2022 ONSC 5887
DIVISIONAL COURT FILE NO.: 683/21
DATE: 20221026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sweeny R.S.J., D.L. Corbett and Nishikawa JJ.
BETWEEN:
Ontario English Catholic Teachers’ Association
Applicant
– and –
Ontario Catholic Schools Trustees’ Association, the Crown in Right of Ontario (Ministry of Education), and Larry Steinberg
Bernard Hanson, for the Applicant
Eric Roher and Morgan Westgate, for the OCSTA
Ferina Murji and Robert Boissonneault for the Ministry of Education
Respondents
HEARD: June 1, 2022
Overview
[1] The Applicant, Ontario English Catholic Teachers’ Association, brings an application for judicial review of the preliminary issue decision of Arbitrator Larry Steinberg (the “Arbitrator”) dated July 21, 2021 (“Decision”). In the Decision, the Arbitrator concluded that he lacked jurisdiction over aspects of OECTA’s grievance alleging violations of the preparation, planning and supervision terms of the collective agreement (the “PPS provisions”). The Decision turned on the Arbitrator’s finding that the PPS provisions are not central terms, within the meaning of the School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5 (the “SBCBA”)
[2] In its application, OECTA takes the position that the Decision is unreasonable because the PPS provisions are central terms. OECTA submits that the Decision should be set aside and that its grievance should be remitted to a different arbitrator for determination.
[3] The sole issue in this application is whether the Arbitrator’s finding that he lacked jurisdiction over the grievance because the PPS provisions are not “central terms” is unreasonable. For the reasons that follow, I find that the Decision is reasonable.
Background
The Parties
[4] The Applicant, OECTA, is the legal bargaining agent for English Catholic school teachers in all of the local bargaining units across the province.
[5] The Respondent, OCSTA, is the representative organization of 29 local English Catholic district school boards and is engaged in collective bargaining on their behalf at the provincial level.
[6] The Respondent, the Crown in Right of Ontario (Ministry of Education) (“Ontario”), participates in central bargaining, as required by the SBCBA, but is not entitled to participate in local bargaining.
The Statutory Framework for Collective Bargaining in the Education Sector
[7] The SBCBA established a system of two-tier collective bargaining in the education sector in Ontario. As a result of the SBCBA, certain matters are bargained at central tables between the designated bargaining agents (in this case, OECTA and OCSTA) and Ontario, as a participant. The remaining matters are left to be negotiated at local tables between the employee bargaining agent and individual school boards. Ontario is not involved in local bargaining.
[8] The rationale behind the two-tier system was to establish a centralized collective bargaining process to address the anomaly created when Ontario became the exclusive funder of public education but played no formal or direct part in bargaining: Ontario English Catholic Teachers’ Association v. The Crown in Right of Ontario, 2019 117266 (ON LRB), at para. 7.
[9] Subsection 2(1) of the Act defines “central terms” and “local terms” as follows:
“central terms” means, in relation to a collective agreement, the terms and conditions of the collective agreement that are determined through, or in connection with, central bargaining;
“local terms” means, in relation to a collective agreement, the terms and conditions of the collective agreement that are not central terms[.]
[10] The parties at the central table are required to meet and determine the matters to be included in the scope of central bargaining: SBCBA, ss. 24 and 28. The parties are not, however, required to bargain or negotiate all matters included in the scope of central bargaining. The central parties may determine the matters that they negotiate from the list of scope issues. Matters that are not agreed to be within the scope of central bargaining are local table issues: SBCBA, s. 27.
[11] Once bargaining is completed, the parties enter into a memorandum of settlement of central terms which is not effective until it is ratified in accordance with the SBCBA, which includes agreement by Ontario: SBCBA, s. 39(1). Similarly, the school boards and employee bargaining agents enter into memoranda of settlement of local terms, which are also not effective until ratified in accordance with s. 39(2) of the SBCBA. The collective agreement takes effect once both sets of terms have been ratified.
[12] The terms and conditions negotiated centrally are referred to as Part A of the collective agreement and are binding on all school boards and the employees represented by the employee bargaining agent. The terms agreed to through local bargaining are referred to as Part B of the collective agreement. As a result, Part A, containing the central terms, will be uniform across all of the school boards represented by a single employer bargaining agency. The local terms contained in Part B may vary significantly.
[13] Pursuant to s. 43(1) of the SBCBA, if either party to the central terms alleges a difference between them arising from the interpretation, application or administration of any central term, the dispute can be referred to arbitration. Subsection 43(5)2 permits a central arbitrator to interpret and apply local terms, but only “to the extent necessary for the purpose of resolving a difference respecting any central terms at issue in the arbitration.” Under s. 43(5)2, Ontario has a statutory right to participate as an intervener in central arbitration.
