Keewatin-Patricia District School Board v. Ontario Secondary School Teachers’ Federation

CITATION: Keewatin-Patricia District School Board v. Ontario Secondary School Teachers’ Federation, 2019 ONSC 7102

DIVISIONAL COURT FILE NO.: DC-19-002-JR

DATE: 20191219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Warkentin, R.S.J., Aitken and Backhouse JJ.

BETWEEN:

Keewatin-Patricia District School Board

Applicant

– and –

Ontario Secondary School Teachers’ Federation

Respondent

COUNSEL:

Don Shanks and Warren Mouck, for the Applicant

Joshua Phillips and Katy O’Rourke, for the Respondent

HEARD at Thunder Bay: December 3, 2019

REASONS FOR JUDGMENT

Backhouse J.

Overview

[1] Keewatin-Patricia District School Board (the “Board”) has brought this application for judicial review seeking to quash an arbitration award of Arbitrator Michael Lynk dated September 21, 2018. Arbitrator Lynk upheld the grievance brought by the Ontario Secondary School Teachers’ Federation (“OSSTF”) on behalf of Karen Edwards, alleging that she was laid off out of seniority order. The Board argues that the award was unreasonable because it misapprehended the Board’s obligation to provide the “best possible educational program” as stipulated in s. 19(1) of Regulation 298 under the Education Act, R.S.O.1990, c.E.2.

[2] For the reasons that follow, I would dismiss this application for judicial review as the arbitration award was reasonable.

Factual Background

[3] Kim Remus and Karen Edwards are both teachers at Beaver Brae Secondary School (“Beaver Brae”) in Kenora, Ontario. As a result of declining enrollment following the 2012-2013 academic year, the Board was faced with losing six full-time teaching positions for the 2013-2014 academic year. The Board acknowledged that it retained Ms. Remus, a junior teacher, over Ms. Edwards, a more senior teacher, in its 2013-2014 academic year. However, it argued that its decision was justified by the particular skills and experience possessed by Ms. Remus, which it says that more senior teachers lacked, to teach the Community Life Skills course (“CLS”) that it provided at Beaver Brae.

[4] In the 2013-2014 academic year, Ms. Remus exclusively taught CLS, a non-credit “sub-program” of special education for low-verbal and non-verbal students. The CLS course required a full-time teacher and included education in both American Sign Language (“ASL”) and Picture Exchange Communication System (“PECS”). ASL is used by both deaf communities and also by people with disabilities, including those with no-verbal or low-verbal abilities. ASL utilizes visual finger and hand signals together with facial and phonemic components to communicate. PECS is a form of augmentative communication, for children with communicative, physical or cognitive disabilities, including autism. PECS uses picture symbols of objects to convey both simple and more complex messages.

[5] The CLS course was developed in 2010 by Ms. Remus and two other teachers who were no longer teaching at Beaver Brae in the 2013-2014 year. The CLS course was designated as a special education course, not as a course that required an additional qualification for teaching students who are deaf or hard of hearing or proficiency in ASL. ASL and PECS were two of a non-exhaustive variety of communication modes: besides ASL and PECS, eight different communication modes were identified in the course manual as appropriate for the CLS course, including but not limited to Braille, total communication (using a combination of sign and speech), voice output devices, computer technology targeting communication, and reading and writing, whose use was dependent upon each student’s specific needs and abilities.

[6] In the 2013-2014 year, Ms. Remus had six students in the CLS course, all of whom were either low-verbal or non-verbal. One of her central tasks was to teach these students ASL and PECS and/or other communication modes in order to expand their learning and communication abilities. Acquiring these tools enabled the students to productively learn during the teaching day, become more independent when navigating the school, and to better communicate with each other and with their teachers.

