Strait Regional School Board v. Canadian Union of Public Employees (CUPE), Local 955

Strait Regional School Board v. Canadian Union of Public Employees (CUPE), Local 955 Court Supreme Court Date 2001-03-13 Citation 2001 NSSC 41 Docket SH 166058 Judge/Registrar/Adjudicator Davison, John M. (Honourable Justice) (SC) Document Type Decision Decision Content Date: 20010313 Docket: S.H. 166058 IN THE SUPREME COURT OF NOVA SCOTIA Citation: Strait Regional School Board v. Canadian Union of Public Employees (CUPE), Local 955, 2001 NSSC 41 IN THE MATTER OF: The Arbitration Act, R.S.N.S. 1989, c. 19. - and - IN THE MATTER OF: An Arbitration between: the Canadian Union of Public Employees, Local 955 and Strait Regional School Board - and - IN THE MATTER OF: An Application by the Strait Regional School Board for an order to Quash and Set Aside the Arbitration Award of Milton Veniot, dated July 14, 2000 and received by the Applicant on July 17, 2000. - and - Between: STRAIT REGIONAL SCHOOL BOARD Applicant - and - THE CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 955 Respondent D E C I S I O N HEARD BEFORE: The Honourable Justice John M. Davison PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 31, 2001, In Chambers DECISION: March 14, 2001 WRITTEN RELEASE: March 14, 2001 COUNSEL: Peter McLellan, Q.C. and Tara Erskine, for the Applicant Ronald A. Pink, Q.C., for the Respondent DAVISON, J.: [1] This proceeding involves the judicial review of the award of a consensual arbitrator which arises from two grievances filed with respect to the suspension and subsequent dismissal from employment of a male person referred to by the arbitrator as D (the grievor) who was a school bus driver and, on occasion, a school janitor. The employer was the applicant, Strait Regional School Board (the School Board). [2] The arbitrator adopted the policy in his award to refer to the grievor and the witnesses who were students or former students by initials chosen at random. The initials are not of the names of the persons. That policy will be continued in these reasons with respect to the complainants, and I will refer to the school bus driver as the grievor. [3] The School Board and the respondent, the Canadian Union of Public Employees, Local 955 (the “Union”) were parties to a collective agreement which provided for the arbitration of disputes between the Union and the School Board including disputes arising from the discipline and discharge of the employees of the School Board. [4] The grievance dated October 29, 1998 stated: ... In November of 1996, I was unjustly suspended from my position by the Strait Regional School Board. I was accused, went to court and was found not guilty on all counts by the Supreme Court of Nova Scotia. This is a violation of Article 15 of the Inverness Collective agreement and other related Articles which was in force at the time of the incident. The Strait Regional School Board is denying the court ruling and is refusing to reinstate me. The grievance dated December 10, 1998 simply stated that “I was discharged from my employment without just cause.” The grievor sought reinstatement to his former position as bus driver and compensation for lost time. [5] The letter of suspension from the School Board is dated November 18, 1996 and states: Further to my telephone call to you of Saturday November 16, this is to confirm that as a result of a serious report received regarding your behaviour, you are suspended with pay from your position as school bus driver until the report has been investigated. This matter will be discussed further with you at the earliest possible date. There is no reference in the letter as to the reason for suspension but a letter to the grievor from Phonse Gillis, Director of Human Resources of the School Board dated April 25, 1997 reads in part: On November 18, 1996, Mrs. Anita Cameron advised you that you were suspended with pay pending investigation into allegations that you committed an assault on a female minor who travels on your bus. [6] Notwithstanding the form of the grievances, the arbitrator stated in his award at p. 11: First the parties agree that if D is guilty of the transgressions alleged against him by any of the students on his bus that the dismissal should be upheld. ... Secondly, the employer says its case stands or falls on whether D committed the acts it alleges against him, and not whether he did something else which was wrong ... Consequently the “acts deserving discipline” issue remains is [sic] whether or not the grievor committed the acts alleged against him or any of them. It is my understanding the parties agree to that statement. [7] The arbitrator states at p. 31: In both rape allegations, the key issues are whether there was intercourse, whether it was forcible intercourse and whether D was the assailant. It would seem the agreement between the parties would preclude dismissal if, for example, the grievor had sexual intercourse with P which was not forcible intercourse. [8] The criminal charge against the grievor was one of sexual assault involving forced sexual intercourse with one P on two occasions in the summer of 1996. In June 1997 trial