COURT FILE NO.: 464/06

DATE: 20071001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, PLATANA & SWINTON JJ.

B E T W E E N:

LE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE FRANCO-NORD

Applicant

• and -

L’ASSOCIATION DES ENSEIGNANTES ET DES ENSEIGNANTS FRANCO-ONTARIENS (L’AEFO) et KATHLEEN G. O’NEIL, ARBITRE

Respondents

Claire Vachon & Kevin P. MacNeill, for the Applicant

Sean T. McGee, for the Respondent, l’AEFO

HEARD at Toronto: June 19, 2007

CARNWATH J.:

OVERVIEW

1Le Conseil scolaire de district catholique Franco-Nord (“the Board”) applies for judicial review of the decision of Kathleen O’Neil, Arbitrator, in which she upheld the grievances of the respondent, l’Association des enseignantes et des enseignants franco-ontariens (“the AEFO”).

2The issue between the parties concerns a clause in the collective agreement to which they are parties and its interaction with, among other things, subsection 3(1) and paragraph 20(d) of O. Reg. 298 issued under the authority of the Education Act, R.S.O. 1990, c. E.2 (“the Act”) and other applicable clauses of the Act and its Regulations.

3More precisely, the question before the Court is to decide whether, in light of the Act and its Regulations, the arbitrator erred in deciding Article 10.3.1 of the collective agreement relieved the teachers from any obligation to be present in the classroom five minutes before classes re-start following the lunch recess.

BACKGROUND

4The Board is a school board within the meaning of the Act. The AEFO is a Union consisting of teaching personnel working in French, established under s. 288 and s. 290 of the Act. All members of the Union work in a Francophone environment.

5Before September, 2005, the teachers who worked at l’École élémentaire de la Résurrection at Sturgeon Falls were entitled to a lunch break of one hour, free of assigned tasks. In the school year 2004-2005, the teachers met their students at the established time for the beginning of classes in the afternoon rather than five minutes before.

6At the beginning of the school year 2005-2006, the school instituted a new lunch break from 11:30 to 12:30. Because of the new lunch break, a bell would ring at 12:25 and the students would file into their respective classes where the teachers would receive them. During a staff meeting at the end of August, 2005, the teachers were directed to receive the students in their classrooms five minutes before the start of classes in the afternoon.

7The AEFO objected to the directive and grieved. They said the directive infringed Article 10.3 of the collective agreement because the Board was assigning tasks to the teachers before the beginning of classes in the afternoon.

8The French version of Article 10.3 of the collective agreement reads, as follows:

10.3 période du diner

10.3.1 à l’intérieur de chaque journée scolaire, l’enseignante ou l’enseignant est libre de toutes ses tâches pendant la période prévue pour son repas comme suit:

10.3.1.1 au palier élémentaire, pendant la période de temps entre la fin des classes du matin et le début des classes de l’après-midi; […]

The English version of Article 10.3 of the collective agreement reads, as follows:

10.3 lunch period

10.3.1 at the middle of each school day, a teacher is free of all assignments during the period allocated for the teacher’s meal as follows:

10.3.1.1 at the elementary school level, during the period of time between the end of classes in the morning and the start of classes in the afternoon; [English translation]

THE POSITION OF THE PARTIES

9The AEFO submitted to the Arbitrator it was clear that requiring the teachers to take charge of their pupils five minutes before the start of classes in the afternoon constituted a breach of the collective agreement, since they were not free of assigned tasks during the lunch break period.

10The Board submitted they did not instigate this assignment, but required the teachers to conform with paragraph 20(d) of O. Reg. 298, which, according to the Board, required that its teachers be in their classroom during this five-minute period.

11The French version of para. 20(d) of O. Reg. 298 reads, as follows:

20. Outre les fonctions que lui confère la loi et le conseil, l’enseignant exerce les fonctions suivantes:

d. il est présent dans la salle de classe ou le local d’enseignement et veille à ce que ceux-ci soient prêts à recevoir les élèves au moins quinze minutes avant le début des classes le matin et, le cas échéant, cinq minutes avant le début des classes l’après-midi, à moins que le directeur d’école n’en décide autrement;

12The English version of paragraph 20(d) of O. Reg. 298 reads, as follows:

20. […], a teacher shall:

d. unless otherwise assigned by the principal, be present in the classroom or teaching area and ensure that the classroom or teaching area is ready for the reception of pupils at least fifteen minutes before the commencement of classes in the school in the morning and, where applicable, five minutes before the commencement of classes in the school in the afternoon.

