Off Duty Conduct Its None of Your Business

Off- Duty Conduct – “It’s None of Your Business!” Amanda E. Lawrence-Patel I Michael Hines March 12, 2018 Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Off-Duty Conduct – “It’s None of Your Business” • • The Basics Employees as Parents Public Criticism Public Commentary Illegality Immorality Reacting to the Laying of Criminal Charges Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • The basic rule – It’s none of your business “Employers are not custodians of the characters or reputations of their employees. The basic rule is that an employer has no jurisdiction or authority over what employees do (including where they live), outside working hours, unless it can show that its legitimate business interests are affected in some way. ” Cape Breton-Victoria Regional School Board v. CUPE Local 5050, 2011 NSCA 9 (Can. LII) Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • • When are exceptions made? Millhaven Fibres 1967 Carswell. Ont 789 • • • conduct harms Company's reputation or product conduct renders the employee unable to perform his duties satisfactorily conduct leads to refusal or reluctance of the other employees to work with him employee is “guilty” of a serious breach of the Criminal Code conduct impairs Company’s ability to properly carry out its function of efficiently managing its works and efficiently directing its working forces. Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • “Public” employers • Air Canada 1973 Carswell. Ont 1545 • • Millhaven factors are independent Toronto District School Board and CUPE Local 4400, 2009 Can. LII 1363 (ON LA) • Actual or potential reputational damage need not be proven Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • Toronto DSB v CUPE Local 4400, 2009, Can. LII 1363 (ON LA) • Moral disapproval is not the issue • It is the extent to which the conduct has the potential for significant detrimental impact on the employer’s business reputation or ability to operate its business effectively that is a key consideration, as opposed to whether the conduct is inherently immoral or illegal. The task of the arbitrator is to assess, considering all of the evidence and the nature of the employment, what a fair-minded and well-informed member of the public or relevant constituency may think about the off-duty misconduct. Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • School boards • Ross v. New Brunswick School District No. 15, 1996 Can. LII 237 (SCC) A school is a communication centre for a whole range of values and aspirations of a society…. By their conduct, teachers as “medium” must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system…. Teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off duty. Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • School boards • Toronto Board of Education 1997 Can. LII 378 (SCC) • Ontario Education Act, s. 264(1)(c): • • 264 (1) It is the duty of a teacher…(c) to inculcate by precept and example respect for religion and the principles of Judaeo. Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues; Halifax Regional School Board 2017 Can. LII 83940 (NS LA) Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • Different Employee Groups • teachers • educational assistants • school office/custodial • central board staff • outside contractors Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • • Different Employee Groups Bus Drivers? • CUPE, Local 1117 v New Brunswick (Department of Education), 2009 Carswell. NB 630 • conviction for impaired driving while off-duty “A school bus driver is entrusted with perhaps the highest position of trust which society can impose on an employee which is the safety of children being transported to and from school. Parents expect the highest standard of care under the circumstances and they are entitled to this assurance. ” Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

