Court File and Parties
COURT FILE NO.: 59/09
DATE: 20090908
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: ELEMENTARY TEACHERS' FEDERATIONOF ONTARIO v. THE SUPERIOR-GREENSTONE DISTRICT SCHOOL BOARD
BEFORE: Carnwath, Swinton and Low JJ.
COUNSEL: Howard Goldblatt, for the Applicant
Christopher G. Riggs Q.C. and Frank Cesario, for the Respondent
HEARD AT TORONTO: August 21, 2009
Endorsement
LOW J.
[1] This an application for judicial review of an arbitration award of Arbitrator Stephen Raymond dated July 30, 2008 wherein the applicant's grievance was dismissed.
[2] The applicant (the Union) grieved the assignment of principals and vice-principals to classroom teaching assignments for the 2007-2008 school year which resulted in some bargaining unit teaching positions becoming partially redundant.
[3] As a result of diminishing school population, the Board decided in April 2007 to alter the work assignments of the principals and vice-principals in six of its ten schools. In one of them, the vice-principal had already been assigned to teaching half of the time in January 2007. In the other five schools, there was either a full-time principal or full-time vice-principal.
[4] The Board altered the work assignments of administrators in the six schools: the work assignment to the principal in three of the schools was changed to half-time principal and half time teaching. In two of the schools, the work assignment of the vice-principal was changed to half time vice-principal and half time teaching and, in the sixth school, the vice-principal's assignment was changed from half time vice-principal and half time teaching to one quarter vice-principal and three quarters teaching.
[5] Principals and vice-principals are excluded from the bargaining unit.
[6] The result of the foregoing assignment of teaching duties to principals and vice-principals and in one case, the enlargement of the teaching load assigned to the vice-principal, was to cause a teacher in each one of the six schools to be declared partially redundant.
[7] The relevant statutory provisions are s. 287.1(1) of the Education Act, R.S.O. 1990, c.E.2 and sections 1 to 4 of O. Reg. 90/98.
[8] Section 287.1(1) of the Education Act provides:
A principal or a vice-principal may perform the duties of a teacher despite any provision in a collective agreement.
[9] Sections 1 to 4 of O. Reg. 90/98 provide:
1.(1) This Regulation applies when a board declares the position of a principal or vice-principal to be redundant.
(4) A position is redundant if the board decides that the position is no longer required because of,
(a) the implementation of a restructuring plan that eliminates the position or merges it with another position;
(b) a reduction in the number of classes or schools of the board; or
(c) a change in the board's duties under any Act.
2.(1) The board shall give the affected principal or vice-principal notice in writing that his or her position is declared to be redundant.
3.(1) The board shall assign the principal or vice-principal to another position for which he or she is qualified.
(2) The principal or vice-principal may be assigned to a position in a teachers' bargaining unit if the position is vacant after the procedures under the applicable collective agreement for filling it have been exhausted.
(3) The assignment takes effect on the date on which the principal's or vice-principal's position becomes redundant, or on such other date as the board and the principal or vice-principal may agree upon.
(1) The following rule applies if the principal or vice-principal is assigned to a position other than one described in subsection (2):
For one year after he or she begins work in the new position, he or she is entitled to be paid the salary that he or she would have been paid as principal or vice-principal.
(2) Subsection (1) does not apply if the principal or vice-principal is assigned to a position in which he or she is employed, other than as a principal or vice-principal, to teach.
[10] The standard of review on this application is agreed to be one of reasonableness. The union argues that the arbitrator's decision was unreasonable.
[11] The union's position is that notwithstanding s. 287.1(1), the Board did not have a right to assign teaching duties to principals and vice-principals when the effect would be the lay-off of bargaining unit members. To allow the Board to do this would, in effect, grant super-seniority to the principals and vice-principals. This is not only inconsistent with s. 3(2) of the regulation; it also results in an interpretation which fails to recognize the importance of seniority rights. An argument was also made that s. 287.1(1) only permits the assignment of a teacher's duties to a principal or vice-principal other than teaching.
[12] The union argued that the assignment of the aforementioned teaching duties to principals and vice-principals amounted to those principals' and vice-principals' positions being redundant and that in accordance with s. 3(2) of the regulation, those principals and vice-principals could be assigned to teach only after the procedures under the collective agreement for filling a vacancy had been exhausted.
[13] In my view, the conclusion reached by the arbitrator was a reasonable one. It was supportable on a plain reading of s. 287.1(1) of the Act.
[14] Subsection 287.1(1) is unambiguous. It is permissive and has paramountcy over any provision in the collective agreement. As well, in the event of a conflict with a regulation made under the Act, it would have paramountcy over the regulation as well.
[15] That s. 287.1(1) permits the Board to assign teaching duties to a principal or vice-principal -- including teaching -- is further confirmed by a reference to the definition of the term "principal" in the Act: "'principal' means a teacher appointed by a board to perform in respect of a school the duties of a principal under this Act and the regulations". As a principal is, by definition, a teacher, it follows that he or she also has the duties of a teacher under the Act in addition to the duties of a principal. The corresponding right on the part of the Board is the right to assign teaching duties to a principal.
[16] The union argues that a gloss should be put on s. 287.1(1) in the nature of "so long as the result is not to cause a loss of a bargaining unit position or work". The plain language of the section (which appears in Part XI -- Supervisory Officers), does not reasonably bear such a gloss and there is no compelling argument that the purposes of the statute, and in particular of Part XI of the statute, require such a gloss to be read in. In my view, s. 287.1(1) is intended to give to school boards the flexibility to assign a mix of administrative and non-administrative work to principals and vice-principals to meet a school's changing needs and requirements both from day to day and from term to term.
[17] There is no conflict between s. 287.1(1) and the provisions of O. Reg. 90/98. The issue is whether the facts are such that the regulation applies. The arbitrator found that the regulation does not apply because there was no redundancy. In my view, that finding was a reasonable one.
[18] In order for the regulation to apply there must have been a declaration by the Board that the position of a principal or vice-principal is redundant. On the facts as agreed, there was no such declaration by the Board. There was an assignment of work to the principals and vice-principals which either introduced or enlarged existing teaching duties. The Board was entitled to make such an assignment under the Act.
[19] Whether the position of a principal or vice-principal is redundant can be resolved by posing the question: is there a teacher at the school who has been appointed by the Board to perform, in respect of the school, the duties of a principal under the Education Act and the regulations? That is the statutory definition of "principal". If the answer is, yes, there is such a person, then the position is not redundant because it is occupied, and it matters not whether the person in whom those duties are reposed spends 100% or 75% or 25% of his or her time performing those duties.
[20] To pose the question in another way: does the principal of a school who teaches part of the time cease to be the principal when he or she is in the classroom teaching? A reasonable answer, and arguably the only reasonable answer is "no".
[21] As the arbitrator’s decision fell within a range of reasonable outcomes, the application is dismissed.
[22] If the parties are not able to agree as to costs, brief written submissions may be made by the respondent by September 18 and by the applicant by September 28, 2009.
Low J.
Carnwath J.
Swinton J.
DATE: September 8, 2009