacher placements, and other terms and conditions of the

teacher's employment contract to respond to its legitimate education operations. As

noted by Finlayson, J.A. of the Ontario Court of Appeal, an employer needs to be free to

make reasonable changes to meet its business standards:

It has never been my imderstanding that an employee is entitled to a job for life ina place of his choosing. If he wishes to remain an employee of a given company,he must expect reasonable dislocations in that employment.^^

In this regard the School Act has afforded school boards reasonable leeway. However, a

school board may not drive a teacher from a job or otherwise penalized a teacher for an

extraneous reason.

b. The Law as to Teacher Constructive Dismissal - Board of Reference Decisions

The Board of Reference has recognized that constructive dismissal involves a

refusal by a school board to Hve by the contract of employment.^^ The objective test set

out in Farber and applied by the Alberta Court of Appeal in Pathak has been applied by

the Board of Reference in Alberta.

Our review is that Board of Reference has often used an objective test.

Harris v. Board of Trustees of Edmonton Public Schools (unreported Alberta Board of Referencedecision), Kerans, J, sitting as a Board of Reference, gave a strong admonition in his "little speech" at 5^Cheung v. Edmonton Public School Board [2000] A. J. No. 249 Master Breitkreuz at para.9^Smith v. Viking Helicopter Ltd [1989] OJ No. 371 (Ont. CA) third last para, on last page (QL)^Reart supra note 9 at 40

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A teacher's contract of employment consists of:

• the terms and conditions of the collective agreement between the schoolboard and the Alberta Teachers' Association;

• sections 97 to 99 and 101 to 110 of the School Act\ and

the terms and conditions agreed to between the board and the teacher,which cannot be in conflict with either the terms and conditions of the

collective agreement or the provisions of the School Act.

The Board of Reference has held that for constructive dismissal to be found, the

school board must be responsible for some objective conduct which constitutes a

fundamental change in the employment or a unilateral change in a significant term of

employment.

In the assessment of constructive dismissal the Board of Reference looks at the

teacher employment contract from an objective point of view. The Board of Reference

has held that it must not be swayed by the teacher's particular position at the time of the

action^^. In other words, a teacher's perception of constructive dismissal is n^ sufficient

to be a fundamental breach of the employment contract. The determination must be

objective; the "test" may be viewed as follows:

Would a reasonable teacher in the same position as the teacher haveconsidered the essential terms of the employment contract to have been'substantially changed?

The "test" focuses primarily on the breach itself, not the subjective perceptions of

the Teacher.^'^

Watson, supra note 9 at 13Rear, supra note 9 at 43Rear, supra note at 43

^ Watson, supra note 9 at 14

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Worthy of note is that not every unilateral change in terms and conditions of a

teacher's employment contract amounts to constructive dismissal. In addition, a

teacher's employment contract may contemplate flexibility and change over time.

Again, only substantial breaches give rise to constructive dismissal as noted by

McFadyen J. in Gilson v. Fort Vermilion School Division No, 52 and mentioned in

Reai^":

The refusal must of course be substantial in the sense that it is not a mere

repudiation of some minor rights of the servant or of non-vital provision ofa contract of employment. The question is ever one of degree. If theconduct of the employer amounts to a basic refusal to continue the servanton the agreed terms of the employment, then there is at once a wrongfuldismissal under repudiation of the contract.^^

If a Jeacher's employment contract provides the school board the right to alter

certain terms of employment such as reporting relationships, the making of such an

alteration with not amount to a constructive dismissal as the school board is merely

exercising a right provided in the employment contract, the School Act and/or the

Collective Agreement.

However, where some of the employment terms are not explicit, a Board of

Reference will examine the rights and obligations of the parties and the nature of the

change in light of the entire employment relationship.

Rear, supra note 9 at 40Rear, Ibid, at 40Unreported Alberta Board of Reference decision (June 26,1985) McFadyen. J. (Alta QB)See note 9 at 40 and 41

Also expressed in Pulosse v. Murphy Oil Company [1990] 75 Alta LR (2d) 49; Hamilton and OlsonSurvey Limited v. Auto [1993] 12 Alta L.R. [3d] 431 (Alta OA)

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Also if a teacher leaves the teaching position of his/her own accord or if the

teacher did not want to perform duties which he/she was obliged to perform, then the

teacher has no grounds for a complaint.

Constructive dismissal may take diverse forms: it may occur by conduct or it may

occur by words.^° In Nowosad and Dumka v. County of Vulcan No. a case

involving a teacher transfer, Virtue, J., acting as the Board of Reference, described some

elements that might constitute constructive dismissal:

Modem case law in matters of employment generally recognizes that ademotion in job function, a loss of prestige, a change in rank, a unilateralchange for the worse in the employee's position, a change in adverselyaffecting chances for promotion, a change in reporting level, an alterationof fringe benefits, indeed a wide variety of circumstances arising fromunilateral change in job function and status have been held to amount toconstructive dismissal.

Particularly significant in the context of allegations by a teacher of constmctive

dismissal in Alberta is the expressed statutory obligation on the school board to "act

reasonably".

Section 107(2) of the School Act reads:

107(2) In terminating a contract of employment or a designation, theboard shall act reasonably.

Section 2 of the School Act reads:

The exercise of any right, or the receipt of any benefit under this Act issubject to those limitations that are reasonable in each circumstance underwhich the right is being exercised or the benefit is being received.

Myroniuk, supra note 9; Re Rubel Bronze Metal Company v. Vos [1918] 1 KB 315; Carrickv. CooperCanada Ltd. (1983) 2 CCEC 87*^Supra note 9

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The word "reasonably" has been defined by Lefsrud, J., acting as the Board of

Reference in Paul Green, supra^^ as follows:

The word "reasonably" is commonly used and, by dictionary (?)definition, is given such meanings as fairly, properly, justly and rationally.It implies being neither immoderate nor excessive, and is stated to besynonymous with such terms as honesty, equitably, rationally, fairly andsuitably.

