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HomeMy WebLinkAboutVallieres 93-07-06· ' L. IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE OF APPLIED ARTS AND TECHNOLOGY (The College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF M. VALLIERES - %91F870 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. Gallivan, College Nominee Menno Vorster, Union Nominee APPEARANCES: For the College: F.R. Caputo, Q.C., Counsel Ken Robb, Manager, Human Resources Michael Delfre, Principal, Elliot Lake & North Shore Campus Janine Timmermans, Counsellor Brenda Ludgate, Secretary Pat Gibbons, Manager, Futures Access Programs Christine De Vries, Counsellor Geoff Tyrrel, Private Investigator Joe West, Counsellor A.M. Headrick, Expert Witness For the Union: Pamela A. Chapman,-Counsel John Giguere, Chief Steward, Local 613 M. Vallieres, Grievor AWARD - Hearings in this matter were held in Sault Ste. Marie on May 22, June 8 and August 18, 1992, at the commencement of which the parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine the matter at issue between them. In addition, extensive written submissions were filed following the close of the hearings by agreement between the parties. After the cloSe of these submissions the board of arbitration met in executive session in December 1992 and again in January 1993 to discuss this very difficult and, we hope, unique arbitration. The differences between the parties arise out of a grievance filed by Mr. Mario Vallieres on December 3, 1991, alleging that he was unjustly discharged from his position as a Professor at the Blind River "Futures" campus of the College. The grievor has been employed in a teaching capacity by the College since 1974, on a permanent basis since 1976. His original employment was at the Elliot Lake campus, but for the 1990-91 academic year, he was transferred on a full-time basis to the Blind River campus. In earlier years, including 1985, 1986 and 1987,_ he had also taught at the Blind River campus on a temporary assignment basis. At all material times, he was married with two children living at home. The Blind River campus is a small establishment which exists solely to offer the "Futures" program, a program for young adults aged 16 or more who have troubled personal and/or employment histories. The program offers training in life skills and job - 2 - skills, personal counselling and general support, with the goal of rendering the students more employable and providing them with the resources both to attain and keep employment. At all material times, there were four full-time employees in the office. The Coordinator of the Centre was Janine Timmermans, who was also a Counsellor. The two other full-time academic employees engaged in delivering the program were Ms. Christine De Vries, a Counsellor, and the grievor. Another Counsellor, Mr. Joe West, was in attendance on Mondays only, working in Elliot Lake for the rest of the week. The administra- tive secretary in the office was Ms. Brenda Ludgate. The physical facilities at Blind River are similarly modest. There is a main office area from which three private offices open, joined by a hallway to the single classroom. A small room which opens off the classroom was the grievor's private work space, while the offices opening off the general office were occupied by the other academic staff. There was a personal computer in the main office, and possibly also in Ms. De Vries' office. There were also three or four personal computers in the classroom for student training and use. There were at least two printers, one in the general office, and one in the classroom. The classroom printer was a 24-pin Panasonic dot matrix printer capable of producing a "script" font. The office printer, an Epson, could not produce that font. The relevance of these apparently disparate pieces of structural evidence will become clear when we turn next to the - 3 - events which led to the discharge, effected by letter dated November 29, 1991, which is the subject of the present grievance. On October 4, 1991, Ms. Brenda Ludgate went as usual to collect the mail from a post office box maintained by the College for the Blind River campus. Her duties include picking up the mail, opening it and distributing it to the appropriate members of staff. On that day, the incoming mail included an envelope from the College's stationery, printed with the return address of the Blind River campus. The envelope was addressed to a female name at a post office box in Wawa, Ontario. It was stamped on January 3, 1991 on a postage meter which has been identified as that located in the general office at the Blind River campus, and that stamp had been cancelled, apparently by the Blind River post office cancellation machine, on January 4, 1991. The name and address had been scratched out in ink, an arrow had been drawn pointing to the return address, and a post office stamp headed "Return to Sender" had been affixed, with the box marked "unclaimed" checked in ink. Ms. Ludgate, following her usual practice, opened this envelope upon her return to the office. Inside it she found a one page letter which may be fairly described as pornographic. Shocked, she reported the letter to Ms. Timmermans, thus setting in motion an investigation which ultimately led to the discharge. The letter cannot reasonably be reproduced, but for the purposes of this award its contents have to be discussed in extensive, if delicate, detail. It is printed on a single sheet of white bond paper, whose edges show signs of the perforations of - 4 - continuous-formprinter paper. It appears to have been printed on a dot-matrix computer printer using a "script" font. There is no signature or other handwriting anywhere on the sheet. The letter begins with an inside address, that of the Futures campus in Blind River. The salutation is to the same given name as the female person to whom the envelope was addressed. There is no direct identification of the sender, but the context of the letter suggests that the addressee will know who sent it. The first paragraph begins "If you can figure out who this is by the end of this sentence... ," and the letter closes with "Sincerely, YOU KNOW WHO!dir". In essence, the letter is a reminiscence, in very graphic terms, about a sexual encounter (or encounters, it is not entirely clear) between the addressee and the sender. It also refers to sexual intercourse between the addressee and another male, identified only by a first name; it is not clear whether this occurred at the same time as the sexual encounter with the sender. There is a passing reference to another female also identified only by a first name, but it is not clear whether, or to what extent, that person was involved in any of the activities described. The letter asserts in unmistakable terms that the sender misses the sexual activity described, and would like to resume it, as apparently would the other named male. The addressee is invited to write to the sender at the Blind River campus address to let them know if she is willing to get together for such a resumption, and to do so in sexually explicit terms. This letter, as it worked its way up through the - 5 - hierarchy of the College, raised two significant concerns. The first was that the name to which the envelope was addressed was the name of a former student of the Futures program, who seems to have attended classes both at the Blind River and Elliot Lake campuses. The second is that the evidence strongly points to the grievor, who had been one of the student's teachers, possibly both at Blind River and Elliot Lake, as the sender of the letter. The student, whom we shall refer to simply as "X", began in the Futures program at the Elliot Lake campus in September 1986, and continued until the end of May 1988. The documentation at the time of her original enrolment in 1986 indicates that she was born in 