COURT FILE NO.: 380/03

DATE: 20040706

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, meehan and SWINTON JJ.

B E T W E E N:

ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO

Applicant

• and -

TORONTO DISTRICT SCHOOL BOARD

Respondent

Cynthia Petersen and Charlene Wiseman, for the Applicant

David W. Brady, for the Respondent

HEARD at Toronto: May 21, 2004

Swinton J.:

1The Elementary Teachers’ Federation of Ontario (“ETFO”) has brought an application for judicial review of the majority decision of an arbitration board chaired by Stanley Beck dated March 3, 2003, which dismissed a grievance arising out of the treatment of a teacher on her return from pregnancy leave.

Overview of the Facts

2The grievor, Xuan Vuong, is an elementary school teacher represented by ETFO, who has been employed by the Toronto District School Board (“TDSB”) and its predecessor since 1996. Since 1997, she has taught at Parkdale Public School. She has senior and intermediate qualifications to teach grade 7 through 12 Core French and a general Ontario teaching certificate for both elementary and high school levels.

3The grievor began her career teaching grades 7 and 8 Core French (“Senior French”) and taught Senior French at Parkdale Public School from 1997 until she commenced a pregnancy leave in March, 2001. She was scheduled to return to teaching in March, 2002.

4Each year, a staffing model is developed for the school through the process set out in Article D.7 of the collective agreement. Article D.7.6 requires the principal to determine the specific classroom teaching duties of each teacher in consultation with the teacher, following the approval of the staffing model each year. The article specifies that the principal will consider the preferences, abilities, qualifications and experience of the teachers in assigning teaching duties.

5In February of 2001, the principal of the school sent a memo asking the teachers their preferences for teaching assignments in the following year. Despite the principal’s request for input, the grievor did not participate in the process, as she was distracted by preparation for her upcoming pregnancy leave. On April 10, 2001, while she was on pregnancy leave, she received a letter from the principal advising that her teaching assignment on her return from leave would be Senior Science/Advisory. While the grievor was formally qualified to teach Senior Science, she had never done so, and she did not feel qualified to do so.

6There was evidence before the arbitration board that there had been a reduction in the number of teachers on staff for the 2001-2002 academic year because of declining enrollment, and that there were six teachers on staff qualified to teach French and only two French teaching positions. The individual assigned to Senior French was another teacher on staff with more seniority than the grievor, although less experience teaching French.

7ETFO filed a grievance on behalf of Ms. Vuong. Before the arbitration board, it alleged a violation of Article D.7.6 and of ss. 43 and 44 of the Employment Standards Act, R.S.O. 1990, c. E.14 (“ESA”), the pregnancy leave and no reprisal provisions of that Act. The grievance also sought damages for the grievor, as she refused to return from her pregnancy leave to teach Senior Science. She remained on leave without pay until the following September, when she was once again assigned to Senior French.

The Collective Agreement and the Legislation

8Article C.2.1 of the collective agreement between the parties requires the TDSB to “grant Pregnancy Leaves and Parental Leaves in accordance with the requirements of the Employment Standards Act.” At the time of the grievance, ss. 43(1) and 44 of the Act governed an employee’s minimum entitlements with respect to pregnancy and parental leave. These provisions were renumbered in 2001 as ss. 53(1) and 74(1). They read as follows:

43(1) The employer of an employee who has taken pregnancy leave or parental leave shall reinstate the employee when the leave ends to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

44 An employer shall not intimidate, discipline, suspend, lay off, dismiss or impose a penalty on an employee because the employee is or will become eligible to take, intends to take or takes pregnancy leave or parental leave.

The Decision of the Board of Arbitration

9The board of arbitration held that the principal had violated the consultation provision in Article D.7.6 of the collective agreement. However, the majority of the board held that there had been no violation of s. 43(1) of the Act. In reaching that conclusion, the majority held that the position that the employee most recently held with the employer was a teaching position at the same school teaching subjects for which she was qualified. The board did not accept the argument that the Senior French assignment was the grievor’s position, concluding (at pp. 20-21):

Vuong’s position was as a teacher at Parkdale qualified to teach any of the subjects in the general curriculum in any year. She, or any other teacher, could be assigned any non-specialist subject for the following year. There is no guarantee to any teacher that he/she will continue to teach a subject, even for which they have special qualifications, in the following year. And maternity leave cannot in my view, give a teacher greater rights than she would have had if she had not gone on maternity leave. The purpose of Section 43(1) of ESA is to protect an employee’s rights when she goes on maternity leave, and that right, in the context of a teacher at Parkdale, is to be returned to her position as a teacher at that school assigned to a subject for which she is qualified.