In assessing the reasonableness of a school board's action, a Board of Reference

may measure this against the same standard as that applicable to any other employer

seeking to justify dismissal.^^ The Board of Reference has held that whereas in a civil

action an employer is required to act reasonably, a school board too is required to act

reasonably in relation to a teacher termination.^

In Gazdarica v. Calgary R,C.S.S.D, No, O'Leary J. went into some detail to

determine how a Board of Reference should assess the reasonableness of a school board's

action. O'Leary J. held that the duty to act reasonably in the School Act comprises

elements of both procedural fairness and substantive just cause:

The procedural element of reasonableness involves procedural fairness. Aschool board, in reaching its decision to terminate a contract, for whateverreason, must act fairly, in good faith and without bias, and in accordancewith its own stated policies. The teacher must be given the notice requiredby s. 89 and, at least where the dismissal purports to be for cause, the

Supra note 6 at 4Gazdarica v. The Board of Trustees ofthe Calgary Roman Catholic Separate School District No. 1

unreported Alberta Board of Reference decision (August 31 1989) Caswey, J. at 17 (The Appellant teacherunsuccessfully applied for an order in tiie nature of certiorari quashing die decision of Mr. Justice O'Learysitting at the Board of Reference, see infra note 44.)^ [1988] AT No. 613 O'Leary J. (Alta QB) (QL) (new Board of Reference had been appointed and O'LearyJ. heard this case. O'Leary J. upheld the Respondent's termination.)(1998) 60 Alta. LR (d) 378

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board must afford the teacher a reasonable opportunity to be heard andmust observe the other requirements of procedural faimess.'^^

As a point of interest, in Green*^ supra, Lefsrud, J. highlighted that the test of

reasonableness must address the obligations of not only of the school board but also of

the teacher and the obligations of the teacher to his students, their parents and society in

general/® In the school setting, a teacher's rights do not exist in a vacuum.

c. A Teacher Transfer May Result in a Constructive Dismissal

Unless it is contrary to the express vmtten contract between the parties, a decision

to transfer a teacher is not one which constitutes a substantial unilateral change in the

employment contract.'^^ When then can a teacher transfer result in a constructive

dismissal?

While the School Act gives a school board the right to transfer teachers, an

unreasonable transfer may give rise to a constructive dismissal.^® Unreasonableness must

go to the root of the employment contract and indicate an unwillingness to be bound by

contract. This assessment is decided on the unique merits of each case.

In the Nowosai^^ judicial review, Veit, J. elaborated on when and how a transfer

decision may amount to a constructive dismissal/^

It is inappropriate to focus on the notice of "transfer" as opposed to thenotion of the "circumstances of the transfer" when the issue is constructive

dismissal. I am prepared to accept, for the purposes of this motion, that

Ibid, at 380

supra note 6 at 5■^^See also Rear, supra note 9

Gilson, supra note 37 at 83; Rhodes v. Palliser Regional Division No. 26, unreported Alberta Board ofReference decision (March 23, 2000) Referee Gwen Randall, Q.C.

Rear, supra note 9 at 42.Supra note 9Nowosad supra note 9 {Nowosad is applied in Rear, supra note 9 at 42)

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the transfer of a teacher is, in the absence of a specific contract limitingthe employer's statutory right to transfer, a unilateral right of theemployer.

The issue in this case, however, is not the transfer qua transfer. The Boardof Reference concluded that the transfer in this case was a constructivedismissal. To put it in another way, the constructive dismissal of a teachermay be effected by means other than a transfer. Where the issue isconstructive dismissal, a teacher could not merely prove a unilateraltransfer and rest her case; she must go on to show that her particulartransfer, in all its circumstances, was a constructive dismissal.

Virtue, J. made some finding as to what constitutes constructive dismissalin law. The applicant's position is that constructive dismissal of a teacherin the context of a transfer cannot exist except where there is an expresswritten agreement or unless bad faith is established.

The applicant advances GUson and Myroniuk in support of thatproposition; in my view, neither decision has that effect. Gilson was acase of resignation. In that case, one option offered to the teacher was atransfer. McFadyen, J., at p. 83, does indeed say:

Unless it is contrary to the express written agreementbetween the parties or unless bad faith is established, thedecision to transfer is not one which can be considered to

be a substantial unilateral change in the contract ofemployment by the employer, (emphasis added)

It will be observed that in that decision and indeed in that very sentence,McFadyen, J. was speaking of a mere transfer, of a transfer qua transfer. Iunequivocally accept her view of the employer's statutory right of transferand said so in Myroniuk, I accept that if Virtue, J. had found aconstructive dismissal merely because Nowosad had been transferred hewould have erred in law; he made no such error.^^

In Reat^^, supra, the teacher tried to argue that the school board could only

transfer him where it were reasonable to do so, relying on s. 2 of the School Act and

general law of employment. Referee Sims disagreed for the following reasons:

53Rear, supra note 9 at 47.Supra note 9

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... Taken to its logical conclusion, the Appellant's position would be thatany unreasonable doing when a management is being exercised wouldamount to a constructive dismissal.

As a matter of law, I cannot jump quite as far as the Appellant wouldwish. Many things may be unreasonable in their respective context. Anunreasonable dealing may give rise to a constructive dismissal in somecircumstances. However, I do not accept that every unreasonable dealingmust, as a matter of law, go to the root of the contract of employment so asto amount to a constructive dismissal.

If that were so, s. 114(1) of the School Act would blossom into a generaljurisdiction to review all school board dealings with teachers. This isbeyond what the Legislature intended. Only acts of unreasonableness"going to the root of the contract" amount to a constructive dismissal.Persons subjected to lesser acts of unreasonableness must find theirremedy elsewhere.

Having said this, I accept that some acts of unreasonableness may well goto the root of the employment contract and therefore constituteconstructive dismissal. An unreasonable transfer (or one made in badfaith) may be an example of this.

In making the above statement, Referee Sims relied upon the ruling of Veit, J. in

Dumka wherein she held that an unreasonable management decision may actually not

give rise to a claim based on constructive dismissal:

. . . Unreasonableness where there is a duty to be reasonable andconstructive dismissal are different ways in which an employer canbecome liable to an employee for a management decision.