1959, that she was "married or equivalent", that she had a Grade 9 education, and had been unemployed continuously for the previous 12 months. She was referred to the program by the Elliot Lake Canadian Employment and Immigration Commission office ("CEIC") as a "sponsored student", which we were told usually involves tuition and/or income support, conditional upon satisfactory attendance and progress in the program. The mailing address on the form is a post office box number in Blind River, and the commuting distance is shown as "0", which seems to suggest that she was then attending the Blind River campus. On the.other hand, all of her interim assessment forms for the 1986-87 academic year are headed "Elliot Lake Campus". When she returned for the 1987-88 academic year, the CEIC documentation form still shows her at the same post office box number at Blind River, but now indicates a commuting distance of 62 kilometres. This seems to suggest that she was now attending at the Elliot Lake campus, and the other documentation is consistent with that conclusion. The documentation also confirms that the grievor was one of her instructors, having taught her mathematics at least in the first year of her program. There is nothing in the College's records to link "X" with the post office box in Wawa to which the letter was sent. Indeed, the private investigator retained by the College to look into this matter was unable to find any trace of "X" in Wawa, nor anything to indicate her present whereabouts. As for the Union, it appears that no effort was made, after taking legal advice, to attempt to trace "X" as a potential witness for the hearing. Because "X" did not receive notice of these proceedings, and because of the allegations about her conduct in the letter, we ordered at the hearing that her identity should be suppressed and that anyone learning her real name through these proceedings should not identify her in any way. We repeat that order as a part of this award. The second disturbing feature of this case, from the College's point of view, is the extent to which the evidence points to the grievor as the author of the letter. We observe, from the beginning, that all of the evidence is circumstantial. Neverthe- less, the evidence was sufficient, in the College's view, for it to take the extreme step of discharging the grievor. We therefore turn to a discussion of that evidence in some detail. The most significant aspect of this evidence is that, on the uncontradicted expert evidence before us, the address on the envelope in which the letter was found is in the grievor's handwriting. The College, through its private investigator, retained Mr. A.M. Headrick, an examiner of questioned documents and former Assistant Commissioner and Director of Forensic Laboratories for the Royal Canadian Mounted Police. He was asked to examine the envelope, the letter, and a variety of samples of handwriting from the grievor and all of the other persons mentioned above who were employed in the Blind River campus, as well as samples of computer paper and printouts from the computer printers at Blind River. The results of his examination may be briefly summarized. As to the handwriting samples, he found a "significant number of similarities in handwriting characteristics" between the questioned handwriting on the envelope, and the several samples of the grievor's handwriting made available to him. He found "no significant similarities in handwriting characteristics" between the address on the envelope and the handwriting samples of any other person working out of the office. He concluded that, in his expert opinion, the grievor was the author of the handwritten address on the envelope. As to the letter, he identified printing characteristics which indicated to him that it was likely, but not certain, that the letter had been printed on a Panasonic 24-Pin dot matrix printer, of the same type as the printer found in the classroom at Blind River. He was also able to identify certain characteristic ink smudges, thought to have been left on the computer paper on - 8 - which the letter was printed by the printing press that printed certain identifying material on the tear-off tractor strips on each side of the paper. These bore sufficient similarity to similar smudges found on other computer paper in the possession of the College at Blind River to lead him to conclude that the paper on which the letter was printed likely came from the same batch of paper as that in the possession of the College. Once again, his testimony was that it was likely, but not certain that this was the case. There was evidence before us that all of the documenta- tion examined by Mr. Headrick had also been forwarded for examin- ation by another expert retained by the Union. That person was not called as a witness at the hearing before us, and the College thus asked us to draw the inference that the Union's expert would have had nothing helpful to the Union's case to tell us. In addition, there are a number of other factors which, in the College's submission, tend to link the grievor to the letter as well as the envelope. First, there are certain indications in the letter itself that tend to suggest that the grievor is the author. The letter is written largely in the first person, and the writer describes himself as one of two "guys", a reference which, along with certain anatomical allusions, suggests that the writer is a male. The writer refers to one incident with the words "when I came to Blind River that night", and later says, in the present tense, "I work here in B.R.". These references are consistent with the grievor's work history, and therefore consistent with the - 9 - letter having been written by the grievor. Obviously, in addition, the grievor had access to the stationery supply from which the envelope must have been taken, and would have been able to place the envelope into the outgoing mail so that it would be stamped on the office postage meter. He had access to a supply of computer paper consistent with the supply from which the letter came, and to a computer and printer consist- ent with the font and impression made on the paper. The grievor's own testimony was to the effect that, while he admitted that the handwriting on the envelope could very well be his, he did not remember ever having addressed an envelope to "X", nor could he think of any reason why he should have done so on or before January 3, 1991. As to the letter, he denied categorically having written it, and denied any conduct with "X" at any time along the lines of that suggested in the letter. He agreed that he had access to all of the means of producing both the envelope and the letter, and that it was his common practice to use one of the computers, whichever was available, to produce his correspondence. He denied ever using the script font on the Panasonic printer, however, and testified that he did not even know the names of the fonts or that this font was available. He produced in evidence an example of his correspondence, written on November 9, 1990. The printing on this letter is done in a classical "Courier" style type. The grievor's other corre- spondence, which he maintains was kept on file in a red binder in - 10 - his office area, has disappeared and could not be found either by the College or the Union. In the result, the only evidence before us is that, for his business correspondence, the grievor used a classical typeface. Two other elements of the evidence must also be dis- cussed. The first aspect of the evidence is the reaction ascribed to the grievor by the Employer's witnesses at a meeting on October 17, 1991 when he was confronted with the envelope and the letter. He was first asked if he knew "X", and if he knew of her present whereabouts. He answered these questions in the affirmative and the negative respectively. He was then shown the