School board ordered to reinstate teacher acquitted of sexual assault charges

Teacher was fired after school board felt there was enough evidence to show inappropriate behaviour, but arbitrator found former student’s account was flawed
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 02/04/2015

Teachers have significant responsibility and expectations place on them, and as a result the standard for their conduct is high. If even a hint of sexual misconduct involving students comes up, it becomes a major problem for everyone involved due to the elements of trust given to teachers and the vulnerability of students.

   When such an allegation is made, there are usually repercussions for everyone. And it can ruin a teacher’s career, even if the allegations aren’t proven. It can be a delicate balance for the employer of a teacher accused of sexually abusing a student, as it must do to best protect students but also ensure the teacher, as an employee, is given a fair shake and a reasonable investigation to determine what really happened. And while it might be tempting to jettison a teacher with the baggage of allegations, it’s not so easy without definitive proof of misconduct.

An arbitrator has reinstated an Ontario teacher who was fired after being charged with and later acquitted of sexually abusing a student.

Anthony Ross, 50, was a teacher with the York Region District School Board. His career as a teacher started in 1992 and he joined the York board in 2003, where he had a clean disciplinary record and good performance assessments.

Early in Ross’ teaching career — during the 1994-95 school year — Ross taught Grade 8 at a school in Scarborough, Ont. One of his students, a 13-year-old boy, had his father diagnosed with cancer. The student’s mother contacted the school and asked for the teachers to keep a close eye on him because she was focused on her husband. Ross took this instruction to heart and forged a close relationship with the student and his family, including tutoring at the student’s home.

After the student graduated Grade 8, Ross maintained a close relationship with the family, including coaching a volleyball team with the student’s older sister and offering his home for both of the student’s sisters for use while he was on vacation with his wife. Over the years, Ross attended several family events where he encountered the former student.

In November 2010, the student told his family and police that Ross had sexually abused him during that Grade 8 year, 16 years previous. He claimed Ross told him he loved him, kissed him, held his hand on occasion and masturbated him a couple of times. Ross denied the allegations, but police charged him with five counts of sexual assault and sexual interference.

Ross said he was shocked with the allegations, since he had been friends with the family for years. The school board transferred him to another position that didn’t involve interaction with minors until his trial, as required by his bail conditions.

Ross went on trial in December 2011 and was acquitted of all charges. In its decision, the court stated it suspected the former student was telling the truth, but there were enough inconsistencies in his story that established reasonable doubt.

Employer conducted own investigation after trial

The school board launched its own investigation and assigned him to stay at home while being paid during the investigation.

The former student claimed the sexual abuse started with Ross consoling him in the hallway at school and hugging him. This led to hand-holding and Ross telling him he loved him, the former student said. Sometimes it happened at the student’s house during tutoring sessions, though they were never alone together. Eventually it escalated to kissing and Ross putting his hands in the student’s pants and masturbating him. The former student initially said the latter happened “four or five times” but could only recall the location of the first instance.

The former student also said he once rode in the back seat of the car after a hockey game and his mother told Ross not to come to the games anymore. Afterwards, she said she had seen Ross holding the boy’s hand. Ross said he recalled putting his hand on the student’s hand to encourage him briefly, but did not hold it. He said he thought nothing of it at the time but it could be viewed differently nowadays.

The former student’s younger sister testified she once went into the basement at her house when Ross was tutoring the student and she saw the student sitting in Ross’ lap. When she reported it to her parents, the student at the time said he had lost his balance and fallen into Ross’ lap. Ross denied ever tutoring the student in the basement.

Ross denied touching the former student sexually, or any physical contact other than hugging. He admitted he “might have” told the student he loved him, but only because the student was having a tough time due to his father’s illness. Ross also acknowledged he didn’t consider his actions inappropriate at the time but by today’s standards they could be viewed that way.

The former student claimed that over the years, he had avoided Ross at family events when Ross was there, and thought he would keep the abuse a secret. He encountered Ross at his older sister’s wedding about six years after Grade 8, and he claimed Ross asked him if he missed and still loved him.

The former student said Ross’ friendship with his family began affecting him and, after reading the autobiography of a former hockey player who was sexually abused by his coach, broke down one day and told his wife about his own sexual abuse. He then told his family and the police, leading to the charges.

The former student said he hadn’t remembered details of the abuse until he used “visualization” with a counsellor, which involved him telling his story and visualizing the details as they “popped into my head.” This was used to explain some of the inconsistencies in the story, such as when and where some of the abuse happened.

In December 2012, the school board determined Ross engaged in grooming behaviour, established an inappropriate personal relationship with influence over a student, and touched the student “in an intimate and sexual manner.” As a result of the findings, the school board terminated Ross’ employment. Ross grieved the termination.

The arbitrator found the accounts of Ross and the former student were “diametrically opposed,” but the onus of proof was on the school board to prove the events constituting sexual abuse happened in order to justify termination.

Former student’s recollection called into question

The arbitrator found there were inconsistencies in the accounts of the former student and his sister – part of this could be their youth and the length of time that passed. The arbitrator deemed the sister’s account of finding them in the basement differed from the former student’s and if she had really seen something of concern, she wouldn’t have been so friendly with Ross as she grew older — including staying at his house while he was on vacation — or wondering why her brother avoided Ross. In addition, the former student’s mother said she had no memory of being told about it, which is something she probably would have remembered, said the arbitrator.

The arbitrator found flaws with other elements of the former student’s evidence. For the most serious charge, that Ross masturbated him, the former student variously said it happened “a lot of times” and “four or five times,” but could only specifically remember the details of one occasion. His details on other actions were also vague, and one story he gave that Ross invited him to an athletic club to go in the Jacuzzi nude was “implausible,” said the arbitrator.

In addition, the arbitrator noted Ross continued a close friendship with the former student’s family even after his regular contact with the former student ended. This “casts some doubt on the likelihood that he engaged in sexual abuse,” said the arbitrator, and supported the idea that Ross didn’t see any of his activities as sexual.

“Had he been guilty of sexual abuse, one might have expected him to cut off relations with the family once his daily access to (the former student) ended, as his continued friendship might prompt (the former student) to reveal what had occurred,” said the arbitrator.

However, the arbitrator also found Ross tended to minimize the relationship he had with the former student, as it was likely closer than he admitted. Ross acknowledged going to hockey games, holding his hand, and telling him he cared for him. But this was not necessarily sexual behaviour and there was no proof Ross intended it as such, said the arbitrator.

The arbitrator found that much of the former student’s evidence was inconsistent and, though Ross in hindsight may have acted inappropriately in some ways, there was not sufficiently clear and cogent evidence proving he sexually abused the student. The arbitrator also pointed out that the relationship wasn’t initiated by Ross, but rather by the former student’s mother, who asked the teachers to watch him closely. Ross’ response to that request could be interpreted in another context as grooming, but not in those circumstances, said the arbitrator.

The arbitrator acknowledged the school board was acting in its role to protect students and was wary about a teacher charged with sexual assault of a student. However, the evidence did not prove on a balance of probabilities that Ross was guilty of the misconduct. The school board was ordered to reinstate Ross with full compensation.

For more information see:

York Region District School Board and ETFO (Ross), Re, 2014 CarswellOnt 18225 (Ont. Arb.).

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