If a transfer decision is unreasonable, that is enough, on the contractualfacts found by the referee to set aside the transfer. That is undoubtedlywhy the referee's attention was drawn by counsel to the elements ofreasonableness in each of the Nowosad and Dumka cases. However,reasonableness, or the lack of it, is not a necessary answer to theconstructive dismissal issues.

In Nowosad the referee held that an unreasonable transfer decision was a

unilateral change in employment and a constructive dismissal. On the

Supra note 9 at 7 and 8

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facts of that case, the ellipsis from unreasonable transfer to constructivedismissal was not only understandable but imcontested. It appears to havebeen taken for granted in that case that Nowosad's transfer to the HutteriteColony was perceived as a loss of prestige, that it constituted a demotionin job function, etc. From that perspective, the referee's explicit relianceon a set of named factors were merely an elucidation of the "unilateralchange for the worse in the employee's position" aspect of constructivedismissal. Alternatively, however, it provided an independent basis for adecision: an unreasonable transfer where the employer had a duty to bereasonable.

DumkOj Nowosady and Rear stand for the proposition that in Alberta the Board of

Reference has "no independent free standing power" to set aside a transfer merely

because it was unreasonable.^^ The jurisdiction of the Board of Reference depends upon

there having been a dismissal, actual or constructive. As noted by Referee Sims in

Rear?^

I read Veit, J. to say that two things may give rise to that jurisdiction:

(a) a "crowding out" based on factors liked those describedin Virtue, J. in Nowosad and Dumka, supra.

(b) an unreasonable transfer where there is a duty to bereasonable.

In the second case, the unreasonableness must go to the root of theemployment contract and indicate an unwillingness to be bound bythat contract.

An unreasonable transfer may amount to a constructive dismissal wherethere is a duty to be reasonable. However, a transfer that otherwiseamounts to a constructive dismissal is not saved just because it isreasonable. The two grounds may overlap but they are not congruent.Unreasonableness may be used as a sword, because it may amount tojudicial constructive dismissal. Reasonableness cannot be used as a shieldto salvage a transfer that otherwise amounts to a constructive dismissal.

56Reafy supra note 9 at 48Ibid, at 48 and 49.

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Referee Sims then went on to assess what constitutes reasonable limitations on a

Superintendent's rights to transfer a teacher under the School Act. Referee Sims noted

that elements of unreasonableness in a Superintendent's initial decision may not void the

decision where there are matters that can be cured through the appeal process:

"Subject to reasonable limitation in the circumstances" does not equate to"subject to the teacher's approval". The Superintendent has the basic rightto decide on a transfer. In doing so, the Superintendent can consider suchmatters as parental reaction to the teacher, available teachers, school needsand so on.

It is a reasonable limitation on the right to transfer a teacher that theteacher be made in good faith without mala-fides or improper purpose andin a manner that complies with the School Act and the general law. It is areasonable limitation that the transfer be discussed with the teacher, amatter provided for in the School Board's policy (. . .) It will also be areasonable limitation, in most circumstances of administration initiated

transfers, that the teacher be at least considered for those openings forwhich the teacher may be suitable and qualified before being transferred toa position for which the teacher is less than fully suited. However, theright in section 2 speaks of a reasonableness in each circumstance, so thelimitation is not a amenable to a clearly defined test divorced from thecontext of an individual case.^^

In Rear^'^Xh.Q teacher faced a hidden prejudice stemming from the parental

complaints beyond that justified by the findings of the central office. The teacher was

labelled a persona non grata which prejudiced the consideration he was given for

available positions. "Finding a place for the teacher" overrode an assessment of a

suitable slot given his experience and training. Mr. Rear had been "crowded out" in the

sense that he was denied fair consideration for suitable positions because of unreasonable

considerations. The teacher was reinstated to his position at the school.

Ibid, at 49 and 50

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Simply put a transfer will not be set aside merely because it was unreasonable

(there needs to be constructive dismissal). Conversely a transfer that otherwise amounts

to a constructive dismissal will not saved just because it is reasonable.

IV. Short Snappers: Teacher Constructive Dismissal Issues

a. Change in Location

If a change in a teacher's school location goes to the heart of the teacher's

employment contract, a constructive dismissal claim may be in made. An example of this

type of argument is found in Myroniuk,^^ where Veit, J. held:

The first of the Hutterite colonies was within the same range of distanceand travel conditions firom the appellant's home as was her previousassignment. The second colony was a considerably further distance away.Yet, the evidence establishes that techniques might have been used toreduce the travel distance required by the original proposal of alternatedays' attendance at the colonies. I am satisfied that there is nothing in themere distance of the second assignment that goes to the heart of thecontract of employment.

In Myroniuk^^ the location change did not "got to the heart of the

contract". In Rhodes^^ the Board of Reference underlined that the teacher's

change in travel time and distance was only one aspect of the teacher's

employment contract and that the other aspects of her contract remained

essentially unchanged. In this case the Board of Reference held that the change in

travel time did not go to the root of the employment contract. The contract was a

contract to provide teaching services.

^ Supra note 9Supra note 9

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b. Restructurinj

PS

If as the result of a re-organization a teacher suffers a substantial loss of prestige,

a constructive dismissal claim may be in made.^^

c. Reduction of Teacher Work Hours

The issue of reduction of teacher work hours was addressed in Yagos v.

Crowsnest Pass School Division No. 63^^. Yagos taught pursuant to a continuous

employment contract. Following the implementation of the school board's staff

reduction policy, Yagos was advised that her work assignment would be reduced.

The teacher considered the reduction in her teaching assignment as a breach of

her employment contract and alleged constructive dismissal. The Board of Reference

examined whether the reduction in the teacher's teaching assignment constituted

constructive dismissal.

