Ottawa-Carleton D.S.B. v. O.S.S.T.F., 2010 ONSC 4313
CITATION: Ottawa-Carleton D.S.B. v. O.S.S.T.F., 2010 ONSC 4313
DIVISIONAL COURT FILE NO.: DC-09-00001509-0000
DATE: 2010-09-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Reilly, Swinton and Heeney JJ.
BETWEEN:
OTTAWA-CARLETON DISTRICT SCHOOL BOARD
Applicant
– and –
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, DISTRICT 12, and CHRISTOPHER J. ALBERTYN
Respondents
John E. Summers, for the Applicant
Gary Hopkinson, for the Respondent O.S.S.T.F.
No-one appearing for the Respondent Albertyn
HEARD: June 15, 2010 at Ottawa
HEENEY J.:
[1] This is an application for judicial review of the award of arbitrator Christopher Albertyn issued August 25, 2008, which related to a series of grievances filed by the Respondent Ontario Secondary School Teachers’ Federation, District 12 (the “OSSTF”).
[2] The decision concerned the status of certain individuals hired by a company called the Ottawa Centre for Research and Innovation (“OCRI”) as independent contractors. OCRI placed these individuals in various schools within the Ottawa-Carleton District, as well as at the offices of the Ottawa-Carleton District School Board (“the Board”). Their function was to train teachers in the use of technology, and to assist them in integrating technology into the classroom and the curriculum. It was made clear to them that their function was not to teach students, nor to supervise the classroom. Indeed, if they found themselves alone in the classroom with students, their instructions were to leave the room.
[3] The arbitrator found that these individuals were actually employees of the Board, and not independent contractors of OCRI. He went on to find that these individuals were “teachers” and, as such, were members of the OSSTF’s bargaining unit. The Board seeks judicial review of his decision.
The Facts:
[4] From 1994 to 1996, Industry Canada funded a pilot program intended to assist teachers to integrate information technology into the classroom. Assistance was to be provided in the form of technology integrators, and one such person was placed in each of the school boards who opted into the program. Industry Canada retained OCRI, a not-for-profit corporation, to coordinate the program. OCRI retained the services of the workers as independent contractors and assigned them to work at the school boards.
[5] At the end of the two-year pilot program, Industry Canada cut off funding, but the Board decided to continue supporting the program itself. The Board continued to procure these “technical coaches” through OCRI. As the program expanded, the workers were assigned to particular roles. At the time material to the grievances, there were three categories of workers:
Educational Technology Integrators (“ETIs”);
Educational Technology Leaders (“ETLs”), who supervised and supported the ETIs;
An E-learning Coordinator.
[6] OCRI primarily recruited these workers from teachers colleges, so that the majority of them were trained and qualified as teachers. It was not, however, a job requirement that they be certified teachers, and some did not hold teaching certificates. Contracts were signed between OCRI and these workers on an annual basis, which meant that these positions had no job security.
[7] In January 2005, the OSSTF took the position that the characterization of the relationship between the Board and the workers, which was established during the pilot program, no longer reflected the true substance of that relationship. They maintained that the workers were not independent contractors but were, instead, employees of the Board, and that they were teachers covered by the collective agreement.
[8] The OSSTF filed four grievances. Three were policy grievances, separately alleging that the ETIs, ETLs and the E-learning Coordinator were members of its bargaining unit. The remaining grievance alleged that Ravi Vethamany, an Educational Technology Integrator whose position had been terminated, had been dismissed without just cause, in violation of the collective agreement. The OSSTF and the Board were unable to settle the grievances, so they were referred for arbitration by a single arbitrator.
[9] The arbitrator upheld the grievances. He first decided that the workers were employees of the Board, not independent contractors. He then found that the workers were “teachers” as defined in the Education Act, R.S.O. 1990 c. E.2 and the collective agreement, and were therefore members of the OSSTF’s bargaining unit. However, he held that the OSSTF was estopped from asserting that the workers were in the bargaining unit in the period prior to January 2005, when the grievances were filed. The arbitrator declared that the workers must be treated as subject to the terms of the 2004-2008 collective agreement from the date the grievances were filed until the date their individual contracts expired, and left it to the parties to implement this remedy. However, he stipulated that he remained seized of the remedy issue if the parties could not resolve how to implement his decision.
