Stay Up-to-Date with Education Law

For current commentary regarding a variety of education law issues, please visit and subscribe to our weekly blog: Education Law Blog.

For information regarding upcoming Education Law seminars; please visit our webpage at http://www.millerthomson.com/en/our-services/education-law.

Back to top

Limits to Supervision Time is a “Hard” 80 Minute Cap, for all Teachers

Gillian Tuck Kutarna, Guelph

In a recent arbitral decision, the issue was whether a teacher who has additional responsibilities as a "Teacher in Charge" or "Teacher Administrative Assistant," can be asked to provide more than the 80 minutes per five-day instructional cycle of supervision time allowed under the collective agreement.

Individuals who are chosen for the Teacher in Charge/Teacher Administrative Assistant roles continue their work as classroom teachers, but spend a predetermined portion of each week fulfilling administrative duties.  Such positions are often created in schools which do not have the student enrolment to justify a Vice Principal position, but where the need for some level of additional administrative support is acknowledged.  

As Teachers in Charge/Teacher Administrative Assistants are members of both teacher and administrator groups, at issue was whether they could be assigned their 80 minutes of supervision as teachers, and then additional supervision time in their capacity as administrators.

The union argued that nothing in the language of the collective agreement suggests that teachers abrogate their protected rights under the contract by accepting additional responsibilities as administrators. Thus, the union maintained, teachers with administrative duties were still entitled to the 80 minute cap on supervision duties.  

The school board countered that teachers who accept these positions are given release time from their classroom responsibilities, so that they can assume such administrative duties as are deemed necessary.  Their duties as administrators can include supervision, just as they can for full time administrators.

Moreover, the Board cited the language in the agreement which read “…the maxima of supervision minutes for elementary teachers will be eighty (80) minutes…” (Emphasis added).  It was submitted that the agreement would read “member” rather than “teacher” had the parties intended the limitation to apply to those working outside the classroom.   

Lastly, the Board pointed to the agreement’s specific preservation of all management rights necessary to operate its schools, arguing that the assignment of supervision responsibilities to administrators as needed falls clearly within this function.

Arbitrator Knopf relied on the principles of contract interpretation in finding for the union, stating that clear and unequivocal language would have been necessary to preclude some members from a protection clearly intended for the benefit of their group.  The job titles of "Teachers in Charge" and "Teacher Administrative Assistants" clearly denote that, at all times, these positions are held by teachers who are still within the bargaining unit and who are therefore entitled to the 80 minute cap on supervision as negotiated.

The supervision cap and interpretation of its application to Teacher’s in Charge/Teacher Administrative Assistant may force some school boards to consider appointing Vice-Principals to small schools and requiring them to have considerable teaching duties, on top of their administrative duties.

Back to top

Proposed Amendment to the Employment Standards Act, 2000 to Provide for Family Caregiver Leave

Erik Marshall, Toronto

On December 8, 2011 the Ontario Minister of Labour introduced legislation (Bill 30) that, if passed, would amend the Employment Standards Act, 2000 (the “ESA”) to provide unpaid, job-protected leave of up to eight (8) weeks per year to employees requiring time off work to provide care or support to a family member with a serious medical condition.  According to the Minister of Labour, the purpose of the legislation is to recognize the importance of family and to enable employees to provide care and support to their loved ones without fear of losing their job.

The proposed legislation would build upon and be in addition to the existing Family Medical Leave provisions of the ESA which currently allow for leave to provide care or support to certain individuals if the individual family member has a serious medical condition with a significant risk of death occurring within a period of twenty-six (26) weeks.  The Ontario government has made it clear that it will be calling upon the federal government to extend Employment Insurance to those who take advantage of Family Caregiver Leave, as it generally does for employees currently taking Family Medical Leave under the ESA.

To be eligible for the proposed new Family Caregiver Leave, an employee would be required to have a medical certificate from a qualified health practitioner stating that the employee’s family member has a serious medical condition.  If requested, the employee would then have to produce the medical certificate. The proposed new Family Caregiver Leave would apply to all employees, whether full-time, part-time, permanent or contract, who are covered by the ESA.

