COURT OF APPEAL FOR ONTARIO

CITATION: Fernandes v. Peel Educational & Tutorial
    Services Limited (Mississauga Private School), 2016 ONCA 468

DATE: 20160614

DOCKET: C59734

Gillese, Hourigan and Pardu JJ.A.

BETWEEN

Remy Fernandes

Plaintiff (Respondent)

and

Peel Educational & Tutorial Services
    Limited c.o.b. as Mississauga Private School
and Gabrielle Bush

Defendants (
Appellant
)

Tim Gleason and Adrienne Lei, for the appellant

Gary Bennett, for the respondent

Heard: February 24, 2016

On appeal from the judgments of Justice Gordon D. Lemon
    of the Superior Court of Justice, dated November 12, 2014, June 18, 2015, and
    August 13, 2015, with reasons reported at 2014 ONSC 6506, 2015 ONSC 3753 and
    2015 ONSC 5112.

Gillese
    J.A
.:

OVERVIEW

[1]

Peel Educational & Tutorial Services Limited carrying on business as
    Mississauga Private School (the School) is an accredited
private
    school, offering classes from pre-kindergarten to grade 12.

[2]

The School employed Remy Fernandes (Mr. Fernandes or the respondent)
    as a teacher from January 1999 until April 2009, when his employment was
    terminated, without notice.

[3]

Mr. Fernandes sued the School and Gabrielle Bush, a co-owner of the
    School, alleging that he had been wrongfully dismissed. The School defended on
    the basis that there was just cause for dismissal.

[4]

The trial judge found that Mr. Fernandes had committed acts of misconduct,
    including the creation of false marks and inaccurate grades and then lying to
    cover up the improprieties. Nonetheless, he found that the School had
    wrongfully dismissed Mr. Fernandes.  He also found that Mr. Fernandes became
    disabled during the reasonable notice period. He dismissed the claim as against
    Ms. Bush.

[5]

By judgment dated November 12, 2014, (Judgment #1) the School was
    ordered to pay Mr. Fernandes damages for wrongful dismissal amounting to one
    years salary, a small miscellaneous income loss claim, and loss of long-term disability
    benefits. A second judgment, dated June 18, 2015 (Judgment #2), quantified
    the value of the long-term disability benefits. A third judgment, dated August
    13, 2015 (Judgment #3), required the School to pay Mr. Fernandes costs of $130,000,
    inclusive of HST and disbursements. No costs were ordered for or against Ms.
    Bush.

[6]

The School appeals.

[7]

I would allow the appeal and dismiss the action. In my view, Mr.
    Fernandes misconduct cannot be reconciled with his obligations as a teacher. It
    was fundamentally and directly inconsistent with Mr. Fernandes obligations to
    the School and to his students. Considered in context, that misconduct was
    sufficiently serious that it justified dismissal without notice. Accordingly, the
    trial judge erred in finding that Mr. Fernandes had been wrongfully dismissed.

BACKGROUND

The Schools Grading Policy

[8]

The School is accredited by the Ministry of
    Education to grant credits towards obtaining an Ontario Secondary School
    Diploma. In order to maintain its private school accreditation, the School must
    follow the Ministry's policies, including those concerning the assessment and
    evaluation of student progress and achievement.

[9]

The School established guidelines for the
    assessment and evaluation of student achievement, based on the provincial
    curriculum expectations and the achievement levels set by the Ministry. One of
    the Schools policies stipulated that no zeroes or blanks could appear on a
    report card, except in the case of plagiarism. The School required teachers to
    hand in their grades in hard copy and on time, so that they could be used to
    prepare student report cards.

[10]

Each school year, the School issued four report
    cards: in November, late January or early February, April and June. The first
    three report cards were interim; the fourth was the final report card.

[11]

All report cards were compiled by the homeroom
    teacher. The interim report cards included spreadsheets and progress reports. They
    were then attached to a letter along with a form so that parents could request
    interviews.

[12]

The fourth and final report cards were prepared
    after final exams. The final report cards had a longer comment section and a
    more detailed marking record. Only the final grades from the June report cards appeared
    on a student's official Ontario Student Record.

January 1999

[13]

Mr. Fernandes began teaching for the School in
    January 1999. He taught computer studies for the junior, intermediate and
    senior school classes. He also worked for the School in the summer months,
    doing information technology work. Like other teachers at the School, Mr.
    Fernandes was involved in extracurricular activities, including as a volleyball
    coach and being involved in the Arts and Music Night.

[14]

Until 2008, Mr. Fernandes received positive assessments
    for his teaching.

The 2008
    Assessment

[15]

Paul Edwards was the Schools vice-principal in
    2008. He completed Mr. Fernandes annual assessment for the 2007/08 school year
    (the 2008 assessment). The 2008 assessment was on the standardized,
    comprehensive four-page assessment form that covered curriculum (planning,
    preparation and instruction), classroom management and appearance,
    communication, and professionalism.

[16]

In the 2008 assessment, the School expressed disappointment
    with Mr. Fernandes performance in a number of areas.

[17]

In the curriculum category, there were three
    critical comments. The first related to the video retrospective shown at the
    School Gala. The comment was that although the video seemed to involve
    considerable class time and student involvement, it was very disappointing and
    not representative of the Schools history or of the imaginative potential of
    the students. Another comment was that the grade 12 yearbook course was very
    problematic, with deadlines being missed badly and the administration not being
    informed of issues until it was almost too late. A third comment relating to
    curriculum was that while Mr. Fernandes was passionate about the courses he
    wished to teach, he took on new courses only with real reluctance.

[18]

In terms of classroom management and appearance,
    the 2008 assessment noted that:

·

Mr. Fernandes was inflexible in his application
    of school policy;

·

He was sometimes perceived as being inconsistent
    or unfair to the extent that students lost their respect for him;

·

Too many students had expressed frustration and
    resentment about their treatment by Mr. Fernandes, saying that they did not
    feel they had been treated fairly but, rather, picked on and arbitrarily
    disciplined; and

·

Too often, relatively minor infractions had been
    the basis for sending students to the vice-principals office when they should
    have been resolved by the teacher.

[19]

The 2008 assessment was otherwise positive.

[20]

Mr. Fernandes was not happy with his 2008 assessment
    and provided a two-page response to it. In his response, Mr. Fernandes explained
    why he disagreed with the comments noted above and concluded with the
    following:

I have every reason to be disappointed with my
    professionalism and performance, as I see the administration is not pleased,
    and have concerns that are not becoming of a good teacher.

I shall strive to always do my best, and
    always work in the best interest of the students and the [S]chool. Having said
    this, I shall go out of my way to make sure [the School] excels and grows both
    as an educational institution and as a business in general.

Summer 2008

[21]

Ms. Bush, who had previously been the school
    principal, and Drew Cleland became co-owners of the School through a
    corporation. Mr. Edwards was promoted to the position of principal of the School.