The particular workplace is Parkdale Primary School, grades K to 8, and the “system of work assignment”, to use Arbitrator Picher’s term, is course assignment on a yearly basis.

10The dissenting member of the board concluded that there had been a violation of s. 43 because the grievor had been disadvantaged by the assignment to Senior Science. She also found that s. 44 of the Act was violated because the TDSB failed to disprove that s. 44 was not violated.

The Standard of Review

11The Supreme Court of Canada has held that the appropriate standard of review of a decision of an administrative tribunal must be determined through a pragmatic and functional approach, in which four factors are considered: the presence or absence of a privative clause or statutory right of appeal, the expertise of the tribunal relative to that of the reviewing court on the issue in question, the purpose of the legislation and the provisions in particular, and the nature of the problem at issue and, in particular, whether it is a question of fact, law or mixed fact and law (Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 26). In applying these factors, the intention of the legislature governs.

12The Applicant argues that the appropriate standard of review in this case is correctness. In particular, the Applicant points out that the Supreme Court of Canada has, in the past, applied a standard of correctness to the decision of an arbitrator interpreting and applying the Employment Standards Act (McLeod v. Egan (1974), 1974 12 (SCC), 46 D.L.R. (3d) 150 (S.C.C.) at pp. 152, 155). In contrast, the Respondent argues that the standard of review is patent unreasonableness.

13Given the expertise of arbitrators and the central role of grievance arbitration in resolving workplace disputes, courts in the past have taken a very deferential approach when reviewing the decisions of arbitrators which interpret a collective agreement (see, for example, United Brotherhood of Carpenters and Joiners of America Local 579 v. Bradco Construction (1993), 1993 88 (SCC), 102 D.L.R. (4th) 402 (S.C.C.) at 418). However, the Supreme Court of Canada, after applying the pragmatic and functional approach to the review of a decision of an Alberta arbitrator interpreting a collective agreement, recently concluded that the appropriate standard of review was reasonableness (Voice Construction Ltd. v. Construction General Workers’ Union, Local 92, 2004 SCC 23 at para. 30). Thus, the Court appears to have departed from the long line of cases in which the standard for review of an arbitrator’s interpretation of the collective agreement was patent unreasonableness. Indeed, in his reasons, Major J. stated that the application of the patent unreasonableness test will be rare, and he observed at para. 18:

A decision of a specialized tribunal empowered by a policy-laden statute, where the nature of the question falls squarely within its relative expertise and where that decision is protected by a full privative clause, demonstrates circumstances calling for the patent unreasonableness standard.

14In my view, the application of the pragmatic and functional approach here leads to the conclusion that the appropriate standard of review is reasonableness. Despite the Supreme Court’s earlier decision in McLeod v. Egan, supra, with respect to the standard of correctness, that decision was made before the Supreme Court adopted the pragmatic and functional approach and before significant legislative changes were made to the legislation governing grievance arbitration.

15In this case, there is a limited privative clause in s. 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A. It provides,

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

16The Applicant argues that this suggests deference only when the arbitrator interprets a collective agreement and not where a statute is interpreted. For example, the Supreme Court of Canada held in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 (2003), 2003 SCC 42, 230 D.L.R.(4th) 257 that an arbitration board had to be correct in determining whether the substantive rights and obligations of the Human Rights Code were incorporated within the collective agreement, since this was a question of law outside the board’s jurisdiction, which the legislature did not intend to leave to the board (at para. 21-22).

17However, there are two statutory provisions which demonstrate the legislature’s growing acceptance of the expertise of arbitrators in the interpretation of employment-related statutes in general and the Employment Standards Act in particular. Since the decision in McLeod v. Egan, s. 48(12)(j) of the Labour Relations Act has been enacted. It states that arbitration boards have the power to interpret and apply employment-related statutes, despite any conflict between those statutes and the terms of a collective agreement (S.O. 1995, c.1, Sch. A). In addition, s. 64.5(1) and (2) of the Employment Standards Act now provides that the ESA is enforceable against an employer bound by a collective agreement as if it were part of the agreement, and the unionized employee can not pursue a complaint under the Act. These provisions reflect the legislature’s recognition that arbitrators have special experience that makes them well-placed to deal with the types of workplace issues that arise under the ESA, such as vacation pay and hours of work.

