Board Does Not Have to Compensate Teachers for Work that is not Performed

Gillian Tuck Kutarna, Guelph

In a matter between the Ontario Secondary School Teacher’s Federation (OSSTF) and Peel District School Board (the 'Board'), Arbitrator Laura Trachuk was asked to consider the case of a full time teacher who for several years requested and was given part time hours as a result of a disability.  OSSTF alleged that the Board had violated their collective agreement and the Ontario Human Rights Code (the 'Code') by failing to give this teacher a full year’s credit for sick leave, experience on the salary grid, and fully paid benefits, for each of the years that she taught part-time. 

Throughout the relevant period, the teacher’s position was a 1.0 Full Time Equivalent (FTE), that is, her employment status was full time, although due to the accommodation of her disability she actually worked 50% of the time.  The Board therefore credited her with accumulating half the number of sick days, half a year’s credit on the experience grid, and paid only 50% of her benefit premiums for each of her half time years.

Arbitrator Trachuk held that the language of this collective agreement was unambiguous in its definition of part time, and its treatment of part time workers.  Advancement on the step grid, salary, sick leave credits, and any other entitlements are to be pro-rated, “according to the actual time worked”.  This case was distinguished from a previous decision involving the Upper Grand District School Board, wherein the teacher’s status was determinative.  In each case the decision turned on the precise definitions in the respective collective agreements.

Arbitrator Trachuk also examined OSSTF’s argument that the Board had violated the Code, in that “but for the grievor’s disability” she would have been able to work full time, and therefore would have received full experience and sick leave credits and full payment of premium benefits.  The Arbitrator relied on Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital in which the court found that since all employees working on a part time schedule were treated the same way, the employer was not discriminating against any particular part time employee on the basis of their disability. 

In response to the argument that there had been constructive discrimination under s.11 of the Code, the court held that “requiring work in exchange for compensation is a reasonable and bona fide requirement”.

At the Peel Board, teachers who were receiving part-time sick leave benefits for the hours they could not work were given full credits and benefits, but those who were absent and receiving LTD benefits for the hours not worked had their entitlements pro-rated.  OSSTF therefore argued that this discriminated against employees like the grievor who were on LTD.   The Arbitrator found that this was not two categories of teachers being treated differently, but rather one category of teachers with some at different points on the benefits continuum than others, as all teachers are required to use up sick leave benefits before becoming eligible for LTD.

Thus, the decision concludes with an observation that “the grievor could not work a full teaching load because of her disability and that is deeply unfair.  But it is not an unfairness for which the Code requires the Board to bear the cost.”  While the Code requires that the Board accommodate the teachers’ disability, it “does not have to compensate teachers for work that is not performed.”

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DECEs are Instructional Support Staff

Nadya Tymochenko, Toronto

In a February 2012 decision of the Ontario Labour Relations Board (OLRB), the OLRB determined that Designated Early Childhood Educators (DECE) working for the District School Board of Niagara (School Board) were part of a pre-existing Canadian Union of Public Employees’ (CUPE) bargaining unit covering instructional support staff. Therefore, the Elementary Teachers’ Federation of Ontario’s (ETFO) application for certification was untimely, and so it was dismissed by the OLRB.

To decide the issue of whether DECEs belonged in an existing bargaining group, as CUPE argued, or whether, as ETFO advanced, a certification vote should determine the issue of their representation, the OLRB reviewed the existing responsibilities of instructional support staff working for the School Board and compared them to the duties of DECEs.

The OLRB acknowledged that the Ministry of Education had added to the existing statutory framework a new discipline for the purposes of staffing the new early learning programs, and that a new regulatory college had been created for Early Childhood Educators.  However, the OLRB found that the statutory changes did not “explicitly or specifically address[ed] any labour relations or other collective bargaining consequences of these newly created positions.”  The OLRB added that such statutory changes could have been made.

The OLRB noted that some of the School Board’s instructional support staff, such as Lifeguards and Percussionists, taught students in the absence of teachers.  The greatest comparison of duties was made between DECEs and Educational Assistants (EAs) and Child Care Workers (CCW) assisting students with special needs.  The School Board and ETFO argued that EAs and CCWs were assigned to specific special education students (which is not the case in many school boards) and did not deliver curriculum.  However, the OLRB disagreed, finding that an EA who transcribes a lesson into Braille for a visually impaired student is delivering curriculum.

The OLRB held that “the distinction that the School Board and ETFO advance that the instructional support staff only “support” or “assist” the teachers whereas the DECEs are statutorily required to “coordinate” and “cooperate” is not a distinction that we find compelling. . .what teaching assistants actually do at a particular school board is probably most germane.  Again at the School Board, the instructional support staff do a wide variety of items.”