If passed, caregivers would be eligible for the Family Caregiver Leave to care for:

• Their spouse.
• A parent, step-parent, or foster parent of the employee or the employee’s spouse.
• A child, step-child, or foster child of the employee or the employee’s spouse.
• A grandparent, step-grandparent, grandchild, or step-grandchild of the employee’s spouse.
• The spouse of a child of the employee.
• The employee’s brother or sister.
• A relative of the employee who is dependent on the employee for care or assistance.

Family Caregiver Leave would have to be taken in periods of entire weeks (a week is defined as seven (7) consecutive days beginning on Sunday and ending on Saturday).  In addition, an employee who wishes to take Family Caregiver Leave must advise his or her employer in writing that he or she will be doing so, and if the employee must begin the leave before advising the employer, the employee shall advise the employer as soon as possible after beginning the leave.

As with other leaves under the ESA, the seniority and length of service credits for employees on Family Caregiver Leave would continue to accumulate during the leave.  Employers providing certain types of benefit plans would have to continue to make their contributions during the leave if the employee continues to pay his or her contributions, if any.  Similarly, employers would be required to reinstate the employees returning from Family Caregiver Leave to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

If this new Family Caregiver Leave legislation is passed, it would be beneficial for school boards to review their current employment contracts, collective agreements, policies and practices to ensure that they are compliant with the new law.  It would also be prudent to inform principals, managers and supervisors of this new development to ensure that they are aware of an employee’s rights with respect to Family Caregiver Leave and are thereby equipped to appropriately deal with such requests as they arise.

Back to top

Bill 168 Changes the Assessment of Workplace Violence

Nadya Tymochenko, Toronto

In a recent arbitration decision upholding a termination, an arbitrator held that Bill 168, which amended the Occupational Health and Safety Act, revises the assessment of workplace violence.

The grievor was terminated for a threat made to her union representative during a return to work meeting following her attendance in an anger management counselling course which she had completed successfully. The union argued that there had been insufficient progressive discipline prior to the termination and that the grievor had not been sufficiently supported by her employer regarding her anger management issues, despite the fact that there was no contributing disability.

The grievor had a history of confrontational behaviour and had been disciplined with warning letters and minor suspensions over the course of many years.  An incident preceding the culminating incident had resulted in the grievor consenting to attend an anger management course.  She attended and completed the course successfully and a return to work meeting was scheduled.

Before the return to work meeting, the grievor’s union representative went outside the room to have a private conversation with the grievor.  Shortly afterwards, the union representative returned to the room, very upset and visibly shaken, and reported that the grievor had just threatened his life.  Following an investigation of this incident, the grievor was terminated.

The union argued that the grievor should be reinstated because there was insufficient progressive discipline – the longest suspension the grievor had received was 3 days – and the anger management course that the grievor attended was insufficient because, although she completed it successfully, she was unable to maintain her composure during the return to work process.

A medical assessment had been sought by the employer following a prior incident and sick leave.  The assessment found, unequivocally, that the grievor did not have a medical issue contributing to her anger management and that there was an employer/employee issue that required “workplace rather than medical intervention.”

The union also conducted an assessment of the grievor, including a full battery of psychological testing.  The union’s expert gave evidence that the grievor had an anger management problem and that sufficient anger management training and support had not been provided to enable the grievor to successfully cope with her problem.  In the expert’s opinion, the grievor was not likely to commit physical violence, given her history, but she might repeat the swearing, door slamming and yelling that had been exhibited many times in the past.

The employer argued that “threats of violence in the wake of the Bill 168 amendments to the Occupational Health and Safety Act are simply unacceptable.  The existing authorities must be read and applied in the context of these amendments...”  The union argued that, “the amendments do not re-write the common law of requiring progressive discipline and proportionate response to misconduct that gives the erring employee fair notice of the seriousness of the misconduct, and a chance to change their behaviour.”