[7] Clinton Bruetsch was the principal at Beaver Brae who made the decisions with respect to Ms. Remus and Ms. Edwards for the 2013-2014 academic year. He testified at the grievance hearing that he took into account that there were at least nine teachers at Beaver Brae who were senior to Ms. Remus and possessed the Ontario College of Teachers (“OCT”) qualifications to teach special education. However, he stated that, in his view, none of these teachers was qualified to teach the special education CLS course to the high-needs students because they lacked any training in ASL and PECS. Mr. Bruetsch would occasionally sit in on Ms. Remus’s class. He stated that she and several teachers’ assistants would regularly utilize ASL and PECS as teaching communication tools for some of the students. In his view, having training and skills in these two communication modes was important to the success of the CLS course because of the predominance of non-verbal and low-verbal students. As well, Mr. Bruetsch explained that many of these senior teachers, although qualified in special education, had taught for a number of years in other areas and were not interested in being re-assigned to a special education course. As much as possible, he wanted to honour a teacher’s instructional preferences for courses and programs. Finally, he was concerned about the reaction of the parents of the students in the CLS course: if he assigned a teacher who could not communicate through ASL and/or PECS, he would have to answer to frustrated parents and anxious students.

[8] Ms. Remus possessed OCT qualifications in Special Education, Part 1; Special Education, Part 2 and Special Education, Specialist. Her special education qualifications as laid out in the Certificate of Qualification registered with the OCT were the same as five of the other more senior teachers. Four other more senior teachers possessed at least the first level of qualifications for special education, which is the minimum qualification required to teach the CLS course.

[9] In addition, Ms. Remus had received a total of five certificates from various training sources to complement her special education qualifications. However, she did not possess an OCT recognized qualification for ASL and her certificates in ASL and PECS were not recognized by the OCT. Her Certificate of Qualification and Designation did not contain any recognition of a special education qualification for teaching students who are deaf or hard of hearing via ASL communication, based on her experiential teaching of the CLS course for 2 ½ years by the end of the 2012-2013 school year.

Relevant Collective Agreement Provisions and Legislative Framework

[10] Article 31 of the parties’ Collective Agreement in effect from September 1, 2008 to August 31, 2014 entitled “Release of Surplus Staff”, sets out the process that the Board and its representatives were mandated to follow where a school has more teachers currently employed than are needed to teach in the following school year. The specific language at issue in the grievance was found in Article 31.03(b):

31.03(b) If further reductions in the staff are necessary, teachers will be placed on a school surplus list according to seniority subject to the following:

Where the Principal has made every effort to staff the school using the current qualifications (31:01-3) of the staff to cover the program and is not able to do so by omitting the junior most teacher(s) on the seniority list, the Principal must then omit the next teacher(s) on the seniority list, replace the junior teacher(s) and once again make every effort to staff the school using the staff and their current qualifications (31:01-3)…

Article 31.01-3, referenced in Article 31.03(b), contained the following definition of “current qualifications”:

3. Current qualifications is defined as the qualifications in accordance with The Education Act and Regulations and The Ontario College of Teachers Act and Regulations.

[11] Under the Ontario College of Teachers Act, 1996, S.O. 1996, c.12 and its Regulations, the OCT, the regulatory body for the teaching profession in Ontario, requires that a teacher possess “current qualifications” in a particular subject/grade level in order to teach curriculum courses falling within that subject or grade level. In order to earn an OCT qualification, a teacher must complete prescribed courses offered by an accredited post-secondary institution approved by the OCT. Once this coursework is complete, the OCT will formally recognize the qualification on a teacher’s “Certificate of Qualification and Registration”.

[12] S. 19(1) and (2) of Regulation 298 to the Education Act provide:

19(1) In assigning or appointing a teacher to teach in a division or to teach in a subject in a school, the principal of the school shall have due regard for the provision of the best possible program and the safety and well-being of the pupils.

(2) No teacher shall be assigned or appointed to teach except in accordance with the qualifications recorded on his or her certificate of qualification and registration or as otherwise provided in this Regulation…

The Board’s Decision

[13] The Arbitrator heard evidence and argument during a six-day hearing. In lengthy reasons he analyzed the evidence, the relevant collective agreement provisions, the legislative framework and applicable caselaw. He concluded that the Board should have assigned one of the nine more senior teachers to teach the CLS class (which would have had the effect of Ms. Edwards retaining her full-time teaching status) in order to preserve the seniority rule and to honour the requirements in s. 19 of Regulation 298 to provide the “best possible program”, with due regard for the “safety and well-being of the students.”

