Court File and Parties
COURT FILE NO.: 463/08
DATE: 20090217
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: Halton Catholic District school board Applicant
- and -
the statutory members of the ontario english catholic teachers' association halton secondary unit and j. David whitehead Respondents
BEFORE: JENNINGS, SWINTON AND LOW JJ.
COUNSEL: Michael A. Hines for the Applicant Paul J. J. Cavalluzzo and Jo-Anne Pickel for the Respondent
HEARD AT TORONTO: January 30, 2009
E N D O R S E M E N T
LOW J:
[1] This is an application for judicial review of the decision of arbitrator J. David Whitehead released on April 22, 2008 disposing of a grievance dated November 2, 2005. The grievance arose out of the collective agreement between the applicant and the respondent Statutory Members of the Ontario English Catholic Teachers' Association Halton Secondary Unit ("the Unit") for the period September 1, 2004 to August 31, 2008 and involves the scheduling of Special Education Resource Teachers ("SERTs").
[2] In the grievance, the Unit alleged that the school board had violated Articles 18.04(b); 18.06(a), (b); 26.03(a) of the collective agreement and "any other relevant articles, regulations or statutes".
[3] The relevant provisions of the collective agreement are as follows:
Article 18.04(b) Effective September 1, 2005, each secondary teacher, except for Continuing Education and Adult Learning Center Teachers, shall be assigned as set out below, and as defined in the Education Act and Regulations as may be amended from time to time:
(i) 6.0 credit course and/or credit equivalent course, plus
(ii) A maximum of 1050 minutes of supervision/on-calls, per semester. Each secondary teacher shall be limited to no more than two (2) on calls in any given week. Principals shall make every effort to assign supervision on/calls on a fair and equitable basis.
All additional time on a teacher's schedule shall be deemed planning and prep time for the teacher.
The workload, supervision/on-calls, for a part time teacher shall be pro-rated according to the workload of a full time teacher.
Notwithstanding the above, a co-op teacher with an assignment of four (4) co-op credits in a semester shall be assigned no other duties.
Article 18.06(a) Each classroom teacher shall normally be assigned a minimum of 225 minutes per weeks for preparation and planning time.
(b) Planning/ preparation time means the allocated time during the school day when a teacher is not directly involved with teaching and supervisory assignments in order that she/he may perform various planning/preparatory activities which are integral and/or supplementary to the teaching process*.
*Activities included in the teaching process are:
(a) curriculum planning (b) co-ordination, (c) pupil evaluation, (d) meetings with parents, other teaching staff members, consultative support staff, administrators, extended service agencies and other persons who are directly or indirectly involved with the teacher's responsibilities and (e) preparation of required reports and profiles.
Article 26.03(a) Save and except to the extent specifically modified or curtailed by any provisions of the Agreement, the right to manage and conduct a business of the Board is vested exclusively with the Board and its administration.
[4] The Unit alleged that Article 18.04(b) of the collective agreement represents a decrease in teacher workload over that in the predecessor collective agreement. The Unit's grievance was that the workload of SERTs was increased as of September 1, 2005.
[5] The function of SERTs in the schools relates chiefly to the teaching and support of students with a wide variety of learning exceptionalities ranging from a minimal need for accommodation to profound learning disabilities. SERTs teach specially designed courses for exceptional students—K and GLE coded courses. SERTs also provide in class support to regular classroom teachers who have students with exceptionalities in their classes.
[6] Each student with a learning exceptionality is the subject of an "Individual Education Plan". SERTs are assigned a "caseload" of students for monitoring against each student's Individual Education Plan. A SERT's caseload comprises both students with whom she/he has direct classroom contact and students with whom she does not. That SERTs historically have performed the foregoing monitoring of students with exceptionalities as part of their functions as teachers is undisputed. The term "monitoring", like the term "teaching" is not defined in the collective agreement.
