COURT FILE NO.: 17/04
DATE: 20050128
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
LANE, BROCKENSHIRE and FERRIER JJ.
B E T W E E N:
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Applicant
Howard Goldblatt for the applicant
Maurice A. Green and Terri Hilborn for Ontario Secondary School Teachers’ Federation
- and -
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, DISTRICT 14 KAWARTHA PINE RIDGE DISTRICT SCHOOL BOARD, and ONTARIO LABOUR RELATIONS BOARD
Respondents
Vincent M. Panetta for Kawartha Pine Ridge District School Board
Leonard Marvey for Ontario Labour Relations Board
Heard: November 8 and 9, 2004
THE COURT:
This is an application for judicial review of a decision of the Ontario Labour Relations Board (“OLRB” or “Board”), dated October 29, 2003, resolving a jurisdictional dispute brought pursuant to s.99 of the Ontario Labour Relations Act, S.O. 1995, c.1, (OLRA). In its decision, the Board directed that certain work in dispute in the Kawartha Pine Ridge District School Board (“the School Board”) be assigned to members of the Ontario Secondary School Teachers’ Federation (“OSSTF”). A portion of the disputed work had previously been assigned to members of the Elementary Teachers’ Federation of Ontario (“ETFO”). The OLRB left the parties to determine how to properly implement its direction.
The description of teachers’ bargaining units and the representation rights of each teacher federation are set out in Part X.1 of the Education Act, R.S.O. 1990, c.E-2 (the “Act”). Part X.1 of the Act is to be enforced as if it formed part of the OLRA and decisions of the OLRB in this regard are “final and binding for all purposes”.
Facts
The work in dispute is the teaching of the Life and Learning Skills (“LLS”) program in secondary schools to students who are 14 years of age or older. The work involves teaching a special education program which has been developed to teach basic life skills to students who are developmentally challenged. This work is claimed by the OSSTF and ETFO. (The LLS program is also taught to students 13 years of age or younger in elementary schools, but there is no dispute with respect to this work.)
The School Board was created in January 1998 as a result of the amalgamation of the former Northumberland-Clarington Board of Education (“NCBE”) and the Peterborough County Board of Education (“PCBE”).
The two former boards had different practices with respect to the teaching of the LLS program to students 14 years of age or older. In the former NCBE, members of the OSSTF taught the program out of secondary schools. In the former PCBE, the program was also operated out of secondary schools, but was taught by members of ETFO. This mixed practice continued after the amalgamation of the two boards.
The parties agreed that the status quo was not appropriate and that only one federation should be assigned this work.
On June 11, 2001 the OSSTF filed an application with the OLRB pursuant to s. 99 of the OLRA seeking a declaration that the work in dispute be assigned to OSSTF members. Section 99 reads as follows:
- (1) Jurisdictional, etc. disputes – This section applies when the Board receives a complaint,
(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another;
At a hearing before the OLRB, ETFO brought a preliminary objection that the application was not a proper jurisdictional dispute and that the Board ought to dismiss it.
In an interim decision, dated January 16, 2002, the Board concluded that this was a jurisdictional dispute that fell directly within s.99(1)(b) of the OLRA. This interim decision was not judicially reviewed. Thus, the matter before the OLRB was a jurisdictional dispute to determine the appropriate assignment of the work at issue.
The LLS Program – The Work at Issue
The LLS program is designed for the lowest functioning students within the School Board’s special education program.
The criteria for admission into the LLS program delivered in the School Board’s secondary schools include the following: 1) the student must have an IQ score in the bottom one percentile of all scores; and 2) the student is at least 14 years of age and no more than 21 years of age.
The purpose of the LLS program taught in the secondary schools is to provide the students with sufficient skills to enable them to function as independently as possible when they reach 21 years of age and must leave the program.
The LLS program does not generally grant credits. The program focuses on academic, life, and personal functioning skills designed to maximize the students’ ability to live independently. Such skills include functional language and math skills, reading, writing, money management, motor skills, cooking, workplace skills, and sexuality.
