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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.
««''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)
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.
(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.)
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
(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
5
^[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)
•*l ' V '
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
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)
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
37
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
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)
39
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
... 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
41
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.
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
43
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
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)
45
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)
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
47
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)
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.
49
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
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.)
51
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)
I ■
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
53
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
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
55
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
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)
57
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.^^
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
59
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
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
61
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
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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
)
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
67
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
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
69
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).