18Courts have shown deference to the interpretation of statutes by arbitrators where the statute in question is one with which the arbitrator regularly comes in contact (Toronto (City) Board of Education v. O.S.S.T.F., District 15 (1997), 1997 378 (SCC), 144 D.L.R. (4th) 385 (S.C.C.), paras. 30-40; Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Association (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737 (C.A.) at paras. 21-28). In the latter case, the Court of Appeal held that the standard of review was patent unreasonableness, although this case was decided before Voice Construction, which seems to signal a reduction in the amount of deference to be accorded arbitration boards. Nevertheless, the ESA is an Act with which arbitrators are likely to have greater familiarity than the courts.

19The final factor to be considered in determining the standard of review is the nature of the problem before the tribunal. The application of s. 43 of the ESA requires an arbitration board to determine the position held by an individual prior to her pregnancy leave. This is a question of mixed fact and law. The factual inquiry in a case such as this requires consideration of the collective agreement, as well as the arrangement of work in the particular setting in which the grievor works. Similarly, a determination whether s. 44 had been breached is a factual rather than a legal inquiry. Therefore, some deference is warranted, given the nature of the problem before the arbitration board and the expertise of the board in making the necessary factual determinations.

20Finally, I note that when courts have reviewed the decisions of referees who formerly adjudicated disputes under the ESA, they did so on a standard of patent unreasonableness (Re U.S.W.A. Local 14097 and Franks (1994), 1994 8708 (ON CA), 16 O.R. (3d) 620 (C.A.)). The ESA now provides that when decisions of the Ontario Labour Relations Board interpreting the Act are reviewed, the standard is reasonableness (ESA, s. 119(14), S.O. 2000, c. 41). It would seem unreasonable to now hold arbitrators to a standard of correctness, given their present legislative mandate to apply the ESA.

21Given all these considerations, I am satisfied that the proper standard of review in this case is the standard of reasonableness. In the application of that standard, the court must examine the reasons of the tribunal as a whole, and determine if they can stand up to a “somewhat probing examination”, interfering “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion which it reached” (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 55).

The Interpretation of Section 43 of the Employment Standards Act

22The Applicant argues that the term “position” in s. 43 of the ESA must mean the most recent work assignment held by the grievor. Emphasizing the beneficial nature of the legislation and its evolution through the years, the Applicant argues that the section should be interpreted so as to protect the individual returning from a pregnancy leave from disadvantage suffered because she went on leave. Therefore, it is argued, the grievor must be able to return to the work assignment most recently held, as that it is her position.

23In contrast, the majority of the arbitration board held that there was a distinction between the position of a teacher at a given school and her work assignment, which is made on an annual basis. The arbitration board phrased the issue in the case in the following words at p. 12 of the award:

The issue is whether “the position the employee most recently held” means, in a school/teacher context, the same subjects the employee was teaching, or does it mean at the same school teaching subjects for which her teaching certificate qualifies her?

The Applicant argues that the board ignored relevant factors, such as the grades the grievor had been teaching and the specific subjects which she had been teaching, and therefore, allowed the TDSB to reinstate her to a comparable position, rather than the position she most recently held.

24Both the Applicant and the Respondent rely on Re Chapleau Board of Education and Federation of Women Teachers’ Associations of Ontario, an unreported decision of an arbitration board chaired by Michel Picher, dated April 17, 1995. The board found that the position of a teacher, who had been teaching Grade 4 when she went on leave in November of the school year, was the Grade 4 assignment when she returned in June of the same academic year. While Arbitrator Picher acknowledged that the principal might have a right to reassign during an academic year, he stated at p. 39,

… at the time of her pregnancy the grievor had a reasonable expectation of holding a particular assignment, with duties and responsibilities relating to teaching a specific Grade 4 class, on a regular day-to-day, week-to week basis for the duration of the academic year. That can fairly be characterized as her “position” for the purposes of s. 43(1) of the Employment Standards Act.

On the facts of the case, the board held that there had been substantial compliance with the Act, although the grievor was given alternative duties for the remainder of the academic year as a remedial teacher, and the replacement teacher was left to complete the students’ evaluations.

25The Applicant argues that the grievor here had a reasonable expectation of holding her assignment teaching Senior French from year to year, even though the principal had the authority to change teaching assignments each academic year. The arbitration board rejected that argument, concluding that no teacher had a right to any particular assignment in a year, since teaching assignments were done on a yearly basis in accordance with the collective agreement. At pp. 19-20 of the award, he stated:

To hold that Vuong is entitled to return to exactly the subjects she was teaching when she went on maternity leave, is to give a teacher who goes on such leave greater rights than a teacher would have had if she had not gone on maternity leave, and would hamper a principal’s right to make appropriate class assignments for an academic year.