Some of the older LLS students participate in a Community Work Program which is designed to allow them to apply the functional skills they learn in the classroom.
To the extent textbooks and materials are used in the LLS classroom, they are at the primary or elementary level. However, LLS teachers are expected to ensure the resources and course content are age appropriate regardless of the skill level. Similarly, although the academic portions of the program focus on skills that are at the primary level, the material must be taught in an age appropriate manner aimed at students of secondary school age.
Integration with peers of the same age is a key feature of the program. Opportunities are sought to integrate pupils through lunchtime activities, sports events and assemblies as well as within the regular classroom programs (art, music, social studies, physical education), though generally not for credit purposes. There is an increasing trend for LLS students to stay in mainstream classes with their peers.
The LLS students move from elementary to secondary schools at approximately age 14. This occurs as a result of a Ministry of Education directive to integrate “exceptional pupils” with children of similar ages regardless of their level of functioning.
Once the transfer to the secondary school has occurred, LLS students are registered, for official purposes, as secondary school students and are counted as secondary school special education students for the purpose of funding by the Ministry.
The Education Act provides that all exceptional pupils must have an appropriate education program available to them. School Boards have developed programs such as the LLS program and other non-credit special education classes to fulfil this obligation. Non-credit special education programs delivered in secondary schools are considered secondary school teaching assignments: see Act, s.8(3); Ont. Reg. 274/01 – Secondary School Teaching Assignments, s.4(1).
The LLS program is administered by the School Board’s principal of special education services. However, LLS teachers in the secondary schools are hired by the school principal. Once hired, they report to the principal of the school. LLS teachers are treated no differently than other special education teachers in the secondary schools and are likely to attend staff meetings with their colleagues.
LLS teachers require the same qualifications whether they teach in elementary or secondary schools. They must be trained as special education teachers.
In short, LLS students that are 14 years of age or older are taught in secondary school buildings and are registered as secondary school students. These students have a right to attend secondary schools and school boards have an obligation to provide programs to accommodate them. The Ministry of Education treats these LLS students as secondary school students for funding and organizational purposes. Although the academic content of the program is at the elementary level, the School Board treats the LLS program in secondary schools as a secondary school service in the same way it treats all special education programs taught in its secondary schools.
As noted by the applicant, the LLS students are the most challenged of the School Board’s special education students. The parties agree that LLS students:
a. are unlikely to become functionally literate;
b. generally function academically at the primary level. The highest functioning are unlikely to achieve more than a Grade 3 level of education;
c. use textbooks or materials, if at all, at the primary or elementary level;
d. are not assessed using the regular reporting mechanism, but using an alternate report card designed for those students whose programming does not include the use of expectations from the Ontario curriculum;
e. do not complete any course of study which would enable them to advance to post-secondary education;
f. may enrol in and/or audit credit granting courses in a secondary school setting but rarely complete such courses and their enrolment in such courses is not tracked by the School Board.
Also, as found by the OLRB, “the site changes as the children reach age 14, but not the content of what they are taught.”
Teacher Bargaining Units and Representation Rights
Prior to 1997, collective bargaining in the education sector was governed by the School Boards and Teachers’ Collective Negotiations Act, R.S.O., c. S-2 (“Bill 100”). Under Bill 100, teachers resolved differences in bargaining unit representation themselves through the Ontario Teachers’ Federation (“OTF”). On January 3, 1989, the OTF made a decision concerning teachers who taught the program for Trainable Mentally Retarded (“TMR”) students in secondary schools. This program was the predecessor of the current LLS program. The OTF concluded that teachers who taught TMR classes in secondary schools to students of secondary school age were members of the OSSTF.
In 1997, a new bargaining regime for teachers was created within the framework of Part X.1 of the Education Act which sets out teacher bargaining units as follows:
277.3(1) Each district school board has the following bargaining units:
One bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is assigned to one or more elementary schools or to perform duties in respect of such schools all or most of the time.
One bargaining unit composed of every Part X.1 teacher who is an occasional teacher and who is on the board’s roster of occasional teachers who may be assigned to an elementary school.
One bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
One bargaining unit composed of every Part X.1 teacher who is an occasional teacher and who is on the board’s roster of occasional teachers who may be assigned to a secondary school.
277.3(2) The following bargaining agents represent the corresponding bargaining units.
For the elementary school teachers’ unit at an English language public district school board, the Elementary Teachers’ Federation of Ontario is the bargaining agent.
For each of the secondary school teachers’ units at an English language public district school board, The Ontario Secondary School Teachers’ Association is the bargaining agent.
For every teachers’ bargaining unit at an English language separate district school board, The Ontario English Catholic Teachers’ Association is the bargaining agent.
For every teachers’ bargaining unit at a French language district school board, L’Association des enseignantes et des enseignants franc-ontariens is the bargaining unit.
Part X.1 of the Education Act, which includes the above provisions, is to be enforced as if it formed part of the Labour Relations Act, 1995. The Ontario Labour Relations Board is empowered to make decisions, determinations and orders under this Part that are final and binding for all purposes: Education Act, s. 277.13.1(1), (6) & (7).
Pursuant to these provisions of the Education Act, the applicable provisions of the OLRA, the OLRB Interim Decision, and the evidence before it, the OLRB directed that the work at issue in this jurisdictional dispute should be assigned to members of the OSSTF. It is this decision that is the subject of the application before the court.
The Standard of Review
The applicant and the respondents are sharply at odds concerning the standard of review. The applicant argues correctness and the respondents patent unreasonableness or reasonableness.
Since the court is of the view that the decision below is correct, it is not necessary to address further the issues concerning the standard of review.
Analysis
Contrary to the submissions of the applicant, the Board asked the correct question: To which teachers’ federation should the work in dispute be assigned? It answered the question after reviewing the evidence before it, the specific statutory provisions, the Act as a whole, and the labour relations context in which it operates.
a. Statutory Interpretation
Statutes must be interpreted in a purposive manner. In Rizzo & Rizzo Shoes Ltd. (Re), (1998), 1998 837 (SCC), 154 D.L.R. (4th) 193, the Supreme Court of Canada adopted the following approach to statutory interpretation, set out in Construction of Statutes by Dreidger:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
The Board’s starting point was, as it should be, with s.277.3(1) of the Act which defines teacher bargaining units:
277.3(1) Each district school board has the following bargaining units:
One bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is assigned to one or more elementary schools or to perform duties in respect of such schools all or most of the time.
One bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
The Board then considered the necessary definitions set out in s. 1 of the Act:
"school" means,
(a) the body of elementary school pupils or secondary school pupils that is organized as a unit for educational purposes under the jurisdiction of the appropriate board, or
(b) the body of pupils enrolled in any of the elementary or secondary school courses of study in an educational institution operated by the Government of Ontario,
and includes the teachers and other staff members associated with the unit or institution and the lands and premises used in connection with the unit or institution;
"elementary school" means a school in which instruction is given in some or all of the primary division, junior division and intermediate division but not in the senior division;
"secondary school" means a school in which instruction is given in some or all of the last two years of the intermediate division and the senior division;
"primary division" means the division of the organization of a school comprising junior kindergarten, kindergarten and the first three years of the program of studies immediately following kindergarten;
"junior division" means the division of the organization of a school comprising the first three years of the program of studies immediately following the primary division;
"intermediate division" means the division of the organization of a school comprising the first four years of the program of studies immediately following the junior division;
"senior division" means the division of the organization of a school comprising the years of the program of studies following the intermediate division.
Based on these provisions, the Board identified a number of key factors that, taken together, would determine whether teachers of the LLS program were “assigned to” elementary or secondary schools and/or whether they were assigned “to perform duties in respect of” elementary or secondary schools. The factors included the following: i) the physical location of the work; ii) the body of pupils being taught; iii) the educational purpose for which the pupils and teachers are organized; and iv) the content of the teachers’ duties.
i. The physical location
Contrary to the submission of the applicant, the Board did not hold that an “elementary school” and a “secondary school” are to be defined “solely by reference to a building.” However, the Board correctly acknowledged location as a factor to be considered.
