In Edwards v Pembina Hills School Division, 2026 ABCA 37, the Alberta Court of Appeal dismissed a teacher’s appeal of a Board of Reference (“Board”) decision confirming her termination for gross misconduct. The teacher had sat on a teenage student’s lap and ground her buttocks into him for approximately 44 seconds, all captured on video. The Board found this conduct constituted sexual assault as the most serious form of workplace sexual harassment, applying the framework from Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 (“CUPE Local 37”).
On Appeal, the teacher argued, inter alia, that the Board erred in incorrectly characterizing the nature of her actions, leading to a breach of procedural fairness, as her initial termination did not reference “sexual assault” but was premised on gross misconduct. The Court confirmed that adjudicators are required to independently assess the nature and seriousness of the misconduct under the William Scott & Co. v. CFAW, Local P-162, 1976 CarswellBC 518 framework, regardless of what terminology is used during termination. The employer’s failure to label the conduct as “sexual” in its termination letter did not limit the Board’s analysis, nor did it give rise to a breach of procedural fairness. The Court also confirmed that CUPE Local 37‘s definition of sexual harassment applies to teacher-student relationships, and that a single serious incident of misconduct can justify dismissal without consideration of progressive discipline.
Facts
The following is a summary of the key facts:
- The appellant employee was a teacher with 16 years of experience. At the time of termination, she had worked with the respondent for 3.5 years.
- The appellant led a program serving students with behavioural and mental health challenges. Among the students in the program was a teenager, identified as “S,” whose individualized program plan, prepared by the appellant herself, included an instruction to keep distance when speaking to him because he felt threatened by close contact.
- In November 2019, S was sitting beside a program assistant in a classroom, working quietly. The appellant entered without saying anything, pushed S away from the table, straddled his legs, sat on his lap as close to his body as possible, and ground her buttocks into him. A classroom video camera recorded the 44-second interaction. The program assistant later described her first thought as the student having received “a lap dance in class.”
- The program assistant reported the incident to the principal two days later. The superintendent reviewed the video, suspended the appellant pending investigation, and advised her that “it is alleged that you gyrated your bottom on a student’s lap.” The matter was also reported to police, and the appellant was charged with sexual assault. The Crown withdrew the charges at trial, and she was acquitted.
- The investigation also revealed that the appellant had used profanity in the classroom and directly with individual students, which she admitted. Following the investigation, the associate superintendent recommended termination, describing the appellant’s conduct as “initiating unwanted physical contact of an intimate nature with a minor male student.” A termination hearing was held, and the appellant was ultimately terminated for gross misconduct, a serious breach of the employment contract, and a serious transgression of the normal student/teacher boundaries. The termination letter did not use the words “sexual assault” or “sexual harassment.”
- The appellant appealed to a Board under s. 231(2)(a) of the Education Act, seeking reinstatement. After an 11-day hearing, the Board applied the William Scott framework and the definition of sexual harassment adopted by the Court of Appeal in CUPE Local 37. The Board found the appellant’s conduct constituted sexual assault, confirmed the termination, and dismissed the appeal.
- The appellant appealed to the Court of Appeal on four grounds: (1) the Board misapplied the law of sexual assault; (2) she was denied procedural fairness; (3) the Board misinterpreted 237 of the Education Act; and (4) the Board erred in finding progressive discipline was unnecessary.
Analysis/Conclusion
The Court of Appeal dismissed all four grounds of appeal.
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Incorrect Definition of Sexual Assault
On the first ground, the appellant argued the Board applied an incorrect definition of sexual assault, pointing to the criminal definition from R v Chase, which requires, inter alia, an assessment of motive. She argued that her conduct did not fit within this framework, as she had no sexual intent.
The Court rejected this argument, noting that the Board was not required to impose a criminal definition of sexual assault on a non-criminal matter. As this was an employment issue, it properly relied on the definition of sexual assault as a manifestation of workplace sexual harassment, as adopted in CUPE Local 37. This definition focuses on whether the conduct was unwanted, coercive, or humiliating, was directed at a targeted person, and violated that person’s rights. The evidence was clear that the appellant’s actions were unwanted, imposed in a position of trust and authority to a student under her control, and made S feel extremely uncomfortable. Accordingly, the Court found that it was open to the Board to characterize the conduct as sexual in nature, regardless of the appellant’s denial of sexual intent.
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Procedural Fairness
The appellant argued the employer characterized her conduct as sexual for the first time in its written submissions to the Board, expanding the grounds for dismissal and depriving her of the opportunity to respond. The Court found this position untenable, noting that (1) the appellant had been charged with sexual assault, and (2) that the initial letter she received referenced her “gyrating” on a student. Further, early in the initial termination hearing, the Board flagged that the respondent’s description of “grinding” carried sexual connotations. The Court held it would be naïve to conclude the appellant did not know the case she had to meet. The nature of the allegations did not change, only the label applied to the same set of facts.
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Interpretation of the Education Act
Section 237(2) of the Education Act directs the Board to consider factors such as gross misconduct, risk to student safety, and public confidence in the education system when making an order for reinstatement. The appellant argued that the Board improperly applied these factors, as they should be considered only if the Board intends to order reinstatement. This was premised on the wording of section 237(2):
In making an order under subsection (1)(c)(i) [for reinstatement] … the Board of Reference may take into consideration any matter that the Board of Reference considers relevant, but in making that order the Board of Reference must consider at least [the factors listed in s 237(2)(a) to (h)].
The Court rejected this interpretation, finding that, taken to its logical extreme, it would force the Board to order reinstatement before assessing whether reinstatement was viable. Read in context, the Legislature intended the Board to consider these factors in determining whether to order reinstatement. In any event, the Court held that the Board’s finding of just cause under s. 237(3)(b) foreclosed reinstatement entirely, rendering any error in the application of the s. 237(2) factors immaterial.
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Progressive Discipline
The appellant argued that the Board erred in determining that lesser forms of discipline need not be considered before terminating her for cause. The Court disagreed, noting that just cause jurisprudence, including McKinley v. BC Tel, 2001 SCC 38 does not require the consideration of progressive discipline in cases of serious and significant misconduct. A single serious incident can justify dismissal. The Court noted that the employer provided an explanation for the termination in a detailed five-page letter that described the misconduct, acknowledged the appellant’s explanation, identified the policies and contractual provisions she violated, and explained why continued employment was untenable.
My Take
This decision provides helpful guidance on some principles with broader application beyond the education context.
First, employers should be precise in how they describe the misconduct upon termination. However, the choice of terminology in the initial termination letter does not limit the scope of an arbitrator’s review, as the arbitrator has an independent obligation to assess the nature and seriousness of the alleged misconduct. This principle can accordingly “cut both ways.” It protects employees from having misconduct minimized by an adjudicator who simply adopts the employer’s framing, but it also means that employees cannot rely on the absence of a particular label as a shield.
Second, procedural fairness is to be grounded in the factual matrix. The appellant’s position was that the failure to use the word “sexual” in the termination letter deprived her of the opportunity to respond to the allegation. However, the underlying facts made clear that she was aware her conduct attracted concerns of this nature. She was charged with sexual assault arising from the same conduct, and the Board flagged the sexual connotation of the conduct early in the termination hearing.
Whether framed as sexual misconduct or not, the severity of the actions did not change. The appellant was, effectively, attempting to minimize the alleged wrongdoing by arguing that there were technical shortfalls in the manner of termination. Where the facts are clear and the employee has a full opportunity to respond to them, the process will withstand scrutiny.