envelope, and asked if it was in his handwriting. He agreed that it certainly looked like it was. He was then shown the letter, and a copy was given simultaneously to a Union steward present on his behalf. Both of the College's witnesses who were present on that occasion observed that the grievor spent only a few seconds looking at the letter before reacting, while the Union steward took the time to read it all the way through to the end. The grievor's response to the letter was to say "This is sick. This is disgusting. I don't need this right now." The inference left by this testimony is that the grievor's reaction indicated that he must have been familiar with the contents of the letter to be able to respond so quickly. On the other hand, the witnesses agreed that the response would be equally applicable to the first sentence of the letter as to the letter as a whole. It is common ground that the grievor's reference to "I don't need this right now" was intended, and was - 11 - understood, to be a reference to charges of sexual assault which were at the time outstanding against the grievor. At the time of the hearing, the grievor had been acquitted on those charges on a directed verdict, but we were informed that a Crown appeal against the acquittal had been launched. The College asserted that these charges, which were known to the College management at the time, were entirely separate from the issues which gave rise to the present arbitration. The Union, on the other hand, argues that this knowledge predisposed the College to suspect the grievor as the author of the letter, and thus to ignore other possible avenues for investigation. The other matter which should be raised is that the investigator retained by the College interviewed a number of other members of the College's staff and a number of students who were at the College at the same time as "X". The purpose of the interviews was to elicit any available information about sexual activity or sexual harassment. All of the response was in the negative, and some respondents put their denials of witnessing any such activity in writing and in quite strong terms. The College did offer to lead evidence that the grievor had a reputation for coarse language and sexual jokes, which had at least once led to a complaint that required management to speak to-him; the Union objected to the admission of this evidence. We declined to receive the evidence, on the basis that it was neither admissible as a past disciplinary record, since no disciplinary action was ever taken, nor was it properly similar fact evidence even under the broadest view of the - 12 - admission of evidence on that basis. This completes the material aspects of the evidence put before us. As will be seen, there are other peripheral matters which will have to be dealt with, but this is the evidentiarybasis on which we have to conclude the validity of the two central allegations against the grievor which constituted the grounds asserted for his discharge. There is sufficient evidence to lead us irresistibly to the conclusion that the grievor wrote the address on the envelope in which the letter was contained. But the discharge cannot be supported on that conclusion alone. The letter dated November 29, 1991 expressly sets out the grounds for discharge as follows: During the performance of your duties, you taught a student by the name of ["X"]. An obscene letter was sent by you to ["X"] disclosing an inappropriate relationship between you and ["X"] . The circumstances reveal: 1. Inappropriate behaviour by you with a student or former student; and 2. Inappropriate correspondence by you to ["X"] from the College premises and using College stationery. An assessment of the validity of these grounds will obviously require an extensive discussion of the fact-finding process in arbitration cases as it relates ~o circumstantial evidence and the burden of proof placed on an employer by the jurisprudence relating to alleged unjust dismissal. The present chairman has had the opportunity to deal with - 13 - these issues in another difficult arbitration. In Re The Crown in Right of Ontario (Ministry of Attorney General) and Ontario Public Service Employees union (Khan) (1989), 18 L.A.C. (4th) 260 (Swan), at page 268-270, the following discussion appears: We turn, therefore, to a characterization of this evidence. To begin with, we observe that the onus of proof in this matter is squarely on the employer, and that the standard of proof to be met, where the alleged misconduct is criminal in nature, is that there must be clear and convincing proof appropriate to the seriousness of the conduct alleged. While it is clear that the proof must be only on a balance of probabilities, and not on the basis of proof beyond a reasonable doubt, the jurisprudence of courts of civil jurisdiction, arbitra- tors in the private sector, and the Grievance Settlement Board are all to the effect that an allegation of criminal conduct must be made out on the basis of clear and convincing proof: see Daggit, No. 531/85, the reasoning of which we adopt in this case. The fact that .the only evidence here being con- sidered is circumstantial evidence does not make it impossible for the employer to meet this standard of proof. There are no special rules in relation to circumstantial evidence in civil cases, as there are in criminal cases, and we are entitled to draw such infer- ences from the evidence as appear to us to be reasonable and appropriate, and to act upon the balance of probabil- ities based upon all of the circumstances. On the other hand, when circumstantial evidence is tested against the "clear and convincing" standard, it will be obvious that, like all other evidence, it wily be tested more carefully than might be the case where less serious allegations are at issue. In Erwin, No. 1377/86, the Grievance Settlement Board dealt with the issue as follows, beginning at p. 9: The weighing of circumstantial evidence is thus largely a process of excluding alternative possi- bilities. In so doing we have to take notice of what is humanly possible in the circumstances. We cannot cast an onus upon the grievor to prove to us that there are alternatives, although he would certainly help his own cause with every plausible alternative he proposed. Rather, the onus is still on the employer to prove by clear and convincing - 14 - evidence that there are no such alternatives. We were referred to several cases which deal with circumstantial evidence. In the case of Sunnybrook Hospital and Sunnybrook Hospital Employees Union. Loc. 777 (Gastis), June 27, 1986, an unreported award of arbitrator Michel Picher, he writes at p. 17: "In the arbitrator's view, where the evidence is principally circumstantial, it must be determined whether, in balancing the probabil- ities, there are other reasonable explanations equally probable or more probable than the proposition which is advanced by the party that bears the burden of proof. If there are no reasonable alternative possibilities of equal or greater probability, it may be con- cluded, as a matter of evidence, that the allegation advanced is established on the balance of probabilities." While we agree with the statement of Mr. Picher in the above case, we would add the caveat that in a case involving an allegation of dishonesty we must, in the final analysis, still be convinced by a degree of proof that meets the high standard commensurate with the gravity of the allegation. We are, in general, in agreement with these proposi- tions, although we think it is important to observe that the statement of the proper approach in the Sunnybrook Hospital case is susceptible of misunderstanding. In our view, it would not be correct to decide a case based on circumstantial evidence on the basis merely that the allegation sought to be proved is the most attractive among a number of possible alternatives. It