Date: 19970220 Docket: A963974 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: WILLIAM BENNEST PETITIONER AND: BOARD OF SCHOOL TRUSTEES OF SCHOOL DISTRICT NO. 41 (BURNABY) RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE TYSOE Counsel for the Petitioner: Lewis F. Harvey and Tamara Hunter Counsel for the Respondent: Judith C. Anderson and Katherine Arnold Counsel for Attorney General of British Columbia: Neena Sharma Date and place of hearing: February 7, 1997 Vancouver, B.C. [1] Mr. Bennest applies pursuant to the Judicial Review Procedure Act for a declaration that the School Board's decision to revoke his pay during a suspension from his duties as a principal of an elementary school is invalid. Mr. Bennest concedes that his suspension was appropriate. His complaint is limited to the Board's decision not to pay him during the suspension. [2] Mr. Bennest bases his challenge on two basic grounds. The first ground relates to the application of provisions of the School Act and his contract with the School Board. The second ground is based on the Charter of Rights and Freedoms but it would be unnecessary to decide this ground if Mr. Bennest were successful on the first ground. The hearing was scheduled for one day but it was readily apparent that more time would be required for the parties to make submissions on both grounds. As I was unavailable following the day scheduled for the hearing, I agreed to hear submissions and make a decision on the first ground and, if necessary, a hearing on the second ground would be scheduled at some point in the future. FACTS [3] Mr. Bennest has been a teacher since 1971. He was appointed as the principal of Clinton Elementary School within the Board's School District in 1990. He served in that capacity until suspended on September 5, 1996. [4] Mr. Bennest and the School Board entered into their most recent contract on April 24, 1996. Two provisions of the contract are relevant to this proceeding. Section 8.1 reads as follows: In the event that the Administrative Officer is charged with a criminal offence and the Board believes the circumstances created by it render it unadvisable for the Administrative Officer to continue his duties, the Board may suspend the Administrative Officer without pay pending the disposition of the criminal charges and any appeal therefrom. Section 10.1 of the contract reads as follows: For the purposes of interpreting this Agreement, the Agreement shall be considered to be subject to the provisions of the School Act and the Teaching Profession Act and any regulations made thereunder. Should there exist any conflict between this Agreement and the above-stated enactments, then those enactments shall take precedence. [5] At this stage I will also quote relevant portions of s. 15 of the School Act because it is necessary for an appreciation of some of the facts which I will be setting out: (3) Subject to subsections (4) and (5), a board shall not dismiss, suspend or otherwise discipline an employee covered by a collective agreement except for just and reasonable cause. (4) A board may suspend from the performance of his or her duties an employee who is charged with an offence that the board considers renders the employee unsuitable to perform those duties. (5) If the superintendent of schools is of the opinion that the welfare of the students is threatened by the presence of an employee, the superintendent may suspend the employee, with pay, from the performance of his or her duties. (6) When the superintendent suspends an employee under subsection (5), the superintendent shall immediately notify the board. (7) When the board is notified under subsection (6), it shall as soon as practicable confirm, vary or revoke the suspension and shall, where the board confirms and continues the suspension, determine if the continuation of the suspension shall be with or without pay. [6] On September 4, 1996 Mr. Bennest was charged with two offences under the Criminal Code. The charges were the making of and possession of video tapes of child pornography. On September 6 Mr. Bennest was further charged with touching a boy under the age of 14 for a sexual purpose, sexually assaulting the same boy and obtaining the sexual services of another boy under the age of 18 years. The two charges relating to the boy under the age of 14 were stayed in December 1996, after the School Board made the decision which is the subject matter of this proceeding. [7] Mr. Bennest was released from custody on bail following his arrest. The conditions of his release on bail were that he surrender his passport, be prevented from selling his home, be barred from the south Burnaby area, be prevented from being alone with any youth under the age of 18 and stay away from public areas where children may be present. [8] On September 5 Mr. Bennest was suspended by the Superintendent of Schools pursuant to s. 15(5) of the School Act. As required by s. 15(5), the suspension was with pay. The Superintendent advised the School Board of the suspension. [9] By letter dated September 25 the School Board notified Mr. Bennest that it would be holding a meeting on October 7 pursuant to s. 15(7) of the School Act and s. 8.1 of his contract. At the request of Mr. Bennest's counsel, the meeting was adjourned until October 15. [10] Apart from the charges themselves, the Board was not aware of any of the facts which gave rise to the charges. There had been a ban on publication and Crown counsel advised the School Board that he was not at liberty to disclose any information to anyone other than Mr. Bennest's counsel. Crown counsel told the School Board that it is the Crown's policy to lay charges only when there is a substantial likelihood of conviction. [11] Mr. Bennest's counsel presented a