before a judge and jury resulted in a mistrial. Following a second trial on October 29, 1998, the grievor was acquitted on both counts. [9] On November 27, 1998 a meeting was held at the offices of the School Board to review the grievor’s employment status. The arbitrator notes by this time the School Board had received complaints from two other female students which were not of sexual assault but were “complaints which involve allegations of passing of sexually explicit or suggestive notes, passed with a view to initiating sexual contact”, unsolicited phone calls from the grievor and other inappropriate behavior. The grievor denied he committed these acts alleged against him. [10] On December 4, 1998 the grievor’s employment was terminated. [11] The hearings lasted for 10 days beginning March 8, 2000 and ending May 7, 2000. The arbitrator’s award, 140 pages in length, was filed July 14, 2000. It is evident from examining the award the arbitrator dealt with the issues in great detail and examined the evidence very carefully. [12] The award sets out the allegations of the students. P was 18 years of age at the time of the hearing and in grade 11. The grievor had been her school bus driver from the year she was in primary until his suspension. The alleged incidents of forced sexual intercourse occurred when she was 14 years of age. [13] Between January 1996 and June 1996 the grievor was passing her notes when she got on and off the bus and she stated the notes were “always about sex and screwing”. She testified some of the notes indicated the grievor wanted to have sex with her. [14] P also testified the grievor made telephone calls to her and was suggesting meetings with her. [15] On the first occasion of the allegation of forced sexual intercourse P entered the grievor’s car and they proceeded to the grievor’s home where, according to P, she was “raped” and forced to take his penis in her mouth. The award set out the testimony in some detail, and there was said to be protestations by P about acts in the grievor’s car and the events said to have taken place in the grievor’s home. The grievor admitted taking P to his home when his wife was not present but denied any untoward acts toward P at that time. [16] On the second occasion of the alleged “rape” the grievor was said to have forced P into his car where P said she was “raped” again. [17] With respect to the notes, P testified a note was accompanied by a screw nail with “I.O.U.” written on it. P’s brother testified that he saw the grievor pass P a note, but the arbitrator found his evidence was not worthy of supporting the passing of the note. [18] At the time of the hearing, J was 24 years of age. She stated certain incidents took place when she was in grade 7 or 8. The arbitrator found she would have been 14 years of age entering grade 8. J said in that school year she found ordinary wood and metal screws taped to her desk in the classroom and written on the tape were the words, “Do you want to screw?” J said this event was repeated as many as six times. [19] Shortly after the last screw was found on her desk, she was getting on the grievor’s bus and he put out his hand to her and said, “Do you want to screw?” and there was a screw in his hand. [20] J also testified the grievor began to telephone her and asked if she had received any of the notes. He suggested a meeting at his home because “my wife’s not home”. [21] J also said the grievor would have her sit behind him on the bus and he would talk to her in an inappropriate fashion to such an extent J said she felt he “was after me”. [22] T was 25 years of age at the time of the hearing. The grievor was her bus driver when she was in grade 8 and for the two years she spent in grade 9. She said the grievor was guilty of inappropriate conduct toward her when she was 16 years of age. She said she received notes from the grievor “to go with him” on a “no strings attached” basis. She also testified to a common wood or metal screw which was on the handle of the door in an upright position. He would look at her by use of his mirror and look at the screw nail several times. [23] H was 26 years of age at the time of the hearing. She spoke about a screw standing in a hole in the door handle of the bus. H also said the grievor reached from the driver’s seat and grabbed the lower part of her leg in the ankle or calf area. She was 13 or 14 years of age and she pulled her leg back. [24] Both T and H accused the grievor of telling “dirty jokes” on the bus. [25] This application is advanced on grounds set out by the School Board in the following terms: 1. The Arbitrator committed reviewable error and/or exceeded his jurisdiction by giving relevant provisions of the Collective Agreement an interpretation that is patently unreasonable or which those provisions will not reasonably bear; 2. The Arbitrator committed reviewable error by exceeding his jurisdiction by effectively adding, altering, and/or amending provisions of the Collective Agreement; 3. The Arbitrator committed reviewable error by improperly applying the standard of proof; 4. The Arbitrator committed reviewable error by making findings of fact in the absence