Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Toronto Elementary Unit)

[Indexed as: Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Toronto Elementary Unit)]

55 O.R. (3d) 737

[2001] O.J. No. 3748

Docket No. C35667

Court of Appeal for Ontario

McMurtry C.J.O., Abella and MacPherson JJ.A.

September 24, 2001

• Application for leave to appeal to the Supreme Court of Canada dismissed with costs June 20, 2002 (Gonthier, Major and Binnie JJ.). S.C.C. File No. 28935. S.C.C. Bulletin, 2002, p. 948.

Administrative law -- Judicial review -- Standard of review -- No absolute link exists between arbitral interpretation of public statute and judicial review on correctness standard -- Exception to general rule may occur where external statute is intimately connected with mandate of tribunal and is encountered frequently as result -- In that case standard of review will be that of patent unreasonableness.

Employment -- Labour relations -- Arbitration -- Judicial review -- Standard of review -- Arbitrator required to interpret Regulation 298 under Education Act as well as provision in collective agreement -- No absolute link exists between arbitral interpretation of public statute and judicial review on correctness standard -- Exception to general rule may occur where external statute is intimately connected with mandate of tribunal and is encountered frequently as result -- Relationship between Education Act, Labour Relations Act and collective agreements is at core of labour relations in public education sector -- Arbitrators encounter Regulation 298 frequently -- Standard of review of arbitrator's decision that of patent unreasonableness -- Education Act, R.S.O. 1990, c. E.2 -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A -- O. Reg. 298, R.R.O. 1990.

The teachers and the school board were parties to a collective agreement governed by the Education Act and the Labour Relations Act, 1995. Article 5.02(a) of the collective agreement provided that teachers were to have "not less than 40 consecutive minutes for a lunch break in accordance with Regulation 298 under the Education Act. Regulation 298 provided that a scheduled interval between classes for the lunch break for pupils and teachers shall be not less than 40 consecutive minutes. The teachers filed a grievance alleging that the school board was scheduling teachers' lunch breaks in breach of article 5.02(a) of the collective agreement and s. 3(5) of Regulation 298. The grievance raised the issue of when the 40- minute lunch breaks could be scheduled. Under the impugned schedule, for some teachers, at least part of their 40-minute lunch break fell outside the 11:30 a.m. to 12:30 p.m. period that constituted the "scheduled interval between classes for the lunch break for pupils and teachers" (Regulation 298). The teachers took the position that the entire 40-minute lunch break for every teacher had to fall within the common interval for lunch. The arbitrator agreed with the teachers' position. The school board changed its schedule, broadening the scheduled interval for teachers' lunch breaks from 11:10 a.m. to 12:50 p.m., while the interval for students remained 11:30 a.m. to 12:30 p.m. The teachers argued that this was an impermissible implementation of the arbitrator's award. In his second award, the arbitrator agreed with the teachers, holding that the pupils' and teachers' lunch breaks had to occur within the scheduled interval between classes for the lunch break. The school board brought an application for judicial review of the two arbitration awards. The Divisional Court held that because the arbitrator was interpreting "outside" legislation, that is, Regulation 298, the standard of review was correctness. The Divisional Court concluded that the arbitrator's awards were no t correct. The court stated that in order to arrive at the conclusion he did, the arbitrator would have had to read into Regulation 298 the words "at the same time". The teachers appealed.

Held, the appeal should be allowed.

There is no absolute rule linking arbitral interpretation of a public statute or the common law and judicial review on a correctness standard. An exception to the general rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result. In this case, the exception applied, and the standard of review was that of patent unreasonableness. There is nothing transient about the Education Act or its longstanding relationship with the Labour Relations Act and collective agreements. Indeed, the relationship between these three sources is, and has been for many years, the core of labour relations in the public education sector. Moreover, the centrepiece of dispute resolution in that longstanding relationship has been grievance arbitration. Regulation 298 is encountered frequently by arbitrators. Moreover, the decisions of arbitrators are protected by a privative clause which is clearly intended to protect arbitral decision s from judicial review.

The arbitrator's interpretation of s. 3(5) of Regulation 298 and article 5.02(a) of the collective agreement was not patently unreasonable and did not impermissibly inject the words "at the same time" into s. 3(5) of Regulation 298.