September 2008

[22]

In September 2008, instead of again being named
    as head coach of the volleyball team, Mr. Fernandes was made the assistant
    coach. Consequently, Mr. Fernandes was no longer able to get the hours he
    needed to obtain a coaching certificate that he had been working towards.

[23]

Mr. Fernandes felt that his demotion to assistant
    coach had been done to thwart his wish to become further certified.  The trial
    judge found no evidence to support this contention.

March 2009  A meeting between Mssrs.
    Fernandes and Edwards

[24]

In early March 2009, Mr. Fernandes complained to
    Ms. Bush about Mr. Edwards. Mr. Fernandes believed that since Mr. Edwards
    promotion to principal, Mr. Edwards had begun bullying Mr. Fernandes and had
    given Mr. Fernandes an unmanageable workload.  Ms. Bush suggested that he speak
    directly with Mr. Edwards.

[25]

On March 10, Mr. Fernandes spoke to Mr. Edwards
    and asked what he could do to improve their relationship. Mr. Edwards suggested
    that they meet the following day to discuss the matter.

[26]

When the two men met on March 11, Mr. Edwards
    gave Mr. Fernandes a memo which responded to his request for suggestions on how
    he might improve. The trial judge found that the memo was constructive and
    civil. Among other things, the memo echoed some of the same concerns that had
    been expressed in the May 2008 assessment.

March 2009  Problems with grades

[27]

In order for the April 2009 interim report cards
    to be prepared, teachers were required to submit their grades to the Schools Senior
    Coordinator, Nick Zero, by March 3, 2009. Mr. Fernandes submitted his grades,
    but there were numerous blanks and calculation errors in his reports.

[28]

Mr. Fernandes was one of the few teachers to use
    an Excel spreadsheet when providing his marks. He had been using the
    spreadsheet for many years. He was not using the Markbook software program that
    other teachers were using and that was recommended. Usage of the Markbook
    program was to be mandatory beginning in September 2009.

[29]

On March 10, Mr. Edwards, Ms. Bush and Mr. Zero met
    to discuss the grades that had been submitted by five teachers, one of whom was
    Mr. Fernandes. In respect of Mr. Fernandes grades, they were concerned about the
    alarming number of blanks that were recorded. If a student failed to complete an
    assignment or test and a blank was registered to reflect that, the computer
    would transform the blank into a grade of zero. Because of the large numbers of
    blanks in the grades that Mr. Fernandes had submitted, the grades for his classes
    were exceptionally low. There were also calculation errors in the grades that he
    had submitted.

[30]

Mr. Edwards met with Mr. Fernandes to discuss the
    problems with his grades. Mr. Fernandes promised that he would resubmit the grades
    by March 13, 2009.

[31]

Mr. Fernandes did resubmit the grades on March
    13 but the problems had not been fixed. There were still many missing marks,
    the spreadsheets still calculated the blanks as zeroes, and there were still many
    calculation errors. After reviewing the resubmitted grades, Mr. Edwards and Ms.
    Bush decided to meet again with Mr. Fernandes to discuss the ongoing problems
    with his grades. A meeting was arranged for later that day, at which Mr.
    Edwards, Ms. Bush and Mr. Fernandes were in attendance.

[32]

During the meeting, Mr. Fernandes agreed that
    there were problems with his grades but reassured the other two, saying that
    over the March break, once assignments had been handed in, he would fix the
    problems. He promised to resubmit the grades on March 30, 2009. After the
    meeting, Ms. Bush asked Mr. Edwards to document the problems with Mr. Fernandes
    grades.

[33]

March 30 was the first day of school following
    March break. Mr. Edwards gave Ms. Bush the document that he had prepared, at
    her request, about the problems with Mr. Fernandes grades (the March 30
    Report). The March 30 Report referred to Mr. Fernandes initial March 3rd
    grades and those that he resubmitted on March 13th and set out a number of
    problems that both sets of grades displayed. In both sets of grades there were two
    types of problems: zeroes had been left for individual students who had not
    completed assignments and/or presentations, contrary to the Schools grading policy;
    and, there were inconsistencies/inaccuracies in how the grades had been calculated.

[34]

The March 30 Report did nothing to allay Ms. Bushs
    concerns about the tardy and sloppy approach that Mr. Fernandes had taken to the
    preparation of student grades.

[35]

Mr. Fernandes did not resubmit his grades on March
    30, as he had promised.

Early April 2009

[36]

On April 1 or 2, Ms. Bush and Mr. Edwards spoke again
    with Mr. Fernandes because he had still not resubmitted his grades. Mr.
    Fernandes told them that he had addressed all of their concerns but was still
    marking assignments that had come in on March 30. He asked for a further
    extension to April 3.

[37]

On April 3, Mr. Fernandes submitted his grades
    for the third time. Mr. Edwards and Ms. Bush reviewed them and were astonished
    to see that the grades were virtually perfect. This made them suspicious,
    particularly as the marks for the respondent's students had gone from being the
    worst of all of those of the staff at the School to the best.  The grades
    indicated that all student assignments and presentations had been completed and
    marked.  Ms. Bush was struck by the grades of one student with significant
    educational issues whom she had been monitoring. That student had been given a
    perfect score (5/5), despite having not completed all of her work in the
    course.

[38]

At that point, Ms. Bush became concerned that
    the problem was bigger than the validity of the grades that Mr. Fernandes had
    submitted for purposes of the interim report cards. She worried that the marks
    upon which the grades were based might also be invalid. She asked Mr. Edwards
    to investigate the validity of the marks that Mr. Fernandes had given to his
    students for their assignments and presentations and indicated that she, too,
    would begin to speak to the students about their progress in Mr. Fernandes
    courses.

[39]

On April 8, Ms. Bush, Mr. Edwards and Mr. Zero
    met to review all of the teachers' grades, including those of Mr. Fernandes. At
    the meeting, Mr. Edwards produced a draft report dealing with irregularities in
    marks given by Mr. Fernandes for the work of his students (the  April 8
    Report). This report itemized the results of the meetings that he and Ms. Bush
    had each had with students in Mr. Fernandes classes. Ms. Bush was seriously
    concerned about the irregularities which showed that students had been given
    marks for assignments that not been marked and presentations that had not yet
    taken place. She directed Mssrs. Edwards and Zero to follow up with Mr.
    Fernandes after the Easter long weekend, which fell on April 10 - 13.

April 13 to 17

[40]

The testimony of the parties diverged on the meetings
    that took place in the week of April 13, 2009, leading up to the termination of
    the respondents employment with the School.

[41]

The Schools witnesses testified that there were
    three meetings that week: (1) on April 14, between the respondent and Messrs.
    Edwards and Zero; (2) on April 16, between the respondent, Mr. Edwards and Ms.
    Bush; and (3) on April 17, between the respondent, Ms. Bush and Mr. Cleland.