of evidence; 5. The Arbitrator committed reviewable error by failing to take into account relevant considerations and by taking into account irrelevant considerations; and 6. The Arbitrator committed such other reviewable errors as may appear on the hearing herein. [26] The arbitrator allowed the grievance and reinstated the grievor to his position as bus driver. ISSUES [27] The issues before the court can be summarized as determination whether the arbitrator applied the proper standard of proof and whether he committed reviewable errors in allowing the grievance. The applicant says there were reviewable errors in that the arbitrator: (1) improperly applied the standard of proof, and (2) failed to consider all relevant factors or took into account irrelevant considerations. Before considering these issues, I will consider the principles of judicial review in the circumstances of this case. ANALYSIS (1) The Principles of Judicial Review [28] There is no dispute between the parties as to the proper standard of judicial review. This was a consensual arbitration, and the arbitrator was subject to the Arbitration Act, R.S. 1989, c. 19 and heard the matter in accordance with a collective agreement. The arbitrator was dealing with matters within his primary jurisdiction, and the court’s role is to determine if the arbitrator committed a reviewable error by making findings which are patently unreasonable. [29] The same question in this application whether an arbitrator’s decision to overturn an employer’s dismissal of a grievor was patently unreasonable was before the Supreme Court of Canada in Board of Education of Toronto v. Ontario Secondary School Teachers’ Federation District 15 et al. (1997), 208 N.R. 245. Under a heading entitled “Very High Degree of Deference Owed to Labour Arbitration Boards”, Justice Cory stated at p. 265: [35] Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161 (PSAC No. 2), emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal, like the Board of Arbitration in the instant appeal, is protected by a broad privative clause. There are a great many reasons why curial deference must be observed in such decisions. The field of labour relations is sensitive and volatile. It is essential that there be a means of providing speedy decisions by experts in the field who are sensitive to the situation, and which can be considered by both sides to be final and binding. [36] In particular, it has been held that the whole purpose of a system of grievance arbitration is to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer. This is a basic requirement for peace in industrial relations which is important to the parties and to society as a whole. [30] In referring to what constitutes a patently unreasonable decision Cory J. stated at p. 269: [44] It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. ... [45] When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact” ... The court noted the reviewing court can examine the record to determine the basis for the challenged findings of fact in order to determine whether the decision is patently unreasonable. It stated at p. 271: [48] ... It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [31] These are strict rules. A judge effecting a judicial review of the award of a consensual arbitrator must show deference to the decision of the arbitrator. For the reasons stated in Board of Education of Toronto v. Ontario Secondary School Teachers Federation District 15 et al. (supra) where the decision is protected by a privative clause and the consensual arbitrator is dealing with issues involving labor relations the extent of curial deference is increased. Furthermore, in this proceeding many of the findings of the arbitrator are based on the evidence he heard from the witnesses he observed. I do not have that advantage and the respondent argues the issues were essentially factual in nature and the analysis of witnesses and their credibility are not grounds for judicial review. I am not the trier of fact. [32] I am troubled by the award. The arbitrator who gave a lengthy critical analysis of the facts also indicated concern about the conduct of the grievor. He stated at p. 134 of the award: The issues with P have troubled me as have few others. When I step back from all of this evidence and look at it, I am left with a very substantial suspicion that acts of sexual gratification took place as alleged by P. The grievor may have passed her notes, and told inappropriate jokes on the bus. However, “may have done” is not the test. The test is that I be satisfied that it was more likely than not that these acts took place. At p. 136 the arbitrator states: Notwithstanding my own doubts on the matter, I find that the employer has not proven its case against D to the required standard with respect to any of the complaints made against him. This is an all or nothing finding, up or down. The result of this finding is that there is no basis for discipline, and because of this, the suspension and the termination must be set aside. At p. 137 he said: The case against the grievor on the merits of the allegations against him come to grief not because I have found