The Scope Agreement and the Memorandum of Settlement
[14] On May 21, 2019, OECTA provided notice to bargain to OCSTA and Ontario.
[15] On August 8, 2019, the central parties concluded an agreement determining the scope of bargaining at the central table (the “Scope Agreement”). They agreed that “supervision and on-calls” and “preparation and planning time provisions” were within the scope of central bargaining. They also agreed that local bargaining would not commence until the central terms memorandum of settlement (the “MOS”) was ratified.
[16] The MOS of central terms was executed by OECTA, OCSTA and Ontario on March 12, 2020. The MOS and Appendix I form the central terms for 2019-2022.
[17] The following terms of the MOS are relevant to the parties’ dispute:
The collective agreement shall consist of two parts. Part “A” consists of provisions respecting Central Terms. Part “B” consists of provisions with respect to Local Terms and certain Central Terms.[^1]
The terms herein, and in the accompanying Appendix I shall form the entirety of the central terms of the collective agreement and any directions to local Parties with respect to centrally bargained issues. Exclusive of matters relating to class size, where a matter was agreed as a central item and no new collective agreement language was agreed to, any existing collective agreement language from the 2014-2017 agreements, and extension thereof, including Letters of Understanding/Agreements having application during the term of that 2014-2017 collective agreement and the 2017-2019 extension agreement, shall continue in force and effect for the term of this Agreement and the matter shall not be available for local bargaining.
[18] By virtue of Article 7 (above), OECTA, OCSTA and Ontario agreed to maintain the status quo with respect to certain matters listed in the Scope Agreement, including those matters for which the corresponding terms are local, as opposed to central. This includes the PPS provisions at issue in OECTA’s grievance, which are in Part B of each school board collective agreement for 2014-2017.[^2]
[19] Article 20.1 of the MOS mirrors the dispute resolution provision in s. 43(1) of the SBCBA limiting the Arbitrator’s jurisdiction to disputes relating to central terms.
The Grievance
[20] The grievance arises from the reopening of schools in Ontario in September 2020. At that time, several issues were raised relating to health and safety, class sizes, supervision, and preparation and planning time. OECTA, OCSTA and Ontario met numerous times in the summer of 2020 to discuss school reopening issues but their discussions were unsuccessful in resolving the issues.
[21] On October 26, 2020, OECTA filed a grievance under the central dispute resolution process provided by s. 43(1) of the SBCBA, alleging that 17 school boards were violating various terms of the collective agreements relating to e-learning, hiring, preparation and planning time, and supervision time. Only the allegations relating to the PPS provisions are at issue in this application. The grievance was referred to the Arbitrator.
[22] Before the Arbitrator, OCSTA and Ontario raised a preliminary objection to the Arbitrator’s jurisdiction, based on s. 43(1) of the SBCBA and Article 20.1, which limit the Arbitrator’s jurisdiction to the interpretation, application or administration of any central terms. OCSTA and Ontario took the position that the Arbitrator lacked jurisdiction to hear and determine the issues pertaining to the PPS provisions because those provisions were local terms and not central terms.
[23] There was no dispute before the Arbitrator that pursuant to s. 43(1) and (5), the jurisdiction of an arbitrator appointed under the central dispute resolution provision is limited to differences arising from the interpretation, application or administration of central terms of a collective agreement.
The Decision
[24] The Arbitrator found that he did not have jurisdiction to consider the alleged breaches because the PPS provisions were local terms and not central terms.
[25] Before the Arbitrator, OECTA relied on the statutory definition of “central terms” in s. 2(1) of the Act, which focuses on whether the terms were “determined through, or in connection with, central bargaining[.]” OECTA submitted that Article 7 of the MOS made the PPS provisions central terms because it maintained the language from the 2014-2017 collective agreements, which included the PPS provisions. OECTA’s rationale was that because Article 7 of the MOS was “determined through” central bargaining, it followed that the PPS provisions were also determined through central bargaining and therefore constituted central terms.
[26] The Arbitrator acknowledged that OECTA’s interpretation flowed from the plain meaning of the words in the SBCBA, but ultimately accepted OCSTA’s and Ontario’s argument that OECTA’s interpretation would run contrary to the scheme and object of the SBCBA. The Arbitrator found that the object of the Act was to bring accountability and coherence to the process of collective bargaining in the education sector by formalizing a system of central bargaining that includes Ontario, and that the central processes are fundamental to the scheme of the SBCBA.
[27] The Arbitrator found that OECTA’s interpretation would yield the illogical result that any matter on the scope list but that is found in local agreements would be classified as a central matter if no language was negotiated, even if the central parties never intended it to be a central term and even if they deliberately decided not to include it as a central term. The Arbitrator concluded that this interpretation would undermine the certainty required by the statutory scheme in delineating central and local terms.
