CITATION: Elementary Teachers’ Federation of Ontario v. Bluewater District School Board, 2021 ONSC 631
DIVISIONAL COURT FILE NO.: 580/19 DATE: 20210203
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Trimble, Kristjanson and Nieckarz JJ.
BETWEEN:
Elementary Teachers’ Federation of Ontario
Applicant
– and –
Bluewater District School Board
Respondent
-and-
Attorney General of Ontario
Howard Goldblatt and Charlene Wiseman for the Applicant
Michael A. Hines for the Respondent
Christopher P. Thompson for the Attorney General of Ontario
HEARD (by videoconference): October 15, 2020
Kristjanson J.
Overview
[1] The issue on this judicial review is whether the labour arbitrator’s statutory interpretation of the cap on kindergarten class sizes under O. Reg. 132/12: Class Size, a regulation under the Education Act, R.S.O. 1990, c. E.2, was reasonable. It is common ground that in the 2017/18 school year, the Regulation established cap of 30 students in kindergarten classes, subject to the application of certain flex factors. Enrolment in two kindergarten classes at a school in the respondent Bluewater District School Board increased above the cap in January and February. The applicant union, the Elementary Teachers’ Federation of Ontario (ETFO) commenced a grievance. Labour arbitrator Jesse Nyman dismissed ETFO’s grievance. He found that the disputed Regulation requires the School Board to determine class size caps for the school year only at a specified determination date in September: Elementary Teachers’ Federation of Ontario v. Bluewater District School Board, 2019 90975 (ON LA). Kindergarten class sizes could increase during the school year after that date.
[2] The respondent School Board argues that the arbitrator reasonably interpreted the Regulation as providing that the cap on kindergarten class size is to be determined on one day in September– “one and done” - after which the class sizes may fluctuate. On the other hand, the applicant union, ETFO, argues that the cap on kindergarten class size is a “continuing obligation”, kindergarten class sizes cannot exceed the cap at any point during the school year, and the arbitrator’s contrary interpretation is unreasonable.
[3] ETFO requests an order quashing and setting aside the decision, a declaration that kindergarten class size limits cannot be exceeded on or after the determination date, or, in the alternative, an order remitting the grievance to be determined by a different arbitrator.
[4] The standard of review is reasonableness. The court’s role is to review the arbitrator’s reasons to ensure the decision rests on an internally coherent chain of reasoning, is justified considering relevant legal and factual constraints, and displays the requisite qualities of justification, transparency and intelligibility. The arbitrator’s decision was reasonable. The application for judicial review is dismissed.
Factual Background
[5] ETFO, is the collective bargaining unit representing teachers employed by the respondent School Board. In September 2017 there were 30 students or fewer in two kindergarten classes. In January, however, the class sizes increased to 36 and 35 students, and in February, to 35 and 37 students. ETFO argues that these increases contravened newly enacted amendments to Regulation 132/12, which provided that kindergarten classes were capped at 30 students.
Legislative Background
[6] Historically, kindergarten class sizes in Ontario have been prescribed by regulation, which has evolved significantly over time. Before 2012, school boards would have complied with the Education Act, R.S.O. 1990, c. E.2 (the “Act”) and regulations so long as their average class sizes conformed to the required average class sizes on October 31. Thus, class sizes could increase beyond the allowed averages later in the year so long as the averages conformed to the Act on October 31.
[7] In 2012, Regulation 132/12 came into force and removed the October 31 class size requirement. Instead, s. 3(1) of Regulation 132/12 directed school boards to pick a date between September 1 and September 30 “as the date as of which class sizes in elementary schools will be determined.” This is known as the determination date. As with the previous October 31 requirement, class sizes could increase after the determination date without breaching the Act or Regulation 132/12, so long as the class sizes agreed with the Regulation on the determination date.
[8] Regulation 132/12 underwent a series of amendments between 2012 and 2017. This application involves the 2017 version of the Regulation. In 2017, Regulation 132/12 was amended to include s. 2.1 and what was s. 2.2 (now revoked). Sections added by the 2017 amendments to the Regulation are underlined; other sections are included for context.
[9] Under the marginal heading “Elementary School Classes – Full day Junior Kindergarten and Kindergarten,” the Regulation provides:
Class size average
- The average size in each school year of the classes of a board that include one or more pupils enrolled in junior kindergarten or kindergarten shall not exceed 26.