the allegations to be groundless. Rather, I make the findings I do because I find them not to be proven. There is a difference. I retain a high degree of concern about admitted portions of his conduct. I refer to the late night drive, the described, extended visit to his home, late at night, when his wife and family were away, by a 14 year old girl. I have stated that I have a strong suspicion that there is merit to the misconduct alleged him, notwithstanding his denials. [33] The allegations against the grievor, as they relate to the young students, are very serious. It seems to me that sitting in a judicial review position, the court must not permit the gravity of the allegations to interfere with application of proper and lawful principles of judicial review. I am not engaged in the merits of the issue before the arbitrator, but I must look at the propriety of the process that brought about the award. As stated by Justice Sopinka in Pasiechnyk v. Saskatchewan (Workers Compensation Board), [1997] 2 S.C.R. 890, I “need not find that the Board was correct in order to uphold its decision”. [34] The strictness of the rules for interference on the basis of the test of patently unreasonable was emphasized by Justice Cory in Canada (Attorney General) v. Public Service Alliance of Canada (PSAC #2), [1993] 1 S.C.R. 941 at 964: It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational. (emphasis added) [35] On what basis does the applicant state the court can interfere with the award? I would summarize the grounds of alleged reviewable errors as follows: (1) The arbitrator improperly applied the standard of proof. It is said he used the criminal standard or an excessively high standard of proof on a balance of probabilities. (2) The arbitrator failed to consider relevant factors including: (a) The age of the complainants at the time of the incidents; (b) With respect to the complaint of P, the position of authority the grievor had and her age and the effect these facts may have had on P’s reactions during events surrounding the sexual assaults; (c) He made use of an irrelevant consideration in finding P’s actions to be implausible on the basis of his own assumptions with respect to the behavior that a person in P’s position would display. (2) The Standard of Proof [36] In my view the arbitrator referred to the appropriate authorities when he considered the standard of proof required in civil cases where serious or criminal allegations are made. He said at p. 17 of the award: Some of the allegations against the grievor involve conduct which is unquestionably criminal in nature. I refer specifically to the accusations of the commission by the grievor of two serious sexual assaults on P. Other alleged conduct - if proven - such as the passing of notes and alleged attempts to follow up on them by telephone calls and otherwise - may have constituted criminal conduct. Nevertheless, the proof of facts, in a case such as this, does not attract the criminal burden of proof beyond a reasonable doubt. Rather, the standard to be attained remains the lesser burden of proof upon a balance of probabilities. The Supreme Court of Canada has made this clear in a number of decisions on the subject. See Smith v. Smith [1952] 3 D.L.R. 449; Hanes v. Wawanesa Mutual Insurance Co. (1963) 36 D.L.R. (2d) 718 and Continental Ins. Co. v. Dalton Cortage Co. (1982), 131 D.L.R. (3d) 559. It is recognized that the balance of probabilities standard is a flexible one and that there are degrees of probability within the standard. A trier of fact is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered. See: Continental Insurance, supra, per Laskin, C.J.C., at p. 563 D.L.R. In that case, in giving the judgment of the court, Laskin, C.J.C., adopted the following passage from the judgment of Lord Denning in Bater v. Bater [1950] 2 All. E.R. 458 at 459: The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. Ac civil court, when considering a charge of fraud, will naturally require a higher standard of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of criminal nature, but still it does require a degree of probability which is commensurate with the occasion. In R. v. Oakes, (1986) 26 D.L.R. (4th) 200, Dickson, C.J.C. confirmed this approach and these authorities; therefore, the nature of the case will affect the degree of probability required to find a fact to be proven. See: p. 226. (emphasis added) I am of the view the words “flexible”and “degrees of probability” relate to “greater care” required where allegations are serious. I respectfully agree the arbitrator is correct in his statement of the law. He is not supporting a shifting standard. [37] The applicant submits the arbitrator did not comply with these comments in that he actually used an “excessively high” standard of proof on a balance of probabilities or even a criminal burden of beyond a reasonable doubt. [38] Counsel for the applicant makes reference to Bradley Air Services Ltd. (c.o.b. First Air) v. Landry, [1995] F.C.J. No. 343; affirmed [1996] F.C.J. No. 818. But it is clear in that case the adjudicator used a wrong standard of proof in that the issue was whether there