[28] The Arbitrator further found that it was not the substantive PPS provisions that were “determined through” central bargaining but, rather, the status quo agreement embodied in Article 7 itself. The effect of Article 7 was that the existing PPS provisions remained unchanged – it did not make them central terms.
[29] The Arbitrator upheld the preliminary objection raised by OCSTA and Ontario and determined that he did not have jurisdiction over those aspects of the grievance relating to the PPS provisions.
The Parties’ Positions
[30] OECTA relies on three principal arguments to support its position that the Arbitrator’s finding that he lacked jurisdiction is unreasonable and unjustified:
- In concluding that the PPS provisions are not central terms, the Arbitrator failed to follow the rules of statutory interpretation. OECTA submits that the Arbitrator relied on an analysis of the purpose of the legislation to depart from the plain and ordinary meaning of the words used in the statutory definition the words.
- There is no rational line of analysis by which the Arbitrator could have concluded that Article 7 of the MOS was a central term but that the substantive provisions affected by it, including the PPS provisions, were not.
- Relatedly, OECTA submits that the continued effect of the PPS provisions was solely the result of Article 7, which means that they too were agreed to through central bargaining.
[31] OCSTA argues that the Arbitrator’s interpretation of “central terms” and “local terms” was reasonable. By considering the broader context, as he was entitled to do, the Arbitrator arrived at an interpretation that was more consistent with the scheme and purpose of the SBCBA.
[32] Ontario agrees with OCSTA that the Arbitrator’s interpretive approach was reasonable. Contrary to OECTA’s submission, it was appropriate for the Arbitrator to consider whether the consequences of its proposed interpretation would be consistent with legislative intent, which is part of the initial interpretive exercise even where there is no ambiguity as to the ordinary meaning of the words in question.
Analysis
Jurisdiction and Standard of Review
[33] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[34] The parties agree that the standard of review is reasonableness. The Arbitrator is owed a high degree of deference: Hamilton Health Sciences v. Canadian Union of Public Employees, Local 7800, 2021 ONSC 1337, at para. 43 (Div. Ct.)
[35] The reasonableness standard requires that the “reviewing court 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.” Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 99. Those constraints include the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision-maker, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies: Vavilov, at paras. 108-135.
Was the Arbitrator’s Interpretation Reasonable?
[36] On this application, OECTA takes the position that the Arbitrator’s approach in considering the purpose of the Act was unjustified, and that he ought not to have gone any further than the “precise and unequivocal” definition of “central terms” in s. 2(1) of the SBCBA. In support of its position, OECTA relies on the following language from the Supreme Court of Canada’s decision in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10:
It has long been established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. (Internal citations omitted.)
[37] OECTA points to the Arbitrator’s findings that OECTA’s approach to the interpretation of the definition of “central terms” in s. 2(1) was “logical and reasonable based on a fair reading of the definitions of the Act” and that OECTA’s interpretation was “plausible” because it was rooted in the specific language of the collective agreement and the MOS, as well as the plain meaning of the words in the SBCBA. OECTA maintains that the interpretive exercise should have ended there.
[38] OECTA’s proposed approach is not consistent with the principles of statutory interpretation, including as expressed by the Supreme Court above in Canada Trustco. That case does not support OECTA’s submission that where the words of the statutory provision are found to be “precise and unequivocal” those words are determinative. In Ontario (Ministry of Health and Long-Term Care) v. Don Mills Diagnostic Imaging Inc., 2017 ONSC 3980 (Div. Ct.), at para. 8, this court stated as follows:
This Court has stated on numerous occasions that the grammatical and ordinary sense of a section is not determinative and does not constitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon initial reading.
[39] The approach that OECTA proposes would limit the exercise of statutory interpretation to a purely textual analysis removed from the purpose of the legislation and its context. Even where the words are clear and unequivocal, the purpose, context, and statutory scheme remain relevant and must be considered.
[40] OECTA further submits that where the words of the statute are precise and unequivocal, resort to context and purpose cannot lead to a result that differs from that which would apply based on the words of the statute alone. Specifically, OECTA submits that the Arbitrator relied on statutory purpose to frustrate legislative intent.
[41] I disagree. In applying the principle that the words of the Act must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament[,]” the Arbitrator’s approach to interpreting the definition of “central terms” was not only reasonable but correct. In respect of the purpose of the SBCBA, the Arbitrator found as follows:
The purpose of the Act is to bring accountability and coherence to the process of formalizing a system of central bargaining that includes Ontario, which is responsible for education policy and funding of the education system, as part of that process.
[42] After examining the provisions relating to the central/local distinction, the Arbitrator accepted Ontario’s submission that the distinction between central and local terms is the organizing principle at the core of the SBCBA. The Arbitrator found that the “significance of the central processes, and for present purposes central terms, in the scheme of the Act is undeniable and fundamental.” Not only did the legislature intend for central bargaining to produce a common set of central terms applicable to all school boards, but also that there be a clear delineation between central and local terms.