Dismissal for Delay:
[10] A preliminary issue was raised by Mr. Hopkinson, counsel for the OSSTF, in which he asked that the application be dismissed because of the Board’s delay in commencing the application. The law is clear that, in judicial review proceedings, the applicant is obliged to commence and perfect the application as expeditiously as possible. Undue delay can be grounds for refusing an application: Gigliotti v. Conseil d’Administration du Collège des Grand Lacs, 2005 23326 (ON SCDC), [2005] O.J. No. 2762 (Div. Ct.) at paras. 26-29.
[11] The court is to consider three factors: the length of the delay; whether there is a reasonable explanation for the delay; and whether any prejudice has been suffered by the respondent or a third party as a result of the delay.
[12] The length of the delay complained of is 6 months and 16 days from the date the decision was released until the commencement of the application. However, the application was perfected a mere 20 days later. Thus, the total period from the date the decision was released until the application was perfected and ready to be listed for hearing was only about 7 months. We do not find this to be a particularly egregious delay.
[13] By way of explanation for the delay, Mr. Summers, counsel for the Board, stated that it was due to the complexity of the case, and submitted that the case speaks for itself in that regard. The hearing involved 20 days of evidence; the arbitrator took fully 21 months to write and release his decision; and his decision was 82 pages in length.
[14] As to the third factor, prejudice due to delay primarily arises in labour relations cases out of the need to encourage and preserve workplace harmony, so as to ensure “that labour disputes are not left simmering to be an irritant to relations between employer and employees”: United Food and Commercial Workers International Union, Local 617P v. Welling, [1997] O.J. No. 2704 (Div. Ct.), at para. 3.
[15] However, the ETI program was disbanded in 2006, so that no ongoing irritant to workplace harmony has resulted from the delay complained of. The practical consequences of this court’s ruling in this application will be almost entirely retrospective in nature, save for some impact on calculating the years of service of any former ETIs who later were hired as teachers.
[16] Considering the length of the delay in the entire context of the case, we are not disposed to exercise our discretion so as to refuse to hear the application. The request of the OSSTF to dismiss the application for delay is dismissed.
Standard of Review:
[17] Two primary questions were posed by the arbitrator in crafting his reasons, and those questions frame the issues on this application:
Was the Board the employer of the ETIs, ETLs and E-Learning Coordinators under contract with OCRI?
If the Board was their employer, were they “teachers” falling within the OSSTF’s bargaining unit?
[18] Ancillary issues regarding remedy, estoppel, and whether Mr. Vethamany was terminated without cause, were also addressed in the decision, but for present purposes it is only necessary to consider the two questions raised in this application for judicial review.
[19] The OSSTF takes the position that the standard of review with respect to both questions is reasonableness. The Board, in its factum, submitted that the standard of review in both cases is correctness, but Mr. Summers amended that position in oral argument, and conceded that the appropriate standard of review on the second question is reasonableness. He continued to maintain that the correctness standard applied to the first question.
[20] Determining the appropriate standard of review of an administrative decision involves two steps, according to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 62:
First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.
[21] In Dunsmuir, the Court explained that correctness is the appropriate standard for constitutional questions (para. 58), true questions of jurisdiction “in the narrow sense of whether or not the tribunal has the authority to make the inquiry” (para. 59), questions of general law “that [are] both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (para. 60), and questions regarding the jurisdictional lines between competing specialized tribunals (para. 61).
[22] Deference is required where the court is asked to review a question of fact, discretion or policy, or “where the legal and factual issues are intertwined” and “cannot be readily separated” (para. 53).
[23] Where the standard of review is not clear from the category of question, a full standard of review analysis is undertaken as follows (para. 64):
[The standard of review analysis] is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by the enabling legislation; (3) the nature of the question at issue, and (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
[24] The Board argues that the question whether or not these workers were employees of the Board is a question of law, involving both labour law as well as tax law considerations. Indeed, many of the key cases cited by the arbitrator in his decision were income tax cases. Since the arbitrator possesses no specialized expertise in tax law, the Board submits that the standard of review should be correctness.
[25] We do not agree. In our view, the arbitrator was considering general common law principles that were closely intertwined with the specific question of labour law that was squarely within his area of expertise. As LeBel J. explained, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 73, this attracts a standard of reasonableness:
In the field of labour relations, general common and civil law questions are often closely intertwined with the more specific questions of labour law. Resolving general legal questions may thus be an important component of the work of some administrative adjudicators in this field. To subject all such decisions to correctness review would be to expand the scope of judicial review considerably beyond what the legislature intended, fundamentally undermining the ability of labour adjudicators to develop a body of jurisprudence that is tailored to the specialized context in which they operate.