APPEAL from a judgment of the Divisional Court allowing an application for a judicial review of two decisions of an arbitrator.

Ontario English Catholic Teachers' Assn. v. Lanark, Leeds and Grenville County Roman Catholic Separate School Board (1998), 1998 1644 (ON CA), 164 D.L.R. (4th) 429 (Ont. C.A.), revg (1996), 1996 12494 (ON SCDC), 136 D.L.R. (4th) 660 (Ont. Div. Ct.); Toronto (City) Board of Education v. Ontario Secondary School Teachers' Federation, 1997 378 (SCC), [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, 208 N.R. 245, 25 C.C.E.L. (2d) 153, apld Other cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673, 150 N.R. 161, 93 C.L.L.C. 14,022; Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, 1998 780 (SCC), [1998] 1 S.C.R. 1079, 168 Sask. R. 104, 160 D.L.R. (4th) 1, 226 N.R. 319, 173 W.A.C. 104, [1999] 6 W.W.R. 453, 98 C.L.L.C. 220-042 (sub nom. Canada Safeway Ltd. v. RWDSU, Local 454); Essex County Roman Catholic School Board v. Ontario English Catholic Teachers' Assn., 2001 4461 (ON CA), [2001] O.J. No. 3602 (C.A.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 1222, [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, 226 N.R. 201; United Brotherhood of Carpenters & Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 88 (SCC), [1993] 2 S.C.R. 316, 106 Nfld. & P.E.I.R. 140, 102 D.L.R. (4th) 402, 153 N.R. 81, 334 A.P.R. 140, 93 C.L.L.C. 14,033 Statutes referred to Education Act, R.S.O. 1990, c. E.2 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 48 Social Contract Act, S.O. 1993, c. 5 Rules and regulations referred to O. Reg. 298, R.R.O. 1990 (Education Act), s. 3(5)

Martin Sclisizzi and Ted J. Murphy, for respondent. Bernard A. Hanson, for appellant.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Overview

[1] The appellant Ontario English Catholic Teachers' Association appeals from a decision of the Divisional Court dated September 29, 2000. The respondent Toronto Catholic District School Board had applied for judicial review of two decisions of arbitrator William Marcotte dated March 27, 2000 and June 22, 2000. The Divisional Court allowed the application for judicial review and set aside the arbitration decisions.

[2] The appeal requires consideration of the relationship between the reviewing role of the courts and the decisions reached by an arbitrator. The context within which this general issue arises is an arbitrator's decisions flowing from his interpretation of the terms of both a collective agreement and a general public statute. The principal legal issue posed by the appeal is the standard of judicial review of the arbitrator's decisions: is it correctness or patent unreasonableness?

B. Factual Background

(1) The parties and the events

[3] The appellant Ontario English Catholic Teachers' Association ("the teachers") is a union representing many public school teachers in Ontario.

[4] The respondent Toronto Catholic District School Board ("the school board") administers the Catholic public school system in Toronto.

[5] At the time relevant to this dispute, the teachers and the school board were parties to collective agreements governed by both the Education Act, R.S.O. 1990, c. E.2, and the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A. ("the LRA").

[6] The dispute between the parties relates to the scheduling of teachers' lunch breaks in Toronto elementary schools. Teachers are entitled to a lunch break, but they are also responsible for supervising students during the students' lunch break. The dispute centres on the school board's schedule which purported to address both the teachers' entitlement and their responsibility.

[7] Article 5.02(a) of the collective agreement provides that teachers' lunch breaks must be scheduled as follows:

5.02(a) Each teacher shall have not less than 40 consecutive minutes for a lunch break in accordance with Regulation 298 under the Education Act.

[8] Section 3(5) of Regulation 298 under the Education Act ("Regulation 298") provides:

3(5) A scheduled interval between classes for the lunch break for pupils and teachers shall be not less than forty consecutive minutes.

[9] In November 1999, the teachers filed a grievance alleging that the school board was scheduling teachers' lunch breaks in breach of the collective agreements and Regulation 298.

[10] The parties agreed that the "St. Robert Supervision Schedule 1999/2000" set out a factual circumstance sufficient to determine the issue. That schedule set a scheduled interval between classes for the lunch break that ran from 11:30 a.m. to 12:30 p.m. and identified individual teacher supervision responsibilities. Two different components of the lunch break/ student supervision schedule were challenged in the grievance.