Standard of Review

[14] The parties agree that the appropriate standard of review is reasonableness. Decisions of labour arbitrators have long been recognized as attracting significant deference from the courts.[^1] The Supreme Court of Canada has held that labour arbitrators have broad mandates flowing from statutory and contractual authority, as well as from their “distinctive role in fostering peace in industrial relations.”[^2] When applying a reasonableness standard, the court considers whether the decision-making process of the tribunal was justified, transparent and intelligible and whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law. Importantly, the reasonableness standard is deferential, recognizing that certain questions coming before administrative tribunals do not lend themselves to one specific particular result but rather to a number of possible, reasonable outcomes.[^3]

Issues

[15] The Board submits that Arbitrator Lynk made reviewable errors by:

(i) failing to articulate in an intelligible, transparent and justifiable way how the School Principal erred in making teacher assignments for the 2013-2014 academic year in the face of uncontroverted evidence of the Principal’s meticulous and reasoned approach;

(ii) reaching an unreasonable result by concluding, in essence, that teachers without a basic ability to communicate with students could be put in a position to teach those students; and

(iii) failing to exercise jurisdiction by making requisite factual findings, or any factual findings at all, to what extent ASL and PECS are an essential qualification in teaching the CLS course in question.

[16] In the alternative, the Board submits that it is unreasonable to conclude that any teacher with OCT qualifications in special education can provide the “best possible program” to non-communicative students in a specially designed course.

The Arbitrator’s Interpretation of Article 31.03(b) of the Collective Agreement was Reasonable

[17] The Board submitted that its decision to retain Ms. Remus over a more senior teacher was justified by Ms. Remus’s particular skills and experience to teach the CLS course which more senior teachers lacked and that its decision was justified by the statutory obligation to provide the “best possible program” for the CLS program.

[18] In interpreting Article 31.03(b) of the collective agreement, Arbitrator Lynk noted that both parties had agreed that the dominant consideration in determining surplus order was seniority. In holding that rules relating to seniority must be given a liberal interpretation with any exceptions to such rules being narrowly construed, Arbitrator Lynk relied on well-established jurisprudence from the Supreme Court of Canada that seniority rights are “one of the most important and far-reaching benefits” available to unionized employees.[^4]

[19] Applying these interpretative principles to Article 31.03(b), Arbitrator Lynk found that it was only where a junior teacher possessed “current qualifications” that a senior teacher lacked for a required area of teaching that a school principal would be entitled to retain the junior teacher under the narrow exception set out in Article 31.03(b). He concluded that since “current qualifications” were defined in reference to the Ontario College of Teachers Act and its Regulations, only OCT qualifications could be considered under this provision.

[20] I do not agree with the Board’s submission that this was unreasonable or that the arbitrator did not point to a specific fault in Mr. Bruetsch’s reasoning. Arbitrator Lynk found that given the importance of seniority in labour arbitration law and in this collective agreement, insufficient steps were taken when exploring the gamut of reasonable course-assignments scenarios for Ms. Edwards before the decision to surplus her was made. While acknowledging that Mr. Bruetsch honestly and in good faith believed that Ms. Remus was the best fit for the CLS course, the Arbitrator held that the following flaws occurred in the decision to retain her. Assuming the two available exceptions to the seniority rule - mutual agreement and a temporary letter of approval - were available in this particular surplusing situation, neither of them was triggered by the Board. As well, while the Board is directed by s. 19(1) of Regulation 298 to provide the “best possible program”, keeping in mind “the safety and well-being of the pupils”, s. 19(1) is required to be read in conjunction with s. 19(2), and the Resource Guide which serves as a map to the language of the Education Act and its regulations on staffing and assignment questions.

[21] Teaching Assignments in Ontario Schools: A Resource Guide (the “Resource Guide”) is produced by the Ministry of Education. It is a plain-English restatement of the relevant statutory scheme which the Arbitrator found was broadly accepted by the industrial relations parties in the public education sector and was relied upon in this case by both parties. It explains how s. 19(1) and (2) are to be read and work together - namely that a teacher’s qualifications are an indication that he or she has the knowledge and skills needed to provide the best possible program in a particular subject.