[26] This view was reinforced at para. 54 of the majority decision in Dunsmuir:
Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach.
[27] We conclude that the appropriate standard of review with respect to both questions is reasonableness.
Were the Workers Employees of the Board?
[28] The role of the arbitrator was to determine the nature of the relationship between the workers and OCRI and the Board. In making that determination, he correctly stated that he was to determine the substance of that relationship, and form was not determinative. However, his reasoning process was seriously flawed as explained below.
[29] The arbitrator addressed this issue by dividing it into two separate questions. The first was: did the individuals work for OCRI or for the Board? In other words, who was the “real” party with whom the individuals had a relationship of service? Once he concluded that the Board was that party, he then considered whether that relationship was one of an employee or an independent contractor. At paras. 99 and 100 of his decision, the arbitrator said the following:
In York Condominium Corporation, [1977] OLRB Rep. Oct. 645, the OLRB suggested the following to determine the real employer:
a. The party exercising direction and control over the employees performing the work;
b. The party bearing the burden of remuneration;
c. The party imposing discipline;
d. The party hiring the employee;
e. The party with authority to dismiss the employee;
f. The party who is perceived to be the employer by the employees;
g. The existence of an intention to create the relationship of employer and employee.
On each criterion, despite in some instances a difference in form, the party referred to was the Board, not OCRI. Accordingly, I have no doubt that the Board was the real party with whom the individuals had a relationship of service.
[30] However, the arbitrator’s sweeping conclusion that each criterion pointed to the Board, and not OCRI, as being the real employer, conflicts with the arbitrator’s own findings of fact in virtually every instance:
the party exercising direction and control over the employees performing the work: on the facts as found by the arbitrator, the ETIs were coordinated and directed by ETLs, who were themselves independent contractors hired by OCRI, and were not Board employees. In fairness, though, the ETLs were, in turn, under the supervision of the Board consultant, with some input from the principals;
the party bearing the burden of remuneration: the individuals were paid by OCRI, not by the Board, on the basis of monthly invoices from the workers, and no source deductions were made for income tax or Canada Pension;
the party imposing discipline and the party with authority to dismiss the employee: the only concrete instance of discipline and dismissal referred to by the arbitrator was the situation involving Mr. Vethamany. His dismissal was initiated by his supervisor, Jessica Goerz, who was an E-learning Coordinator under contract with OCRI, not an employee of the Board. Two sources of conflict were identified. First, Mr. Vethamany wanted to write the content of E-learning courses, whereas Ms. Goerz insisted that he instead assist teachers to write the course content. Second, Mr. Vethamany wanted to spend some of his time working in the reference library at the University of Ottawa, whereas Ms. Goerz insisted that he spend his working time at the Board’s offices. Moreover, the dismissal was carried out by OCRI in accordance with its contract with Mr. Vethamany – that is, two weeks notice;
the party hiring the employee: at para. 50 of his decision, the arbitrator found that the Board advised how many consultants they needed, following which the selections were made by Ms. Goerz (an E-learning Coordinator under contract with OCRI) and Michelle Hoffe (Executive Assistant to the President at OCRI). Although formally the interviews to select the ETIs were to be done by a panel consisting of a school board representative and a representative from OCRI, the reality was that the interviews were done by Ms. Goerz and Ms. Hoffe alone, with only occasional input from the Board. Those who were selected signed contracts with OCRI, not with the Board;
the party who is perceived to be the employer by the employees: the arbitrator referred to no evidence that any of these individuals perceived the Board to be their employer. As will be discussed further below, the factual findings of the arbitrator are clear that these individuals knew that they were signing a contract with OCRI, not with the Board, and that this position might serve as a “stepping stone” to eventual employment with the Board. That is a far cry from a perception and belief that they were actually becoming employees of the Board when they signed on with OCRI. Moreover, the arbitrator states that the ETIs were issued an OCRI name tag to identify them at the Board.