13The Board submitted there was no conflict between the collective agreement and O. Reg. 298. Moreover, it further submitted that to the extent that Article 10.3.1 of the collective agreement was in conflict with paragraph 20(d) of O. Reg. 298, the latter ought to prevail because of s. 277.13 of the Act.

14Section 277.13 of the Act reads in French and English respectively:

277.13 Les dispositions de la présente loi et de ses règlements d’application l’emportent sur les dispositions incompatibles d’une convention collective.

277.13 In case of conflict, this Act and regulations made under it prevail over the provisions of a collective agreement.

15The AEFO submitted that, in agreeing to Article 10.3.1 of the collective agreement, the Board had fettered the discretion granted to the principal of the school by virtue of para. 20(d) of O. Reg. 298. Therefore, there was no conflict between the two provisions.

16The Arbitrator agreed with the position of the AEFO and concluded that the Board had voluntarily fettered the discretion given to it by para. 20(d) of O. Reg. 298 to the effect that the teachers were free of all assigned tasks during the lunch break as contemplated by the collective agreement. This, the Arbitrator found, was authorized by a combination of the collective agreement and the Regulation.

17Since the Arbitrator concluded that Article 10.3.1 flowed from a legitimate exercise by the Board of the discretion given to it by virtue of para. 20(d) of O. Reg. 298, she did not come to any conclusions on the period of instruction. Nevertheless, both parties to the application made submissions on the significance of para. 20(d). The Board said that, if para. 20(d) is interpreted the way the arbitrator interpreted it, then the Board would not be able to meet the requirements of subsection 3(1) of O. Reg. 298, which requires that the students receive schooling of not less than five hours per day:

3(1) The length of the instructional program of each school day for pupils of compulsory school age shall be not less than five hours a day excluding recesses or scheduled intervals between classes.

18The AEFO submits that para. 20(d) must be interpreted in the least-restrictive way possible to the extent necessary to avoid conflict with Article 10.3.1. The AEFO stresses that para. 20(d) only requires the teachers be present in their classroom and that the classroom be ready to receive the students. It does not require the teachers to either receive the students or be responsible for their conduct during the period of five minutes which precedes the beginning of classes in the afternoon. No such requirement, says the AEFO, can be found in para. 20(d) of O. Reg. 298. There exists no obligation to take the students in charge unless the Board requires it. However, the Board decided to fetter its discretion in the matter by the terms of the collective agreement.

THE STANDARD OF REVIEW

19The Board submits the standard of review is reasonableness. The AEFO submits the standard of review is patent unreasonableness.

20The standard of review in this matter has been settled conclusively by the Ontario Court of Appeal in Toronto Catholic District School Board v. Ontario English Catholic Teachers Assn. (Toronto Elementary Unit) (2001), 55 O.R. (3d) 737. The Court of Appeal was called upon to consider the standard of review in a matter where the scheduling of the lunch break was in play. The Court was required to consider provisions of O. Reg. 298 and the Education Act. Writing for the Court, MacPherson J.A. considered the now familiar factors required in an analysis of the standard of review: the absence or presence (and wording) of a privative clause, the expertise of the decision-maker, the purpose of the provision in issue and of the statute as a whole, and the nature of the problem facing the decision-maker. (See: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.)

21In the course of his analysis, MacPherson J.A. stated, as follows:

¶ 28 In Lanark and in Essex, the ‘outside’ statute which the arbitrator was required to interpret was the SCA [Social Contract Act], a temporary law with a transient connection to the Education Act, the LRA [Labour Relations Act] and collective agreements between school boards and teachers. In the present case, the ‘outside’ statute is the Education Act itself or, more precisely, a regulation made under that statute. There is nothing transient about the Education Act or its longstanding relationship with the LRA and collective agreements. Indeed, the relationship among these three sources is, and has been for years, the core of labour relations in the public education sector. Moreover, the centerpiece of dispute resolution in that longstanding relationship has been grievance arbitration. Accordingly, the interpretation of Regulation 298 by the arbitrator in the present case is precisely the situation envisaged by Cory J. in City of Toronto [Toronto (City) Board of Education v. O.S.S.T.E. District 15, [1997] 1 S.C.R. 487] when he enumerated the factors that might give rise to judicial deference. The arbitrator’s interpretation of Regulation 298 made under the Education Act involved an ‘external statute … intimately connected with the mandate of the tribunal and … encountered frequently as a result’ (City of Toronto, supra, at 506).