may be that the evidence suggests so many possibilities that no single one of them, even the most appealing, can rise to the standard of clear and convincing proof of the allegation. Put in the terms of the present case, it is not enough simply to find that the grievor is the most probable suspect among all of the people who had access to these funds. What is required is that we find that it is more probable than not, on the basis of clear and convincing proof, that the grievor did what she was alleged to have done, and stole the money here at issue. In our view, once the test is properly stated, it is obvious that the employer's case, to the extent that it - 15 - is based upon the circumstantial evidence, must fail. We come to this conclusion on the basis of our review of the evidence above, which demonstrates that there are simply too many Plausible alternative explanations to find that the employer has made out its case. While this is our own decision based upon the evidence before us, we observe that the Internal Auditor, the Public Trustee, the ministry auditors, the police and, except for a jury verdict which was set aside in circumstances already described, the courts have all come to a similar con- clusion on the weight of circumstantial evidence in this case. It is not enough for the employer to succeed for it to identify the grievor as the prime suspect; since it cannot go the further step to show that the grievor, on clear and convincing evidence, more probably than not stole this money, its case must fail . . . Before us, both parties made submissions about the standard of proof in a case of this kind. The College asserted that the standard was simply that of a preponderance of evidence, while the Union argued that, in a case of allegations of "illicit" sexual conduct, "which might tend to establish a marital offence and could have serious repercussions for the reputations and lives of the employees concerned", the appropriate standard of proof of such allegations is upon a balance of probabilities, discharged by clear and cogent evidence": see Re Indusmin Ltd. and' United Cement, Lime and Gypsum Workers International Union. Local 488 (1978), 20 L.A.C. (2d) 87 (M.G. Picher), at 90. It should be noted that the concept of a flexible standard of proof, while well-known in the jurisprudence of tribunals of all kinds, does not directly alter the so-called "civil burden of proof", that to succeed, the party bearing the onus of proof must make out its case on the balance of probabilities based on all of the circumstances. - 16 - Rather, the concept is based upon the general rule that evidence of disputed facts is to be tested against the knowledge and experience of reasonable people, and that the more the allegations depart from what would reasonably be expected, the more the decision-maker will require clear and convincing evidence to be satisfied that those allegations have been made out on that balance of probabilities. On the basis of this somewhat rarefied theoretical approach to the problem, we turn to the much more practical difficulty of deciding the issues before us. First, it will be fairly obvious from the discussion above that the evidence is almost overwhelming that the grievor hand-addressed the envelope in which the letter was found. The evidence clearly establishes that the samples of handwriting provided to the College's expert came from all of the staff members who worked at the Blind River campus. The expert was qualified as an expert witness without objection, and he gave his opinion that the author of the envelope was the same person who had written certain exhibits which are not disputed to be the grievor's handwriting. Moreover, it is in evidence that the Union also had access to all this documentation, in order to show it to a handwriting expert; that expert was not called, and the obvious inference is that his or her evidence would have been unhelpful to the Union. In her written submissions, counsel for the Union argues that, because no handwriting samples from the students at the Blind River campus were submitted to the expert, the expert's opinion - 17 - cannot be relied upon. She bases this on an answer which she elicited in cross-examination from the expert witness to the effect that, had any of the samples of handwriting, other than the grievor's, borne any significant resemblance to the writing on the envelope, that would have affected his opinion. With respect, this answer is not sufficient to undermine the expert opinion. The expert testified that his opinion was based on a large number of similarities between the characteristics of the handwriting on the envelope and the samples of the grievor's handwriting. It is clear from his answer that his opinion that the handwriting was the grievor's would only have been confounded had a similarly large number of similar characteristics been found in the handwriting of some other person who also had access to the Blind River campus. There is no evidence to even suggest that such a coincidence might have occurred; for that matter there is no real evidence to suggest that any students were even at the Blind River campus early in January 1991. In our view, the overwhelming circumstantial evidence that the grievor wrote the envelope cannot be overcome by the mere conjecture that some student may have had handwriting materially similar to that of the grievor, particularly in light of the grievor's own testimony that the handwriting on the envelope, at the very least, closely resembled his own. In our view, the College has succeeded in proving, on a balance of probabilities, that the grievor was the person who hand-addressed the envelope in which the offending letter was found. That leads to us to a consideration of the College's next - 18 - allegation, that the grievor placed the letter in the envelope, and was therefore its author. To reach this conclusion obviously requires a somewhat longer leap from the circumstantial evidence, but it must be observed that, on the evidence before us, that is certainly the first conclusion which comes to mind. Counsel for the Union argues, however, that it is possible that the letter was composed by someone else and placed in the envelope as a prank. She argues that it is at least as likely that this is what occurred as that the grievor, a long-standing College employee, would write such a letter, put the College address at the top, mail it in a College envelope and then ask the recipient to write an obscene letter back to him at the College's address, even though he knew that Ms. Ludgate opened the mail. The Union suggests that either the prank was perpetrated by someone at the Blind River campus, or alternatively that it was perpetrated by someone who had access to the letter during the unexplained period of nine months during which it was purportedly in the possession of Canada Post. We think that this second suggestion can be rejected out of hand. While it might well be possible that some unknown person outside the Blind River campus could have gained access to the envelope and switched its contents for the letter, there is virtually no probability, in the present circumstances, that this was the case. Leaving aside how such access might have been obtained, the probability that some perpetrator from outside the College would have miraculously composed a letter which included - 19 - allusions tending to identify the grievor as its author, printed such a letter on a printer of a type available in the Blind River campus, and in a font which that printer could produce, and on paper which bears at least some forensic resemblance to the paper available at the College, is so low as to make this theory unworthy of further consideration. On the other hand, it is true that a number of other people had at least as good access to the means of producing this letter as did the grievor