[7] The Unit sought redress as follows: that SERTs be scheduled to a workload consisting of:
(i) two of any combination of K coded course, GLE coded course or In-class support;
(ii) a monitoring period;
(iii) a lunch period and
(iv) a preparation/on-call period
[8] The Unit also sought payment of reimbursement to SERTs who had been assigned to teaching more than 3 periods daily.
[9] In effect, the Unit was grieving to obtain credit for monitoring activities performed by SERTs, quantified as one course out of the three that SERTs could be assigned under the collective agreement.
[10] The school day is divided into five periods, one of which is a lunch period. Under Article 18.04(b), the term "6.0 credit course and/or credit equivalent course" amounts in practice to three periods out of the five in the school day.
[11] Under the predecessor collective agreement, SERTs were differentiated from regular classroom teachers in that the SERTs were assignable to four classroom periods plus a lunch period. They were given no supervision or on call duties and there was no planning/preparation period in their schedule. Regular classroom teachers, however, were assignable to 3 classroom periods, one period of planning/preparation and one lunch period. They were also assigned supervision and on call duties.
[12] The 2004-2008 collective agreement eliminated, effective September 1, 2005, the distinction between SERTs and classroom teachers insofar as the number of their classroom period assignments was concerned. Under the new collective agreement SERTs acquired a planning/preparation period which they did not have under the predecessor agreement but were, like regular classroom teachers, now required to perform supervision and on-call. The number of classroom periods that the board could assign to SERTs was reduced from four to three.
[13] During the term of the predecessor collective agreement, some SERTs were assigned only to 3 periods of classes thus permitting the fourth period to be used, inter alia, for monitoring duties. With the execution of the 2004-2008 collective agreement, the board started to assign to SERTs three classroom periods under Article 18.04(b)(i). As a practical matter, where a SERT had direct teaching contact with an exceptional student on her case load, at least a part of the monitoring of such a student could take place during classroom periods. With respect to those students of a SERT's caseload with whom she did not have direct classroom contact, monitoring would be expected to be done during the planning and prep period or at other non-classroom times.
[14] Implicit in the Unit's grievance and request for redress is the position that monitoring was the practical equivalent of a credit course or a credit equivalent course. Its position was that the Board had an obligation to treat monitoring as such for purposes of Article 18.04(b)(i) thus requiring one of the three periods assignable to classroom instruction to be designated for the monitoring function.
[15] The Unit did not grieve that the board was assigning monitoring work to SERTs which in whole or in part the board had no right to assign under the collective agreement, and the Unit did not take that position before the arbitrator. Monitoring of the progress of exceptional students, whether there is direct contact with the student or otherwise, has been a function that SERTs have been performing for many years as part of their profession as special education teachers and long predates the commencement of the collective agreement in issue.
[16] The issue before the arbitrator therefore was not whether the function was properly assignable to SERTs but whether the Board had an obligation under the collective agreement to give credit for the performance of that function as if it were a course, or put another way, to carve out time from a teacher's classroom assignments under Article 18.04(b)(i) for that function.
[17] Apart from the argument that an estoppel had arisen (which the arbitrator rejected on the evidence), it was necessary only for the arbitrator to make a finding whether monitoring done by SERTs was the equivalent of a credit course or a credit equivalent course.
[18] The arbitrator approached it from a different perspective. He treated the foundation issue as one of whether monitoring was a properly assignable function and for purposes of answering that question, he drew a distinction between "direct monitoring" (that done in respect of students with whom the teacher has direct contact), and "indirect monitoring" (that monitoring of students on the SERT's caseload with whom the teacher does not have direct contact).
[19] The arbitrator concluded, at page 44 -5 of the reasons, that direct monitoring, whether done during class time or outside class time, is properly assigned as “part of the relevant course assignment”. He made the finding that "direct monitoring activities required by the SERT have been properly assigned by the Board in the instant case as part of the assignment of the course or in-class support and are properly included in both the course component of assigned workload and the prep and planning component as appropriate."