[31] The one remaining criterion referred to in York Condominium is the existence of an intention to create the relationship of an employer and employee. The intention of the parties is indeed an important consideration. In Wolf v. R., 2002 FCA 96, 2002 F.C.A. 96, the Federal Court of Appeal was considering the question whether an individual was an employee or an independent contractor for tax purposes. At para. 117, Décary J.A. said the following:
I say, with great respect, that the courts, in their propensity to create artificial legal categories, have sometimes overlooked the very factor which is the essence of a contractual relationship, i.e. the intention of the parties.
[32] And further, at para. 119, he said this:
Taxpayers may arrange their affairs in such a lawful way as they wish. No one has suggested that Mr. Wolf or Canadair or Kirk-Mayer are not what they say they are or have arranged their affairs in such a way as to deceive the taxing authorities or anybody else. When a contract is genuinely entered into as a contract for services, and is performed as such, the common intention of the parties is clear and that should be the end of the search.
[33] Noël J.A., in the same decision, was of the same view as to the importance of the intention of the parties. At para. 124 he said this:
This is not a case where the parties labelled their relationship in a certain way with a view of achieving a tax benefit. No sham or window dressing of any sort is suggested. It follows that the manner in which the parties viewed their agreement must prevail unless they can be shown to have been mistaken as to the true nature of their relationship.
[34] In the case at bar, the arbitrator was alive as to the importance of the intention of the parties, and referred to Wolf in his decision. He specifically dealt with the intention of the parties at para. 104 of his decision, as follows:
In this case, form and substance do not match, as they did in Lawrence Wolf and Royal Winnipeg Ballet. Despite the language of the individuals’ contracts with OCRI, there was no clear intent to create an independent contractor relationship between them. The individuals wanted to perform the work that was offered, and had been advertised, by the Board. The only way they could do so, was to sign the OCRI contracts. That was the form of the relationship they had to assume in order to work for the Board. The evidence is overwhelming that the individuals did not have the contractual intent to become independent contractors; their purpose was to be employed by the Board.
[35] It is at this passage that the arbitrator fell into serious error in his reasoning process. He confused “intention” with “desire”. Lamer C.J. dealt with the distinction between these two concepts in R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973. That case addressed the state of mind of a person liable as an aider or abettor to a crime. He quoted Cory J. in R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74 at 88, where he said:
[T]he person aiding or abetting the crime [of murder] must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not.
[36] Lamer C.J. then made the following comments, at para. 37, which are germane to the issue under discussion:
It is implicit in this statement that there is no requirement under s. 21(1)(b) that the person charged as a party “desire” that the victim die (that is, subjectively wish that this result come to pass), just as the principal’s intent to kill is not negated even if, all other things being equal, he or she regrets the fact that he or she is killing the victim.
[37] Intention and desire are, therefore, two completely different things. There is no doubt that the ETIs wanted to be employees of the Board. As noted at para. 29 of the arbitrator’s decision, the position was advertised as having, among others, the following positive aims:
Give the ETIs an intensive professional development experience and an opportunity to make themselves known to principals for future teaching positions.
[38] Candidates were recruited from teachers colleges, where it can be presumed that the graduating students have aspirations to become teachers. At para. 51 of his decision, the arbitrator noted that high marks were given to potential candidates who saw “the ETI position as a stepping stone to round out qualifications for a classroom position”.
[39] However, the fact that the ETIs wanted to take the job that was offered, but could only do so by signing a contract with OCRI, cannot be equated with an “intention” to become an employee of the Board. While that was clearly their desire, and while they hoped that the ETI position would lead to future employment by the Board, future hopes and aspirations are essentially irrelevant to the issue of present intention. The issue of intention instead addresses whether the ETIs knowingly did what they did: did they know that they were signing on as independent contractors with OCRI when they signed their annual contracts?
[40] It is somewhat paradoxical that the arbitrator’s award essentially transformed the future aspirations on the part of the ETIs into a present realization of those aspirations. The ETIs signed contracts with OCRI as a stepping stone to a future teaching position with the Board. However, by a stroke of the arbitrator’s pen they instantly became teachers, employed by the Board, at the moment they signed those contracts.
[41] Since the arbitrator completely misconstrued the essential element of the intention of the parties in his analysis of their relationship, the reasoning process that led to the final result has been fatally flawed. This renders the decision unintelligible and therefore unreasonable. As was stated at para. 47 of Dunsmuir:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.