[22] Arbitrator Lynd went on to hold that Ms. Edwards would have been able to teach courses within her designated qualifications, past experience and competency that had been assigned to some of the nine more senior teachers who possessed qualifications in special education, one of whom should have been assigned to teach the CLS course. He held that applying the primary consideration of surplusing by seniority in a complementary fashion to the statutory factors led to the conclusion that Ms. Edwards was laid off out of seniority in a manner contrary to the collective agreement and the applicable law. I find nothing unreasonable in the Arbitrator’s approach which was intelligible, transparent and justifiable.

The Award was not Unreasonable because it left Teachers unable to Communicate with Students in a Position to teach those Students

[23] The Board argued that it was unreasonable to conclude that any teacher with special education qualifications can provide the best possible program to non-communicative students in a specially designed course. If teachers cannot speak to the students because they lack ASL and PECS, the Board argued, they cannot provide the best possible program.

[24] The evidence of the principal, Mr. Bruetsch, was that having training in ASL and PECS was important to the success of the CLS course because of the predominance of non-verbal and low-verbal students and that Ms. Remus and the teaching assistants would regularly utilize ASL and PECS as teaching communication tools for some of the students. The Arbitrator found as follows:

• that the CLS course was designated as a special education course for high- needs students; it was not designated as an ASL course.

• Neither Ms. Remus nor any of the other nine more senior teachers with special education qualifications hold any OCT-designated qualifications in ASL.

• Ms. Remus’s certificates in ASL and PECS were not recognized by OCT.

• Ms. Remus’s OCT Certificate of Qualification and Designation did not contain any recognition of a special education qualification for teaching students who are deaf or hard of hearing via ASL communication, based on her experiential teaching of the CLS course.

• By the standards that a school board must consider and apply in a surplusing situation, Ms. Remus’s special education qualifications to teach the CLS course were the same as any of the other nine Beaver Brae teachers and her seniority was junior to all of them, as it also was to Ms. Edwards.

• ASL and PECS were two of a non-exhaustive list of eight different communication modes identified in the course manual as appropriate for the CLS course.

• Ms. Remus was not called as a witness during these proceedings and the Arbitrator found that therefore he had no substantive evidence before him as to how much she utilized or relied upon each of the eight communication modes in her CLS classroom.

[25] There was no evidence that the other nine Beaver Brae teachers who were senior to Ms. Remus lacked a basic ability to communicate with the students in the CLS course. I reject the Board’s submission that it was unreasonable to conclude that any teacher with special education qualifications can fulfill the obligation to provide the best possible program to non-communicative students in a specially designed course.

The Arbitrator’s Interpretation of the “Best Possible Program” Objective was Reasonable and Consistent with the Jurisprudence

[26] The Board asserts that Arbitrator Lynk “misapprehended” a key issue in the case: the best possible program. It submits that s. 19(1) of Regulation 298 to the Education Act provides no exception for seniority. It argues that CLS is a specified program at Beaver Brae which is part of the curriculum required to be taken by students. It argues that the reality was that Ms. Remus was the best qualified to teach the course and none of the other nine teachers qualified to teach special education had the ability to use ASL or PECS and had no interest in teaching the course.

[27] Arbitrator Lynk points out in his decision that it is only where terms of a collective agreement clearly conflict with legislation that the latter can render the former inoperative because of legislative supremacy. In this case, he found there was no conflict between Article 31.03(b) and the school principal’s obligation under s. 19(1) and the obligations under each requirement should be interpreted as complementary. In other words, ensuring that the most senior teachers are retained to teach courses within their OCT qualifications is one way of achieving the objective set out in s. 19(1). In coming to this conclusion, Arbitrator Lynk considered Arbitrator MacDowell’s recent award in Ontario Secondary School Teachers’ Federation v. Hamilton-Wentworth School Board[^5]. He found that Hamilton-Wentworth addressed similar surplus and seniority language, and also dealt with a school board asserting the right to retain a junior teacher in a surplus situation based on a non-OCT credential. He concluded that Hamilton-Wentworth persuasively determined the interplay between collective agreements and statutory requirements in surplusing situations in the public education industrial relations milieu in Ontario. Although factually distinct, Arbitrator Lynk determined that his own analysis should draw on the following legal principles set out by Arbitrator MacDowell:

(1) Although legislation is supreme, in an industrial relations setting, legislation and collective agreements should be read as complementing one another, unless there is an obvious clash.

