Ontario Superior Court of Justice – Divisional Court

Toronto Catholic District School Board v. Ontario English Catholic Teachers' Association

Date: 2000-09-29

Counsel: Martin Sclisizzi and Ted J. Murphy, for the applicant; Bernard A. Hanson and Fay C. Faraday, for the respondents.

(511/2000)

Decision

[1] By the Court: This is an application for judicial review of the award of an arbitrator, William A. Marcotte, dated March 27, 2000, and of his supplementary award dated June 22, 2000. The arbitrator dealt with a grievance filed by the respondent Association relating to the scheduling of lunch breaks for teachers and pupils.

[2] The issues in this application are:

1. The standard of review;

2. Does the decision breach the standard.

Re 1)--The standard is either correctness or patent unreasonableness.

[3] In Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241; 144 D.L.R.(4th) 385, the Supreme Court of Canada said, at p. 398:

"It has been held on several occasions that the expert skill or 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."

See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140; 102 D.L.R.(4th) 402, at pp. 336-37 [S.C.R.]

[4] In this case, the arbitrator interpreted regulations made under the Education Act, R.S.O. 1990. That statute is "outside" legislation.

[5] We find that the standard of review is correctness.

Re 2)--Does the decision breach the standard

[6] Reg. 298 under the Education Act, R.S.O. 1990, c. E-2, s. 3(5) provides:

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

[7] The Collective Agreement provides:

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

[8] 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.

[9] 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."

[10] 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.

[11] This application is allowed. The awards are set aside and the grievance is dismissed.

[12] The applicant shall have its costs. The parties agree that the sum of $5,000 is reasonable for costs and we fix them in that amount.

Application allowed.