[42]

Mr. Zero testified that when he and Mr. Edwards
    met with Mr. Fernandes on April 14, Mr. Fernandes was given an updated version
    of the April 8 Report.
[1]
Mr. Edwards then read a significant portion of the document to Mr. Fernandes. Mr.
    Fernandes offered no response when asked why he had awarded marks for
    assignments that had not been marked and presentations that had not yet
    occurred. Mr. Zero said that Mr. Edwards did not berate Mr. Fernandes but told
    him that the marking was sloppy. Mr. Zero thought the meeting lasted perhaps
    8-10 minutes.

[43]

April 15 was Arts and Music night at the School.
    That evening, Mr. Edwards looked in Mr. Fernandes classroom for unmarked
    papers, which he found. He finalized his report and gave it to Ms. Bush that
    evening or the following morning.

[44]

Ms. Bush and Mr. Edwards testified that they met
    with Mr. Fernandes on April 16, at which time they gave him Mr. Edwards final
    report, which included the following conclusion:

Mr. Fernandes appears to have fabricated marks
    on a number of occasions. He has entered marks in his records before students
    have done the work or even submitted the assignments. Mr. Fernandes has entered
    marks for assignments that he has not marked. This appears to be a case of
    academic fraud.

[45]

Ms. Bush testified that Mr. Fernandes initially said
    he did not agree with the report and claimed that his marks were accurate. However,
    after Mr. Edwards suggested that the students be called in to talk about the
    report, Mr. Fernandes started to cry, admitted he had falsified his marks, and
    said he was sorry. Ms. Bush said that she told Mr. Fernandes that the matter was
    extremely serious, it was fraud to falsify his records, and his conduct was
    grounds for termination. Mr. Fernandes expressed concern about his daughters'
    tuition-free status at the School.  He agreed to meet with Ms. Bush and Mr. Cleland
    the following morning to discuss how the situation would be handled.

[46]

On the morning of April 17, Ms. Bush and Mr. Cleland
    met with Mr. Fernandes. Ms. Bush testified that she advised Mr. Fernandes that
    his employment was terminated for cause effective immediately because he had
    falsified student records, which was academic fraud, and that Mr. Fernandes
    agreed and accepted the termination. Ms. Bush said that Mr. Fernandes was
    apologetic, did not retract anything that had been said, denied that anything was
    going on in his life that was troubling or distracting him, and repeated the
    same admissions he had made the previous day. He spoke about wanting to resign,
    rather than have his employment terminated.

[47]

At Mr. Fernandes request, Ms. Bush agreed to
    meet again with him on Monday, April 20, 2009, to "talk about what we were
    going to tell people, how he could save face and to really firm up some sort of
    an arrangement with his daughters."

[48]

At trial, Mr. Fernandes testified that there were only
    two meetings: (1) on April 16, when he met with Messrs. Zero and Edwards; and
    (2) on April 17, when he met with Ms. Bush and Mr. Cleland. He denied that he
    met with Ms. Bush on April 16, denied that there was any discussion of academic
    fraud at the April 16 meeting, denied that he had confessed to falsifying marks
    at the April 16 meeting, and denied that he had been terminated for cause on
    April 17. He testified that at the April 17 meeting, Ms. Bush told him that he
    needed to resign and he told her that he would respond in writing on Monday,
    April 20.

[49]

Suffice to say at this point that the trial judge rejected Mr.
    Fernandes version of what had transpired that week and accepted the evidence
    of Ms. Bush and Mr. Zero. He found as fact that Mr. Fernandes was terminated on
    April 17, 2009.

After April 17

[50]

Mr. Fernandes did not attend the April 20 meeting that he
    had requested because he felt ill. He went to the doctor that day. The doctor
    gave him a note which read Due to work related stress, Mr. Fernandes will be
    off work until further notice. His wife faxed the note to the School.

[51]

That same day, Ms. Bush wrote a letter
[2]
to Mr. Fernandes, saying on Friday, April 17, 2009, we advised you in person
    that your employment with [the School] was terminated, for cause, effective
    that day, as you had continually and repeatedly failed to comply with your
    duties and responsibilities as a teacher, and as an employee of [the School].

[52]

The interim report cards were sent out on April
    17, the same day that Mr. Fernandes was terminated.  They included the student grades
    that Mr. Fernandes had submitted. Ms. Bush testified that although those grades
    were not a true reflection of the students progress at that time, there was insufficient
    time to rectify them. Mr. Edwards and Ms. Bush knew that the School had a big
    task ahead of it in terms of re-evaluating and re-assessing all of the work of
    all of the students in all of Mr. Fernandes classes. While Ms. Bush was
    confident that the work could be done in time for the final report cards in
    June, it could not be done in time for the April interim report cards.

[53]

The School continued to provide bus service and free tuition for Mr.
    Fernandes two daughters for the balance of the academic year.

[54]

With the help of the new teacher hired to replace Mr. Fernandes, the
    School re-assessed and re-evaluated all of the marks that the respondent had
    assigned to each student to ensure their validity. The final marks contained in
    the June report cards (and which appear on a students Ontario Student Record)
    were correct.

The Trial

Witnesses for the Plaintiff

[55]

Mr. Fernandes testified. So, too, did his two treating physicians:
Dr. Sahheed and Dr. Joshi. Dr. Sahheed was Mr. Fernandes family
    physician. Dr. Joshi was his treating psychiatrist.

[56]

Dr. Sahheed testified that Mr. Fernandes had major depression arising
    from his loss of employment.  In his opinion, Mr. Fernandes was not able to
    return to work as a teacher or anywhere else.

[57]

Dr. Joshi testified that Mr. Fernandes had major depressive disorder,
    mixed with anxiety, panic attacks and posttraumatic stress disorder. In his
    view, the major cause of Mr. Fernandes medical difficulties was the termination
    of his employment as a teacher. Other causes were his financial stress, the
    fact that he had to sell his home, and his feelings of shame, guilt and
    worthlessness because he was not working.

[58]

Mr. Fernandes also called Matthew Williamson, the regional manager of
    the Hamilton Disability Management Service Office of Great-West Life Insurance
    Co., the Schools insurer. At the time of testifying, Mr. Williamson had been
    employed by Great-West Life for 13 years.

[59]

Mr. Williamson testified that he reviewed Mr. Fernandes application for
    disability benefits and denied the claim by letter on April 21, 2014. He
    determined that Mr. Fernandes was ineligible for benefits because Mr. Fernandes
    was not employed on the date of disability. However, he testified that he had
    also reviewed the medical information submitted by Mr. Fernandes physicians
    and concluded Mr. Fernandes did not qualify for disability benefits, even if he
    were employed.

[60]

As Mr. Williamsons letter explained, disability is assessed on the
    basis of the duties a person regularly performed for the employer before the
    disability started. A person is considered disabled under the policy if,
    because of disease or injury, there is no combination of duties [the person]
    can perform that regularly took at least 60% of [his or her] time at work to
    complete. According to the letter, the medical information provided to the
    insurer by counsel for Mr. Fernandes was insufficient to support the level of
    functional impairment that he was claiming.

Witnesses for the
    Defendants

[61]

Six witnesses from the School testified at
    trial: Beatrice Chachel (a long-time administrative employee), Nick Zero, Travis
    Cox (who coached volleyball at the School), Paul Edwards, Drew Cleland, and
    Gabrielle Bush.