The Board of Reference held that the school board had acted within its powers

when it reduced Yagos' teaching hours and that it did not breach its contract of

employment with Yagos. Accordingly the conduct could not constitute a constructive

dismissal of the teacher.

d. Denving a teacher a School Act Transfer Hearing Amounts to Constructive

Dismissal

In Sturgeon School Division No. 24 v. Rear^^ the Alberta Court of Appeal held

that during the teacher's transfer hearing, the Board of Trustees did not afford the teacher

^^Ibid. at 12" Maharaj v. Rosetown School Division No. 43 [2002] SJ No. 66 (Sask.Q.B.) Dovell, J. (QL) (This is acase of a speech pathologist who was found to have been constructively dismissed by the school board.)"Unreported Alberta Board of Reference decision (May 11,1994) Rodibowan, J. (Alta. QB)"[1998] AJ No. 1000 (Alta CA) at para. 2 (QL)

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the opportunity to respond to certain allegations that there could have been adverse

parental reactions to his return to his old school:

The Board refused to give Mr. Rear details of what had been said to theBoard at that meeting. More importantly, Mr. Thiessen then conducted aninvestigation, finding some of the matters justified, others not. I suspectsome of this may have been discussed with the Board or some of itsmembers. If so, Mr. Rear was entitled to know about it. If it was not, theBoard's position was worse, having heard the allegations at their worstwithout affording Mr. Rear the chance to show where those allegationswere unsound.

As a result, the Court of Appeal held that the school board did not meet its duty to

the teacher as a hearing is required by the School Act. This transfer hearing was found to

be void. Insisting on the teacher's transfer absent such a fair hearing amounts to a

constructive dismissal.

e. Transfer Constitutes Constructive Dismissal due to Trustee Bias

In Song V. County of Flagstaff No, 29^^ the Board of Reference held that a

school trustee who had a bias against a teacher resulted in a determination that the teacher

transfer constituted constructive dismissal.

The County of Flagstaff transferred the teacher. The teacher taught for the school

board for 17 years prior to the transfer. She was hired originally to teach in an

opportunity room position. The teacher wished to teach in special education and not in a

regular classroom.

The teacher was advised that she was being transferred to another school to an

elementary level resource position at the beginning of the fall term. She protested her

66|[1992] AJ No. 341, Forsyth, J. (Alta QB) (QL)

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transfer on a number of grounds and refused the transfer. The teacher appealed her

transfer to the school board. One of the board members present at the transfer hearing

had had two of his children taught by the teacher's husband over the course of the

previous four years. In addition the teacher had taught one of his children for one school

year. Conflicts had arisen between the trustee and the teacher and her husband over

teaching methods and discipline relating to the children.

At the commencement of the transfer hearing the trustee was requested to excuse

himself from the hearing. The trustee refused to leave and made statements that indicated

he had a bias against the teacher. His testimony showed that there were strong difference

of opinion between himself and the teacher and her husband particularly in relation to one

of his children.

The Alberta Court of Queen's Bench acting as the Board of Reference held that

the trustee had a bias against the teacher and that he should have excused himself from

the hearing. It held that the damage created by apprehension of bias could not be

remedied and the hearing and any subsequent order resulting from it was void. Under the

circumstances the Board of Reference found that the transfer of the teacher, in effect,

became a constructive dismissal,

f. Constructive Dismissal and Teacher Duress

In Duperronf^ supra, the Court of Appeal noted that usually, a complaint of

constructive dismissal is a complaint of fundamental breach or repudiation of the

employment relation and its obligations by the employer. An employee who is in effect

Supra note 9

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significantly demoted or harassed gravely or prevented fi-om doing his work is usually

not coerced.

In a constructive dismissal analysis, a Board of Reference could determine

whether the teacher voluntarily severed the employment relationship with the school

board or whether the teacher's resignation was obtained under duress.

In GUson^^ supra, McFadyen, J. acting as the Board of Reference applied Head

V. The Commissioner of the Ontario Provincial Police^^. wherein Zuber, J. A. stated:

The reasons of the Divisional Court speak of pressure and inducements inobtaining of the resignation. There is, however, no requirement that aneffective resignation will be firee and voluntary in the sense that thoseterms are used in the consideration of the admissibility of a confession in acriminal case. Before the resignation in this case can be said to be "noresignation" the respondent must demonstrate that he was a subject ofsuch duress or coercion, that the resignation was truly and not voluntarily,that is, not the act of his own firee will.

In Gilson the board found that the teacher voluntarily resigned fi'om his position as

teacher and that there was nothing in the conduct of the administrative staff prior to the

resignation that amounted to a constructive dismissal. Incidentally, the Board of

Reference noted that administrative stafif has no authority to terminate a teacher's

contract of employment pursuant to the School Act. Such a termination can only be

effected by the school board with a right of hearing to the teacher.

An illustrative constructive dismissal case is McLean v. Edmonton Public

School District No, 7^^ where the Court of Appeal examined whether school board's

^Supra note 9*^'127 DLR (3d) 366 (Ont CA) at 36870,[1989] AJ No. 613 (Alta CA) Cooke, J.A. (dismissing the appeal) (QL)

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conduct, prior to the resignation, amounted to a refusal to be bound by the term of the

contract and whether the teacher's resignation was tendered under duress.

The physical education teacher taught at the high school level for eleven years. In

1987 and 1988 the Physical Education Department was increased in size through

additional staff. The teacher's teaching position was declared surplus. The teacher

appealed this decision, which was overturned.

The next year the teacher served as a "built-in substitute teacher" at the school.

This decision was predicated on the belief that the year would be the teacher's last, based

on the teacher's comments in this regard.

The teacher's position was again declared surplus for the following school year.

The teacher appealed and lost. The teacher sought a meeting with the Superintendent of

Schools.

At that meeting, the Superintendent of Schools told the teacher that the extent of

his teacher's services for that year had been a "travesty" and that the "bullshit" had to

stop, and that if the teacher stayed at the school he should be prepared to be "gainfully

employed".

The teacher was given a new teaching assignment for the next school year: a low

level mathematics course, a basic business course, an introductory psychology course and

a physical education course. None of the physical education teachers had been asked to

teach four new courses in one year, particularly where three of those new courses were

outside of their area of expertise. No evidence was adduced as to how many high school

teachers at that school were required to teach a full seven hour days.

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The teacher alleged constructive dismissal. He argued that the principal had been

sent to the school with a mandate to move older staff members from the school, since it

had a disproportion of older staff in relation to other schools in the system. The teacher

argued that the principal had declared eleven teachers surplus, only to have that decision

overturned.