[43] The Arbitrator’s found that OECTA’s interpretation, which involved a “less explicit” determination of what constitutes a central term, would undermine the very certainty intended by the SBCBA, and would dilute the significance of a central term. The Arbitrator’s finding that OECTA’s interpretation would erode the central/local distinction was a reasonable one. Far from frustrating legislative intent, the Arbitrator’s interpretation was consistent with the legislative intent, purpose and context of the SBCBA.
[44] In addition, OECTA’s position neglects the distinction between central terms and central matters. The arbitrator’s jurisdiction is limited to central terms, and does not extend to central matters. Under the SBCBA, “central terms” has a specific meaning that is limited to a term of a collective agreement whose content was determined through, or in connection with, the central bargaining process. By contrast, “central matters” is not defined in the SBCBA, but refers to all matters that fall within the scope of central bargaining, including those matters on which the resulting central terms are silent. Matters included in the scope of central bargaining do not become central terms by virtue of that fact, unless they result terms in the collective agreement. As Ontario submits, whether a matter is bargained centrally or locally ceases to be relevant once bargaining has concluded and cannot be the basis for extending a central arbitrator’s jurisdiction.
[45] OECTA further submits that the Decision is flawed because it is based on a mistaken presumption by the Arbitrator that the terms of the collective agreements continued after their expiry. OECTA’s position is that this mistaken presumption led the Arbitrator to find that the PPS provisions were local terms.
[46] The evidence before the Arbitrator was that no proposals in respect of PPS were exchanged during central bargaining. The MOS setting out the terms of the parties’ agreement on central terms made no reference to PPS. The ratified central terms which constitute Part A of the collective agreement make no reference to PPS.
[47] In addition, the evidence was that Part B of the collective agreements between every school board and OECTA have provisions addressing PPS, including provisions about how violations of the PPS provisions are to be remedied. Because they are agreed to through local bargaining, the PPS provisions can vary significantly between school boards. In other words, there are 29 distinct sets of PPS provisions between OECTA and each local school board. Given the foregoing facts, the Arbitrator’s finding that the PPS provisions were not “determined through, or in connection with, central bargaining” was reasonable.
[48] OECTA’s position was that those PPS provisions, by virtue of having been extended by Article 7 of the MOS, became central terms. To find that those provisions are central terms, however, would lead to an unwieldy result of central arbitration over grievances relating to the actions of local parties, alleging the violations of terms that were bargained between local parties. Moreover, OCSTA and Ontario would be brought into central arbitration when they had no role in the negotiation of the terms or the alleged breaches.
[49] In my view, the Arbitrator’s finding that it was Article 7, which extended the PPS provisions and not the underlying terms, that was agreed to through central bargaining was reasonable. It is Article 7 that was “determined through, or in connection with, central bargaining[.]” The PPS provisions remain unchanged in Part B of the collective agreement and did not become central terms by virtue of having been extended. A finding that the PPS provisions were central terms would lead to the illogical result of including in central terms subject matter that was agreed to through local bargaining.
[50] The Arbitrator interpreted “central terms” in a manner consistent with their grammatical and ordinary sense harmoniously with the scheme of the SBCBA, the object of the Act, and the intention of Parliament. The Arbitrator gave extensive reasons for his conclusion that the PPS provisions were not central terms and that he therefore lacked jurisdiction over the grievance. The Arbitrator took into consideration the governing statutory scheme, the principles of statutory interpretation, the evidence before the Arbitrator, the parties’ submissions, the past practices and decisions of the administrative body, and the potential impact of the Decision on the parties. The Decision thus bears the hallmarks of reasonableness, in terms of justification, transparency and intelligibility.
Conclusion
[51] The application for judicial review is dismissed. The parties agreed that the successful party would not seek costs. No costs are ordered.
“Nishikawa J.”
I agree: “Sweeny R.S.J.”
I agree: “D.L. Corbett J.”
Released: October 26, 2022
2022 ONSC 5887
DIVISIONAL COURT FILE NO.: 683/21
DATE: 20221026
Ontario English Catholic Teachers’ Association
Applicant
– and –
Ontario Catholic Schools Trustees’ Association, the Crown in Right of Ontario (Ministry of Education), and Larry Steinberg
Respondents
reasons for decision
Released: October 26, 2022
[^1]: The reference to “certain Central Terms” is to the central parties’ agreement that, despite agreeing to certain terms at the central table, certain local terms would be maintained if they were more generous than the negotiated central terms.
[^2]: In January 2017, OECTA, OCSTA and Ontario executed an agreement extending the duration of the collective agreements for two years to August 31, 2019.