[42] That is not, however, the only area where I find the decision-making process to be fatally flawed.
[43] At para. 105, the arbitrator stated the following:
As Union counsel point out, an indication of the dependent status of the individuals was the need to train them in how ostensibly to be independent contractors. A bona fide independent contractor does not need training in how to run their business, as a condition of contracting their services.
[44] This comment was made as part of the chain of reasoning that led the arbitrator to conclude that the individuals were employees and not independent contractors.
[45] The program in question is described at para. 96 of the decision. As part of a two-week training program given by the Board to the ETIs at the start of each school year, OCRI arranged a two-day seminar with an accountant. The accountant explained how the ETIs were to be independent contractors, and how they might write off expenses against income for tax purposes.
[46] It is irrational and, therefore, unreasonable, for the arbitrator to conclude that a bona fide independent contractor would not need such training. As noted in his decision, ETIs were generally hired from the ranks of graduating students from teachers colleges. For many, or perhaps most, of the candidates, this would be their first foray into the world of full-time work. It is entirely likely that many or most of those candidates would require some training in the particular tax and accounting rules and practices that are involved when working as an independent contractor.
[47] Therefore, the arbitrator’s conclusion that the workers were Board employees is unreasonable.
Were the Workers “Teachers”?
[48] Given my conclusions above, it is not necessary to discuss this issue in depth, since this question only arises for consideration following an affirmative answer to the first question. Since I have already determined that the arbitrator’s decision on the first question is unreasonable, the award as a whole must be quashed.
[49] I do, however, wish to deal with one discrete point in the arbitrator’s analysis.
[50] At para. 131, the arbitrator observed that having a teacher’s qualification was not a requirement to becoming an ETI. In other words, it was not part of the job description. Since recruiting was primarily done from teachers colleges, most of the ETIs and ETLs did have teaching certificates, but some did not.
[51] In addressing the question whether these individuals were “teachers” and fell within the bargaining unit of the OSSTF, the arbitrator considered both the terms of the collective agreement and the Education Act. Section 1(1) of the Act defines a “teacher” as follows:
“teacher” means a member of the Ontario College of Teachers;
[52] In other words, to be a teacher requires that you possess a valid teaching certificate. To be an ETI or an ETL does not require a teaching certificate. The only logical conclusion one can draw from this is that ETIs and ETLs are not teachers. Simply put, if the job prerequisites of an ETI and an ETL do not require the same qualifications as that of a teacher, it must rationally follow that ETIs and ETLs are something other than teachers.
[53] The arbitrator’s manner of dealing with this issue was to “exclude” any ETIs and ETLs who did not have teaching certificates from the ambit of his decision, and he did so at para. 122 of his decision. This led to the bizarre result that some ETIs and ETLs were found to be “teachers” and some were not, depending upon whether they did or did not hold a teaching certificate at the relevant time. This is so despite the fact that those ETIs and ETLs who did not have certificates would have worked side by side with, and performed the same duties as, those ETIs and ETLs who did have certificates.
[54] In my view, the arbitrator’s analysis is logically flawed. In determining whether the job in question can be described as a teaching job, it is essential to address the training and qualification prerequisites of the job, as well as the duties performed and the responsibilities of the position. The arbitrator did address the latter, but failed to address the former in a logical and rational manner. His decision turned not on whether a teaching certificate was required for the position, but instead on whether a particular individual happened to have one or not.
Conclusion:
[55] The application for judicial review is allowed, and the award is quashed. Given the lack of an evidentiary record, we are not in a position to substitute the decision that ought to have been made, and accordingly the matter is remitted for rehearing by a different arbitrator.
[56] With respect to costs, counsel agreed in advance that costs of $5,000 all inclusive should be awarded to the successful party. Accordingly, costs are awarded to the Board in that amount, payable by the OSSTF.
Mr. Justice T. Heeney
Mr. Justice R. Reilly
Madam Justice K. Swinton
Released: September 30, 2010
CITATION: Ottawa-Carleton D.S.B. v. O.S.S.T.F., 2010 ONSC 4313
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Reilly, Swinton and Heeney JJ.
BETWEEN:
OTTAWA-CARLETON DISTRICT SCHOOL BOARD
Applicant
– and –
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, DISTRICT 12, and CHRISTOPHER J. ALBERTYN
Respondents
REASONS FOR JUDGMENT
Released: September 30, 2010