By August the teacher was advised that his appeal before the Superintendent of

Schools had been successful. The Court accepted as evidence that the teacher had

advised the school board that he had previously taught Mathematics 25, Introductory

Psychology and Basic Business. As well, the teacher had raised the question of an early

retirement bonus. He was advised that central office was considering a number of options

either transferring another teacher or carrying the teacher as an extra.

In August the teacher returned to the school and received his assignment. It was

worse than what the teacher had expected. The teacher was told that his assignment

would not be changed and that he had enjoyed a protected timetable long enough.

The teacher advised the Superintendent that he would resign and was put in touch

with a Teacher Retirement Fund administrator. He was advised that he would receive his

pension retroactive on the express condition that he not commence teaching the following

school year. The teacher then submitted his letter of resignation.

The Court of Appeal was satisfied, based on the evidence, that the teacher was

surplus to the program needs of the Physical Education department and that by its nature

those needs were better served by teachers who had grown up in an era when a skill in

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certain core sports could more readily be achieved. The teacher had testified that he had

grown up in an era when acquiring skills in many of these sports was not possible.

The Court of Appeal found that if the teacher was surplus to the needs of the

Physical Education department and had indicated a preference for and a facility in the

course ultimately assigned to him, the teacher could not now take the position that the

school board was not honouring the terms of employment:

It is true that the time available for the preparation of these courses wasextremely short but that was in part because of the appeal process and to alesser degree the Appellant's absence fi"om the city in August on avacation. While an employer cannot discriminate against an employee onthe basis of age there is no legal obligation to reduce the employee's dutiesas he approaches retirement.^

The Court of Appeal found that the teacher's resignation was voluntary after all of

his attempts had failed at negotiating the type of teaching assignment he would find

acceptable. He was aware that a resignation prior to the new school year was essential in

order that his pension payments would be retroactive to July 1.

The Court of Appeal found that the school board did not constructively dismiss

the teacher and that the resignation of the Appellant was not given under any element of

duress.

g. Demotion or Change in Job Title or Responsibilities

While in some circumstances changes to job responsibilities have been found to

constitute a fimdamental change in an employment contract, where a change in

Ibid, at 19

Scaffold Connection Corporation, supra note 25 at para. 27; Newsham v.IndalLtd, (1986) 71 AR238(Alta CA); Morrison v. Alberta Distillers Ltd. (1994), 152 AR 263 (Alta QB); Greaves v. OnU MunicipalEmployees Retirement Board {\995) 129DLR(4'^) 347 (Ont.Ct.Gen.Div.)

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responsibilities are explained by the employer or where the changes reflect a need to fit

into a different corporate structure, a court would not find constructive dismissal:

. . . differences in corporate organization will often dictate that anemployee's job description cannot be exactly the same with the new firm.Not every change or every combination of changes will amount toconstructive dismissal (. . .)! find that a reasonable person wouldunderstand that changes in some aspects of the Plaintiffs employmentcontract were being made primarily to comply with the defendant's preexisting corporate organization, but that the essential terms of employmentremained largely the same.^^

Of course, each constructive dismissal case must be decided on its own merits and

feature of the employment contract. In some cases an employee's title was changed.

While change in title may suggest a demotion, the courts will examine whether the actual

responsibilities of the employee have been fundamentally altered. In SchumacherJ^

supra, the hiring of a person to assume responsibility for some of the employee's

fundamental job responsibilities was held to constitute constructive dismissal,

h. Remuneration

Where remuneration is a relatively minor portion of consideration for services, a

change in remuneration will be not treated as a fundamental breach.^^ This is especially

so in situations where the employer is experiencing economic hardship. To illustrate in

Otto and Coleman v. Hamilton & Olsen Surveys LtdJ^ the Court held that the reduction

in the benefit package due to external economic pressures, but were salaries are

maintained, have consistently escaped characterizations as fundamental breaches.

Saik V. Canadian Natural Resources Ltd. [2001] AJ No. 1743 Martin J. (Alta QB) para 11(QL)

Supra note 21

Poole V. Thomson Sounders WhiteheadLtd. (1987) 18 CCEL 238 (BCCA)

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However in Schumacher, supra, the loss of bonus entitlement of at least 15% together

with other changes constituted constructive dismissal,

i. When the Employer is experiencing economic hardship

If a school board were experiencing severe economic difficulties, the courts may

afford the employer greater than usual leeway to change the teacher's job assignments in

order to weather a crisis. This has been done in workplace scenarios outside of the

school setting as in Pollen v. John C Preston LtdJ^

j. New Teaching Assignment

In Myroniuk^^, supra, Veit J. noted that the fact that precise duties at each of the

schools would have to be co-ordinated with the existing full-time teachers there did not

constitute a negative change of reporting status for the teacher.

Even though a finalized, detailed, professional, specific assignment suitable to the

teacher's certification has not been worked out at the time of the Board of Reference,

there was nothing in the evidence to suggest that the school board was unwilling or

unable to provide such details. Veit, J". accepted that the school board had organized a

meeting with the teacher and others to work out the details,

k. Professional Development as a Teacher

80In Myroniuk , supra, Veit J. spoke to the issue of teacher professional

development. In this case even though the teacher assignment was to Hutterite colonies

and these communities have specific education standards, Veit, J. accepted the school

^(1993) 145 AR44 (AltaCA)^Supra note 21® (1985) 7 CCEL 91 at 96 (Ont. HC)® Supra note 9

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board's evidence that there was scope in those schools for teacher professional

employment. For example, there were students in each of the schools at the junior high

level even though it may well be that no male student has ever completed Grade 9.

Although the junior high students were taking solely correspondence courses, the

evidence establishes that there was the opportunity for a professional teaching role in

enrichment strategies.