was an unjust dismissal because of incompetence which did not involve blameworthy conduct of a criminal nature such as sexual assault, and that the error of the adjudicator was that he found: ... we are dealing with a termination of an employee, which requires the highest level of proof in labor relations. This was an error notwithstanding the adjudicator properly referred to the words of Laskin C.J.C. in Continental Insurance Company v. Dalton Carriage Co. (supra) at p. 169: Where there is an allegation of conduct that is morally blameworthy or that could have criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities. At p. 170 the Chief Justice stated: ... There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered. I do not regard such an approach as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established. [39] Counsel for the applicant in their submissions state the onus of proof in a disciplinary matter is the civil burden on the balance of probabilities. In my view that is accurate, but one has to add the need to examine evidence with greater care if the allegations are serious. Claims of forced sexual intercourse are serious as are the other allegations of an adult who was entrusted in a position which required contact with young people and allegedly committed the acts referred to by J and T. [40] What did the arbitrator do to effect a proper standard of the proof? He determined there was no physical evidence available with respect to the allegations. No notes were produced. There was no medical evidence. There were no admissions. Proof was in the form of the complaints of the former students. He made no helpful reference to the demeanor of these witnesses. One might look for that assessment particularly when he cites suspicion with respect to the grievor’s evidence. The arbitrator, in order to determine from an evidentiary point of view whether the School Board met its burden of proof, examined inconsistencies in the evidence of the complainants. Available to him were statements given to the Royal Canadian Mounted Police, statements given to the Regional School Investigators and transcripts of the trials and preliminary inquiry. The arbitrator said: The lack of admissions and physical evidence means that the cross-examiner’s opportunities are limited. In such circumstances, he must try to test the evidence offered by examining its detail and by attempting to unwind it to display contradictions, inconsistencies and a lack of harmony with what Mr. Justice O’Halloran in Farnya v. Chorney, supra, called “the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” This is particularly true with the two rape allegations, which are entirely unsupported by confirmatory evidence. In both rape allegations, the key issues are whether there was intercourse, whether it was forcible intercourse, and whether D was the assailant. The employer and the grievor both must wrestle with the proof and disproof of events for the occurrence of which there is no evidence other than the statements of the complainant. The absence of other evidence necessarily means that the battle over whether her testimony is credible is fought upon an examination of all of the small details of the complainant’s evidence. That is all that is available. [41] Unlike the arbitrator in the Bradley case there is nothing in the comments of the arbitrator which would permit me to find or infer he used the wrong standard of proof. [42] The arbitrator stated the evidence of J was “so insignificantly compromised, simply provides no basis” of establishing a claim against the grievor. He said at p. 92 the evidence of T was of: ... such a quality that it cannot support what is alleged. It is compromised at every turn by major inconsistencies, internal illogic, self-contradiction, and falsification ... [43] With respect to the evidence of P, the arbitrator said at p. 135: The test is that I be satisfied that it was more likely than not that these acts took place. I am not. The law is clear that where there are very serious allegations made - as in this case - the evidence supporting them is to be subject to close scrutiny, and weighed very carefully. I should always try to harmonize the evidence, but there are cases - and this is one of them - in which that simply is not possible. When all is said and done, I am not satisfied, on a balance of probabilities, that the employer has established any of the misconduct alleged against D by P occurred. She was not a good witness. Her evidence is a morass of contradictions, inconsistencies and shifting stories. [44] In my view the arbitrator identified the correct standard. Nor can I find that he did not apply it correctly. It would appear he found the evidence of T and J did not establish the level of probability the allegations were true. He found the allegations of P were more likely not to have taken place. [45] On the plain language he applied the correct standard. The applicant argues the use by the arbitrator of the words “close scuting” indicates too high a standard. In my opinion, these words mean no more than the words used by Laskin C.J.C. in the Dalton Carriage Co. case - “scrutinize