The statutory definition identifies a bargaining unit as including the teachers “assigned to” a particular school. The definition of school talks of teachers, staff members, lands and premises. The Board concluded that, “Some notion of location, of physicality is associated with the meaning of ‘school’, although it is subordinate to the ‘constellation of people and programs’ which make up the school.” Therefore, the fact that the LLS program taught to students 14 years of age or older is taught in secondary school buildings is one factor to be considered.
ii. The educational purpose
The Board then considered the “educational purpose” of the teaching to determine whether the duties performed by LLS teachers in secondary schools were duties done in respect of secondary or elementary schools.
The Board concluded that the educational purpose of the LLS program is to provide pupils of secondary school age with the skills sufficient to enable them to function as independently as possible when they must leave the school environment at age 21. The regulations of the Education Act require secondary schools to develop a plan for students 14 or older for transition to appropriate post-secondary school activities: see O. Reg. 181/98, s.7(4). The educational purpose of the LLS program is more akin to that of a secondary school than an elementary school.
iii. The “Body of Pupils”
The Board properly identified the core definition of a “school” as being its “body of pupils”. It then noted the following factors in considering whether the students in the LLS program are secondary or elementary students:
• the students are 14 years of age or older;
• their program is located in a secondary school;
• they are registered as secondary school students;
• they have a right to attend secondary schools;
• the Ministry of Education treats the students as secondary students for organizational and funding purposes;
• the board treats the LLS program in secondary schools as a secondary school service;
• the peers with whom they are organized for an educational purpose are secondary school students; and
• in some cases LLS students are integrated into mainstream secondary school courses.
The Board concluded that although the content of what they learn at school is of a primary standard, pupils in the LLS program in secondary schools are secondary school students.
iv. The content of the program
Contrary to the submission of the applicant, the Board did not “refuse to consider or weigh the content of the program taught by LLS teachers.” The Board considered the submission by the applicant that the content of the program should be the distinguishing factor and rejected it.
This is certainly a possible analysis of the Act, and one which suggests that an assignment of the work to the ETFO by a board would not offend the Act. However, this interpretation might over-emphasize course content over organizational structure and it does not take account of the exceptions and qualifications which the Act allows.
The Board noted that looking only at course content leads to a too narrow definition of a “body of pupils”. The Board further noted that “gifted students” in elementary schools who are doing course work normally done in secondary schools remain elementary students. The Board held that the same principle applies to LLS students who learn elementary level material in secondary schools.
The Board also considered whether the course content of the LLS program could be considered a “secondary program” and determined that it could. Regulation 274/01, s.4(1), of the Act provides that not all programs in secondary schools must grant credits. Non-credit special education programs are still treated as secondary school programs.
The Board also considered provisions of the Act which require secondary school principals to approve “alternative secondary programs” for their students. The Board concluded as follows:
Thus, although the content may be that of the primary program, under s. 41(5) of the Act, as read with Regulation 274/01, the program is to be treated as a secondary program within a secondary school.
As a result of the Board’s review of the evidence before it and its interpretation of the Act, it concluded that the LLS program is taught in secondary schools and the LLS students are secondary school students organized for an educational purpose that is consistent with that of secondary schools. Finally, it determined that, although the academic content of the program may be at a primary level, the program is a “secondary program within a secondary school.”
The court finds that the Board entered into the appropriate analysis and made the conclusions necessary to determine that teaching the LLS program is work that must be assigned to OSSTF members.
However, after making these conclusions, the Board then stated that the Act does not prevent the teaching of LLS students in secondary schools by either ETFO or OSSTF members, nor does it prescribe that the LLS work belongs to one federation over the other. It then considered labour relations factors to assist it in coming to its decision.