Class size limit
2.1 (1) The class size limit of a class of a board that consists only of pupils enrolled in junior kindergarten and kindergarten is 29.
(2) In each school year, 10 per cent or less of the classes of a board that have only pupils in junior kindergarten and kindergarten may have a class size that exceeds the class size limit, but that does not exceed 32, in any of the following circumstances:
Exceeding the class size limit would reduce the number of classes that have both a pupil in junior kindergarten or kindergarten and a pupil in grade 1.
Not exceeding the class size limit would negatively affect a program, such as French immersion.
In respect of a school year during the period beginning in the 2017-2018 school year up until and including the 2021-2022 school year, purpose built accommodation is not available.
2.2 (1) In the 2017-2018 school year, the class size limit under section 2.1 is 30, not 29 (revoked O.Reg. 245/17, s.1)
[10] Section 3 of the Regulation, under the heading “Class size determination”, remained in effect when ss. 2.1 and 2.2 were enacted:
- (1) Each board shall select for each school year a date not earlier than September 1 and not later than September 30 as the date as of which class sizes in elementary schools shall be determined.
(2) The average size in a school year of a board’s full day junior kindergarten and kindergarten classes shall be determined for the school year, as of the date selected under subsection (1), as follows:
Determine the number of pupils enrolled in full day junior kindergarten or kindergarten classes.
Determine the number of full day junior kindergarten and kindergarten classes in the schools.
Divide the number determined under paragraph 1 by the number determined under paragraph 2.
(4) For greater certainty, the purpose of the determination of the average size of a board’s full day junior kindergarten and kindergarten classes under subsection (2) is to ensure that the requirement set out in section 2 is met.
[11] Under the heading “Elementary School Classes – Other Primary”, the Regulation provides:
Class size limit
- (1) A class to which this section applies shall have 23 or fewer pupils.
(2) In each school year, at least 90 per cent of the classes described in section 4 shall have 20 or fewer pupils.
Class size determination
- The size in a school year of the classes of a board to which this section applies shall be determined for the school year as of the date selected under subsection 3 (1).
Elementary School Classes — Grades 4, 5, 6, 7 and 8
Class size average
- (1) The average size in each school year of the classes of a board that include one or more pupils enrolled in any of grades 4, 5, 6, 7 or 8 shall not exceed 24.
(1) Class size determination
- The average size in a school year of the classes of a board that include one or more pupils enrolled in any of grades 4, 5, 6, 7 and 8 shall be determined for the school year, as of the date selected under subsection 3 (1), as follows:……
Elementary School Classes — Mixed Grades
Class size limit
- (1) If a class includes one or more pupils enrolled in the primary division and one or more pupils enrolled in grade 4, 5, 6, 7 or 8, the class shall have 23 or fewer pupils….
Class size determination
- (1) The size in a school year of a board’s classes described in subsection 9 (1) shall be determined for the school year as of the date selected under subsection 3 (1). …
[12] Annual public reporting requirements on class size are established under section 11 of the Regulation, under the heading “Elementary School Classes – Reporting”:
- (1) By October 31 in each school year, each board shall submit a report for the school year on class size in its elementary schools to the Minister, in a format acceptable to the Minister.
(2) The board shall ensure that, by October 31 in each school year,
(a) copies of the report are available to the public at the head office of the board and at the office of each school of the board; and
(b) a copy of the report is submitted to the chair of the school council for each school of the board.
(3) The report shall include, but is not limited to, information relating to the board’s reliance on the circumstances under subsection 2.1.
The Arbitrator’s Decision
[13] The arbitrator found that section 3(1) of the Regulation establishes a fixed date on which elementary class sizes are to be determined. The section did not distinguish between the calculation of the average class size under s. 2 and the size of a single class under ss. 2.1 and 2.2. The arbitrator looked to other sections of the Regulation in support of this conclusion and reviewed both the legislative evolution and history of the Regulation.
[14] Finding that the School Board did not breach the class size limit established in section 2.1 of the Regulation because the kindergarten classes conformed to the size limits as at the determination date, the arbitrator dismissed ETFO’s grievance.