¶ 31 There is a privative clause in play in this dispute. It is s. 48 of the LRA which requires, in subsection (1), that every collective agreement ‘provide for the final and binding settlement by arbitration’ of disputes, and states, in subsection (18)(a), that the arbitrator’s decision is ‘binding … upon the parties’. In my view, this formulation is virtually identical to formulations which the courts have upheld in many of the leading cases: for example, ‘final settlement’ in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, and ‘final and conclusive’ and ‘binding upon the parties’ in R.W.D.S.U. Local 454 v. Canada Safeway Ltd., [1998] 1 S.C.R. 1079 (‘Canada Safeway’). The privative clause is clearly intended to protect the arbitral decisions from judicial review.

¶ 32 As to the nature of the problem facing the decision-maker, it is true that it involves the interpretation of a single section of a regulation made under the Education Act. However, the problem also involves the interpretation of the collective agreement, which is clearly a matter within the expertise of the arbitrator. Moreover, in my view it is important not to lose sight of what is really at stake in the issue of interpretation relating to these two sources. The subject matter of the dispute is teachers’ lunch breaks, specifically whether on a small number of days each month, certain teachers with student supervision duties will take their lunch break for 40 consecutive minutes between 11:30 a.m. and 12:30 p.m. or between 11:10 a.m. and 12:50 p.m. In my view, the subject matter of teachers’ lunch breaks is essentially an employment or labour relations matter and is, therefore, well-suited to the regular process of grievance arbitration.

22MacPherson J.A. concluded by finding the standard of review was patent unreasonableness. I conclude, in turn, that a panel of the Divisional Court is bound by MacPherson J.A.’s judgment and that the standard of review in the matter before us is patent unreasonableness.

23The Board’s factum advances five submissions, each alleging the Arbitrator’s decision was patently unreasonable. I propose to deal with them in the following paragraphs.

24First, the Board submits that the discretion in para. 20(d) of O. Reg. 298 belongs to the principal, not to the Board. With respect, I disagree. The principal answers to the Board and carries out the policies of the Board as directed by the Board. If the Board chooses to bind itself by contract as to how the discretion is to be exercised, it is not open to twenty different principals in a school district to agree or disagree with the Board’s decision. The Board’s submission falls short of establishing patent unreasonableness.

25Second, the Board submits that Article 10.3.1 of the collective agreement is incompatible with the statutory obligations and objectives of the Act. With respect, I disagree. As the AEFO submits, s. 20(d) of O. Reg. 298 requires the teacher to be present and the classroom ready to receive the students, at 12:25. It does not require the teacher to be responsible for the students’ conduct and discipline which responsibility would start at 12:30 according to the collective agreement. Any apparent conflict between the collective agreement and the requirements of the Act was resolved by the Arbitrator in the least-intrusive manner. This submission falls short of establishing patent unreasonableness.

26Third, the Board submits para. 20(d) of O. Reg. 298 prevents the Board from freeing the teacher from any assignment in the period 11:30 to 12:30. The Board compares the English and French versions of para. 20(d) and submits the English version is to be preferred, as being more restrained. As I understand the Board’s submission, absent another “assignment”, the teacher must be in class and take the pupils in charge at 12:25. With respect, that is not necessarily the case. “Unless otherwise assigned by the principal” can be interpreted to include a meaning that the teacher has been “assigned” to no duties. Such an interpretation harmonizes the English and French versions and is not unreasonable, certainly not patently unreasonable.

27Fourth, the Board submits the teachers are obliged to take the students in charge and be responsible for them from 12:25 to 12:30. The Board’s reading of para. 20(d) of O. Reg. 298 implies that “and ensure that the classroom or teaching area is ready for the reception of students” means the teacher is also required to “receive them”. In other words, the teachers are responsible for the conduct and discipline of the students in that five-minute period. With respect, I disagree. A more reasonable interpretation is that the classroom is ready to receive the students. Such a reading is not patently unreasonable.

28Fifth, as noted earlier in para. [17], the Board submitted the arbitrator’s decision meant the requirements of subsection 3(1) of O. Reg. 298 could not be met, that is, the length of the school day would be less than five hours. The arbitrator concluded that the teaching hours of the school day were not before her. This conclusion was not patently unreasonable.

29For the above reasons, the application for judicial review is dismissed.

30If the parties are unable to agree on costs, they may make short written submissions as to costs, limited to three pages, within fifteen days of these reasons.

CARNWATH J.

PLATANA J.

SWINTON J.

Released: 20070926

COURT FILE NO.: 464/06

DATE: 20071001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

carnwath, platana & swinton jj.