With respect, the conclusions the Board made concerning the evidence before it conclusively determined that the LLS program must be taught by members of the OSSTF. The Board found that the program is a secondary program, taught in secondary schools to secondary school students. The court does not agree with the Board’s statement that the Act does not effectively prescribe that the work should be assigned to OSSTF members.
b. The labour relations context
The applicant submits that labour relations considerations were “irrelevant” to resolving the dispute over work assignment between two competing teachers’ federations. On the contrary, the Board is required to consider the purpose of the acts under which it derives its jurisdiction. Its consideration of the labour relations context was wholly appropriate.
The applicant correctly noted that the purpose of the Education Act is to “establish and administer a publicly funded education system”. A key component of administering a school system is to foster a stable and productive labour relations environment. Part X.1 of the Act is clearly drafted with that goal in mind. Moreover, the Act states that Part X.1 should be read as though it were part of the OLRA. As a result, the purpose of the OLRA to foster stable and productive labour relations environments must be considered in interpreting any labour relations matter in the education sector.
In considering the labour relations context, the Board concluded that it would be preferable if there were a clear line of demarcation between elementary and secondary units. The fact that the legislature statutorily defined bargaining units for teachers suggests that clear lines of demarcation were intended by the legislature.
The Board correctly concluded that drawing the line solely on the basis of the level of the academic portion of the program would create uncertainty, especially in the area of special education programs. Conversely, the Board found that looking at the “nature of the school” which it had previously determined to be a composite of location, educational purpose, pupils and program, would provide greater certainty.
The Board also considered the labour relations sense associated with having employees in the same workplace belong to the same bargaining unit, especially during times of strike or lockout. It determined that for labour relations stability it was preferable to have the LLS students in secondary schools taught by OSSTF teachers. Such a consideration was proper and correct.
Finally, the Board considered the increasing tendency of parents to have their children, who may be eligible for LLS programs, taught in mainstream classes where their needs would have to be accommodated. LLS students in mainstream classes are taught by OSSTF members. Thus, as parent preferences change, the federation affiliation of those teaching LLS students would change. Therefore, the Board determined that bargaining unit composition ought to be determined on sound labour relations principles, not on changing parent preferences regarding integration.
The Board’s consideration of labour relations issues to augment its earlier analysis was entirely appropriate and its conclusions in this regard were reasonable.
Conclusion
In conclusion, the Board made all the necessary and correct determinations to answer the question before it: to which teachers’ federation should the disputed work be assigned. It reviewed the evidence and the statutory provisions of the Act that it was empowered to enforce and made the following conclusions:
• the pupils of the LLS program over the age of 14 are secondary school students;
• the schools in which these students are taught are secondary schools in that they are located in secondary school buildings and the LLS program is organized for an educational purpose that is consistent with the purpose of secondary schools;
• the LLS program is a secondary school program; and
• the labour relations considerations all lean toward the OSSTF as the appropriate federation to be assigned the work at issue.
The Board made all the determinations necessary to conclude that the teachers of the LLS program are teachers “assigned to one or more secondary schools or to perform duties in respect of such schools” – the statutory definition of the bargaining unit represented by the OSSTF. The Board then augmented its analysis with a review of the labour relations considerations.
Although the manner in which the Board characterized its analysis is problematic in one respect, its reasons, taken as a whole, provide a line of analysis that fully supports its decision. Contrary to the submissions of the applicant, the Board clearly did not ignore the statutory provisions at issue. Rather, the Board looked closely at the relevant provisions and considered them in light of the entire Act and its purpose. The Board then considered the labour context in which the Act operates to inform its decision.
This was an appropriate line of inquiry and permitted the Board to make a determination that was both reasonable and legally correct.
Accordingly, this application is dismissed.
If the parties are unable to agree on costs, the respondents shall each make brief written submissions as to costs within ten days, to be responded to by the applicant within a further five days.
Lane J.
Brockenshire J.
Ferrier J
COURT FILE NO.: 17/04
DATE: 20050128
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
LANE, BROCKENSHIRE and FERRIER JJ.
B E T W E E N:
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Applicant
- and -
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, DISTRICT 14 KAWARTHA PINE RIDGE DISTRICT SCHOOL BOARD, and ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
THE COURT
Released: January 28, 2005