from inside the Blind River campus. There is, however, one unmistakable difference between the grievor's opportunity to create and send the letter and that of anyone else, and that is the fact that the envelope in which the letter was sent was hand-addressed in the grievor's handwriting. Common sense, aided by the ingenuity of both counsel, really only suggests three ways in which this could have occurred. The grievor himself could have placed the letter there, someone else at the campus could have come upon the envelope while it was still empty, taken it and put the letter inside, or someone could have tampered with the envelope and removed whatever innocuous contents it had and replaced it with the offending letter. The difficulty with either the second or the third possibility is that the grievor would first have to address the envelope. The envelope is to a former student, and is to an address which does not appear on the College's records, which suggests that the information about the address came to the grievor some time after the student had left the College. Therefore, all - 20 - three of the possibilities, including the two that are exculpatory of the grievor, require some contact with "X" between the time she left the College and January 3, 1991. The grievor denies any such contact, however innocent, and testified that he did not remember addressing the envelope at all. Had there been some contact, for whatever innocent purpose, it would have been expected that the grievor would have been able to recall what it was and when it took place; his failure to do so seems, assessed against the standard of what one would normally expect in these circumstances, to be unusual. The second possibility is that the grievor addressed the envelope, left it empty and unsealed, and subsequently it fell into the hands of some malevolent other person who deliberately placed in it a letter which would clearly be designed to create difficulty both for the College and for the grievor. This explanation would require that the grievor first address the envelope, and then lose possession of it mysteriously, and still be unable to recall nine or ten months later why he had addressed it or that he had lost it. Once again, this explanation really does not coincide with what reasonable people would expect in all of the circumstances. For the third possibility to have taken place, of course, would require someone to tamper with the envelope. The original envelope was put into evidence, and there is no sign of tampering to the naked eye. It has a top flap, which is glued down. Although the envelope is somewhat the worse for wear, there is nothing to suggest that anyone has deliberately opened it. - 21 - Moreover, the document was in the hands of an expert on questioned documents, who certainly could have been cross-examined about any evidence of tampering; he gave no such evidence, nor was he asked to. As is pointed out in the Khan case, however, it is necessary for us both to find that the explanation that the grie¥or put the letter in the envelope, whether he actually prepared it himself or not, is not only the most probable of the reasonable possibilities, but also that it is more probable than not. The Union argues that it is more probable that someone else put the letter in the envelope than that the grievor would be "either inclined to engage in such conduct or to be stupid enough to do it in the manner described". As to the "stupidity" argument, it is not clear that the grievor would have expected a reply to the letter, addressed to him as personal correspondence at the College address, to be opened by Ms. Ludgate. The evidence is not clear that Ms. Ludgate would have opened personal mail addressed to an individual, and that is not what would normally be expected. If the grievor sent the letter, and expected a reply in kind, the College address may very well have been a much safer alternative than his home address for such a purpose, given his family situation. We confess that it confounds us why anyone would write such a letter and send it, whether that person were the grievor or some meddling other person, but the fact is that such a letter was composed and was sent in a College envelope. It is true that there - 22 - is nothing in the evidence to establish that the grievor would be inclined to write such a letter, but it is not clear that any such evidence of inclination or propensity would be admissible even were it available. We must rely on the evidence which is properly before us, and that evidence, in our view, establishes on the balance of probabilities that the grievor sent the letter in the envelope which he had addressed. This leads us to the second allegation of the College, that the letter constitutes proof that the grievor had "an inappropriate relationship" with "X". Obviously, to found discipline on the basis of an inappropriate relationship, that relationship must be properly the concern of an employer. Assuming the conduct described in the letter to have taken place, the worst conclusion that can be reached is that the writer and "X" engaged in some innovative sexual activity which would nevertheless not be illegal if committed between two consenting adults in private. While there is a hint that there may have been more than two consenting adults present, there is certainly nothing upon which one could firmly conclude such a thing. If the principal partici- pants were indeed "X" and the grievor, both of them were adults at the time, and there is no hint in the letter of anything but a consensual relationship. The grievor, and apparently "X" as well, was married at the time, and the relationship would therefore be presumptively adulterous, but that is not usually a matter which is of concern to employers, and a very specific case would have to be made out of direct injury to an employer's reputation for it to be - 23 - a factor here. The only factor which could make this conduct properly a matter of concern for the College, if it indeed took place, is the connection between the sexual relationship of the grievor and "X" and the relationship as a teacher and a student respectively. That connection gives rise to a range of considerations which would depend upon when the described sexual behaviour took place, and what was the nature of the teacher-student relationship at the time. There appear to be three separate time periods, each of which raises different concerns. The first two periods are closely related, and occur between September 1986 and May 1988. For that period, "X" was registered as a student in the Futures Program and thus was in a direct relationship to the College. For some of that time, apparently most of the 1986-87 academic year, but for only a part of the 1987-88 academic year, she was being taught directly by the grievor, and they were therefore in a direct teacher-student relationship. For a substantial part of the second academic year, however, she appears not to have been under his direct instruction, and that at least arguably effects a subtle change in the relation- ship and in the College's proper concerns about it. After May 1988, "X" was no longer a student, and there was therefore no special relationship between her and the grievor. That period of time, from May 1988 until the letter was sent in January 1991, is significantly longer than the period of time when she was a student, even counting the various school breaks into the calcula- tion. - 24 - From the College's point of view, what is the relevance of the alleged sexual behaviour between "X" and the grievor, if it took place during one of these periods? This requires an assess- ment of the nature of the relationship between the grievor and "X" during each period, and some judgment about the extent to which the College has a legitimate concern about sexual behaviour within that relationship. To make this