[11] First, some teachers were not given 40 consecutive minutes for lunch. In its reply to the grievance, the school board acknowledged that this component of the schedule contravened the collective agreement. As a result, the arbitrator did not have to deal with this issue.

[12] Second, the grievance raised the issue of when the 40- minute lunch breaks for teachers could be scheduled. Under the St. Robert schedule, for some teachers, at least part of their 40-minute lunch break fell outside the 11:30 a.m. to 12:30 p.m. period that constituted the "scheduled interval between classes for the lunch break for pupils and teachers" (Regulation 298). In their grievances, the teachers took the position that the entire 40-minute lunch break for every teacher must fall within the common interval for lunch, i.e., between 11:30 a.m. and 12:30 p.m.

[13] Arbitrator Marcotte agreed with the teachers' position. In an award dated March 27, 2000, he ruled that "each teacher's lunch break of no less than 40 minutes must occur within any scheduled interval between classes for the lunch break for pupils and teachers, also to be of no less than forty consecutive minutes". Since the "scheduled interval between classes for the lunch break" at St. Robert was 11:30 a.m. to 12:30 p.m., it followed that all teachers were entitled to their entire 40 consecutive minute lunch break within this period.

[14] The school board changed its schedule in May 2000. It broadened the scheduled interval for teachers' lunch breaks from 11:10 a.m. to 12:50 p.m. The interval for students remained 11:30 a.m. to 12:30 p.m. The teachers argued that this change was an impermissible implementation of the arbitrator's award.

[15] In his second award on June 22, 2000, the arbitrator agreed with the teachers. He ruled:

[T]he Employer's St. Robert May, 2000 schedule is not a proper implementation of the March 27, 2000 award. A proper implementation, based on that award, requires that there be a scheduled interval between classes for the lunch break for pupils and teachers which begins and ends at the same time for pupils and teachers. . . . While the start, end and duration of the minimum forty consecutive minutes that teachers have for the lunch break may vary, the pupils' and teachers' lunch breaks must occur within the scheduled interval between classes for the lunch break.

(Emphasis added)

(2) The litigation

[16] The school board brought an application for judicial review of the two arbitration awards. The Divisional Court identified two issues as being raised by the application -- the standard of review and whether the arbitrator's awards breached the standard.

[17] On the first issue, the Divisional Court concluded that because the arbitrator was interpreting "outside" legislation, namely Regulation 298 made under the Education Act, the standard of review was correctness.

[18] On the second issue, the Divisional Court concluded that the arbitrator's awards were not correct. After setting out s. 3(5) of Regulation 298 and article 5.02(a) of the collective agreement, the court reasoned:

Although all teachers had lunch break of the prescribed duration, the break commenced for some teachers before that of the pupils and for other teachers it continued after the conclusion of the break for pupils. The arbitrator held that the teachers and students must have a 40 consecutive minute lunch break within the same scheduled interval between classes. The arbitrator found that the schedule for teachers violated the Collective Agreement.

In order to arrive at that conclusion the arbitrator would necessarily have read into Reg. 298, s. 3(5) the words "at the same time" so that the section would read:

A scheduled interval between classes for the lunch break for pupils and teachers shall be "at the same time" and not less than 40 consecutive minutes.

We find that the arbitrator was not correct in interpreting the Regulation in this manner. In our view, it was not necessary that the lunch breaks for all students and all teachers should be concurrent.

[19] The teachers appeal from the decision of the Divisional Court.

C. Issues

[20] The issues on the appeal are:

(1) Did the Divisional Court err by reviewing the arbitrator's awards on a correctness standard?

(2) If the answer to the question in (1) is 'yes', then were the arbitrator's awards patently unreasonable?

D. Analysis

(1) Standard of review

[21] The Divisional Court held that the standard of review was correctness. In reaching this conclusion, the court cited Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385 ("City of Toronto"), a leading case dealing with arbitrators in Ontario called upon to interpret both the Education Act and a collective agreement between a school board and teachers. In particular, the Divisional Court relied on a passage from Cory J.'s reasons at p. 506 S.C.R.:

It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of "outside" legislation. The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard.