26In determining whether a woman returning from pregnancy leave has been allowed to return to the position most recently held, both arbitrators and adjudicators under the Employment Standards Act have looked at the normal dynamics of a particular workplace. They have not accepted that s. 43 guarantees absolute freedom from change (see, for example, Re Ontario New Democratic Party Caucus, [1993] O.E.S.A.D. No. 117 at p. 32 (Quicklaw); Re Med-Chem Laboratories Ltd., [1997] O.E.S.A.D. No. 237 at para. 23).

27Pursuant to s. 265(1)(e) of the Education Act, R.S.O. 1990, c. E.2, a principal has the power to assign classes and subjects to a teacher, while s. 264(1) states that it is the duty of a teacher to teach “subjects assigned to the teacher by the principal”. The collective agreement between the parties clearly contemplates an annual assignment of teaching duties, taking into account the staffing model for the following academic year. Thus, no teacher has a right to a particular teaching assignment from year to year, nor can it be said that a teacher has a reasonable expectation to continue teaching the same subjects every year. Thus, it can not be said that the arbitration board’s characterization of the teacher’s position was unreasonable, given the provisions of the Education Act and the terms of the collective agreement.

28A similar result was reached by Arbitrator Shime in Niagara District School Board v. The Elementary Teachers’ Federation of Ontario (March 25, 2004). Moreover, the reasons of Arbitrator Picher in Chapleau, when taken in context, are not inconsistent with this holding. Arbitrator Picher, looking at the evidence in the case before his board, stated:

The evidence in the case at hand discloses that the Grade 4 teaching assignment which Ms. Todesco occupied prior to taking her pregnancy and parental leave constituted a single, discrete, permanent work assignment normally given to the teacher for the period of a full academic year (at p. 39).

29Therefore, the arbitration board’s decision with respect to s. 43 of the Act was reasonable, and there is no basis for this Court to set it aside.

The Application of Section 44 of the Employment Standards Act

30The Applicant argues that the majority of the board of arbitration failed to make any clear finding with respect to the non-reprisal provision in s. 44 of the ESA. The Applicant argues that the grievor’s assignment to teach Senior Science caused her disadvantage. Therefore, the onus was on the TDSB to show that the assignment was not influenced by the grievor’s decision to take pregnancy leave, contrary to s. 44.

31While the board’s reasons could have been clearer on this point, it is implicit in the reasons that the majority found no violation of s. 44. The board was presented with the conflicting evidence of the grievor and the principal about a particular conversation. The grievor testified that the principal told her that it was easier to replace a Senior Science teacher for an extended period than it was to replace a Senior French teacher. The principal denied saying this. The board of arbitration, after a quotation from another case referring to ss. 43 and 44 of the Act, stated at p. 20 of the reasons, in the sentence preceding the quotation earlier in these reasons at paragraph 9:

I am of the opinion that no comparable scenario exists when a teacher, for legitimate reasons that do not bring into play the discrimination provisions of Section 44 of ESA, is assigned to teach a subject for which she is qualified under her Ontario teaching certificate upon her return from maternity leave that is different from what she was teaching when she went on leave. (emphasis added)

The reference to “legitimate reasons” leads to the conclusion that the board found no grounds for holding that the grievor was being penalized for taking pregnancy leave.

32Section 44 protects an employee against certain actions by the employer: intimidation, discipline, suspension, layoff, dismissal or imposition of a penalty because the employee takes pregnancy leave. Adjudicators have focussed on the knowledge and intent of the employer in applying this section (see, for example, Re Heady’s Haircutting Parlour Ltd., [1995] O.E.S.A.D. 149 at p. 9 (Quicklaw)) and whether pregnancy was a factor in the employer’s decision to discipline, layoff or treat the employee adversely (Re 376028 Ontario Ltd.(c.o.b. Penny’s Restaurant and Pizza Delight) at p. 5 (Quicklaw)). Here, the board held that there were legitimate reasons for the teaching assignment. There was evidence from the principal that could support such a conclusion. Implicit in the quoted phrase is the conclusion that the employer did not act with the intention of penalizing the grievor because of her pregnancy leave. Therefore, there is no basis to interfere with the board’s decision.

33Given the conclusions with respect to ss. 43 and 44, the board reasonably concluded that there was no reason to award damages to the grievor, as there was no violation of the Act.

Conclusion

34Therefore, as the decision of the arbitration board is not unreasonable, the application for judicial review is dismissed. If the parties cannot agree with respect to costs, they may make brief written submissions within 21 days of the release of this decision.

Swinton J.

O’Driscoll J.

Meehan J.

Released:

COURT FILE NO.: 380/03

DATE: 20040706

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, meehan and SWINTON JJ.