assessment, it is first necessary to look at the evidence adduced by the College about the special responsibil- ities of Counsellors to their students, and at the College's own policies. To this end, we were referred to the Statement of Ethics and Standards of Practice, issued by the Ontario College Counsel- lors, apparently a voluntary association of all Counsellors in the Colleges of Applied Arts and Technology in Ontario. We were also referred to the College's own Policy on Human Rights, dated March 1987. While a number of paragraphs of the Statement of Ethics are of some relevance, the most directly applicable here is paragraph III, headed "Dual Relationships", which is as follows: College Counsellors are cognizant of their potentially influential position with respect to students. College Counsellors make every effort to avoid dual relationships that could impair their professional judgment or increase the risk of exploitation. Examples include but are not limited to, business or close personal relationships with clients. Sexual intimacy with clients is prohibited. The difficulty with applying this document directly to the grievor, who testified that he had never seen it, is that there is no evidence that he was ever classified as a Counsellor. He - 25 - first taught in the Life Skills Program, which counsel for the College asserted amounted to the same thing, only in 1990 at the Blind River campus; before that his teaching appears to have been in academic subjects, and he was classified as a Teaching Master or Professor at all material times. While the principles espoused in the Statement of Ethics may have more general application, there is simply no way to connect the statement itself directly to the grievor as a subscriber to it, or even to a member of the pro- fessional community who would be bound by the ethical consider- ations developed by its professional organization. The College's Policy on Human Rights largely reproduces the Ontario Human Rights Code, with specific changes to fit it to the College context. For present purposes, the following excerpts capture the impact of the policy on the kinds of relationships here at issue: DEFINITIONS "harassment" means engaging in a course of vexatious comment or conduct or derogatory allegations that ~re known or ought reasonably to be known to be unwelcome. "sexual harassment" means: (i) a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome, ie. repeated sexual remarks, alle- gations, or physical contacts, that are degra- ding, (ii) a sexual advance or solicitation made by a person who is in a position to grant or deny a benefit to another, ie. unwelcome advances from one member of the College community to another member of the College community, - 26 - (iii) when a person who is in a position to grant or deny a benefit threatens or institutes a reprisal against the person who rejected his or her sexual advance, ie. denying a promotion or firing of an employee who has refused a sexual proposition. "person" means College employees, administration, or students. "vexatious" means malicious, annoying and distressing. POLICY 6. Every student has a right to freedom from harassment while on College premises or while engaged in a College activity by another person because of race, ancestry, place or origin, ethnic origin, citizenship, creed, age, marital status, family status, handicap, or the receipt of public assistance. 7. Every person, 7.3 who is a student has the right to freedom from harassment in the academic environment because of sex by his or her instructor, by another student, or by an employee. 8. Every person has the right to be free from, 8.1 a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advance- ment to the person where the person making the solicita- tion or advance knows or ought reasonably to know that it is unwelcome, or 8.2 a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. - 27 - 9. Every person has the right to be free from a sexual solicitation or advance made on College premises or while engaged in a College activity by another person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome. 10. No person shall infringe or do, directly or indi- rectly, anything that infringes this Policy or the general laws. The difficulty with applying this document, in its own terms, is that there is no complaint or complainant. Even if the conduct described in the letter took place at a time when both the grievor and "X" were members of the College community, so that "X" was protected by this policy from prohibited conduct by the grievor, there is simply no evidence that what took place fits within any of the defined offences set out here. To offend against the strict words of this policy, there would have to be some evidence that whatever sexual attentions the grievor paid to "X" were unwelcome, and the letter, which is the only evidence we have, only speaks of apparently consensual activity. It is therefore impossible for us, based upon the evidence, to make a finding that there has been an express breach of any element of the Policy on Human Rights. We are thus forced to return to first principles in order to resolve the propriety of the conduct described in the letter. In our view, each of the three kinds of relationship described above between the grievor and "X" have somewhat different implica- tions for the College's attempt to discipline the grievor. We shall examine them, from first principles, in turn. Considering first the period of time during which the - 28 - grievor was directly involved as a teacher of "X", we think that a sexual relationship between a teacher and a current adult student, especially where the relationship is clandestine, is presumptively grounds for discipline of some kind. Such a relationship is inherently a conflict of interest. There is always at least the possibility that the position of authority which the teacher has over the student may have been used, however subtly, to influence the student to enter into the relationship, and there is equally the possibility that the relationship may cause the teacher to prefer the student over other students in breach of his or her duties to the College. Where students are adults under no disability, we are not prepared to say that every such case necessarily would give rise to the imposition of discipline; there may be circumstances in which such a relationship could be started and continued without doing damage to any of the interests involved. At the very least, however, were such a relationship proved, the onus would shift to the teacher concerned, and possibly also to the student, to justify the relationship in order to dispel the presumption of conflict of interest. During the time when "X" was a student at the College, but not being directly taught by the grievor, somewhat different considerations would apply. Obviously, the entire range of controls on relationships set out in the Policy on Human Rights would operate, and any breach of the general obligation to treat other members of the College community with dignity and respect would also give rise to the possibility of disciplinary action. - 29 - Concurrent membership in an academic community establishes certain mutual rights and obligations among all members of the academic staff and all students, and breaches of those obligations are obviously of direct concern to the College. If there were evidence before us of a breach of the Policy on Human Rights or of similar general legal obligations, that breach would be subject to discipline whether or not the grievor was directly involved in teaching "X" at the particular time. As we have observed, however, there simply is no such evidence. As to the third period of time, after "X" had ceased to be a student at the College, if the activity described in the letter took place it is presumptively none of the College's business. Consensual sexual