evidence with greater care.” (3) Reviewable Errors by Failing to Consider Relevant Factors or by Taking into Account Irrelevant Considerations [46] The main thrust of the applicant’s argument that reviewable errors were committed relate to the age of the complainants. It is argued the arbitrator did not consider their ages when he attempted to determine credibility. It is argued that no thought was given to the position of authority the grievor had over the youthful complainants. [47] It has been noted the findings of credibility made by the arbitrator seem to relate mostly, if not solely, to inconsistencies in their evidence at the hearing with information in statements or evidence given on previous occasions. [48] The applicants rely on the words of the Supreme Court of Canada in R. v. B(G), [1990] 2 S.C.R. 30 Wilson J. stated at pp. 54 and 55: ... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [49] In R. v. W(R), [1992] 2 S.C.R. 122 which was another case involving a sexual assault charge and the complainants were 2 to 4, 9 or 10 and 10 years of age. Justice McLachlin stated at p. 132: The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C‑34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E‑10, and Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. ... [citing R. v. B(G) (supra)] . . . It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to ''adult'' or ''child'' standards ‑‑ to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. (emphasis added) [50] I would point out the arbitrator referred to these authorities. He quoted the last paragraph I have quoted from the judgment of McLachlin J. in R v. W(R) (supra) and stated at p. 29 of the award: I will bear these comments in mind throughout, and apply these principles for the evidence on this case where circumstances warrant it. [51] With respect, I agree with the observations of Justice McLachlin (as she then was) because the difficulties she observes with respect to the evidence of childhood experiences are evident in almost every case of sexual assault involving complainants who were young children at the time of the offence. Here we are not dealing with young children - the complainants were between 14 and 16 years of age at the time of the alleged offence, but that is not the total answer - they were not adults. They did not have the experience to recall and think like adults. They underwent numerous interviews and the giving of testimony several times. What effect do all these proceedings have on a witness who is making reference to events said to have occurred when they were 14 or 16? It seems that, as stated by Justice McLachlin, it is not “possible” to determine rules distinguishing when to apply adult or children standards. She states criteria for assessing credibility must be “appropriate to her mental development, understanding and ability to communicate”. Surely when the witnesses are reciting events said to have occurred in their mid-teens, the trier of fact is in the preferred position to determine the standard to be applied to the evidence. In this case, who else could assess their “mental development, understanding and ability to communicate? In this case, who else could determine the effect of the many inconsistencies on the testimony of these witnesses. Despite the fact the arbitrator made no further reference to these factors in his award, a court on judicial review should be very cautious in interfering with his findings of fact. [52] In the course of his award, the arbitrator referred to the evidence of J with respect to the telephone calls she alleged to have received from the grievor when he made suggestive comments. At the hearing J said he called “quite a few times” and estimated as many as twenty calls. In her statement to the Regional School Board investigators she said there were two or three phone calls. At the hearing she was asked by counsel for an explanation why there was the large differences in the two estimates. She replied: There’s no reason. I guess I wasn’t thinking about what I’m saying or thinking about. The arbitrator said this was not a “great confidence builder, to say the least.” [53] The arbitrator attributed these comments as an adverse factor in determining the credibility of J. There is nothing before me to say he was wrong in that assessment. [54] There are portions of the findings or lack of findings of the arbitrator which trouble me and which I cannot agree are correct. For example, the grievor alleged the complainants fabricated their evidence of his wrongdoing but he could not provide a reason for the conspiracy. The arbitrator stated he would give this issue “the most careful attention” and he found on p. 59 of the award: ... I am not persuaded that either by themselves, or taken with the matters raised about the nature of their evidence that they establish a likelihood that these persons conspired to give false testimony against D. By “these persons” he was referring to T, P, J and H. Although it was found there was not a conspiracy, all four of those witnesses referred to the use by the grievor of wood or metal screws and three of them spoke about use by the grievor being for