(2) The Resource Guide explicitly expresses the complementary nature of ensuring teachers are qualified in the subjects they teach and providing the “best possible” program: a teacher’s qualifications are an indication that he or she has the knowledge and skills to provide the best possible program.

(3) Canadian Courts will not set aside or ignore collective agreement requirements around seniority unless there is “a clear collision with a statute.”

(4) With respect to providing the “best possible program”, the use of the word “possible” implicitly recognizes limitation, including those that emerge from the statutorily rooted and Charter-protected process of collective bargaining.

(5) There is no legal principle [in s. 19(1)] requiring an arbitrator to interpret controversial Collective Agreement language in a manner that best promotes the employer’s objectives even if they are statutorily prescribed.

(6) The Education Act and the Ontario College of Teachers Act create a mandatory connection between a teacher’s qualifications as recorded on their OCT certificate and the subjects they can be assigned to teach. This is subject to only limited exceptions.

(7) In preparing a school timetable, principals can be constrained by collective agreement language to which their employer has agreed which requires surplus decisions to be made by seniority. Exceptions to that rule should be read narrowly.

[28] I reject the Board’s submission that the Arbitrator’s reliance on Hamilton-Wentworth was unreasonable. Arbitrator Lynk was clear that although it was factually distinct, the differences in the evidentiary context are immaterial to the precedential value of Hamilton-Wentworth for this case. He relied on Hamilton-Wentworth for its summary of the legal principles underlying the ultimate interpretive question before him, given that both cases involve the relevant rules in a surplusing/lay-off/downsizing situation, the application of seniority, the meaning of “current qualifications” and the interplay between legislation and the governing collective agreement. The law is clear that arbitrators should follow arbitral precedents dealing with identical or substantially similar issues unless the decision is “clearly wrong.”[^6]

Arbitrator Lynk exercised his Jurisdiction to make all necessary Factual Findings

[29] The Board argues that Arbitrator Lynk failed to exercise his jurisdiction to make findings about whether skills in ASL and PECS were required to teach the CLS class. It submits that this issue was squarely before the Arbitrator and it was necessary to make this determination because of the Board’s position that skills in ASL and PECS were necessary to provide for the best possible program and only Ms. Remus was qualified in those skills and could provide the best possible program.

[30] I find no merit to this argument. The essential issue before Arbitrator Lynk was what “qualifies” a teacher to teach a particular course. Based on the evidence and existing jurisprudence, Arbitrator Lynk found that having OCT qualifications in a particular subject or program area means a teacher is qualified to teach that course. I find nothing unreasonable in that determination. The qualification for the CLS course was special education, not an additional qualification for teaching students who are deaf or hard of hearing or proficiency in ASL. Ms. Remus did not hold any OCT qualifications beyond those that nine other more senior members of the teaching staff held. It was not necessary and would be inappropriate for the arbitrator to supplement the statutory scheme by opining with respect to what additional skills are required to teach courses.

Conclusion

[31] I find that Arbitrator Lynk’s decision-making process was justified, transparent and intelligible and that the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law. Accordingly, for the reasons set out above, the application for judicial review is dismissed. Costs to the respondent OSSTF fixed at $7500 as agreed by the parties.

Backhouse J.

I agree _______________________________

Warkentin R.S.J.

I agree _______________________________

Aitken J.

Released: December 19, 2019

[^1]: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 68; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, at para. 42; British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2014 SCC 70, at para. 1.

[^2]: Nor-Man, supra, at paras. 47-49.

[^3]: Dunsmuir, supra, at para. 47.

[^4]: Health Services & Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 130.

[^5]: Ontario Secondary School Teachers’ Federation v. Hamilton-Wentworth School Board [2016] O.L.A.A. No. 391).

[^6]: Toronto (City) v C.U.P.E., Local 79 (1999), 81 L.A.C. (4th) 315, at para. 72.