SYDNEY, N.S. - An arbitrator acted reasonably when she ruled that a school janitor should not have been fired for having a sexual relationship with a 15-year-old girl while he was off duty, a Nova Scotia Supreme Court justice has ruled.
Justice Cindy A. Bourgeois's 27-page written decision was released Thursday.
The Cape Breton-Victoria Regional School Board applied for a judicial review of the labour arbitration award.
The janitor, who was not named, was fired in 2007 after working for the board for more than 20 years at several schools with no prior disciplinary record.
In his off-duty hours, the man began a personal relationship with a 14-year-old girl in August 2007. It became sexual in nature that same month, when she turned 15.
It wasn't in contention that the man met the girl outside of the school setting, as she wasn't a student at any school where he worked. He also didn't use his job to instigate or develop the relationship.
At the time, the legal age of consent for sexual activity in Canada was 14. It has since been raised to 16.
The board argued that even if the relationship occurred off duty, the man breached his duty to the girl, the board and the larger community. The union disagreed, saying his off-duty conduct didn't justify any degree of discipline, and certainly not firing.
Arbitrator Susan Ashley ruled that the nature of the sexual conduct between a man and a young girl was "difficult to contemplate" and "repugnant." However, she added it wasn't appropriate to "impose discipline on the basis of moral outrage alone, or to punish the griever for behaviour which we find offensive."
The arbitrator gave the man a three-month suspension, finding that firing was too severe a penalty given the circumstances.
Bourgeois said she was able to understand how and why the arbitrator reached her decision, saying Ashley cited the appropriate legal tests and undertook a clear legal analysis.
"As such, there is a 'justifiable, intelligible and transparent reasoning path,' thus meeting the first stage of the reasonableness analysis," Bourgeois wrote.