activity between adults not in any particular relationship which gives rise to some special concern can only be a matter of interest to an employer where the relation- ship has some direct impact on the employer's operations, business or reputation. That impact might be demonstrated where the sexual activity takes place on the employer's premises during working hours, as in the Indusmin case, supra, or where some persisting dependancy or undue influence can be demonstrated: see Re Clarke and Crown in Right of Ontario (Ministry of Health), unreported, G.S.B. case 196/81, August 27, 1981 (Swinton). There is nothing in the evidence whatsoever to suggest that any such concerns would operate to overcome the presumption that sexual activity during this period of time would be a matter beyond the College's ability to control through the disciplinary process. - 30 - We should observe that the Union objected to the use of the letter as any kind of evidence of actual sexual activity between the grievor and "X", even if we accepted that the grievor had sent the letter. The Union argued that the letter would be hearsay, and thus not of sufficient cogency for us to be able to rely on it to draw conclusions about the grievor's conduct with "X". In our view, if we found that the grievor wrote the letter, it might constitute an exception to the hearsay rule as an admission by a party, but we do not think it is necessary to get into such fine technical issues for the purposes of this case. On the face of the letter, it seems more consistent that, if it describes sexual activity between the grievor and "X", the time of such activity was relatively close to the date of the letter, rather than some 30 months before when "X" was a student. For whatever the letter is worth, therefore, it simply does .not support the conclusion that the College draws, which is that the relationship between the grievor and "X" was improper and disciplinable because it took place while she was a student in some way under his influence. Nor is there any other evidence to suggest that sexual activity took place at any such time. Counsel for the College argued that we were entitled to draw all of the possible inferences which could be drawn from the evidence against the grievor, simply because he had offered no plausible explanation for the fact that the letter appeared in an envelope which he had addressed. In our view, this constitutes something of a bootstrap argument, in which each successive - 31 - inference drawn from the circumstantial evidence is based not only on the evidence itself, but also on the cumulative effect of inferences already drawn. With the greatest of respect, we cannot follow the College's argument this far. Based upon the circumstan- tial evidence, we have concluded that the grievor addressed the envelope, and that it is more probable than not that he put the letter inside the envelope before giving it to Ms. Ludgate to be stamped with the postage meter and mailed. The next inference which we are asked to draw is that the letter is an accurate description of sexual activity between the grievor and "X". Even if we were to draw that conclusion, however, there is nothing in the evidence to satisfy us that such conduct took place in circumstances which constituted grounds for discipline by the College. There are arbitration cases suggesting that, if a grievor is found to be lying, he or she should not be entitled to any discretion which a board of arbitration might exercise to reduce a penalty imposed. That is, however, a very different thing from finding that, because the employer has made out a case on ~he balance of probabilities which the grievor is unable to overcome, the grievor is necessarily lying, and that his lying is necessarily concealing the worst possible kind of behaviour which could be imagined. Even if the grievor sent the letter, as we have found on the balance of probabilities, there is still a possibility that he is telling the truth about having had no sexual relationship with "X", and that the letter was sent for some other bizarre purpose. - 32 - It is also possible that he is concealing an actual sexual relationship with "X", because of the impact that an admission of such a relationship would have upon his family, but that the relationship was of a nature in which the College would properly have no interest or concern. To leap to the conclusion that the grievor's denial necessarily means that the denial is utterly false, and that the activity clearly fell within the College's disciplinary responsibilities, is to turn the onus of proof in discharge cases on its head. Much as we understand the College's reaction to finding this letter returned in one of its envelopes, we are simply not able to follow the College to the second conclusion which it drew to justify the discipline here imposed. It will be obvious, however, that even without a finding of an improper sexual relationship between the grievor and "X", the College did have grounds to impose discipline on the grievor. The letter, even though a private document, is inherently obscene, whether or not it would fit within a Criminal Code definition of obscenity. While people have a right to exchange correspondence written in such terms, other people have a right to be protected, at least in the workplace, from exposure to such material. If the grievor had posted his letter on the bulletin board, or had passed it around to his fellow employees at the Blind River campus, there would have been absolutely no doubt that the College would be entitled to take disciplinary action against him. What we have found, on the balance of probabilities, that he did with it was much less direct, but ultimately had the same impact. Sending the - 33 - letter out in an envelope with the College's return address on it, and no other identifying feature to ensure that it was returned to the grievor personally, ran a significant risk when it was returned that it would be opened and read by another College employee. Indeed it was, and was thereafter very properly shown to a number of other College employees. The same risk was inherent in inviting the addressee to respond to the letter in similar terms at the College's address. All those who read it and who testified before us were very offended by the language and the description in the letter, and so the damage that was done was much the same as if he had posted it on the bulletin board. Mailing the letter in such circumstances, while not displaying an intention to offend fellow employees in a way which would be contrary to the Policy on Human Rights, would be sufficiently reckless as to that outcome as to justify the College in imposing discipline. The difficulty for us is now to quantify that discipline. It seems obvious, where the College has only been able to make out half of the case for discipline which it alleged against the grievor, that the grievor must be entitled to some relief, but we are equally concerned that the grievor's conduct has brought distress to his fellow employees, considerable trouble and expense to the College, and has placed his judgment in significant doubt. The collective agreement permits us, where we determine that a disciplinary penalty or discharge is excessive, to substitute such other penalty for the discipline or discharge as we consider "just and reasonable in all the circumstances". In our view, in the - 34 - circumstances of this case, reinstatement in employment is appropriate. The College has not made out the entirety of the case which it alleged against the griever, and the record before us does not suggest that there is likely to be any repetition either of the kind of conduct which we have found the College has made out, or of the conduct which the College has alleged but has not proved. The griever has no disciplinary record, and his lengthy past service entitles