1. No Openings for Teachers within the School Board

In Myroniuk^^, supra^ Veit J. noted that where the evidence established that there

were no openings for teachers in the school board at the relevant time, the teacher's status

in the teaching community could not be diminished by one assignment as opposed to

another.

m. The Teacher's Personalitv and Constructive Dismissal

In Nowosad and Dumka Virtue, J. ruled that the transfer of the teacher was not

a constructive dismissal, partly because the teacher was "bright, alert and energetic and

flexible." In judicial review Veit J. held that the inclusion of personality findings may be

an irrelevant factor in a constructive dismissal analysis because the main focus of a

constructive dismissal inquiry is the job and not the individual who fulfills the job:

... as I indicated in Nowosad^ the issue is not whether the employee cancope with the changes imposed by the employer but whether she shouldhave to. If all the elements of a constructive dismissal were present, i.e.that an employee has been crowded out, that she has suffered a loss ofprestige, including a demotion, a more onerous reporting system, etc., thefact that the employee was bright, alert, energetic and flexible might add

Supra note 9Supra note 9

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insult to injury, (in the sense that despite these laudable personality traits,she was still demoted) but would not make the constructive dismissal anyless effective.

The issue is not whether a young person needs to be more or less flexiblethan an older one, but whether a specific employee - whether young or old- has a right not to be asked to do work that they did not contract to do.

The applicant's personality, wage and lack of proximity to retirementappeared to me to be weighty factors in the referee's decision that theapplicant was constructively dismissed. I cannot say that, absent thosefactors, his decision would have been the same.®^

It was for this reason that the court allowed the judicial review application.

In Rear , supra^ the Referee Sims also noted that a constructive dismissal is no

less a constructive dismissal because the teacher can cope with it. The Board of

Reference must look at the employment contract objectively. Finally, the fact that the

teacher is performing satisfactorily in a new position is not relevant to the issue as to

whether that teacher had been constructively dismissed.

n. Intemperate Comments Made bv Personnel

From time to time we hear commentary that negative statements of Central Office

personnel constitute, per se, constructive dismissal. This argument was raised in

Myroniuk, supra. In that case Veit, J. was satisfied that negative comments of school

board personnel did not constitute constructive dismissal per se:

(...) I am satisfied that the original intention of the Board to terminate theappellant's contract, and subsequent comments by the Chairman of theBoard, "I'll see that you never work in the Coimty again", and of the

^^Ibid. at 684o-Supra, note 9^^Dumka, supra note 9

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Assistant Superintendent, "We never expected trouble from you", areinsufficient to constitute constructive dismissal. On the facts of this case,at least, the employer had to be judged by its actions. By inference, itacknowledged a mistake in reaching for termination prior to transfer inresolving a down-sizing situation. Despite the Chairman's intemperatelanguage, Ms. Myroniuk did work again as a teacher for the County. TheAssistant Superintendent did schedule a meeting to work out the specificsof the teaching assignment. In my view, by refusing to attend the meetingat which specifics of the assignment were to be worked out and byrefusing to report to work at the colonies, the appellant acted prematurely.Her negative impressions of the employer's attitude may have been bomeout by the events; on the other hand, it is possible that a professionalsolution may have been reached. By making herself unavailable for work,the appellant has constructively resigned.

o. The Board of Reference does not consider the Teacher's Position at the Time of

the Action

In Nowosad and Dumka^^, supra, the Board of Reference noted that as part of its

assessment it must look at the contract objectively and not be swayed by the teacher's

particular position at the time of the action subject to a contract containing terms that

make the teacher's capacity at the time relevant,

p. Evidence Which Mav be Adduced Before the Board of Reference

In Fort McMurray School District No. 2833 v. Duperron^^ Veit, J. noted that (in

referencing Gilson, supra, where constructive dismissal is an issue, the actions of all

persons involved may be assessed, but the actions of persons other than the board (i.e. -

principal. Deputy Superintendent) will be weighted with due regard for the fact that only

the school board has statutory authority to terminate employment.

Veit, J. also held that a Board of Reference is entitled to take into account all the

evidence before him on the issue of constructive dismissal, including the correspondence.

86Supra note 9

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to determine whether the teacher had been forced to resign or whether she had acted

under duress.

The Board of Reference noted that it is proper for the Board of Reference to

Qf>

consider the entire employment history of the teacher.

q. Can the Teacher Remain Silent when he/she Believes he/she has beenConstructively Dismissed?

Where a school board tries to impose fundamental changes on a teacher, the

school board has no right to force a teacher to accept the change or quit or accept a

severance package.

The courts have held that an employee has a duty to mitigate in the context of

constructive dismissal. In LeMay v. Canada Post Corp.^^ the Ontario Superior Court

assessed the employee's conduct in relation to his claim of constructive dismissal. The

court accepted that LeMay said nothing to his employer about his perceived constructive

dismissal. He did not ask for clarification from his employer, nor object to what he

perceived to be a significant change or make mention of this reason for his departure in

his resignation.

The trial judge concluded that the plaintiffs beliefs were unfounded and not

reasonable in the circumstances. The plaintiffs claim of constructive dismissal was

dismissed by the court.

Supra note 2

^^Blazina v. Calgary Roman Catholic Separate School District No. 1 (1989) A.J. No. 1173, Rawlings, J.(QL); Semchukv. Board of Education of the Regina School Division No. 4 ofSaskatchewan [1986] SJNo. 858 (Sask. QB) (QL)Scaffold Connection Corporation, supra note 25 at para. 20

^[2003] OJ No. 3052 (Ont. S Ct J) (QL)

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Several options are available to a teacher faced with constructive

dismissal:

- He / she may accept the fundamental change expressly or impliedly or

he / she may refuse to accept and treat the changes as a breach of

contract;

- Instead of quitting immediately in the face of a school board's

fundamental breach, the teacher may continue to work under the

changed terms and conditions of employment for a period of time

before quitting. In this scenario, the teacher may be testing the

suitability of the new arrangements on a trial basis or the teacher may

be acting out of financial necessity while searching for another

teaching position;

If the teacher continues to work, an argument may be made by the school board

that by doing so, the teacher loses the right to appeal to the Board of Reference for

constructive dismissal. Clearly a teacher's response to constructive dismissal will be an

important factor for the Board of Reference. If the teacher continues to work after a

unilateral fundamental change has occurred, the Board of Reference may find that the

teacher has consented to the change. At the end of the day a teacher must avoid making a

precipitous decision that a workplace change constitutes constructive dismissal, therefore

treating the employment contract as repudiated.^^

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t. School Board Declines to Accept the Revocation of a Teacher's Resignation

In Haylow and Alberta Teacher^s Association Local 55 and The Board of

Trustees of Calgary Roman Catholic Separate School District No. 1 the parties

agreed that the decision of a school board in declining to accept the revocation of the

teacher's resignation may constitute constructive dismissal. In other words, if, at the time

the teacher tendered her resignation, her judgment or reasoning was impaired; her

resignation may not have been voluntary. Therefore, refusing to accept the revocation of

the resignation may be constructive dismissal at law.