written submission at the Board's meeting. In the submission counsel took the position that the Board could only suspend Mr. Bennest under s. 15(4) and that such a suspension must be with pay. After the Board heard from its own counsel, Mr. Bennest's counsel requested an opportunity to reply in writing. The written reply was provided to the Board on October 18. [12] By letter dated October 23 the Board notified Mr. Bennest of its decision to suspend him without pay. The Chair of the Board has deposed that the Board considered that it had authority to suspend Mr. Bennest without pay under each of s. 15(4), s. 15(7) and the contract. DISCUSSION [13] It is the position of Mr. Bennest that the School Board did not have the authority to revoke his pay during the suspension under s. 15(4), s. 15(7) or the contract. In summary, his counsel submitted as follows: (a) the only authority in s. 15 to suspend Mr. Bennest is found in subsection (4) and such a suspension must be with pay; (b) if there is authority to suspend Mr. Bennest under subsection (7), there must be a separate justification for the suspension and the revocation of pay, and there was no justification to revoke Mr. Bennest's pay; (c) s. 8.1 of the contract is ultra vires because it is contrary to the policy and spirit of s. 15 of the School Act or it should not be interpreted so as to interfere with Mr. Bennest's common law right to be presumed innocent until proven guilty. [14] In my opinion, while there is some merit in the submissions that the Board did not have the authority to suspend Mr. Bennest's pay under s. 15(4) or s. 15(7), it had the right to suspend Mr. Bennest without pay under s. 8.1 of the contract. In view of the submission made with respect to the contract, I will have to review the statutory framework and decide some of the issues in relation to s. 15. [15] I agree with the submission made by the Board's counsel that s. 15 provides for a dual standard for the suspension of employees of the Board. If there are facts which result in the welfare of the students being threatened by the presence of an employee, the Superintendent may suspend the employee with pay under subsection (5) and the Board may continue the suspension with or without pay under subsection (7). [16] On the other hand, if there are no such facts, the Board may nevertheless suspend the employee if he or she is charged with an offence of a nature which renders the employee unsuitable to perform their duties. Subsection (4) authorizes the Board to suspend the employee on the basis of the nature of the charge alone and with no evidence to substantiate the charge. [17] There may be situations where the Board can suspend an employee under either of subsection (4) or subsection (7). However, I have some doubt that the Board can act solely on the laying of a charge to conclude that the welfare of the children is threatened by the presence of the charged person. There is merit in the submission made by Mr. Bennest's counsel that the presumption of innocence means that the Board must have knowledge of other information before it is entitled to conclude that the welfare of the children is threatened. However, in view of my conclusion with respect to the contract, it is unnecessary for me to decide the point. [18] Counsel for Mr. Bennest relied on the legislative history and the maxim expressio unius est exclusio alterius for his submission that subsection (4) only authorizes a suspension with pay. The present School Act came into effect in 1988. The equivalent provision to subsection (4) in the former School Act was s. 122.2(1) which read as follows: Where a teacher has been charged with a criminal offence and the board believes that the circumstances created by it render it inadvisable for the teacher to continue his duties, the board may suspend the teacher with or without pay. Counsel says that the removal of the phrase "with or without pay" in the current School Act means that the Legislature intended to take away the ability of the board to suspend without pay. He also says that the maxim, when coupled with the use of the phrase "without pay" in s. 15(7), results in the conclusion that the Legislature did not intend a school board to have the power to suspend without pay under subsection (4). I do not agree. [19] If it were the intention of the Legislature that a school board can only suspend employees with pay under subsection (4), it would have said so. The Legislature did insert the stipulation in subsection (5) that employees suspended by the superintendent must be paid. If that were also the Legislature's intention for suspensions under subsection (4), it would be illogical to insert the phrase "with pay" in subsection (5), but not in subsection (4). It was necessary to include the phrase "with or without pay" in subsection (7) because the initial suspension under subsection (5) was mandated to be a suspension with pay. If anything, the maxim expressio unius est exclusio alterius supports the opposite conclusion from the one submitted by counsel for Mr. Bennest in the view of the use of the phrase "with pay" in subsection (5) and its absence in subsection (4). [20] The legislative history does not establish that the Legislature intended to alter the ability of the board to suspend without pay employees charged with offences. If the Legislature had intended to effect a change, it would have done so by explicitly providing that suspensions under subsection (4) must be with pay, as it did in subsection (5). A more likely explanation for the non-use of the phrase "with or without pay" in subsection (4) is that the draftsperson felt that it was unnecessary. As noted in the authority referred to in the next paragraph, a suspension of an employee usually means a suspension