[62]

The School also led the evidence of Robert Semone, an alumnus. Mr.
    Semone had been a student of Mr. Fernandes several years before his dismissal
    and testified that, even though he believed he had failed an examination in Mr.
    Fernandes class by submitting only two lines of code for the whole
    examination, he received a 72 on the examination and a 74 in the course. Mr.
    Semone had never spoken to anyone about this incident until shortly before the
    trial, when Ms. Bush approached him. He agreed that his memory was hazy and he
    was unsure about certain details.

[63]

The trial judge found Mr. Semones evidence to be insufficiently
    reliable to be of assistance in reaching his findings.

THE DECISION BELOW

Credibility Findings

[64]

After introducing the parties and issues that
    divided them, the trial judge made credibility findings. He stated that Mr.
    Fernandes gave his evidence in a credible fashion, admitted things even though
    many were not to his benefit, and acknowledged that his record-keeping was
    sloppy, incorrect and late.

[65]

The trial judge found that Mr. Fernandes lied to
    the court on at least two occasions. First, Mr. Fernandes lied to the court
    when he said that he could give marks before student presentations were
    completed since the presentations did not form part of the students marks.
    Second, he lied about the events of the week of April 13.

[66]

The trial judge concluded that where there was
    no corroboration of Mr. Fernandes evidence, he had to treat it with great
    caution.

[67]

Of the six School witnesses, the trial judge
    accepted the evidence of Ms. Chachel, Mr. Zero and Ms. Bush and rejected that
    of Mssrs. Cleland and Edwards.  He did not assess Mr. Coxs credibility.

[68]

In respect of Ms. Chachel, he found no reason to
    reject her evidence.

[69]

The trial judge found that Mr. Zero, although
    still a teacher at the School, showed no bias in relation to the parties
    involved in this dispute. He stated that where Mr. Zeros evidence differed
    from that of other witnesses who had a greater interest in the outcome of the
    trial, he relied on Mr. Zero and his recollections.

[70]

He found Ms. Bush to have given clear and candid
    evidence that was not shaken in cross examination. He stated that he had no
    reason to reject her evidence.

[71]

Mr. Clelands involvement with this matter was
    limited to attending the last meeting with Mr. Fernandes on April 17 and
    preparation of the record of employment for Mr. Fernandes.  Mr. Cleland prepared
    that document in September 2009 but dated it April 2009.  The trial judge
    stated that he did not place any reliance on Mr. Clelands evidence.

[72]

The trial judge found that Mr. Edwards had an
    ill-disguised dislike of Mr. Fernandes and was a bully in this piece. He stated
    that where Mr. Edwards evidence differed from that of any other witness, he
    rejected Mr. Edwards evidence.

Findings on Mr. Fernandes Marks
    and Grades

[73]

The trial judge noted that Mr. Fernandes
    admitted the following:

·

his marks were late;

·

his calculations for both student and class
    averages were incorrect;

·

some marks were deleted in error;

·

midterm progress report marks were not ready on
    March 3 or on March 13;

·

he gave full marks to students who had not
    completed their assignments even though he knew that it was School policy that
    one could not get a perfect score for an incomplete assignment; and,

·

in one case, he left out the February and March
    test results.

[74]

The trial judge noted that the number of
    students who failed to hand in assignments (20 out of 30-35 students prior to
    March break) suggested a teacher who could not or would not get his students to
    comply with course requirements.

[75]

He also noted that Mr. Fernandes was aware of
    the School grading policy that a zero grade could only be given for assignments
    in cases of plagiarism but did not follow it. The trial judge added:

Simply saying that his own computer
    spreadsheet would not properly complete the calculation is not a satisfactory
    answer to the administrations complaint, particularly when it comes from the
    computer science teacher.

[76]

He found that Mr. Fernandes lied to the court
    when he testified that because certain presentations were voluntary, students
    who had not completed the presentation could nonetheless be given full marks for
    that part of the course. The fact that students who had not completed a
    presentation were given full marks for that assignment was a significant
    concern of the School, and Mr. Fernandes email to a student about the
    presentation confirmed that the presentations were to be marked as part of the
    course.

[77]

The trial judge found that throughout March 2009, Mr.
    Fernandes did an incompetent job of assessing and marking his students and
    recording those marks. He concluded that Mr. Fernandes was not getting the job
    done.

Findings on the Meetings between
    April 13 and 17, 2009

[78]

The trial judge found, as the Schools witnesses had
    testified, that three meetings took place in the week of April 13, 2009. He
    also found that in the meetings of April 16 and 17, 2009, Mr. Fernandes
    admitted to wrongdoing, including falsifying student marks.

Date of Dismissal

[79]

The trial judge found that the School terminated Mr.
    Fernandes employment on Friday, April 17, 2009. In making this finding, the trial
    judge pointed to the facts as found above in relation to the meetings of that
    week and Mr. Fernandes admissions in two of those meetings; Ms. Bushs letter
    of April 20, 2009, which confirmed April 17 as the date of dismissal; and when
    Mr. Fernandes said he would prepare a written response to the allegations over
    the weekend of April 18-20, Ms. Bush responded that there was no need to do
    that. The trial judge viewed her response as consistent with the fact that by
    that time, Mr. Fernandes employment with the School had already been terminated.

No Just Cause

[80]

The trial judge quoted extensively from paras. 48-57 of
McKinley v. B.C.Tel.
, 2001 SCC 38, [2001]
    2 S.C.R. 161, the leading Canadian case on dishonesty as a basis for
    termination of the employment contract.

[81]

In determining whether there was just cause, the trial
    judge considered that Mr. Fernandes:

1.

gave incorrect marks that were delivered late;

2.

allowed students
    to have overdue assignments;

3.

used a computer
    program that did not provide accurate marks despite the fact that he was the computer
    teacher;

4.

lied to his
    employer about how the marks were calculated until the meeting on April 16;

5.

lied to the
    court about how the student presentations were marked; and

6.

falsified marks
    on students records.

[82]

He then noted that Mr. Fernandes had been employed with the School for
    more than 10 years and said that up until the spring of 2009, Mr. Fernandes was
    a well-regarded teacher with no deficiencies that required remedial steps or
    termination.

[83]

The trial judge stated that although the School found out in April 2009
    that Mr. Fernandes had created incorrect marks, those marks were still produced
    to the students and parents without comment on their accuracy. He said that
    because the School knowingly sent out the false marks, those marks were not as
    serious to either the [S]chool or the students as the defendants would submit.
    If this were such an egregious failing on the part of Mr. Fernandes, the marks
    would not have been released.

[84]

The trial judge stated that after balancing the various considerations,
    termination was not the appropriate sanction for the misconduct. In his view,
    the School could have fashioned a reprimand and given a warning that such
    conduct, if repeated, would lead to summary dismissal. He said that the rather
    abrupt change in Mr. Fernandes professional behaviour should have led the
    School to make more of an effort at enquiry to assist Mr. Fernandes rather than
    terminate his employment without proper notice.

