



COURT OF APPEAL FOR ONTARIO

CITATION: DeBon v. Hillfield Strathallan College, 2019 ONCA
    409

DATE: 20190517

DOCKET: C66066

Sharpe, Pepall and Roberts JJ.A.

BETWEEN

Kimberly DeBon

Plaintiff (Appellant)

and

Hillfield Strathallan College

Defendant (Respondent)

C. Andrew Haber and Christopher J. Haber, for the
    appellant

William P. Dermody and Heather E. Watson, for the
    respondent

Heard: May 14, 2019

On appeal from the
    judgment of Justice Emery of the Superior Court of Justice, dated September 28,
    2018.

REASONS FOR DECISION

[1]

The appellants claim for constructive dismissal from
    her employment as a teacher at a private school was dismissed by way of summary
    judgment. The appellant alleged that the respondent school altered the terms of
    her employment contract by failing to protect her from a confrontation with the
    parents of a student over a mark the appellant had given the student, by
    undermining her authority by having assignments read and marked by another
    teacher, and by the principal assigning passing grades to students who had
    failed to complete all assignments.

[2]

The motion judge found that the appellant had failed to
    discharge the evidentiary burden of establishing a genuine issue for trial.

[3]

The appellant acknowledged that the motion judged
    applied the correct legal test for constructive dismissal. We agree. We are not
    persuaded that he erred in law or made a palpable and overriding error of fact
    in dismissing the appellants claim or that there are any issues of credibility
    requiring a trial.

[4]

There is no evidence to support the allegation that the
    school altered the appellants terms of employment or failed to follow any
    policy with respect to the confrontation with the parent. No one from the school,
    except the appellant, was involved in the confrontational meeting. The
    appellant did not anticipate that the parent would be present at the meeting
    and it is difficult to see how the school could have done so. When the
    appellant reported the incident to the principal, he offered to meet to discuss
    the situation. There is no evidence that the appellant asked anyone at the
    school to sanction or censure the parent for her conduct at the confrontational
    meeting. The schools Human Resources Manager offered to meet with the
    appellant to discuss the process of making a complaint of violence and to
    determine a policy for moving forward with all of the issues you identified.
    The appellant postponed any meeting and then announced that she was leaving the
    school.

[5]

The schools response to the appellants complaint
    regarding the confrontational meeting with the parent was measured and
    reasonable. While the confrontation with the parent was undoubtedly unpleasant
    and unsettling for the appellant, it is difficult to see what the school could
    have done to prevent or mitigate the confrontation. We see no error in the
    motion judges conclusion that this incident and the way the school handled it
    did not amount to a breach of any school policy or of the appellants contract
    of employment.

[6]

There is no evidence to suggest that having another
    teacher read and grade assignments was contrary to school policy. Moreover, the
    appellant reluctantly agreed to the process and, as the mark assigned by the
    appellant was confirmed, she was supported rather than being undermined. In his
    communications with the parents and the student, the principal was supportive
    of the appellants skill and integrity as a teacher. He assured the appellant
    that he would advise the student to take advantage of the appellants teaching
    excellence. He clearly set out the strategy he proposed to follow with the
    parents to resolve their concern regarding bias.
The school never
    intimated or suggested that the appellant change the grade she had assigned.
The principal admonished the student for her attitude
    and negative body language when dealing with the appellant and encouraged the
    student to take a more positive attitude towards the appellant and the courses
    she was teaching. He made it clear that if the disputed mark was confirmed by
    the second teacher, that would put an end to the allegation of bias and the
    mark was confirmed.
There is no evidence that the school implemented the
    limited co-marking strategy as a permanent measure.


[7]

Nor is there evidence to support the contention that
    the principal altered the terms of the appellants employment when he assigned
    final passing grades to students who had not completed all assignments. Two of
    these incidents preceded the incident discussed above that forms the core of
    the appellants case. Both of these involved students who had experienced
    health issues that prevented them from completing all assignments. The
    principal did not alter a grade assigned by the appellant but, rather, assigned
    a final grade based on the grade given by the appellant for the work that had
    been completed. The appellant failed to adduce any evidence that the principal
    had acted contrary to school policy or to his statutory authority by assuming responsibility
    for assigning the final grade in these circumstances. The third incident
    involved the schools request that the appellant assign a predictive mark to
    a student needed so that the student could apply for a program. The appellant
    did not assign the predictive grade and no further action was taken.

[8]

In our view, the motion judges conclusion, at para.
    80, that a reasonable person with a dispassionate perspective would not view
    the teaching environment at HSC to be untenable for the appellant and that the
    evidence did not establish that the school had made the workplace poisonous for
    her is amply supported by the record.

[9]

Accordingly, the appeal is dismissed, w
ith costs
    to the respondent fixed in the agreed amount of $15,000, inclusive of
    disbursements and taxes.

Robert
    J. Sharpe J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


