Greater Essex County District School Board v. Elementary Teachers’ Federation, 2010 ONSC 6467

Standard of Review

1In Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (Toronto Elementary Unit) (2001) 2001 8597 (ON CA), 55 O.R. (3d) 737, the Court of Appeal dealt with an arbitrator’s decision concerning the interpretation of a regulation under the Education Act and specifically addressed the standard of review applicable to that decision. In doing so, the Court of Appeal went through the factors that the Supreme Court of Canada subsequently decided should be considered in conducting a standard of review analysis. (See Dunsmuir v. New Brunswick 2008 SCC 9, [2008], 1 S.C.R. 190). Therefore, there is no need for us to revisit this analysis.

2In Toronto Catholic District School Board, the Court of Appeal decided that the applicable standard of review to the arbitrator’s decision was that of patent unreasonableness. Given the Supreme Court of Canada’s decision in Dunsmuir, we find that the standard is now reasonableness.

3The issue in this case concerns the interpretation of a regulation governing performance appraisals which, as with the issue in Toronto Catholic District School Board, is “essentially an employment or labour relations matter” (para. 32).

4The statute, the Education Act, is the same statute discussed in Toronto Catholic District School Board and, as found by the Court of Appeal in that case, is one that is “intimately connected with the mandate of the Tribunal and … encountered frequently as a result.” (para. 28).

5For these reasons, we are all of the view that the standard of review applicable to this application is reasonableness.

Analysis

6The applicant essentially raises two issues.

(i) Does s.5(2) of the Regulation preserve the unfettered discretion previously enjoyed by principals and vice-principals to conduct teacher performance appraisals?

(ii) If it does not, does s.6(1) of the Regulation give the principal the discretion to conduct a performance appraisal where the teacher is new to the school and/or new to the division?

7The Arbitrator gave thorough and extensive reasons for his interpretation of s.5(2) and concluded that it was intended to address the timing of appraisals, rather than to provide additional discretion to conduct extra appraisals.

8In our view, the Arbitrator’s decision clearly meets the reasonableness standard. It is justifiable, transparent and intelligible. The decisions falls “within the range of possible acceptable outcomes which are defensible in respect of the facts and law.” (para. 47 of Dunsmuir). In particular, the Arbitrator’s interpretation of s.5(2) is the only one that gives meaning to s.6(1) of the Regulation.

9With respect to the Arbitrator’s interpretation of s.6(1), the applicant submits that this interpretation is unreasonable because instead of using the word in the regulation, i.e. “circumstances”, the Arbitrator used a word with a narrower meaning, namely “issues”. In our view, this submission inadequately represents the Arbitrator’s reasoning with respect to the sections he was interpreting. Regardless of whether the word used is “circumstances” or “issues”, the regulation requires that the circumstances must relate to the teacher’s performance.

10According to the Arbitrator, the circumstances put forward by the applicant, namely, the fact the teacher was new to the school and new to the division, were not circumstances relating to the teacher’s performance. They were circumstances that might or might not affect performance, but at the point when the decision was made to conduct a performance appraisal, any performance issues were speculative. The Arbitrator decided that for s.6(1) to apply, the performance issues must be actual and not speculative. Again, the Arbitrator’s decision on this point is justifiable, transparent and intelligible. Furthermore, his conclusion falls within the range of acceptable outcomes based on the facts and the law.

11Therefore, we find that his decision was a reasonable one.

12We note that the applicant, in support of their submissions, place considerable emphasis on the Teacher Performance Appraisal Manual published by the Ministry that was given to all principals and vice-principals. We agree that this manual does leave the impression that principals and vice-principals have an unfettered discretion to conduct performance appraisals.

13We also note that the respondent appears to have operated under the same impression at some point. However, we agree with the Arbitrator that his task was to interpret the legislation and regulations at issue and that the Manual could not displace the intention of the legislature as expressed in the legislation and regulations that he was required to interpret.

14For these reasons, the application for judicial review is dismissed.

15I have endorsed the Record, “This application is dismissed for reasons given orally, on behalf of the Court, by Sachs J. The respondent is entitled to their costs of this application, fixed in the amount of $7,500.00.”