[85]

He concluded that Mr. Fernandes had been wrongfully dismissed because
    the punishment outweighs the seriousness of the infraction.

[86]

Later in his reasons, when determining the length of the reasonable
    notice period, he observed that,
for whatever reason, by the
    spring of 2009, it was obvious that Mr. Fernandes was coming to the end of his
    abilities as a schoolteacher.

Long-term Disability Benefits

[87]

The trial judge found that Mr. Fernandes became
    disabled after his employment was terminated on April 17, 2009.  This finding was
    based on Mr. Fernandes testimony that his medical problems started on April 17
    and that prior to that time his only medical difficulty was with diabetes.

[88]

Based on the
testimony of Dr. Sahheed and Dr. Joshi,
    the trial judge also found that Mr. Fernandes would not be gainfully employed,
    within the meaning of the insurance policy, before the age of 65.

[89]

The trial judge referred to the fact that the insurer
    denied Mr. Fernandes claim not only because it was made after termination but
    also because it did not include medical documentation on his cognitive functioning
    or his functions in his activities of daily living. He rejected the Schools
    submission that without that type of evidence, he could not find Mr. Fernandes
    disabled within the meaning of the insurance policy.

[90]

The trial judge was critical of the School for failing to provide Mr.
    Fernandes with the application forms for long-term disability benefits, when he
    requested them. Those forms were not provided until sometime during the
    litigation.

[91]

The trial judge said that but for the acts of the School, Mr. Fernandes
    would have been employed, applied for the benefits in time, and qualified for
    the benefits. Having found that the School prevented Mr. Fernandes from making
    the claim, he concluded that the School was liable for Mr. Fernandes lost
    disability benefits.

Claim for Mental Distress

[92]

In his statement of claim, the respondent sought, among
    other things, damages for intentional and negligent infliction of emotional and
    mental distress, aggravated damages and punitive damages. The trial judge
    stated that these claims had been narrowed in argument to a claim for
    intentional infliction of mental distress. He dismissed that claim, however,
    saying:

·

based on Mr. Edwards findings and Mr. Fernandes
    admitted wrongdoing, the steps taken by the Schools administration cannot be
    seen as flagrant and outrageous;

·

the School administrations dismay at Mr. Fernandes conduct was
    understandable and there was no evidence it was calculated to do him harm;

·

despite the Schools beliefs as to what had transpired, it kept
    the grounds for Mr. Fernandes termination as quiet as possible; and

·

the School maintained Mr. Fernandes daughters education in
    place for the balance of the school year.

Claim against Ms. Bush

[93]

The trial judge dismissed the action as against Ms.
    Bush personally, saying that based on the information which she had at the time
    of termination, it would have been negligence on her part had she failed to act
    as she did.

Costs

[94]

The trial judge ordered the School to pay Mr. Fernandes
    costs of $130,000, all inclusive. Included in this figure were the costs
    associated with the Schools abandoned counterclaim.

[95]

The School had counterclaimed for
damages for: the cost
    of rectifying problems with the School computers allegedly resulting from Mr.
    Fernandes negligent maintenance of them; the costs of tuition and busing for
    his two daughters after termination of his employment; and, harm to the
    Schools reputation as a result of Mr. Fernandes acts.  The School withdrew
    its counterclaim at the outset of trial, without notice.  Ms. Bush testified
    that the School withdrew the counterclaim in order to avoid having to bring
    students and parents in to testify about the damage to the Schools reputation,
    and to avoid prolonging the trial and Ms. Bushs absence from the School any
    longer than was absolutely necessary.

[96]

At para. 27 of his costs endorsement, dated August 13,
    2015, the trial judge stated that the costs associated with the withdrawal of
    the counterclaim should fall solely on the party causing [the withdrawal].

THE ISSUES

[97]

The appellant alleges that the trial judge:

1.

made findings of
    fact and credibility that were irreconcilable with the evidence before him
    and/or other of his findings;

2.

misapprehended
    the evidence, failed to consider relevant evidence and considered irrelevant
    evidence;

3.

erred in his
    application of the law relating to dishonesty as a basis for termination of
    employment; and

4.

erred in
    ordering costs in favour of the respondent that included substantial indemnity
    costs for the defence to the Schools withdrawn counterclaim.

ANALYSIS

ISSUES #1 and #2         Did the trial judge make
    erroneous findings and/or misapprehend the evidence?

[98]

In issues #1 and #2, the School takes exception to a number of the trial
    judges findings. It says that certain of those findings are incompatible with
    his determination that Mr. Fernandes evidence had to be treated with great
    caution and/or his rejection of Mr. Fernandes allegation that beginning in
    September 2008 the Administration was engaged in a malicious conspiracy to have
    him removed from the school. (In respect of the latter, the trial judge said
    that there was nothing in the evidence that could support such a theory.)

[99]

The School also points to the trial judges statement that he would
    prefer Mr. Zeros evidence over that of interested witnesses. It says the trial
    judge then preferred Mr. Fernandes evidence over that of Mr. Zero on certain
    events without explanation.

[100]

Other complaints
    relate to the trial judges finding that Mr. Fernandes was disabled within the
    meaning of the Schools insurance policy. The School says that the trial judge
    failed to consider Mr. Williamsons evidence on this matter and also failed to
    consider the meaning of disability within the insurance policy. While the
    School acknowledges that the policy was not before the court, it says that the
    trial judge should have referred to the definition of disability in the
    policy which was contained in Mr. Williamsons letter to the respondent. It
    also takes exception to the way in which the trial judge treated the evidence
    of Dr. Sahheed and Dr. Joshi.

[101]

As I explain in
    my analysis of Issue #3, the trial judge erred in his application of the
    relevant legal principles when determining whether Mr. Fernandes conduct was
    just cause for dismissal. A correct application leads to the conclusion that
    the School had just cause to dismiss Mr. Fernandes. Accordingly, it is
    unnecessary to deal with the many alleged factual errors raised in the first
    two grounds of appeal.

ISSUE #3    Did the trial judge err
    in his application of the law?

[102]

In my view, the
    trial judge erred in finding that Mr. Fernandes had been wrongfully dismissed. His
    errors lay in his application of the legal principles set out in
McKinley
for determining whether an
    employees misconduct
[3]
gives rise to just cause for summary dismissal.

The Governing Legal Principles

[103]

The governing legal principles can be found at paras. 48-49 of
McKinley
.
    Justice Iacobucci, writing for the court, states that whether an employer is
    justified in dismissing an employee on the grounds of misconduct is a question
    that requires an assessment of the context of the alleged misconduct. More specifically,
    the test is whether the employees misconduct gave rise to a breakdown in the
    employment relationship. He notes that the test can be expressed in different
    ways: just cause for dismissal exists where the misconduct violates an
    essential condition of the employment contract, breaches the faith inherent to
    the work relationship, or is fundamentally or directly inconsistent with the
    employees obligations to his or her employer.