The arbitrator held that the Bill 168 amendments have impacted the analysis of such cases in four ways.  First, Bill 168 has “clarified the way in which workplace parties, adjudicators, arbitrators and judges, must think about incidents involving the inappropriate use of language in the workplace.  The amendments make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right.  But language that is made in direct reference to the end of a person’s life or that suggests impending danger falls into a category of its own.”  The arbitrator held that language suggesting death or impending danger is workplace violence.  The arbitrator clarified that it is the words themselves that are workplace violence, despite the presence or absence of any evidence of an immediate ability to inflict the physical harm.

The second change identified is the requirement that an employer must investigate and address a reported incident of workplace violence, such as a threat. 

The third change the arbitrator found was with respect to the assessment of the seriousness of an incident leading to termination. The arbitrator stated that, “threats are now categorized, by statutory definition, as falling within the category of workplace violence.  The shift in emphasis is likely to cause an arbitrator who is weighing the seriousness of the incident against the other factors, to give that factor greater weight.” 

Finally, the arbitrator held that the fourth change resulting from Bill 168 was the addition of workplace safety as a factor for consideration when determining the reasonability and proportionality of the discipline.

The arbitrator found that the incident in question was an act of workplace violence, and that the employer was entitled to escalate the discipline to be responsive to the seriousness of the incident.  The arbitrator also found that, absent medical evidence for the basis of the grievor’s anger management issues, the grievor was not entitled to be accommodated by the employer.

Given the seriousness of the incident and the grievor’s past behaviours and failure to undertake steps to make changes in her behaviour, the arbitrator upheld the employer’s termination.

Bill 168 has changed the way in which employers must respond to allegations of workplace violence.  It has also changed the way in which prior arbitral decisions regarding workplace violence will be interpreted and applied to current circumstances. Arguably, the impact of an employee’s behaviour on the entire workplace is now a more significant factor when an employer is considering the appropriate next steps to be taken.

Back to top

New Tort of Invasion of Privacy

Nadya Tymochenko, Toronto

On January 20, 2012 the Ontario Court of Appeal released a unanimous decision creating the tort of invasion of privacy in Ontario. 

The Court of Appeal is apparently the first appellate court in Canada to definitively establish a common law right of action for intrusion upon seclusion, a form of invasion of privacy.

In coming to its decision, the Court of Appeal reviewed the history of litigation regarding the privacy of individuals as well as legal writing.  The Court of Appeal emphasized the importance of privacy to individuals when it stated that “Charter jurisprudence identifies privacy was worthy of constitutional protection and integral to an individual’s relationship with the rest of society and the state.” 

Four separate types of invasion of privacy were identified by the Court of Appeal based on legal writing and experience in the United States. They are:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The facts of the case before the Court of Appeal related to the tort of intrusion upon seclusion.  In its analysis of the state of the case law in Ontario, the Court of Appeal identified that “Ontario has already accepted the existence of a tort claim for appropriation of personality and, at the very least, remains open to the proposition that a tort action will lie for an intrusion upon seclusion.”

The Court of Appeal found that it was time to recognize a tort for an intrusion upon seclusion and provided the following factors of the tort:

1. The conduct must be intentional or reckless;
2. The conduct must be an invasion, without lawful justification, of private of affairs; and
3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The Court of Appeal stressed that there need not be harm to a recognized economic interest for an award of damages, and that damages would ordinarily be modest.  The Court stated that it would fix the range at up to $20,000.00.  Direction was provided by the Court regarding what should be considered when identifying the appropriate award of damages.  The following factors were identified:

1. the nature, incidence and occasion of the defendant’s wrongful act;
2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

Potential competing claims, such as freedom of expression and freedom of the press, were identified by the Court of Appeal as likely to be argued in some cases.  But, because there were no competing claims at issue in the case before the Court, the Court’s comments were limited.  The Court stated that “no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.”

Damages in the amount of $10,000.00 were awarded in the case before the Court of Appeal.

How the decision of the Court of Appeal might impact school communities is not yet known.  The decision might impact the information collected, used and disclosed by school Boards about employees, volunteers and the employees of service providers.  Moreover, as most school administrators would recognize, parents are becoming more sensitive to the issue of privacy and schools are awash with personal information.

Back to top