In this case the teacher revoked her resignation (six months after) her resignation.

The Board of Reference noted that the teacher must satisfactorily explain the delay in

order to succeed on her appeal.

In Haylow, supra, the Board of Reference found that when the teacher resigned,

she had the subjective intention to resign, coupled with objective conduct confirming that

intention. The Board also found that although the teacher found herself in a stressful

situation, her judgment was not impaired from a legal perspective, such that it could be

said that her resignation was not voluntary (pages 20 and 21):

In argument, the Appellant's counsel stressed the irrationality of the

Appellant's decision, suggesting that a decision so profoundly contrary to her

interests must be suspect. Counsel pointed to the generous sick leave

provision in the Collective Agreement and to the fact that on the date the

"The purpose of this paper is not to study the Alberta Board of Reference jurisprudence relative to ateacher's duty to mitigate." Unreported Alberta Board of Reference decision (February 28, 1997) Referee Gwen Randall, QC

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Appellant resigned, she had a note from her doctor which would have

qualified her for sick leave benefits. Certainly, in hindsight the decision was

perhaps not in the Appellant's best interests. But that is not the issue. Indeed,

the Appellant was quite happy with her decision until October, 1995, when

she found herself unemployed and no longer in receipt of Employment

Insurance benefits. She had expected to receive Employment Insurance

benefits until the Fall of 1995, then begin teaching in the Foothills School

District. This did not happen. It was at this point that the Appellant contacted

the Alberta Teachers' Association and applied for long-term disability under

the Board's policy. Clearly, at the time the Appellant resigned, she knew she

did not want to teach D.D.2 and thought that the principal was not supportive.

The Appellant felt treated unfairly and only grudgingly agreed to co-operate

with the Growth Plan and the transfer. She did not see sick leave as a solution

to her problem, because after her leave, she would still have to return to teach

D.D.2 at the same school. The Appellant was already seriously considering

resignation and transfer before the letter incident. That meeting simply

strengthened her resolve and she reacted defiantly. Her caregivers and

colleagues all advised against resignation, but the Appellant was clearly

determined to resign. She expected to be offered a job in Foothills and to

receive Employment Insurance benefits in the interim. Her decision was no

unconsidered or impulsive. In hindsight, it was not necessarily the best

decision in the circumstances; however, at the time the decision was made, it

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was not unintended. The Appellant thought she had made a good decision and

was happy about it for many months. Her continuing therapy was unrelated to

her work problems.

In conclusion, the Board of Reference finds that the Appellant was not

constructively dismissed when the School Board refused to allow her

to withdraw her resignation. This Board finds that the Appellant's

resignation was voluntary and that her ability to form the subjective

intent to resign was not impaired at law. Having arrived at this

conclusion, the issue of delay is not relevant.

K Constructive Dismissal Trends

It has been suggested that during the economic recessions in the 1970s and 1980s,

the courts tended to be sympathetic to the employee and would not take into account the

economic circumstances faced by the employer when assessing damages for constructive

dismissal.^^ Is this the case today in the school setting? Do dissatisfied teachers allege

constructive dismissal against school boards who have tried to legitimately structure their

educational operations and services?

Based on the Alberta Board of Reference teacher constructive dismissal

jurisprudence as referenced in this paper, it is our view that the Board of Reference has

applied the doctrine of constructive dismissal judiciously.

D. Grossman, Employment Law in Canada (1988) 7 Adv. See. Journal No. 4, 33 - 52

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While the teacher constructive dismissal case law reflects the unique

particularities of a teacher setting, in essence, the case law is in keeping with the

decisions rendered by Alberta courts in the area of constructive dismissal. The Board of

Reference accepts constructive dismissal claims, for the most part, only when there has

been a breach of contract so significant as to repudiate the employment relationship

between the teacher and the school board.

As well, school boards, as employers, have become more sophisticated over the

years and teachers are aware of their employment-related rights. Teachers appear to

exercise caution before they allege constructive dismissal and leave their teaching job and

file an appeal to the Board of Reference based on the doctrine of constructive dismissal.

In our view school boards do not have to fear that every teacher employment-

related change they make will be viewed as a potential constructive dismissal. That

being said, it is imperative for school boards to act in accordance with the law,

(particularly the parameters set out in the teacher constructive dismissal jurisprudence)

the School Act, the teacher employment contract and the Collective Agreement.

In terms of trends, we could see an increase in allegations of teacher constructive

dismissal in the context of workplace harassment. The school board has a duty to provide

a safe and healthy workplace. Such duty may also be relevant to constructive dismissal

claims. For example if a school board were subjected to unjustifiable criticism by his/her

employer which created a hostile and embarrassing work environment which goes to the

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to the school board within seven days of receiving the notice of transfer. This appeal

process does not, however, preclude a board from addressing issues surrounding a

transfer within the teacher's contract of employment. Teacher transfers must be made in

good faith without mala fides or improper purpose and in a manner that complies with the

School Act and the general law.

The Board of Reference case law has highlighted that school board persormel

should, as part of the reasonable limitation on the right to transfer a teacher:

make changes for legitimate purposes.act in accordance with policy or staffing guidelines;discuss the transfer with the teacher;

be open and honest in communication with the teacher;give the teacher proper notice of any fundamental work related change;consider the teacher for those openings for which that teacher may besuitable and qualified before being transferred to a position for which theteacher is less than fully suited.