from both work and pay. It was unnecessary to specify in subsection (4) that a suspension from work also meant a suspension of pay. [21] My conclusion that subsection (4) does not require a suspended employee to be paid leads to the next submission by Mr. Bennest's counsel. He says that a principal is the holder of a public office and that it is normal for them to be suspended with pay. This is the conclusion reached by the Ontario Court of Appeal in Mahood v. Hamilton- Wentworth Regional Board of Police Commissioners. [22] In Mahood a police officer was suspended after he was charged with offences under the Police Act. He was paid during the suspension until shortly after he was convicted of the offences. He appealed his conviction and he was then notified that he was suspended without pay. His appeal was unsuccessful and he resigned from the police force. The issue was whether he could be suspended without pay at any time prior to his resignation. The applicable legislation provided that a police officer charged with an offence could be suspended but it made no reference to whether the suspension was with or without pay. The legislation also provided that if an officer was convicted of an offence for which a term of imprisonment was imposed, he could be suspended without pay. [23] The Ontario Court of Appeal held that the officer was entitled to be paid until he resigned. The Court said the following: A police officer, in contrast to an employee or a party to a contract, is the holder of a public office and while a municipality is obliged to pay the officer's salary, the relationship of master and servant does not exist between them .... In my opinion, it follows that a police officer is entitled to be paid his salary, not in exchange or in consideration for the duties performed, but rather as a result of holding the office. ... Further, the view that the suspension from duty, pursuant to s. 26(1) does not carry with it suspension of pay is reinforced by the specific reference to suspension of pay of a constable in the circumstances described in s. 26(3). This specific reference attracts the operation of the doctrine expressio unius est exclusio alterius. (pp. 710-1) Counsel for Mr. Bennest referred to various authorities for the proposition that a school principal is the holder of a public office. [24] It is my view that Mahood could have been decided on the basis of the maxim expressio unius est exclusio alterius. The legislation in that case specified the circumstance where a police officer could be suspended without pay and the inference was that the Legislature intended a suspension in any circumstance to be with pay. I have some difficulty with the concept that a person should be paid for holding an office when they are not performing any of the duties of the office and it is necessary to pay another person to perform those duties. In the present case, Mr. Bennest is not able to perform his duties as principal of Clinton Elementary School because a condition of his bail was that he not be present within the area in which the School is located. Mahood is also potentially distinguishable on the basis that the legislation in the two cases is different because s. 15(4) of the School Act also applies to employees who are not holders of public office. However, as I can decide this case on the basis of the contract between the parties, it is unnecessary to decide the issue under s. 15(4). [25] Counsel for Mr. Bennest submitted that s. 8.1 of the contract is ultra vires because it is inconsistent with the policy and spirit of the School Act and that the presumption of innocence requires an interpretation of the contract to produce the result that he can only be suspended with pay. [26] Section 8.1 of the contract is not inconsistent with the School Act as I have interpreted the Act. Neither s. 10.1 of the contract nor the ultra vires doctrine is applicable. Section 15(4) of the Act allows for suspensions without pay and s. 8.1 is not inconsistent with it. Even accepting the reasoning of Mahood, there is no principle to prevent a holder of an office from agreeing that he or she can be suspended without pay if charged with an offence. Section 8.1 does not require a separate justification for suspending Mr. Bennest's pay above and beyond the laying of criminal charges which render it inadvisable in the Board's view for him to continue his duties. [27] Counsel submitted that, in general, a statute or contract should be interpreted in a way consistent with an important common law right (i.e., the presumption of innocence) if it is possible to do so. There is no way to interpret s. 8.1 of Mr. Bennest's contract in the manner suggested by his counsel. Section 8.1 explicitly states that Mr. Bennest can be suspended without pay pending the disposition of criminal charges. There is no ambiguity in s. 8.1. In order to interpret s. 8.1 to mean that Mr. Bennest must be paid during the suspension, it would be necessary to override the express words in the contract. There is no basis for the Court to re-write the contract between the parties and make it the opposite of what the parties intended. [28] There is also an issue of whether the presumption of innocence goes so far as to require that a contract be interpreted so that a suspended employee must be paid during a suspension when the suspension itself is not challenged. As this is related to one of the issues which I understand may be argued in connection with the Charter, I defer any comments on it. [29] I hold that, apart from Charter considerations, the School Board was entitled to suspend Mr. Bennest without pay. Counsel may make arrangements through Trial Division for a hearing to make submissions in connection with the Charter. "D. Tysoe, J." D. Tysoe, J.