The Basics • Structure for decision-making • nexus to the employer • nature of the employee’s duties • nature of the (mis)conduct • other aggravating or mitigating factors Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Employees As Parents CUPE Local 5047 v Halifax Regional School Board, 2017 Can. LII 83940 (NS LA) • • • EA/mother of student with ADHD/OCD Overly aggressive advocacy Protection of safe, respectful learning environment Discipline appropriate, termination overturned Careful balancing of parental interests and employment obligations Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Criticism • Generally • a “duty of loyalty”? • Union officials • Whistleblowers - disclosure of confidential information Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Criticism • 1982 Canadian Charter of Rights and Freedoms • • Section 2(b) - Everyone has the following fundamental freedoms: …(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication Section 1 - demonstrably justifiable limitations Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Criticism • The “Duty of Loyalty” • developed from “master/servant” context • main application in context of public servants • • Fraser v. PSSRB 1985 Can. LII 14 (SCC) Labadie v. Deputy Head (Correctional Service) 2008 PSLRB 85 (Can. LII) • position held • visibility of expression • sensitivity of issue • truth of statement • fact-finding efforts • remediation efforts • impact • impairment of employee’s ability Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Criticism • Criticism expressed towards school boards while at work • BC Public Employers’ Association v. BC Teachers’ Federation (Munroe) • BC Public School Employers’ Assn. v. BC Teachers’ Federation (Pamphlet Grievance) • BC Public School Employers’ Association v. BC Teachers’ Federation (Freedom of Expression – Black Armband) • ETFO v. Hamilton-Wentworth DSB Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Criticism • Criticism expressed towards school boards while offduty • Camosun College v. C. U. P. E. , Local 2081, 1999 Carswell. BC 4507 • dismissal of lab technologist for reckless, unsubstantiated critical allegations to internet union “chat group” about College administration and staff Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Criticism • Union officials • Charter, section 2(d), freedom of association • A. U. P. E. v. Alberta 2000 Carswell. Alta 1733 Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Commentary • • Harder to associate with the workplace Factors to consider: • substance of communication • visibility/notoriety • actual environment within the school impact on the employee’s ability to perform their position The Charter • • Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Public Commentary • Ross v. New Brunswick School District No. 15, 1996 Can. LII 237 (SCC) • • • “…where a "poisoned" environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant. ” Peel Board of Education v. O. S. S. T. F. , 2002 Carswell. Ont 2430 Kempling v. British Columbia College of Teachers, 2005 BCCA 327 (Can. LII) Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Social Media • • • Breaches of employee or customer privacy Misuse or disclosure of confidential or proprietary business information Criminal Code offences, such as the dissemination of pornography Breaches of the Human Rights Code, including discrimination or harassment Breaches of the Occupational Health and Safety Act relating to workplace violence or harassment Defamation Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Social Media • Facebook • Wasaya Airways LP v. A. L. P. A. , 2010 Carswell. Nat 6233, • • “[W]here the internet is used to display commentary or opinion, the individual doing so must be assumed to have known there is potential for virtually world-wide access to those statement. ” Twitter • Toronto (City) and IAFF, Local 3888, 2014 Carswell. Ont 19312 Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Illegality • The fact of a criminal charge • The underlying behaviour • perception of risk • reputational harm Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Illegality • Illegal Substances • Colchester East Hants District School Board v. CUPE, Local 1047, 1993 Carswell. NS 666 • School Bus Driver • Possession and trafficking of marijuana • Delta School District No. 37 v. CUPE Local 1901, [1993] B. C. C. A. A. A. No. 107 • Custodian • Trafficking of cocaine Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Illegality • Assault • Toronto District School Board and CUPE Local 4400, 2009 Can. LII 1363 (ON LA) • • School Based Safety Monitor (Coincidentally) assaulted a parent while intoxicated Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Illegality • Possession of a firearm • Ottawa-Carleton DSB v. O. S. S. T. F. District 25 Plant Support Staff, 2006 Can. LII 60956 (ON LA) • • • Chief Custodian Robbed bank at lunch Brought firearm to school Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Illegality • • • Tax avoidance? Jaywalking? Cheese smuggling? • Grand Erie DSB v OSSTF District 23, 2016 Can. LII 72391 (ON LA) • • • occasional teacher no conviction is necessary same result for a custodian/bus driver/board secretary? Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Immorality • Personal relationships • “inappropriate” relationships with students • Cape Breton-Victoria Regional School Board v. CUPE, Local 5050, 2011 NSCA 9 (Can. LII) • co-workers • members of the public Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Immorality • “The fast lane” – lifestyle issues • • Badder Bus Service Ltd. v. Reavely, [2000] C. L. A. D. No. 648 Shewan v. Board of School Trustees of School District #34 (Abbotsford), 1987 Can. LII 159 (BC CA) Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Immorality • How do we define “the community” whose “fair-minded” assessments must be determined? • What is it, exactly, that we are concerned with? • student morality? • student health and welfare? • would you be allowed to teach the modelled behaviour? Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Reacting to the Laying of Criminal Charges • Whether to suspend (and wait) or dismiss immediately • • • How strong/reliable is your supporting information? How long will you be waiting? Are you concerned about witnesses disappearing or evidence being compromised? Will the Crown take the case seriously? What is the likely outcome in the criminal proceeding? What (if any) impact will there be on your relationship with the law enforcement agency? Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Reacting to the Laying of Criminal Charges • Whether to suspend or permit the employee to continue at work • “Innocent until proven guilty”? • Assume the allegations are correct (unless you know better) – what reaction do they dictate? • Are there practicable alternatives • “home assignment”? Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Reacting to the Laying of Criminal Charges • If you are going to suspend, will it be with or without pay? • “Innocent until proven guilty”? • Has the Board been involved in the charges being laid? • Have you rejected adoption of a practicable alternative? Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Reacting to the Laying of Criminal Charges • If you are going to suspend, will it be with or without pay? • Phillips Cables Ltd. v. U. S. W. A. , Local 7276, 1974 Carswell. Ont 1384 • Toronto DSB v CUPE Local 4400, 2009 Can. LII 1363 (ON LA) • Toronto DSB v CUPE Local 4400, 2013 Can. LII 34759 (ON LA) Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Reacting to the Laying of Criminal Charges • What if there is an acquittal? • Why was the prosecution unsuccessful? • standard of proof? • uncooperative witness? • unenthusiastic prosecution? • delay or other “technicality”? • Get the assistance of the Crown • Speak to the witness(es) • Consider your settlement options Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida

Off- Duty Conduct – “It’s None of Your Business!” Amanda E. Lawrence-Patel I Michael Hines March 12, 2018 Canadian Litigation & Arbitration Review 49 th NAEN Conference, Clearwater, Florida