[20] In effect, he found that monitoring of students with whom the SERT had direct contact was part of an assigned course or in-class support and not separate from it. On that basis, he held that the portion of "direct monitoring" not occurring during class time was properly attributable to planning and preparation.
[21] He made declarations at page 48 of the reasons that the "Board did not violate the agreement by assigning a caseload to SERTs which includes direct monitoring which is properly part of the course assignment and properly engaged in as part of prep and planning activities. Secondly, I find that the Board did not violate the agreement by not assigning indirect monitoring activities as an independent part of the course load, either as one period per week per semester or at all." These two declarations were sufficient to dispose of the grievance.
[22] The contentious part of the arbitrator's decision is in the third declaration: "Finally, I declare that the Board did violate the agreement by improperly assigning a caseload to SERTs which includes indirect monitoring under the prep and planning provisions of the agreement."
[23] The above declaration was preceded by a finding, at page 47: "I find that indirect monitoring activities required for students on a SERT's case load but who are not enrolled in courses the SERT has been assigned to teach or in courses in which the SERT has been assigned to provide in-class support have not been properly assigned under the workload provisions of the instant agreement in that they are not courses and they are not proper prep and planning activities in assigned prep and planning time allocated for the teacher, nor are they properly assigned as such in the absence of an otherwise proper assignment."
[24] The arbitrator reached this decision by interpreting "preparation and planning" in Article 18.06(b) to cover only "activities required by other assignments properly made under the collective agreement" (Reasons, p. 43).
[25] The above finding and declaration, in the context of the entirety of the arbitrator's reasons, embodies a conclusion that neither party advanced-- namely that monitoring of students with whom a SERT does not have direct classroom contact is not a function that is properly assignable to a SERT at all under the collective agreement.
[26] The standard of review is reasonableness. As was observed in Dunsmuir v. New Brunswick, [2008] 1 S. C. R. 290, there may be number of different decisions or outcomes that are reasonable, depending on the context and all the circumstances of the case. The court stated "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." (at para. 47) [emphasis added]
[27] We are of the view that the outcome is not within the range of the reasonable and defensible in the context of the language of the collective agreement, the history of these parties and their reasonable expectations. We are also of the view that the route that takes the arbitrator to his third declaration is so fundamentally flawed as to fall outside an intelligible line of reasoning.
[28] As noted above, teaching is not defined in the collective agreement. The definition in Education Act sheds no light on the concept as it speaks only to possession of a certificate of qualification.
[29] In our view, it is not a reasonable construction of the collective agreement, which is a contract of service, to treat it as a statement of the totality of a teacher's activities and obligations. It is not within the reasonable expectation of the parties that all of the functions and tasks encompassed within the teaching profession will be articulated in the collective agreement. The reasonable expectation of the parties under the collective agreement is that the board will manage and that teachers will teach, performing all of the activities and functions that the profession entails from time to time within the particular environment subject only to the express constraints which the parties have bargained and incorporated into the agreement.
[30] As Laskin, C.J.C. stated in Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society v. Winnipeg School Division No. 1 (1975), 1975 181 (SCC), 59 D.L.R. (3d) 228 (S.C.C.) at 234,
Almost any contract of service or collective agreement which envisages service, especially in a professional enterprise, can be frustrated by insistence on "work to rule" if it be the case that nothing that has not been expressed can be asked of the employee. Before such a position can be taken, I would expect that an express provision to that effect would be included in the contract or in the collective agreement. Contract relations of the kind in existence here must surely be governed by standards of reasonableness in assessing the degree to which an employer or a supervisor may call for the performance of duties which are not expressly spelled out. They must be related to the enterprise and be seen as fair to the employee and in furtherance of the principal duties to which he is expressly committed.