In the end the OLRB found that, while there were distinctions between the role of instructional support staff and DECEs, the distinctions were not so great as to preclude DECEs from being included within the meaning of instructional support staff in the CUPE collective agreement.  As such, the OLRB found that DECEs were covered by the CUPE collective agreement and that ETFO’s application was untimely and was therefore, dismissed by the OLRB.

Given that the Ministry of Education has never promulgated regulations regarding the responsibilities and/or duties of educational assistants and other instructional support staff, the OLRB was left to compare the work of several of the instructional support staff roles to that of DECEs.  We would note that, the OLRB found that the translation of instruction from English into Braille is akin to delivery of instruction, and as such, found that the work of EAs with students with special needs was similar in many respects to the work of DECEs.  It will be interesting to observe whether the conclusions reached by the OLRB with respect to their comparison of the two roles will be used in other contexts – such as negotiations.

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Claim Against Board and Teacher for Student Suicide May Proceed

Sylvain Rouleau, Toronto

On February 7, 2011, the Ontario Superior Court released a decision on a motion that was made for a summary judgment in a claim by the family of a deceased student, Jordan Gallant, and Thames Valley District School Board (the 'Board'). The decision in this motion has left the door open for family members of students who have committed suicide to seek to hold school boards and teachers personally responsible for the deaths of students.

The Court heard a motion by the Board and individual teacher to have the action for damages brought against them by the parents of a student who committed suicide dismissed.  For this motion, the Board’s main argument was that public policy did not permit survivors of a person who has committed suicide to benefit from the death.

The original action had been started by the parents of Jordan Gallant following his suicide. The parents’ action alleged that Jordan’s teacher had notice of his state of mind prior to his suicide, but did not act.

Jordan had emailed his teacher a writing assignment in which he stated: “I just want to kill myself; I want it to be painless (*the ink from the pen bleeds into the lined paper*).  I don’t have access to a gun so the next best way would seem to be to hang myself.”  His assignment went on to express the strong feelings he was experiencing as a result of a failed attempt at a relationship with a girl four years his senior.

A handwritten draft of this essay, which apparently did not contain the same level of detail as the final version sent to his teacher, was discovered on May 13, 2008 by Jordan’s mother, who decided to discuss this essay with her son, but accepted his explanation that it was for a school project and apparently resolved to revisit the matter the following day.  This however, would unfortunately be too late, as the following day Jordan committed suicide.

Jordan’s mother, after seeing the final version of the essay as received by Jordan’s teacher, alleged that if she had been made aware of this final version, she and her husband would have engaged their son in a serious discussion, which would have prevented his suicide.

The same day as Jordan’s suicide, the Director of Education for the Board advised the Trustees via a memorandum that Jordan’s school had a special sensitivity to the issue of suicide following the suicides of two students of that school the previous year and that the Board and the community had been involved together in suicide awareness seminars held at the school.

The Board’s website contained information for employees about the prevention of suicide. In a bulletin called “Helping a Suicide Student” it particularly stated that “[i]t is important for every teacher and counsellor to be able to: a) recognize warning signs b) make a tentative assessment of risk; and c) know where to refer the student for help”. The bulletin identified expressions of suicidal thoughts and hints of destructive thinking as warning signs of suicidal risk. Staff were also advised to contact a student’s parent if the student showed any level of risk,

Jordan’s parents alleged that upon reading the short story, Jordan’s teacher should have complied with the bulletin by notifying either them or anyone else of its contents. The Board argued that the short story that Jordan submitted to his teacher was simply a work of fiction and that there was nothing in the contents of the story that would have alerted her to the possibility that Jordan was contemplating suicide. The Board also took the position that it was a rule of public policy that survivors of a person who commits suicide are not entitled to benefit from the suicide.

In order to succeed on their motion for summary judgment, the Board had to meet the test that there was no genuine issue of material fact requiring trial. After considering the facts, however, the Court held that the Board had not met this burden, as neither of the Board’s representatives, nor the teacher had filed an affidavit in support of the motion, thus failing to put ‘their best foot forward”.  Because the Court had no evidence with respect to how the teacher discharged her duty of care to Jordan upon reading his essay, the Court held that the issue of whether she had or had not discharged her duty of care owed to Jordan must be determined on a complete evidentiary record.

With respect to the Board’s argument that the parent’s claim could not proceed because public policy prohibits survivors of a person who commits suicide to benefit from the suicide, the Court held that the scope and application of the public policy rule would also be best determined on a complete evidentiary record, as opposed to a summary judgment motion. The Court indicated that the public policy supporting the rule prohibiting survivors to profit from suicide may have evolved.

The issue of whether the teacher knew or ought to have known that Jordan was contemplating suicide will be determined on a full consideration of all the evidence. Should the matter proceed to trial, it is possible that the Board may be found liable for the teacher’s failure to try to prevent Jordan’s suicide.

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