The Divisional Court concluded that the Education Act was "outside" legislation and, applying the above passage, that the arbitrator's awards were subject to review on a correctness standard.

[22] However, in my view, it is important to recognize that in the quoted passage the Supreme Court of Canada did not enunciate an absolute rule linking arbitral interpretation of a public statute or the common law and judicial review on a correctness standard. Cory J. used the word "generally" in the quoted passage. Moreover, he continued in the same paragraph [at p. 506 S.C.R.] in this vein:

An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result.

[23] Accordingly, the question in the present appeal is whether the arbitrator's awards come within the general rule or the exception. [See Note 1 at end of document] In my view, the decision of this court in Ontario English Catholic Teachers' Assn. v. Lanark, Leeds and Grenville County Roman Catholic Separate School Board (1996), 1998 1644 (ON CA), 164 D.L.R. (4th) 429 ("Lanark") answers this question conclusively -- the exception applies and, accordingly, the standard of review is patently unreasonable.

[24] In Lanark, an arbitrator determined that a teacher newly hired under the collective agreement was not entitled to credit for prior teaching experience because of wage freezes emanating from the Social Contract Act, S.O. 1993, c. 5 ("SCA"), and two documents (a province-wide Framework Agreement for the education sector and a Local Agreement between the school board and the teachers). In reaching her conclusion, the arbitrator was called upon to interpret the SCA (the "outside" legislation) and the collective agreement.

[25] On an application for judicial review, the Divisional Court held that the standard of review was correctness: see (1996), 1996 12494 (ON SCDC), 136 D.L.R. (4th) 660. On appeal, this court engaged in an extensive review of the SCA, the Framework Agreement and the collective agreement and concluded that the essence of the dispute was a labour relations matter. Thus, although the arbitrator was called upon to interpret "outside" legislation, namely the SCA, the context within which that interpretation took place was a labour relations context. Accordingly, the court's conclusion, expressed by Osborne J.A., was that "the same deference is owed to the arbitrator in this matter as would be owed to an arbitrator hearing a grievance arbitration under the collective agreement" (Lanark, at p. 440 D.L.R.).

[26] Lanark was followed very recently by this court in Essex County Roman Catholic School Board v. Ontario English Catholic Teachers' Assn., 2001 4461 (ON CA), [2001] O.J. No. 3602 ("Essex"), another case dealing with an arbitrator's award flowing from his interpretation of both the SCA and a collective agreement.

[27] Returning to City of Toronto and its statement of the factors that give rise to the exception to the general rule that an arbitrator's interpretation of "outside" legislation is subject to judicial review on a correctness standard, it seems to me that in the present case those factors tell in favour of the teachers even more strongly than they did in Lanark and in Essex.

[28] In Lanark and in Essex, the "outside" statute which the arbitrator was required to interpret was the SCA, a temporary law with a transient connection to the Education Act, the LRA 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 centrepiece 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 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 p. 506 S.C.R.).

[29] I note that in recent cases, the Supreme Court of Canada has enumerated in greater detail the factors that a court should consider in determining the standard of review. The list of factors now includes 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 778 (SCC), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193 ("Pushpanathan"), and Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.

[30] I have dealt with two of these factors, the expertise of the decision-maker and the purpose of the provision in issue and of the statute as a whole, albeit under the somewhat different formulation of these factors by Cory J. in City of Toronto. I will say a brief word about the other two factors.

[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 & Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 88 (SCC), [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, and "final and conclusive" and "binding upon the parties" in Canada Safeway Ltd. v. R.W.D.S.U., Local 454, 1998 780 (SCC), [1998] 1 S.C.R. 1079, 160 D.L.R. (4th) 1 ("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.

[33] For these reasons, I conclude that the Divisional Court erred by ruling that the standard of review to be applied in this case was correctness. It should have asked whether the arbitrator's two awards were patently unreasonable. It is to that inquiry that I now turn.

(2) Were the arbitrator's awards patently unreasonable?

[34] There is an aura of serious rebuke around the label "patently unreasonable": see Essex, supra, at para. 36. In a long line of cases, the Supreme Court of Canada has cautioned courts against easy resort to the label in the exercise of their judicial review function. As expressed by Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941 at pp. 963-64, 101 D.L.R. (4th) 673:

It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason, irrational. . . . Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

(Emphasis added)

[35] Can it be said that arbitrator Marcotte's interpretation of s. 3(5) of Reg. 298 and article 5.02(a) of the collective agreement, taken together, were patently unreasonable? For convenience, I set them out again:

Collective Agreement

5.02(a) Each teacher shall have not less than 40 consecutive minutes for a lunch break in accordance with Regulation 298 under the Education Act.

