SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
Re: DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD
Applicant
- and -
ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION
Respondent
BEFORE: Lane, Gans and Swinton JJ.
COUNSEL: John W. Woon, for the Applicant
Paul J. Cavalluzzo, for the Respondent
HEARD: November 30, 2007 at Toronto
E N D O R S E M E N T
1The Applicant Dufferin Peel Catholic District School Board (the “School Board”) brought an application for judicial review seeking to set aside a decision by Arbitrator Gerald Charney, dated July 12, 2006, in respect of a dispute between it and the Ontario English Catholic Teachers' Association (the “Association”) arising out of the interpretation of two collective agreements entered into between the Association and the School Board (the “Collective Agreements”). The decision which forms the subject matter of the application was rendered almost two and half years after the completion of evidence.
BACKGROUND
2Prior to January 1, 1998, principals and vice-principals formed part of teacher bargaining units. As a result of the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, the School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2 was repealed and Part X.1 – Teachers’ Collective Bargaining was added to the Education Act, R.S.O. 1990, c. E.2 (“the Act”).
3Section 277.1(1) defined a “Part X.1 teacher” to mean “a teacher employed by a board to teach but does not include a supervisory officer, a principal, a vice-principal or an instructor in a teacher-training institution”. The parties used this definition in defining the Association’s bargaining rights in the Collective Agreements.
4Section 277.13 of the Education Act provides that in case of conflict, the Act and regulations made under it prevail over the provisions of a collective agreement. The amendments also added s. 287.1(1), which provides:
A principal or vice-principal may perform the duties of a teacher despite any provision in a collective agreement.
5In 2001, the Association filed two grievances respecting the appointment of non-bargaining unit members to the positions of Principal of Special Education and Vice-Principal of Special Education. The dispute centred on whether these positions are “principal” and “vice-principal” positions within the meaning of the Act.
6After a hearing that spanned 20 days, the Arbitrator upheld the grievances, ruling that the core functions of the contested positions were not supervisory or managerial in nature. Moreover, he concluded that the positions were not principal and vice-principal positions within the meaning of the Education Act, but instead were co-ordinator positions that fell within the teachers’ bargaining units. He ordered the School Board to post the positions so as to make them available to members of the teachers’ bargaining units and to remit to the Association the appropriate dues respecting the two positions.
Position of the Parties
7The School Board argued, among other things, but primarily, that the Arbitrator:
(a) erred in law and exceeded his jurisdiction in misinterpreting the Education Act and regulations, in particular by failing to properly apply the definition of teacher in Part X.1 and ss. 277.13 and 287.1;
(b) erred in law and exceeded his jurisdiction in misinterpreting the Collective Agreements, or in giving them an interpretation that was patently unreasonable;
(c) committed an error in jurisdiction by failing to render his decision in a timely fashion.
8The Association argued that the award:
(a) concerned a matter that was within the Arbitrator’s jurisdiction and expertise and was reviewable only on a standard of patent unreasonableness;
(b) gave the Collective Agreement, the Act and its regulations a meaning that each could reasonably bear and was consistent with prior arbitral decisions;
(c) was not issued in an untimely manner, but, if it was, this Court should not exercise its discretion to quash the award due to the actions of the Arbitrator in failing to issue the award in a timely fashion.
Analysis and Decision
9We agree with the Association that the subject matter of the grievances involved the interpretation and application of legislation that lies at the core of labour relations in the public education sector. As well, the dispute involved the application of labour relations expertise in respect of an understanding of bargaining units and a determination of whether certain positions fall within the scope of a bargaining unit. In our opinion, both these matters lie at the core of Arbitrator Charney’s expertise (see Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Toronto Elementary Unit) (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737 (C.A.) at para. 28). Moreover, the Arbitrator had to make factual findings with regard to the work performed by the persons occupying the contested positions. Curial deference is owed to these factual findings.
10We are of the opinion that the standard of review in respect of the award is one of patent unreasonableness, which was recently described by Laskin J.A. in Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1 (C.A.) at para. 70, as follows:
The phrases “clearly irrational” or “evidently not in accordance with reason” best describe this highly deferential standard of review. A reviewing court should not interfere with a tribunal’s decision unless the decision is “clearly irrational”.
11We also agree with the Association that the Arbitrator’s award gave the Collective Agreements and the relevant provisions of the Act and its regulations a meaning that the language in those provisions could reasonably bear. He properly analysed the core functions performed by the individuals appointed to the contested positions, an approach adopted in past arbitral jurisprudence, and made factual findings that are supported by the evidence. He did not err in his treatment of s. 287.1, as that provision does not imply that a principal or vice-principal can be exclusively assigned to perform the duties of teachers. We are, in the final analysis, of the view that the Award was not patently unreasonable, but rather was reasonable.
12The School Board noted that mandatory performance evaluations for teachers were legislatively required after March, 2003, and that the Arbitrator erred in failing to consider the responsibility of the Principal and Vice-Principal to engage in these performance evaluations. The Arbitrator found that the direction of special education staff was not a core or substantial duty of the position at the time of the posting. There was evidence on which he could reach this conclusion.
13While the School Board in its factum suggested that the Arbitrator had exceeded his jurisdiction by failing to provide adequate and sufficient reasons for his decision, this argument was not pursued before us. We agree, however, with the Association’s counsel that the Arbitrator correctly identified the legal and factual issues and supported his conclusions with appropriate reference to similar arbitral decisions.
14That said, however, we were more than modestly concerned with the fact that the Arbitrator took in excess of two years to render his decision, after including some reckoning for the receipt of written argument, which we were told was delivered some months after the last day of the hearing. We find this passage of time to be superficially unacceptable, particularly since it is well beyond the time limits set out in the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(7), which provides that a decision of an arbitrator ‘shall’ be given within 30 days of the conclusion of the proceedings.
15The case law to which our attention was directed makes it clear, however, that the above prescription is directory and not mandatory. Indeed, Dickson J., as he then was, made the following observation in Air-Care Ltd. v. United Steelworkers of America et al. (1974), 1974 200 (SCC), 49 D.L.R. (3d) 467 (S.C.C.) at 471:
The right of a party should not be lost or in any way prejudiced as the result of dilatory conduct on the part of a board over which it has little or no control.
16While it was regrettable that the Arbitrator delayed in the delivery of his reasons, we were not told that this delay acted to the prejudice of the School Board.
17Therefore, the application for judicial review is dismissed. If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.
Lane J.
Gans J.
Swinton J.
DATE: January 8, 2008