[31] The fact that this decision was not referred to the arbitrator was attributable to the substance of the issue between the parties on the grievance. The issue was not whether monitoring, both direct and indirect, was a function which the board could legitimately assign to SERTs--historically, both kinds of monitoring were understood, correctly, to be a part of the work of a SERT. The issue was whether the board was obligated to attribute credit for class time for performing it.
[32] In our view, it was an unreasonable outcome for the arbitrator to have issued a declaration upon an issue that was not grieved.
[33] The declaration in issue does significant violence to an historical mutual understanding of what teaching encompasses, and more particularly, the scope of a SERT's arsenal of competences and the reasonable expectation of the parties that SERTs will be called upon to use those competences. Indeed, the Unit's own argument was that monitoring, without differentiating between direct and indirect, was in fact part of the teaching process and should be included in course load. There is, in our view, no better evidence of the mutual understanding of the parties that monitoring was a function that SERTs could be expected to perform.
[34] The term "teaching process" is referred to in the definition of planning and preparation in Article 18.06 (b):
*Activities included in the teaching process are:
(a) curriculum planning
(b) co-ordination
(c) pupil evaluation
(d) meetings with parents, other teaching staff members, consultative support staff, administrators, extended service agencies and other persons who are directly affected or indirectly involved with the teacher's responsibilities and
(e) preparation of required reports and profiles.
[35] In our view, in arriving at the conclusion that the board was not entitled to assign the "indirect monitoring" aspect of a SERT's caseload to be done during the planning/ preparation period, the arbitrator construed the language of that article in a way which the words cannot reasonably bear.
[36] First, the explanatory note for the term "teaching process" is clearly intended to be inclusive and not exhaustive. Accordingly, while the note gives examples of activities that are comprised within the term, it is not a catalogue. Second, it is obvious from some of the examples given in the note that the teaching process is not tied to a relationship or dependent upon contact between the teacher and a particular pupil. Curriculum planning, to take the first example in the list, is not necessarily tied to any teacher-pupil interaction. Third, it is apparent from some of the examples in the list that the activity which the arbitrator has characterized as indirect monitoring can fairly also be characterized as preparation of pupil evaluation or preparation of required reports and profiles.
[37] The arbitrator reads into the end of the first paragraph of Article 18.06(b) words to the effect of "insofar as it relates to students with whom the teacher has direct teaching contact". In our view, such a restrictive construction of Article 18.06(b) is unreasonable in light of the inclusive explanatory note of what "teaching process" means. It is also unreasonable in light of the expansive definition of planning and preparation which contemplates activities which are not integral to but supplementary to the teaching process.
[38] In our view, to decide the grievance it was sufficient for the arbitrator to have made the finding and the declaration that monitoring was not equivalent to a credit course or credit equivalent course. That finding supports a dismissal of the grievance. The supplemental declaration to the effect that the board violated the collective agreement by assigning a caseload to SERTs which includes students with whom there is no direct contact results in an outcome which the Unit did not seek in the grievance, which neither party argued for, and which, if treated as valid and binding on the board, results in situation that the parties did not and could not have contemplated in the process of bargaining, leaving the monitoring of a significant segment of exceptional students in a state of suspension unless a significant number of additional SERTs are hired. That, in our view, is not within the range of reasonable and defensible outcomes.
[39] We would therefore allow the application and quash the arbitrator's declaration that the board violated the collective agreement by assigning a caseload to SERTs including indirect monitoring to be done under the planning and preparation provisions. Given his finding that monitoring does not require the attribution of a course credit under the workload provision, the grievance is dismissed.
[40] Costs to the applicant, fixed at $4000, all inclusive, the quantum having been agreed to by the parties.
LOW J.
JENNINGS J.
SWINTON J.
RELEASED: February 17, 2009
COURT FILE NO.: 463/08
DATE: 20090217
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
B E T W E E N :
Halton Catholic District school board Applicant
- and -
the statutory members of the ontario english catholic teachers' association halton secondary unit and j. David whitehead Respondents
ENDORSEMENT
LOW J.
RELEASED: February 17, 2009