[104]

The principle of proportionality underlies this approach: an effective
    balance must be struck between the severity of an employees misconduct and the
    sanction imposed:
McKinley
, at para. 53.

[105]

In
Dowling v. Ontario (Workplace Safety and Insurance Board
)
    (2004), 246 D.L.R. (4th) 65, at paras. 49-50, this court, following
McKinley
,
    concluded that the core question is whether the employees misconduct was sufficiently
    serious that it struck at the heart of the employment relationship.  To answer
    that question, the court must
:

1.

determine the
    nature and extent of the misconduct;

2.

consider the
    surrounding circumstances; and

3.

decide whether
    dismissal was warranted.

Application of the Legal
    Principles

1. Nature and Extent of the
    Misconduct

[106]

In this step,
    the court must determine the nature and extent of the misconduct and assess its
    seriousness:
McKinley
, at para. 49. In the present case, the trial judge
    made the requisite findings in respect of Mr. Fernandes misconduct but failed
    to assess its seriousness.

[107]

The trial judge
    found that Mr. Fernandes misconduct in March and April of 2009 consisted of:

·

assigning both incorrect and false marks for individual students
    assignments and presentations;

·

submitting grades to the administration that he knew were
    inaccurate, with the knowledge that the grades would be used in producing the
    April interim report cards;

·

despite repeated opportunities to rectify the inaccuracies in his
    grades, resubmitting the grades two additional times, knowing that they were
    false and/or inaccurate;

·

repeatedly lying to his employer about the grades, in an attempt
    to cover up their improprieties; and

·

admitting to the inaccuracies and falsity of the marks and grades
    only when Ms. Bush and Mr. Edwards said they would call in the students to get
    to the bottom of the irregularities.

[108]

These findings
    were fully available to the trial judge. Indeed, on the record, they are
    inescapable.

[109]

However, the
    trial judge failed to then go on and assess the seriousness of the misconduct.
    His only discussion of seriousness related to the incorrect grades that Mr.
    Fernandes had provided.  The trial judge said that because the School sent out
    the April interim report cards, knowing of the irregularities of Mr. Fernandes
    grades and without comment as to their accuracy, Mr. Fernandes conduct in
    providing inaccurate and false marks was not as serious as the School
    contended.

[110]

With respect,
    this single comment on only one aspect of Mr. Fernandes misconduct, fails to
    address the seriousness of that misconduct in any meaningful way and
    constitutes legal error.

[111]

Teachers occupy
    a special position of trust. In
Ross v. New Brunswick District No. 15
,

[1996] 1 S.C.R. 825, at para. 43, the Supreme Court described that special
    position of trust in the following way:

Teachers are inextricably linked to the integrity of the school
    system. Teachers occupy positions of trust and confidence, and exert considerable
    influence over their students as a result of their positions. The conduct of a
    teacher bears directly upon the communitys perception of the ability of the
    teacher to fulfil such a position of trust and influence, and upon the
    communitys confidence in the public school system as a whole.

[112]

One of a
    teachers most important professional obligations is to fairly and properly
    evaluate and assess student progress and achievement. The School trusted Mr.
    Fernandes to fulfill his professional duties as a teacher, including those
    relating to the assessment of his students. So, too, did his students and their
    families.

[113]

Mr. Fernandes
    misconduct went far beyond mere negligence or incompetence.  Failing to
    properly assign marks and evaluate student progress; falsifying students
    grades; repeatedly lying to his employer  these intentional acts constitute
    serious misconduct.

2. The Surrounding
    Circumstances

[114]

In this step,
    the court must consider the particular circumstances of both the employee and
    the employer. In relation to the employee, the court should consider such
    factors as his or her age, employment history, seniority, role and
    responsibilities. In relation to the employer, the court should consider such
    things as the type of business or activity in which the employer is engaged,
    any relevant employer policies or practices, the employees position within the
    organization, and the degree of trust reposed in the employee:
Dowling
,
    at para. 52.

i.

The Employees Circumstances

[115]

In relation to Mr.
    Fernandes circumstances, the trial judge considered his age and employment
    history.  He noted that Mr. Fernandes
had been
    employed with the School for more than 10 years and that until the spring of
    2009, Mr. Fernandes was a well-regarded teacher.
[4]
At other places in his reasons, the trial judge observed that until at least the
    spring of 2008, Mr. Fernandes had been a dedicated and loyal teacher and was
    committed to extracurricular activities in addition to his teaching
    responsibilities.

[116]

However, the
    trial judge failed to consider one significant matter:  Mr. Fernandes offered
    no explanation for his misconduct. In the meetings during the week of April
    13-17, Mr. Fernandes said there was nothing going on in his life that was
    troubling him or distracting him from fulfilling his teaching responsibilities.

[117]

The absence of
    any explanation for the misconduct is underscored by two of the trial judges other
    findings. First, Mr. Fernandes became ill only after his employment was
    terminated. This finding was based on Mr. Fernandes testimony that his medical
    problems started on April 17, 2009, and that prior to that time, his only
    medical difficulty was with diabetes. Second, the trial judge found that for
    whatever reason, by the spring of 2009, it was obvious that Mr. Fernandes was nearing
    the end of his abilities as a school teacher. From this, I understand that
    there was no reason discernible to the trial judge to help explain or
    understand the misconduct.

ii.

The Employers Circumstances

[118]

While the trial
    judge considered the employees circumstances, he failed to consider those of
    the employer.  This, too, constitutes legal error.

[119]

The School was a
    private school whose accreditation from the Ministry depended upon it meeting
    its obligations in respect of granting credits towards earning an Ontario
    Secondary School Diploma. If the School did not comply with the requisite
    assessment and evaluation standards, it could have lost its right to grant such
    credit. Had that taken place, it is self-evident that the School would have
    suffered serious harm. The respondents misconduct exposed the School to that
    potential harm, harm of which the respondent acknowledged he was aware.

[120]

The fact that
    the School did not actually suffer that harm is not the point. It is the severity
    of the potential harm that must be considered when assessing the seriousness of
    the misconduct:
Lepire v. National Bank of Canada
, 2004 FC 155, 267
    F.T.R. 138.

[121]

Further,
the terms of his contract of employment required Mr. Fernandes to
    "carry out his duties in a professional manner that is compatible with the
    philosophy of the school."  Mr. Fernandes misconduct in terms of his
    failure to fairly assess and evaluate his students in accordance with the
    Schools policies amounted to a breach of that term.

[122]

Finally, as has
    already been mentioned, the School reposed a large degree of trust in Mr.
    Fernandes to fairly and correctly assign marks and grades to his students.

3. Was Dismissal Warranted?

[123]

In this step of
    the analysis, the court must consider the nature, extent and seriousness of the
    misconduct (step one) in the context of the surrounding circumstances (step
    two) to decide whether there was just cause for dismissal.