Issues:
[15] This judicial review raises a single issue: Was the arbitrator’s interpretation of Regulation 132/12 reasonable, in finding that the kindergarten class size limit is to be determined as of the determination date, and class sizes may exceed the cap after that date?
Jurisdiction
[16] Under section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in (1) proceedings for an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
Standard of Review
[17] The parties agree that reasonableness is the standard of review, applying the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[18] When conducting a reasonableness review, the court must begin its inquiry by examining the reasons of the administrative decision maker with “respectful attention”, seeking to understand the reasoning process followed by the decision maker (Vavilov, at para. 84). The reasons should be read holistically and contextually (Vavilov, at para. 97). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99). A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). The reviewing court must be satisfied that the decision does not have a “fatal flaw” in its “overarching logic” and that “there is [a] line of analysis within given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” (Vavilov, at para. 102).
[19] The court on judicial review of statutory interpretation issues must defer to reasonable decisions made by statutory decision-makers, giving effect to the legislature’s intent. As stated by Rowe, J. in Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at para. 40:
The administrative decision maker “holds the interpretative upper hand” (British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895 (S.C.C.), at para. 40). When reviewing a question of statutory interpretation, a reviewing court should not conduct a de novo interpretation, nor attempt to determine a range of reasonable interpretations against which to compare the interpretation of the decision maker. “[A]s reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did” (Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301 (F.C.A.), at para. 28, quoted in Vavilov, at para. 83). The reviewing court does not “ask itself what the correct decision would have been” (Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247 (S.C.C.), at para. 50, quoted in Vavilov, at para. 116). These reminders are particularly important given how “easy [it is] for a reviewing court to slide from the reasonableness standard into the arena of correctness when dealing with an interpretative issue that raises a pure question of law” (New Brunswick Liquor Corp. v. Small, 2012 NBCA 53, 390 N.B.R. (2d) 203 (N.B. C.A.), at para. 30).
[20] The applicant bears the burden of demonstrating unreasonableness, including that any shortcomings or flaws “are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
Analysis
[21] For the reasons below, I find that the arbitrator’s decision was reasonable.
[22] This court must begin with the reasons of the arbitrator – a “reasons first” approach. The issue is whether the arbitrator has shown in his reasons that he was alive to the “essential elements” of statutory interpretation, and his interpretative decision is consistent with the text, context and purpose of the provisions (Vavilov, at para. 120). A reasonable interpretation should “conform to any interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources of law” (Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at para. 42).
[23] The arbitrator’s reasons show that he considered text, content and purpose, as well as the practical implications of his interpretation. The decision bears the hallmarks of justification, transparency and intelligibility.
The Text of the Regulation
[24] The arbitrator considered the wording of sections 2 and 3 of the Regulation and noted that the 30-student class size limit set out in section 2.1, appears on its face to “apply to every day of the year.”: para. 57. Even so, he found that the scope was limited by section 3(1) of the Regulation which provides each board must select “for each school year”, a date between September 1 and 30 as “the date as of which class sizes in elementary schools shall be determined.”
[25] The arbitrator relied on Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 SCR 27, for the proposition that the proper approach to statutory interpretation is to “read the words of the Regulation in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Regulation, the Act, the object of the Regulation and Act, and the intention of Cabinet.” This is the “modern” approach to statutory interpretation, and the proper approach, “because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context” (Vavilov, para. 118). The arbitrator considered the text, context and purpose of section 2.1, the regulatory context, and the legislative evolution and history, and reached a reasonable decision to which this court defers.
[26] The arbitrator found that the grammatical and ordinary sense of the words in s. 3(1) establishes a fixed date on which elementary class sizes are to be determined. The arbitrator found that section 3(1) limited the facially unrestricted class size limits as well as average class sizes to the determination date, and not thereafter.
[27] ETFO argued that the s. 2.1 and s. 2.2 limits must apply beyond the determination date. The focus of the argument before the arbitrator rested on section 3(4) of the Regulation, which states that the average class size is determined on the determination date to ensure compliance with the maximum average class size under s. 2. However, s. 3(4) does not state that it is calculated on that date to ensure compliance with ss. 2.1 and 2.2. ETFO argued that by negative implication, the fact that (the pre-existing) section 3(4) did not apply to the new sections 2.1 and 2.2 showed that those new sections establishing kindergarten class size limits were intended to apply in an unrestricted fashion throughout the school year.