Changes in the job duties, whether as a result of a transfer, reorganization or

demotion serve as the basis of constructive dismissal cases. As such, it is important that

each of the parties are clear on what the employee's duties are but also that the school

board preserves the necessary flexibility to deploy staff so as to best meet changing

program and student needs within the jurisdiction. This requires the school board to

preserve flexibility regarding the assignment of duties and the making of transfers as

above discussed.

Contractual language should also make it clear that reassignments and transfers

may result in a change of duties. Such language could indicate that assignments can and

will be varied on an annual or more frequent basis as required by administration. While

the School Act contains a provision that allows principals or the school board to assign

•iim

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additional duties to teachers, provided that those duties are not in conflict with the

applicable collective agreement or the teacher's contract of employment, it is helpful to

preserve such flexibility within the contract to ensure that the teacher understands this

matter from the date of hire.

b. Amendments

In order to preserve the flexibility that may be required to implement changes,

employee contracts for non-teaching staff should include amendment clauses that set out

the process under which amendments may be implemented. Such provisions would

typically specify the amount of notice that would be required to implement a change to

the contract and the outcome if one party is not amenable to the proposed change. Such

provisions are important as the employer cannot unilaterally change a fundamental term

of the contract without employee agreement.

c. Job Descriptions

The decision as to whether to include a job description within the contract of

employment requires careful consideration. For teachers who are placed on long-term

continuous contracts of employment, the inclusion of a job description within the contract

may not provide the required flexibility to meet changing school board needs. Rather, a

general description of the duties may be incorporated by reference to a specific policy

and/or appendix that sets out those duties. The school board should make it clear that it

reserves the right to unilaterally modify the duties as contained within the appendix or

policy without modifying the employment agreement itself. As such, the parties

acknowledge and agree that the school board, as employer, may from time to time make

)

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such changes to the job description and/or duties as are reasonably required by the

employer.

As constructive dismissal cases typically arise where there has been a

fundamental change to the duties of the employees, it is best to avert such disputes by

having the employee acknowledge, through the contractual process, their agreement to

employer-initiated changes in duties from time to time. Such clauses can be tied to the

provisions that indicate that a new assignment or transfer of the employee could result in

a change of duties. By addressing these issues at the time of hire, the employer secures

the employee's agreement to be bound by that term and the various possibilities outlined

within the contract.

d. Changes in Job Title and Reporting Relationships

While this matter is not typically relevant for teachers, it can be for other central

office employees. Employers should be cautious of unilaterally changing the job title for

administrative staff. While a change in job title alone may not be sufficient to amount to

a fundamental breach of the employment contract, such a change may be an indicator of

other more significant changes in workplace responsibilities.

Likewise, changes in reporting relationships may cause or contribute to a finding

of constructive dismissal. An employer contemplating changes in the employment

relationship should carefully assess the proposed change to determine the impact on both

the employee's status and duties. Changes in reporting, whether they be to have fewer

people report to the employee or to have the employee report to a lower-level position

within the organization or to a person with whom they may have had an acrimonious

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relationship in the past, can all result in claims for constructive dismissal. The potential

impact of any such organizational changes must be carefully considered prior to

implementation to ensure that they do not fundamentally alter the employee's terms and

conditions of employment,

e. Demotions

Changes in any of the above-described areas, particularly changes in the reporting

of positions, job titles and changes in duties, have resulted in complaints that the

employee feels that they have been demoted and thereby constructively dismissed. These

concerns have arisen in the educational sector where principals have been transferred

from a larger school to a smaller school and have viewed such transfers as demotions,

based upon a perceived loss of prestige and/or authority over the number of students

involved so as to result in a claim for constructive dismissal. In the Board of Reference

decision of Prediger and County of Vermilion No, 24^^ the Board had to determine

whether the transfer of a principal from a larger school to a smaller school was in any

way a demotion or resulted in a loss of prestige so as to support a claim for constructive

dismissal. All claims were dismissed with the Board of Reference finding that the

transfer had been made in good faith in compliance with the statutory requirements of the

School Act.

We submit that in Ught of the Farber test set by the Supreme Court of Canada, a

principal in such circumstances would now need to demonstrate, on an objective basis,

that there had been an actual loss of status, prestige or authority as a result of the transfer

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to sustain a claim of constructive dismissal. The perceptions of the principal would be far

less relevant in light of the Supreme Court of Canada test, with the onus for establishing

constructive dismissal resting on the employee,

f. Emplover Conduct

As previously noted, a variety of other factors, apart from changes to the job

description, remuneration, reassignment, or other specific terms of the employment

agreement can result in allegations of constructive dismissal. These concerns relate to the

workplace environment and the treatment of the individual employee. By way of an

example, an employee cannot be expected to work in an atmosphere of hostility,

embarrassment or humiliation. We submit that a failure to provide a harassment-free

workplace can also constitute grounds for constructive dismissal. In keeping with the

Farber test of objectivity in constructive dismissal cases, it is submitted that the

employee would need to lead evidence of harassment on an objective basis.

Caution must also be exercised in undertaking investigations into allegations of

suspected wrongdoing. Resignations obtained under duress or as a result of a gruelling

interrogation can also result in claims of constructive dismissal. Employers are advised

to obtain such advice as is deemed reasonable in completing the investigations into

allegations of employee misconduct.

A review of the cases also indicates that an employer can best protect itself from

claims of constructive dismissal by utilizing the contractual process to address the

expectations of the parties and to provide for flexibility in meeting changing employer

Unreported Alberta Board of Reference decision (February 24 1993) Matheson, J. (appeal to Alta. Court

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needs. Flexibility in staffing, the need to reassign or transfer teachers and change duties

are particularly important and should be considered.

Claims of constmctive dismissal can be averted by following prudent employer

practices, including the use of clear, well-drafted employment contracts; ensuring that the

employer's practices are reasonable; ensuring that the school board has complied with all

statutory requirements; and ensuring that the workplace is safe and that all staff are

treated with the civility, decency, respect and dignity to which they are entitled.

of Appeal dismissed June 16, 1994).