Regulation 298 under the Education Act

3(5) A scheduled interval between classes for the lunch break for pupils and teachers shall be not less than forty consecutive minutes.

[36] The arbitrator carefully analyzed these provisions in the context of the school board's lunch break/supervision schedule for teachers. He noted that, in compliance with Regulation 298, the school board designated 11:30 a.m. to 12:30 p.m. as the "scheduled interval between classes for the lunch break". He further observed that these words were followed immediately by the words "for the lunch break for pupils and teachers"; this suggested to him an intention that there be a common lunch break for students and teachers. The implication of this conclusion was that when the arbitrator turned to article 5.02(a) of the collective agreement, he was led to conclude that the "40 consecutive minutes for a lunch break" would have to occur only between 11:30 a.m. and 12:30 p.m.

[37] In my view, this is a reasonable interpretation of the words of the two provisions. The Divisional Court thought otherwise; it concluded that the arbitrator's interpretation impermissibly injected the words "at the same time" into s. 3(5) of Regulation 298. With great respect, I do not agree with this interpretation. In my view, the existing words of s. 3(5) clearly suggest a common scheduled interval for lunch breaks for students and teachers. All the arbitrator did was take this interpretation of s. 3(5) and inject it into article 5.02(a) of the collective agreement. This strikes me as a reasonable step, especially since article 5.02(a) contains wording -- "in accordance with Regulation 298 of the Education Act" -- that expressly links it with the regulation.

[38] The school board submits that there is another reason why the arbitrator's interpretation is patently unreasonable -- namely, that it leads to the result that there will be no teacher supervision of the students from 11:50 a.m. to 12:10 p.m. This result arises in the following manner. Teacher A, who is entitled to a lunch break of 40 consecutive minutes, is assigned a lunch break from 11:30 a.m. to 12:10 p.m. and supervision from 12:10-12:30 p.m. Teacher B is assigned a lunch break from 11:50 a.m. to 12:30 p.m. and supervision from 11:30-11:50 a.m. This schedule complies with the arbitrator's interpretation. However, it creates a problem. There is a 20- minute gap between 11:50 a.m. and 12:10 p.m. when no teacher is supervising the students.

[39] The school board attempted to solve the gap problem by expanding the teachers' "scheduled interval" for lunch break from 11:10 a.m. to 12:50 p.m. It then scheduled teachers to supervise in three rotations -- 11:10 to 11:50 a.m., 11:30 a.m. to 12:10 p.m. and 11:50 a.m. to 12:30 p.m. Moreover, the school board made sure that the teachers who had their lunch breaks in time slots including the 'shoulder' (my term) periods of 11:10-11:30 a.m. and 12:30-12:50 p.m. did so on days when they were not teaching in class during those shoulder periods.

[40] Frankly, this strikes me as a reasonable response to the gap problem. More relevantly, it also strikes me as a possible, and reasonable, interpretation of article 5.02(a) of the collective agreement and s. 3(5) of Regulation 298, taken together.

[41] However -- and this is the important point -- the school board's interpretation is just another reasonable interpretation. It is not the only, or the only reasonable, interpretation. In particular, the arbitrator's awards, supporting the teachers' submissions, are also based on a reasonable interpretation. Indeed, the arbitrator's interpretation is probably more attuned to the actual wording of the provisions than the school board's interpretation. Accordingly, it simply cannot be said that the arbitrator's awards are patently unreasonable.

E. Disposition

[42] I would allow the appeal, set aside the order of the Divisional Court and reinstate the awards of the arbitrator. I would award the appellant its costs of the appeal and of the application before the Divisional Court, the latter fixed at $5,000 in accordance with the agreement of the parties and the order of the Divisional Court.

Appeal allowed.

Notes

Note 1: I note that the Supreme Court of Canada decision in City of Toronto does not provide an answer to this specific question. That is because there was no dispute between the parties in that case concerning the interpretation of the governing provision of the Education Act.