him to another opportunity to demonstrate that he can meet the requirements of judgment and probity required of a College professor engaged in teaching students whose social and economic circumstances may give rise to a certain degree of vulnerability. On the other hand, we do not think that there is any justification in this case for monetary compensation. Our award, therefore, is that the grievance is allowed in part, and that the griever is to be reinstated in employment, without compensation, as of the date of this award. We remain seized of whatever jurisdiction may be necessary to bring this matter to a final and binding conclusion. DATED AT TORONTO this 6th day of July, 1993. ~e~~an I dissent in part; "R.J. Gallivan" see attached R.J. Gallivan, College Nominee I concur "Menno Vorster" Menno Vorster, Union Nominee DECISION AND PARTIAL DISSENT OF R.J. GALLIVAN The issue of termination of employment for cause under a collective agreement requires application to the evidence of the civil law test of proof based on the balance of probabilities - that is, does the evidence lead to a conclusion which is more probable than not. By any reasonable application of that test to the evidence before us, or even by the more stringent version of it adopted by the Chairman, I conclude that Mario Vallieres wrote the obscene letter. I also conclude from the evidence that Vallieres, using the College's facilities, printed the letter on College stationery and equipment, mailed it through the College mailing system to one of his former students using a College envelope on which was pre-printed the College's return address, and requested that a similarly obscene response be directed to the writer at the College address contained in the letter itself. What is the appropriate disciplinary response by management to such a flagrant transgression by an experienced employee in a position of trust? Given the obscene nature of the contents of that letter, the fact its origin identified and thus implicated the College so that its contents became known to a number of other employees, the fact its intended recipient was a young woman whom Vallieres had taught, and given his responsibilities and position of trust as a teacher, I conclude that College management in deciding to terminate Vallieres made the only possible responsible decision in the circumstances. To have done otherwise would have been as culpable an abdication of its own responsibilities as Vallieres's behaviour was of his. It is clear to me that by his reprehensible conduct Vallieres is unworthy of continued employment at the College and should not be reinstated - he has forfeited that employment by the self-destruction of his credibility as a trustworthy teacher, and by implicating the College and his fellow employees in his malfeasance. Management's wise decision to remove him permanently from the workplace should be endorsed for the sake of the greater good of the College community. It is evident from the facts presented to us that Vallieres's job as a teacher of young people in the Futures Program is a sensitive and highly visible one in which he must interact effectively and credibly with students, management, fellow employees and members of the public. His blameworthy behaviour and flawed judgement, now matters of public record, cannot be brushed aside or hidden from view. While it is likely impossible yet to measure the damage he has done, there - 2 - can be little doubt that his ignoble behaviour has harmed the College's valuable reputation. He has violated the position of trust bestowed upon him by the College and he cannot be seen henceforth as a suitable teacher worthy of the confidence of College management or entitled to the esteem of its students or of his fellow employees. What manager could ever confidently place trust in Vallieres's judgement again? What parent could risk entrusting a student to his guidance? What student could now accept him as a credible pedagogue or worthy role model? What employee mindful of reputation would henceforth want to be associated with him as a colleague? The self-evident answers to those questions demonstrate amply that it is impossible to see Vallieres resuming any useful role at the College. Accordingly, I must dissociate myself from that part of the Chairman's decision which orders that Vallieres be rehired by the College. In my judgement, reinstatement in employment in these circumstances is beyond the pale of any reasonable response to the grievor's behaviour, and creates an impossible situation for the College and for Vallieres himself. Having been found guilty of reprehensible behaviour, how can Vallieres return to employment at the College as if nothing untoward had happened? He has not been found innocent nor has his conduct been exonerated. In deciding to reinstate him, the Chairman simply has concluded that there is nothing on his record to indicate he would repeat the offence. With respect, I disagree with that reasoning because in my view it can be concluded much more validly that there is nothing on his record to indicate he would not. Given what is known that he has done already, reinstatement obviously entails unacceptable for the College community. Vallieres's job is not one where he can be hidden away in some remote corner, isolated from the life of the College and never again be exposed to public scrutiny. The moment he returns to the College employ, the damage to the College of having such a person on its payroll is done. Management cannot avoid that problem by saying "an arbitrator made us do it" since ultimate responsibility for the well-being of the College continues to rest on management, not on the arbitrator. Thus it is management which is faced with the problem of managing Vallieres; but Vallieres has so destroyed his own reputation and credibility as to make him an unacceptable and unmanageable risk for the College. That is why I conclude his continued employment by the College is inappropriate and unreasonable in the circumstances. Neither he nor management should be faced with the intractable problems reinstatement will create. In my view it is not necessary, in order to justify termination of employment in this case, to prove that Vallieres and his former student actually had the relationship described in the obscene letter. The letter itself by including the College's return address became known to a number of Vallieres's fellow employees who quite understandably reacted with repugnance when exposed to its - 3 - contents. Their right to be free of such events in their workplace was thereby abused and their entitlement to be confident that a fellow employee would not behave so as to damage their or their employer's reputation was seriously undermined. No~ do I think it particularly relevant that Vallieres's students in the Futures Program had special needs. A high standard of behaviour as a role model surely can be expected of any teacher of young people. Vallieres can no longer be seen in such a role. Given his total denial of the uncontradicted evidence confronting him, it must be concluded that he lied under oath to this Board. Thus his ability to project standards of ethics for the guidance of students is fatally compromised; his authority as a teacher to set acceptable standards of behaviour is completely undermined. I accept without debate that loss of employment is a serious penalty. However, the nature of the transgression in this case and its effect upon others inexorably drives me to the conclusion that the benefit of any doubt about the nature of an appropriate penalty must be given to the College's obligation to protect its students, its other employees and its reputation in the community. I conclude, therefore, that Vallieres should not be returned to the College's employment. His grievance should be dismissed and his termination of employment for cause confirmed.