suggestive sexual purposes. Can it be said, in the absence of a conspiracy, all four are untruthful about this rather unusual behavior? [55] There is also the admission by the grievor that he took a 14 year old girl to his home when his wife was not there. The grievor’s explanations are not sound. The arbitrator on p. 12 of his award stated P provided details of the home including the bedroom. This would appear to be a logical reason for the grievor to admit that he took the young person to his home. [56] Furthermore I agree with counsel for the applicants that there are statements in the award which comment on the acts or omissions of P around the time of alleged sexual assaults which criticisms may be attributed to an adult but not to a 14 year old person. On p. 113 of the award the arbitrator found P’s testimony, that she voluntarily got in the grievor’s vehicle to discuss rumours that P and the grievor were seeing each other, to be “highly unlikely”. He commented on the fact P had the opportunity to sound a horn or lock the doors when the grievor exited the vehicle and did not do so. The applicant argues the arbitrator did not consider the evidence of P as directed by Justice McLachlin in R. v. W(R) (supra). [57] Notwithstanding my serious misgivings, I must not omit to exercise curial deference in this proceeding in accordance with accepted principles governing a court in the application of effecting judicial review. [58] It is clear that the inconsistencies in the evidence of the complainants were numerous. There were differences on what had taken place. There were differences over the time period and there was mixed evidence on the number of incidents and the places where the notes passed hands. P changed her version of when and what period of time the grievor made advances (p. 103). She differed from T about speaking to other students about the grievor (p. 110). [59] As a court sitting on judicial review, the findings on credibility made by the arbitrator have to be respected. He found none of the complainants proved the allegations they advanced. He said there were “significant problems with virtually every aspect of J’s testimony” and said at p. 76: When what could be tested in this evidence, was tested, it readily may be seen that there have been shown to be significant problems with virtually every aspect of J’s testimony. I don’t know why the stories keep changing, but clearly they do. Looked at separately, no one item by itself might be sufficient to cast into doubt the reliability of the evidence as a whole. Minor inconsistencies from version to version of events are to be expected and are heavily discounted in such matters. These items, however, are not minor inconsistencies. I regret to say that this evidence, tested and so significantly compromised, simply provides no basis upon which I would say with any confidence that it has established the case against D. The cross-examination - and indeed the words of J herself - indicate at least a lack of care and forethought of substantial measure. I conclude that her testimony is not reliable, and does not establish the employer’s case against D. This portion of the grievance is allowed for want of proof. [60] With respect to the evidence of T, the arbitrator said at p. 92: ... I do not assume that events occurred and work from there. I am obliged not to assume what must be proven, and to consider whether the evidence as a whole supports the likelihood that these events occurred. This evidence is of such a quality that it cannot support what is alleged. It is compromised at every turn by major inconsistencies, internal illogic, self-contradiction, and falsification by the evidence of H. It is manifestly unreliable. ... [61] With respect to the evidence of P, he found she was not credible and said at p. 112: In the result, my overall conclusion on P, when I consider her evidence of the notes, and of her evidence connected to the alleged assaults up until the description of those events themselves, is that she is not a credible or reliable witness. Her memory is malleable, inaccurate, and when pressed - politely but firmly - on the many inconsistencies in her testimony, she was unconvincing in reply and evasive on more than one occasion. I also believe she was untruthful in her evidence as to her contacts, with T. It is clear from Exhibit 15 that she told Marie MacNeil about the notes T said she had received from D. [62] These are very clear findings of credibility. There is evidence to support these findings. The decision of the arbitrator as to whether the School Board had just cause to suspend and dismiss the grievor was based on factual findings. I cannot interfere with them even if I would reach different conclusions. DISPOSITION [63] I cannot determine that the process of analysis effected by the arbitrator was clearly irrational. There was no reviewable error in the application of the standard of proof or in the consideration given to the evidence. The decision was not patently unreasonable. [64] The application will be dismissed and the applicant shall pay costs to the respondent in the amount of One Thousand Two Hundred Dollars ($1,200). J.