[124]

For the reasons
    already given, a consideration of the full range of misconduct leads to the
    conclusion that it was very serious.  That misconduct  particularly, the
    intentional disregard for the fair and accurate grading of his students  was
    incompatible with Mr. Fernandes professional obligations as a teacher and with
    the essential conditions of his employment obligations.  No explanation was
    offered for the misconduct. None is evident on an examination of the record.

[125]

The misconduct
    put into jeopardy the Schools continued operation as an accredited private
    school and destroyed the trust that the School reposed in Mr. Fernandes.

[126]

As
McKinley
stresses,
    the misconduct must be considered in context.  It consisted of acts over a
    period of approximately 2 months, by an employee who had served the School for
    just over ten years.  The duration of the misconduct was short, when compared
    to the overall period of employment.  Nonetheless, in my view, it struck at the
    very heart of the employment relationship, thereby giving rise to its breakdown.
    Consequently, there was just cause for Mr. Fernandes dismissal.

[127]

I would conclude
    simply by noting that, on the findings of the trial judge, Mr. Fernandes
    employment was terminated for cause before he became disabled. Therefore, he is
    not eligible for long-term disability payments.

ISSUE #4    Did the trial judge err
    in his costs award?

[128]

The School seeks
    leave to appeal the costs award contained in Judgment #3. It argues that the
    trial judge erred because he included costs on a substantial indemnity basis for
    the Schools abandoned counterclaim and substantial indemnity costs should be
    reserved for rare cases of reprehensible conduct.  The SchooI maintains that
    its counterclaim was legitimately conceived and that it was withdrawn for
    practical reasons. Therefore, the School says, its actions did not amount to
    reprehensible conduct and substantial indemnity costs were not properly ordered
    in respect of the defence to the counterclaim.

[129]

As I would allow the appeal, the costs order below falls away. Accordingly,
    I find it unnecessary to determine whether to grant leave to appeal the costs
    award.

DISPOSITION

[130]

For these reasons, I would allow the appeal, dismiss the action and
    set aside all of Judgments 1, 2 and 3.
[5]

[131]

I would order costs of the appeal to the School, fixed in the amount
    of $30,000, all inclusive. I would order costs of the trial to the School,
    fixed at $75,000, all inclusive.
I
n setting the quantum
    of the trial costs, I reduced the amount by $10,000, to allow for the costs
    associated with the Schools withdrawn counterclaim.

E.E. Gillese
    J.A.

I agree. C.W. Hourigan J.A.

Pardu J.A. (Dissenting):

[132]

With respect to
    my colleagues who view the matter differently, I would dismiss the appeal.

[133]

I agree that the
    core issue before the trial judge was whether Mr. Fernandes misconduct
    was sufficiently serious that it struck at the heart of the employment
    relationship. This was a ten-day trial. The trial judge had the advantage of
    hearing evidence from the persons involved. He was in a better position than an
    appellate court to assess the misconduct in the context of a ten-year, mostly
    satisfactory employment relationship.

[134]

I am not
    persuaded that the trial judge failed to consider the seriousness of the
    misconduct or the extent to which it impacted the employment relationship. He
    cited the appropriate governing authority,
McKinley v. BC Tel
, 2001 SCC
    38, [2001] 2 S.C.R. 161.

He also explicitly considered the seriousness
    of the misconduct, at paras. 179-81 of his reasons:

Over six weeks between March 1 and the middle of April, Mr.
    Fernandes created marks that, when the administration found out that they were
    wrong, were still produced by the administration to students and parents
    without comment on their accuracy. The fact that the school knowingly sent out
    the false marks confirms that these interim marks were not as serious to either
    the school or the students as the defendants would submit. If this were such an
    egregious failing on the part of Mr Fernandes, the marks would not have
    been released.

Although the defendants referred to this as academic fraud,
    that is a very dramatic way of describing a few students who were marked on
    presentations that they had not yet given. That presentation was only one part
    of one course and the presentation made up only one part of the overall mark.

And finally, although belatedly, Mr Fernandes admitted his
    conduct to the administration.

[135]

The trial judge
    determined that immediate termination was not the appropriate sanction for Mr.
    Fernandes misconduct and that the appellant could have made more of an effort
    to inquire into the reason for the change in Mr. Fernandes professional
    behaviour and to assist him. The appellant also could have fashioned a
    reprimand short of dismissing him without notice. In the trial judges words,
    the punishment outweigh[ed] the seriousness of the infraction.

[136]

I agree with the
    analysis of Turnbull J.A., dissenting in
Henry v. Foxco Ltd.
, 2004
    NBCA 22, 269 N.B.R. (2d) 63, at paras. 17-22, 27-33, that the assessment of
    whether misconduct is sufficiently serious as to merit termination without
    notice is a question of fact, to which an appellate court owes deference. He
    cited
McKinley
,
in
    which Iacobucci J. noted,
at para. 49
,
    assessing the seriousness of the misconduct requires the facts established at
    trial to be carefully considered and balanced. As such, it is a factual inquiry
    for the jury to undertake.

[137]

Turnbull J.A.
    concluded, at para. 22:

Thus, absent a palpable and overriding error, there is no basis
    for appellate interference with the trial judge's factual conclusions.
    Moreover, an appellate court must not substitute its opinion for that of the
    trial judge, unless the latter's opinion is unreasonable, that is, nothing [in
    the trial record] could have justified the judge's conclusion. See
Gallant
    v. Thibodeau
(1998), 206 N.B.R. (2d) 336 (C.A.) at paras. 12-16.

[138]

I would reject
    the appellants submissions challenging the trial judges findings of fact and
    credibility. They are, in substance, an invitation to this court to retry the
    case. The factual findings made by the trial judge were reasonably open to him
    on the evidence. They were detailed and carefully made. I see no palpable and
    overriding error in his factual findings or conclusions.

[139]

I turn next to a
    consideration of the relief granted.

[140]

The appellant
    does not challenge the trial judges assessment of the 12-month notice period.
    Instead, it submits that the trial judge erred in awarding the respondent the
    disability benefits to which he would have been entitled but for the
    termination without notice.

[141]

The evidence of
    the respondents medical problems was, according to the trial judge,
    essentially unchallenged: para. 204. Mr. Fernandes family physician, Dr.
    Sahheed, testified that Mr. Fernandes had major depression, that he had not
    improved since the events of 2009, and that he was not able to return to work
    as a teacher or to work anywhere else. Dr. Sahheeds opinion was that the cause
    of Mr. Fernandes medical difficulties was the workplace environment and what
    had occurred there.

[142]

Mr. Fernandes
    treating psychiatrist, Dr. Joshi, also testified. In his opinion, Mr. Fernandes
    had major depressive disorder, along with anxiety neurosis, panic attacks, and
    posttraumatic stress disorder. Dr. Joshi was also of the view that the major
    cause of Mr. Fernandes difficulties was the termination of his employment, and
    that he would not be able to return to work in the future.

[143]

The appellant
    did not lead any contrary medical evidence. Instead, it argued that the trial
    judge could not find Mr. Fernandes disabled within the meaning of the insurance
    policy without further medical evidence.