[28] The arbitrator rejected this position. Instead, he found that s. 3(1) clearly states that a school board shall select, “for each school year”, a date in September as of which class sizes are determined. The section does not distinguish between the calculation of the average class size under s. 2 and the size of a single class under ss. 2.1 and 2.2. He found that section 3(1) establishes a general rule on compliance, and carefully explained his view of the purpose of the remaining provisions dealing with kindergarten classes. The arbitrator considered ETFO’s arguments about section 3(4), which is a “for greater certainty” provision. He rejected the negative implication argument advanced by ETFO. He determined that section 3(1) was the operative section which established compliance as of the determination date as compliance for the school year; section 3(4) simply reinforced or confirmed that system. He reviewed other sections of the Regulation dealing with other grades and with reporting and explained how section 3(1) applied similarly to require compliance with class size limits only on the determination date “for each school year”, even though they were not subject to section 3(4). His reasoning was transparent and tenable.
The Context
[29] The arbitrator situated his analysis within the context of the Regulation as a whole, as well as within the context of the legislative evolution and history of the Regulation, consistent with the modern principle of statutory interpretation.
Internal Coherence - Other Class Size Provisions
[30] The arbitrator reviewed his interpretation of section 3(1) against class size restrictions on other grades, showing how the section 3(1) language of “for each school year”, worked in tandem with the other provisions which adopted the section 3(1) limit “for the school year.” He reviewed how the facially unrestricted provision in section 5(1), capping class size in other primary grades to 23 (subject to flex factors), is restricted through section 6, which provides that class size “shall be determined for the school year as of the date selected under subsection 3(1)).” He held that the language -“for each” and “for the”- effectively mirror each other, and section 3(1) establishes the general compliance date rule: para. 70, paras. 23-29. The arbitrator noted the identical structure of sections 2.1 and 3(1) to sections 5 and 6, finding that it would take clear language to show that Cabinet intended a different result, concluding: “No such clear language exists”: para. 72.
[31] ETFO argues that the lack of the words “for the school year” in section 2.1 is fatal to the arbitrator’s decision. I do not agree. The School Board and the Attorney General note that there is a similar parallel structure in other sections establishing class size limits for both individual classes and class averages (sections 7 and 9), and the determination date for determining class size compliance is the section 3(1) date, adopted through sections 8 and 10 of the Regulation. For all elementary classes, section 3(1) is the operative provision setting the “date as of which class sizes in elementary schools shall be determined.”
[32] Throughout his analysis based on the language of the section 2.1 and 3(1) provisions, the arbitrator dealt with the arguments raised by ETFO, and explained his reasoning in cogent and transparent terms.
Internal Coherence with Reporting Provisions
[33] The arbitrator also considered how the competing interpretations fit with section 11 of the Regulation, which imposes a class size reporting requirement as of October 31 each year. Before 2017, school boards had been required to report their compliance with class size limits established by the Regulation, once per year, and only as of the determination date. In 2017, the arbitrator found that section 11(3) was added to the Regulation in 2017 concurrently with the new kindergarten class size limit under section 2.1. That section requires the annual report to include “information relating to the board’s reliance on the circumstances under section 2.1.” This is a reference to the flex factor provisions in section 2.1(2). The arbitrator noted that if the kindergarten size limit applied to each day of the school year, a single report issued on October 31 would have little relevance to the bulk of the school year. He concluded on this point at para. 74:
The fact that the report must specifically include circumstances supporting a School Board’s reliance on factors that would allow it to access the flex factor exceeding the kindergarten class limit in section 2.1(1) simply underscores Cabinet’s intention that compliance with the kindergarten class size limit is determined as of a date earlier than the date when the report is issued. Any other interpretation simply would not make sense.
[34] ETFO argues that “it is only when class sizes increase after the determination date that the relevance of a section 11 report diminishes.” Since their argument hinges on the concept that class size may not increase after the determination date without significant adjustments (i.e., the creation of new classes, splitting of classes mid-year, and so on), they are unable to explain why their interpretation, which would reduce transparency and accountability in reporting to the Minister and the public, is preferable, or why it renders the arbitrator’s conclusion unreasonable.
