Federation, 2012 ONSC 6073
DIVISIONAL COURT FILE NO.: DC-12-1820
DATE: 2012/11/06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Valin, Métivier and Aston JJ.
BETWEEN:
Ottawa Carleton District School Board
Applicant
– and –
Ottawa Carleton Elementary Teachers’ Federation – Ottawa-Carleton Elementary Teachers’ Federation and Judith Allen
Respondents
J. Summers, for the Applicant
P. Engelmann, for the Respondents
HEARD: Ottawa, October 4, 2012
REASONS FOR DECISION
by THE COURT
[1] This is a judicial review application by the Ottawa Carleton District School Board (“the Board”) of an arbitrator’s decisions dated August 18, 2011 and November 28, 2011. The dispute between the Board and the Ottawa Carleton Elementary Teachers’ Federation (“the Federation”) focused on the interpretation of Article 28.01 of the parties’ collective agreement. The arbitrator allowed the Federation’s grievance and held that the Board was in breach of Article 28.01. She awarded compensation as a remedy.
[2] Article 28.01 of the collective agreement provides as follows:
The Instructional Day shall be defined as a maximum of 300 instructional minutes, commencing with the published start time for the school (i.e. the time for the entry of the students into the school for the commencement of the morning program), excluding recess and lunch/nutritional breaks.
[3] There is no dispute between the parties that the “published start time” varies from school to school. The published start time for any individual school is found on its website. The arbitrator correctly concluded that the published start time must be coincident with the time students are required to enter the school. Neither side now disputes that conclusion. However, the effect of ringing a bell at some different time is very much in dispute.
[4] The grievance was filed because twelve of the Board’s 115 elementary schools rang a bell at a time different from “the published start time” for the school. The Federation took the position that the twelve identified schools were ringing an “early bell” which required students to enter their school anywhere from three minutes to ten minutes before the published start time. The Board seems only to have conceded that at certain schools early bells permitted students to enter the school before the published start time, but did not require them to do so. This fundamental factual dispute is never specifically addressed or resolved by the arbitrator.
[5] In fact, it would seem from paragraphs 3, 4 and 35 of the decision of August 18, 2011 that the arbitrator misapprehended the nature of the grievance.
[6] She stated that “the Federation’s position is that the Board … has been counting … instructional time as commencing at the wrong time at approximately 10% of its schools. At 10% of the schools the 300 instructional minutes are calculated from a variety of points such as the second bell or late bell; the commencement of opening exercises; the marking of students as “late”; and/or, the commencement of the formal curriculum instructional program”. That is not the Federation’s position.
[7] In paragraph 4 of the decision the arbitrator goes on to state “the Board’s position is … that it is only once the instructional program begins, in the formal sense of curriculum being delivered, that the 300 minutes are calculated”. That is not the position of the Board.
[8] Later in the decision, at paragraph 35, the arbitrator states “although the parties have referred to this dispute as the “early bells” grievance, it is clear that nothing is triggered by the bells”. The essence of her decision is reflected in paragraph 17, where she alludes to the evidence of the “types of duties some teachers performed” between “the school opening and classes beginning” and determined that such time “could be characterized in the broad sense as instructional”. This finding begs the question of whether this time period she refers to occurred before or after the published start time.
[9] The arbitrator’s misapprehension of the nature of the dispute is reinforced by a reading of paragraphs 32 to 34 of her reasons. There is no reference anywhere in the reasons to whether the ringing of bells before the published start time actually requires students to enter the school. Paragraphs 32 to 34 seem to recognize that bells which are rung before the published start time do not constitute a violation of the Collective Agreement if they are merely permissive or invitational.
[10] Furthermore, there is no evidence whatsoever that the Board calculated the minutes of an instructional day from a time earlier than the published start time. The issue is turned on its head by the Federation’s claim that the time between an early bell and the published start time should be calculated as instructional minutes. The Board has never purported to calculate the time between an early bell and the published start time as instructional time; only the Federation makes that calculation.
[11] The Federation can only establish that instructional minutes exceed 300 in a day, contrary to Article 28.01 of the collective agreement, by actually proving that students were required to enter the school before the published start time. It is far from clear on the record before us that it did so. The reasons of August 18, 2011 do not make that explicit finding.
[12] The Federation submits that the compensation decision of November 28, 2011 necessarily implies that teachers were required to work instructional minutes above the 300 minute cap. We disagree. Given the apparent misapprehension of the issues by the arbitrator we are not prepared to read that conclusion into her reasons.
[13] Furthermore, with respect to the compensation decision of November 28, 2011, it is difficult to understand how any compensation could flow from a mere calculation (even assuming the Federation is correct in its calculation) when it is plain that (i) the affected teachers at these twelve schools did not have to work a minute longer than their colleagues at other schools; (ii) the label or categorization of the minutes has absolutely no practical consequence; (iii) the affected teachers had no different duties, or additional duties, than their colleagues at other schools.
[14] Given the evidence that after an “early bell” some affected teachers simply continued drinking coffee in the staff room or locked themselves in their classroom while students lined up in the hall, it is unreasonable, if not irrational, to conclude that those teachers are entitled to compensatory time or money based on differential treatment.
[15] The arbitrator characterizes this time as “broadly instructional” to conclude that it is compensable. At paragraph 20 of the compensation decision she states “there is nothing to distinguish the case before me from the case before arbitrator Beck in Durham”. We disagree. In Durham the evidence established that the five minutes of opening exercises was not being included in the calculation of instructional minutes. In this case the Board does not dispute the fact that instructional minutes start to run from the published start time (or the time of a bell requiring students to enter the school) and that opening exercises are included in the calculation of instructional minutes.
[16] The decisions of the arbitrator are quashed and the grievance is remitted to a different arbitrator for reconsideration.
[17] By agreement of counsel, costs are fixed at $8,000 all inclusive in favour of the successful party, in this case, the applicant Board.
Valin J.
Métivier J.
Aston J.
Released: November 6, 2012
Federation, 2012 ONSC 6073
DIVISIONAL COURT FILE NO.: DC-12-1820
DATE: 2012/11/06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Valin, Métivier and Aston JJ.
BETWEEN:
Ottawa Carleton District School Board
Applicant
– and –
Ottawa Carleton Elementary Teachers’ Federation – Ottawa-Carleton Elementary Teachers’ Federation and Judith Allen
Respondents
REASONS FOR DECISION
By the Court
Released: November 6, 2012