[144]

Mr. Williamson,
    a regional manager working for the appellants insurer, testified that the
    primary reason he denied Mr. Fernandes application for disability benefits was
    because the respondent applied after he was already terminated and outside the
    notice period. He also testified that he denied the application because after
    reviewing the medical information submitted by Mr. Fernandes physicians,
    he concluded there was not enough medical evidence of the respondents
    functional impairment for him to qualify for disability benefits. Mr.
    Williamson summarized the terms of the insurance policy in the letter he wrote
    to Mr. Fernandes counsel, dated April 21, 2014, in which he denied the
    respondents claim for benefits:

Definition of Disability

During the initial assessment period shown in the Table of
    Benefits, disability is assessed on the basis of the duties of a person
    regularly performed for the employer before disability started. He is
    considered disabled if, because of disease or injury, there is no combination
    of duties you can perform that regularly took at least 60% of your time at work
    to complete.

If disease or
    injury prevents a person from performing a duty, it will also be considered to
    prevent him from performing

1) Others that are performed only in
    order to complete that duty, and

2) Others that can only be performed
    after that duty is complete.

[145]

However, given
    the uncontradicted evidence that the respondent was entirely incapable of work,
    there is no palpable and overriding error tainting the trial judges conclusion
    that the respondent was, in fact, disabled within the meaning of the policy. In
    response to questions from the trial judge, Mr. Williamson agreed that,
    leaving aside any issues related to the timing of Mr. Fernandes application
    for disability benefits, if there was adequate medical evidence demonstrating,
    on a balance of probabilities, that Mr. Fernandes was unable to work, the
    benefits could be approved.

[146]

In addition, the
    trial judge found that but for the appellants wrongful termination without
    notice, Mr. Fernandes would have been eligible to claim disability
    benefits for a period of time even after his termination and that he would have
    applied in time. Again, I see no error in this conclusion.

[147]

Finally, I would
    not interfere with the trial judges award of substantial indemnity costs on
    the counterclaim. The appellant maintained the counterclaim for five years,
    only withdrawing it without notice at the commencement of trial. The trial
    judge observed that the counterclaim did not appear to have much validity, and
    that the appellant had not defended it to any great extent in its cost
    submissions. The trial judge therefore concluded that the appellant should bear
    the costs of its conduct.

[148]

There being no
    palpable and overriding error identified, in my view, the appeal must be
    dismissed.

Released: June 14, 2016 (E.E.G.)

G. Pardu J.A.

[1]
The version of this report that was entered as an exhibit at trial is dated
    April 15, but the witnesses agreed that it was the same document provided to
    Mr. Fernandes at the meeting between him, Mr. Zero and Mr. Edwards.

[2]
The trial judge refers to the April 20 letter but it appears from the record
    that the letter is dated April 21.

[3]
In
McKinley
, the words dishonesty and misconduct are used
    interchangeably.  See, for example, the first sentence of para. 48.

[4]
This ignores the criticisms contained in Mr. Fernandes 2008 teaching assessment.

[5]
I recognize that para. 5 of Judgment #1 remains valid, as it orders the
    dismissal of the action against Ms. Bush and no appeal was taken against that.
    However, as I would dismiss the action, the effect is to dismiss it against
    both the School and Ms. Bush.


COURT OF APPEAL FOR ONTARIO

CITATION: Garrett v. Oldfield, 2016 ONCA 424

DATE: 20160601

DOCKET: C61661

Juriansz, Brown and Roberts JJ.A.

Allison Garrett

Appellant
(Plaintiff)

and

Oldfield, Greaves,
D'Agostino, G. Edward
    Oldfield, Terrance J. Billo
, Catherine P. Watson (Catherine P.
    Watson Professional Corporation), Steiber Berlach LLP, Elizabeth Bowker, Iain
    Peck,
Guarantee Company of North America, Temple Insurance,
Southeast Grey Support Services, Irwin Dowker,
Her Majesty the Queen in Right of Ontario as Represented by
the Minister of Community and Social Services and Bud Carter

Respondents
(Defendants)

Allison Garrett, in person

Filipe A. Mendes, for the respondents, Oldfield, Greaves,
D'Agostino,
G. Edward Oldfield, and Terrance J. Billo

Heard: May 26, 2016

On appeal from the judgment of Justice Dale Parayeski of
    the Ontario Superior Court of Justice dated August 14, 2014.

Endorsement

[1]

The appellant appeals from the dismissal of her action against the respondents,
    her former lawyers. The appellant failed to pay the $10,400.00 in costs awarded
    to the respondents within 30 days of March 7, 2014, following the dismissal of
    her summary judgment motion against the respondents on January 23, 2014. The
    appellant did not appeal these orders. The appellants action was dismissed on
    August 14, 2014, pursuant to rule 57.03(2) of the
Rules of Civil Procedure
,
    for her failure to pay the costs awarded to the respondents.

[2]

Rule 57.03(2) provides the court with the discretion to dismiss a
    plaintiffs action for failure to pay a costs order. In determining whether an
    action should be dismissed, a court must balance the competing interests of the
    parties and consider all relevant factors: see
Tarion Warranty Corp. v.
    1486448 Ontario Inc.
, 2012 ONCA 288.

[3]

Despite remarks that he made during argument, the motion judges reasons
    demonstrate that he considered the appellants submissions concerning the
    merits of her action and her allegations of impecuniosity, and balanced them
    against the competing interests of the respondents and the administration of
    justice.

[4]

As the motion judge fairly noted concerning the merits of her action,
    the appellants motion for summary judgment was dismissed. The appellant filed
    no affidavit evidence with respect to the merits of her action in support of
    her summary judgment motion or before the motion judge on the respondents
    motion to dismiss her action, thereby preventing the court from assessing the
    merits of her claim. The respondents affidavit evidence refuting the
    appellants allegations of professional negligence and other improprieties was
    unchallenged.

[5]

Moreover, the motion judge correctly observed that the appellant had not
    raised the issue of her alleged impecuniosity to pay costs before the motion
    judge who had ordered them nor had she provided any evidence supporting her
    allegation of impecuniosity.

[6]

The motion judge properly weighed the appellants interests in pursuing
    her claim against the interests of the respondents in receiving compensation
    for their costs that the appellant caused to be incurred by her unsuccessful
    summary judgment motion, and of the administration of justice in ensuring that
    court orders are followed. The motion judges decision was within the bounds of
    his discretion and we cannot interfere.

[7]

The appellant also argues that the motion judge erred in failing to
    consider the potential bias of the motion judge who dismissed her summary
    judgment motion and ordered that she pay costs to the respondents. These submissions
    are without merit. The appellant did not appeal from the motion judges
    orders.  The appellant did not raise the issue of bias before the motion judge
    who dismissed her action nor does the record support this allegation.

[8]

Accordingly, the appeal is dismissed.

[9]

The appellant shall pay within 30 days the respondents partial
    indemnity costs in the all-inclusive amount of $5,000.00.

R.G. Juriansz
    J.A.

David Brown J.A.

L.B. Roberts
    J.A.