History and Evolution of the Regulation
[35] The arbitrator analyzed both the history and the evolution of the class size Regulation. As Cromwell J. explained in Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271 at para. 155:
Legislative history and evolution may form an important part of the overall context within which a provision should be interpreted. Legislative evolution refers to the various formulations of the provision while legislative history refers to evidence about the provision’s conception, preparation and enactment.
[36] The arbitrator’s analysis of the evolution of the Regulation provided a useful perspective which informed his decision. This was a reasonable approach. The arbitrator noted that at every milestone in the twenty years of legislative evolution preceding the dispute, “it was uncontroversial” that compliance with all aspects of the class size Regulation only had to be achieved on one specific day early in the school year, “even if those [class sizes or averages] increased later in the school year”: paras. 10, 15, 19, and 21. This was the context within which the 2017 kindergarten class size limits were introduced.
[37] The legislative evolution informed the arbitrator’s interpretation of the text, including the text of section 3(1). As he states in paragraph 73:
…[F]or 20 years prior to the addition of the kindergarten class limits in section 2.1 and 2.2, class sizes in the education sector have been determined as of a fixed day. If Cabinet had intended a departure from this established understanding, it would have been easy to say so.
[38] The arbitrator also reviewed the legislative history leading to the 2017 amendments which added class size limits for kindergarten classes. He found that ETFO and the Board, as well as all other publicly funded teacher bargaining units in Ontario, were parties to a collective agreement covering the period September 1, 2014 to August 31, 2017. Before the expiry of that agreement, the Provincial Government wanted to extend the terms of the agreement for another two years. ETFO and the Government entered discussions about the terms under which ETFO would agree to such an extension.
[39] One of ETFO’s goals in negotiating the terms of the extension was securing a maximum limit on kindergarten class sizes. Before these negotiations, under Regulation 132/12 kindergarten class size caps were determined solely by the school board-wide average. The use of school board-wide average meant that some class sizes in a school board could be above the average and others could be below, if the average across the school board met the average limit. ETFO wanted a definitive cap on all class sizes.
[40] In February 2017, ETFO and the Government entered into an Extension Agreement which extended the collective agreements for another two years, to August 30, 2019. The Extension Agreement recognized that some of the terms required legislative or regulatory amendments. Appended to the Extension Agreement was a Letter of Commitment signed on behalf of the Government. The Letter of Commitment provided that for 2017-2018 school year kindergarten class sizes would be capped at 30, and at 29 the years after, with a flex factor and maximum limit of 32. The arbitrator found that the “temporal scope” of class size limits was not discussed. ETFO believed that the maximum class size applied for the entire school year, not just the determination date, and the Government believed the opposite. He found that the parties “were like two ships passing in the night.”
[41] That said, the arbitrator found the Extension Agreement and Letter of Commitment to be of limited value in interpreting the Regulation. He reasonably found that they were relevant “in that they inform the background context,” but found that this did not assist in the interpretative exercise which required interpretation of the “intention of Cabinet” as expressed in the language of Regulation 132/12.
The Purpose of the Regulation
[42] Considering the above analysis, the arbitrator determined that the purpose of section 3(1) is to establish a date at which all class sizes in elementary schools will be determined, for all purposes.
[43] A school board determines both individual and average class sizes for elementary schools on the determination date. If the elementary class size is below the class size limit on that date, the school board will be in compliance. It will report that compliance publicly under section 11. Thus, the interpretation adopted by the arbitrator allows school boards to measure and report on compliance as at the determination date. Exceeding the class size limit later in the year does not create non-compliance, under the arbitrator’s interpretation.
Summary: Text, Context and Purpose
[44] ETFO argues that there is only one reasonable interpretation of the Regulation and that failing to arrive at that interpretation renders the decision unreasonable. In its argument, ETFO essentially ignores the arbitrator’s analysis and performs a de novo statutory interpretation analysis. A de novo analysis does not constitute reasonableness review, and I decline to follow the approach advocated by ETFO.
