DATE: 2005-10-14

DOCKET: C43010

COURT OF APPEAL FOR ONTARIO

RE: ELEMENTARY TEACHERS FEDERATION OF ONTARIO (Applicant/appellant) and TORONTO DISTRICT SCHOOL BOARD (Respondent/respondent)

BEFORE: MCMURTRY C.J.O. and CATZMAN and SIMMONS JJ.A.

COUNSEL: Cynthia Petersen For the appellant

David W. Brady For the respondent

HEARD: September 19, 2005

On appeal from the judgment of Justice John G. T. O'Driscoll, Justice Michael Meehan and Justice Katherine E. Swinton of the Superior Court of Justice sitting in the Divisional Court dated July 6, 2004, reported at (2004), 2004 1652 (ON SCDC), 188 O.A.C. 302.

E N D O R S E M E N T

[1] This is an appeal by the Elementary Teachers’ Federation of Ontario (the “Federation”) from a decision of the Divisional Court dismissing the Federation’s application for judicial review of the award of a board of arbitration.

[2] In its award, the board of arbitration, by a majority, dismissed a grievance arising out of the treatment of a teacher on her return from pregnancy leave.

[3] The grievor was an elementary school teacher who taught Senior French at Parkdale Public School from 1997 until she went on pregnancy leave in March 2001. She was scheduled to return to teaching in March 2002. While she was on leave, she was advised by the school principal that another teacher would be assigned to teach Senior French and that the grievor’s teaching assignment on her return would be Senior Science/Advisory. Although formally qualified to teach Senior Science, the grievor had never done so and declined to accept that assignment. In the result, she remained on leave without pay between March and September 2002, when she was once again assigned to Senior French.

[4] The collective agreement between the parties required the school board to grant pregnancy leaves and parental leaves in accordance with the requirements of the Employment Standards Act, R.S.O. 1990, c. E.14. At the time of the grievance, s. 43(1) of that Act read:

43(1). The employer of an employee who has taken pregnancy leave or parental leave shall reinstate the employee when the leave ends to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not [emphasis added].

[5] The issue between the parties centred on the phrase “to the position the employee most recently held with the employer” in s. 43(1) of the Act. Before the board of arbitration, the Federation’s position was that “the position employee most recently held” meant the same subject that the employee was teaching at the school when she went on leave. The school board’s position was that the phrase meant teaching a subject or subjects for which her teaching certificate qualified her.

[6] The majority of the board of arbitration accepted the position advanced by the school board. In its view, “[t]he purpose of Section 43(1) of [the Employment Standards Act] is to protect an employee’s rights when she goes on maternity leave, and that right, in the context of a teacher at Parkdale, is to be returned to a position as a teacher at that school assigned to a subject for which she is qualified.” It therefore dismissed the grievance that alleged a breach of s. 43(1) of the Act.

[7] The Federation applied to the Divisional Court for an order quashing the arbitration award. In that court, as well as before us, there was an issue as to the appropriate standard of review of the arbitration board’s decision and the effect of that standard when applied to the board’s award.

[8] Relying in this court on McLeod v. Egan, 1974 12 (SCC), [1975] 1 S.C.R. 517, International Union of Operating Engineers, Local 722 v. Philip Utilities Management Corp. (2001), 2001 8533 (ON CA), 54 O.R. (3d) 448 (C.A.) and Ontario Public Service Employees Union, Local 458 v. Open Hands Inc. (2000), 5 C.C.E.L. (3d) 99 (Div. Ct.), the Federation contends that the standard of review is correctness. By contrast, the school board contends that the standard of review is patent unreasonableness.

[9] The unanimous decision of the Divisional Court was written by Swinton J. In its reasons, the Divisional Court noted that McLeod v. Egan, supra, was decided before the Supreme Court of Canada adopted the pragmatic and functional approach to determining the standard of review, prior to the enactment of s. 48(12) (j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, (indicating that arbitration boards have the power to interpret and apply employment–related statutes, despite any conflict between those statutes and the terms of a collective agreement), and prior to the enactment of ss. 64.5 (1) and (2) of the Employment Standards Act (providing that the ESA is enforceable against an employer bound by a collective agreement as if it were part of the collective agreement).

[10] Applying the pragmatic and functional approach and using the well-known four factors conveniently summarized, and analyzed, in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. 26-35, the Divisional Court concluded that the proper standard of review in the circumstances of this case was reasonableness and that the decision of the board of arbitration met that reasonableness standard.

[11] We agree with the Divisional Court that there have been developments since McLeod v. Egan, supra, that justify re-examining the appropriate standard of review of the decision of a grievance arbitrator interpreting the Employment Standards Act. These developments also include the decision of the Supreme Court of Canada in Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487. In that case, at para. 39, Cory J. indicated that an exception to the general rule that the findings of an arbitration board concerning the interpretation of “outside” legislation will generally be reviewed on a correctness standard “may occur where the external statue is intimately connected with the mandate of the tribunal and is encountered frequently as a result.”

[12] We also agree with the Divisional Court’s conclusion that, on the whole, the features of this case favouring deference outweigh those features favouring a correctness standard. The features favouring deference include: the presence of a privative clause in s. 48(1) of the Labour Relations Act, the legislative changes referred to above indicating a recognition of the expertise of arbitrators in interpreting the provisions of the Employment Standards Act, and the fact-driven nature of the interpretation raised by the sections in issue.

[13] Further, given that we are satisfied that the decision of the board of arbitration was reasonable, we find it unnecessary to consider whether a distinction between the standards of patent unreasonableness and reasonableness is appropriate on the facts of this case. We do, however, note that the Divisional Court’s conclusion that Voice Construction Ltd. v. Construction General Workers Union, Local 92, [2004] 1 S.C.R. 23, “seems to signal a reduction in the amount of deference to be accorded arbitration boards” has been rejected by this court in relation to a grievance arbitration conducted by an arbitrator appointed under a collective agreement governed by the Labour Relations Act: see Teamsters Local Union 938 v. Lakeport Beverages, a Division of Lakeport Brewing Corp., 2005 29339 (ON CA), [2005] O.J. No. 3488.

[14] Turning to the reasonableness of the board of arbitration’s decision, we would not endorse the comments of either the board of arbitration or the Divisional Court suggesting that the Employment Standards Act cannot confer rights on an employee who takes maternity leave that are not enjoyed by an employee who did not. However, we do agree with the following analysis set out in the Divisional Court’s reasons and on that basis conclude that the board of arbitration's decision met the appropriate standard, whether patent unreasonableness or reasonableness simpliciter:

Pursuant to s. 265(1) (e) of the Education Act, R.S.O. 1990, c. E.2, a principal has the power to assign classes and subjects to a teacher, while s. 264(1) states that it is the duty of a teacher to teach “subjects assigned to the teacher by the principal”. The collective agreement between the parties clearly contemplates an annual assignment of teaching duties, taking into account the staffing model for the following academic year. Thus, no teacher has a right to a particular teaching assignment from year to year, nor can it be said that a teacher has a reasonable expectation to continue teaching the same subjects every year. Thus, it cannot be said that the arbitration board’s characterization of the teacher's position was unreasonable, given the provisions of the Education Act and the terms of the collective agreement.

[15] Accordingly, the appeal is dismissed. The respondent school board is entitled to its costs in this court, including the motion for leave to appeal. On consent of counsel for the parties, we fix those costs in the sum of $15,000, inclusive of disbursements and G.S.T.

“R. Roy McMurtry C.J.O.”

“M. A. Catzman J.A.”

“Janet Simmons J.A.”