[45] In its quest to conduct a de novo analysis, ETFO raises additional arguments relating to statutory interpretation which it argues are dispositive, and many of which were not raised before the arbitrator. The primary argument advanced on this judicial review is that section 3(1) only requires that school boards select a determination date for several different calculations required under other provisions of the Regulation. Where class size limits are to be determined for the school year as of the determination date, this Regulation says so expressly. For example, section 3(2) provides that the average size “in a school year” of kindergarten classes, “shall be determined for the school year, as of the date selected” under section 3(1). The language of “for the school year” is also found in class size limit provisions in ss. 3(2), 3(4), 6, 8 and 10. By contrast, no reference to “for the school year” is set out in section 2.1 governing caps on kindergarten class size. Thus, ETFO argues, there is no language in the Regulation providing that kindergarten caps, once determined on a specific date, can be exceeded after that specific date. Any other interpretation disregards and renders meaningless the difference in language between that applicable to kindergarten caps on the one hand, and the language of the express clauses applicable to other types of class sizes on the other.
[46] ETFO relies on other principles of statutory interpretation, such as the presumption of consistent expression and the rule against tautologies. As noted above, a reasonable statutory interpretation does not require an exhaustive probing of all possible rules and presumptions. These maxims set out prima facie guidelines that may be rebutted, which do not reflect the realities of legislative drafting, and may in any event be outweighed by other competing interpretive considerations.
[47] The arbitrator demonstrated in his reasons that he was alive to the “essential elements” of statutory interpretation – the text, context and purpose of the provision - and demonstrated as well “a sustained effort to discern legislative intent”: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at para. 43.
[48] The arbitrator’s decision is well written and well-reasoned. He applies the modern principle of statutory interpretation. The failure to mention some other rules of statutory interpretation does not reveal any critical omission in the reasoning path. The key question is “whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker”: Vavilov at para. 122. The arbitrator sought to determine the intent of the legislature under the text of the Regulation provisions. He began by examining the ordinary and grammatical meaning of the text of the provisions. He then considered the context of the regulatory provisions, including both evolution and history, and the purpose of the regulatory scheme. His approach yielded a plausible interpretation, which was justified in a transparent manner. He reviewed his reasoning against similar provisions within the Regulation and considered the internal coherence of his interpretation with the reporting requirements in the Regulation. He situated the interpretation within the evolution of twenty years of regulating class size. Examining the administrative decision as a whole, including the reasons provided by the arbitrator and the outcome that was reached, I find that the decision was reasonable.
The Arbitrator’s Decision Reflected Internally Coherent Reasoning
[49] ETFO argues that the arbitrator’s decision is “tainted by a failure of rationality inherent to the reasoning process,” and the decision hinged on an “irrational, fallacious and circular chain of analysis.” But this argument depends on ETFO’s assertions that there is only one way to read the Regulation, and the failure to agree that section 3(1) is merely a date to count students essentially renders the decision irrational.
[50] The arbitrator’s analysis followed a rational and logical line of reasoning. He employed well-established principles of statutory interpretation, engaged with the submissions before him, and drew on his knowledge of the field when considering the practical implications of his interpretation. There is no fatal flaw in rationality or logic.
[51] The task of this court is to determine whether the arbitrator’s decision reveals a “line of analysis…that could reasonably lead the tribunal from the evidence before it to the conclusion at which is arrived”: Vavilov, para. 102. The decision no doubt does so. While ETFO’s interpretation is one possible interpretation, it is by no means the only possible interpretation.
[52] ETFO has not met its burden of demonstrating that the decision is unreasonable; the reasons in no way display a fatal flaw in rationality or logic.
Conclusion
[53] The arbitrator’s decision was reasonable. As a result, the application for judicial review is dismissed.
[54] ETFO is to pay the School Board costs in the agreed upon amount of $10,000, all inclusive. No costs were sought by and none are payable to the Attorney General.
Kristjanson J.
I agree _______________________________
Trimble J.
I agree _______________________________
Niekarcz J.
Date of Release: February 3, 2021
CITATION: Elementary Teachers’ Federation of Ontario v. Bluewater District School Board, 2021 ONSC 631
DIVISIONAL COURT FILE NO.: 580/19 DATE: 20210203
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Trimble, Kristjanson and Nieckarz JJ.
BETWEEN:
Elementary Teachers’ Federation of Ontario
Applicant
– and –
Bluewater District School Board
Respondent
-and-
Attorney General of Ontario
REASONS FOR JUDGMENT
Date of Release: February 3, 2021