Reasonableness “Invited”, but not “Required” under terms of Collective Agreement

February 28, 2013 | Gillian Tuck Kutarna

The Ontario Divisional Court just released
its decision in Grand Erie District School Board v. Ontario Secondary School
Teachers’ Federation, District 23
in which it dismissed an application for
judicial review of an arbitrator’s finding that the duty of a Federation member
to act reasonably cannot be read into a collective agreement.

Port Dover High School is a small rural
high school with a population of approximately 200 students and a staff of 17
teachers.  By the start of the 2011/2012
school year, the school had become the subject of an Accommodation Review
Committee, which included an evaluation of the school’s capacity to offer
sufficient course choices to support each of the Local, Applied and Academic
Pathways.

In responding to the needs of Port Dover
and its other secondary schools with a similarly declining population, the
Grand Erie District School Board offered a total of 262 “combined course
classes” during the 2010/2011 school year, in which two classes were taught by
the same teacher at the same time in one classroom.

A previous grievance between the Grand
Erie Board and OSSTF District 23 in 2009 had resolved that such a
combined class counted as two courses towards the 3.0 courses that full time
teachers were required to teach under the collective agreement.

At issue in the 2012 grievance between the
same parties was the interpretation of Article 12.06 of the collective
agreement, which states:

“No teacher shall be assigned more than 3.0 courses per semester unless
there is an agreement by the teacher, the Bargaining Unit, and the Board.” 

When two Port Dover High School teachers
did not agree to teach a combined course along with their two other courses,
the Principal proceeded with this assignment notwithstanding their lack of
consent.  The Federation grieved the
assignment.

In its submissions, the Board argued that
the teachers had an implied duty not to act unreasonably in withholding their
consent, and further that these two teachers did in fact act unreasonably by
not agreeing to teach what the 2009 decision had made clear was an extra
course.

However, the Arbitrator agreed with the
Federation that where the parties to this collective agreement had intended
that a contractual requirement should have an exception or a qualification,
such as the duty to act reasonably, specific language to that effect had been
included in the wording of the agreement. 
Other sections within Article 12 were cited as examples.  By contrast, Article 12.06 contained a clear
and mandatory term that the teacher, the Bargaining Unit and the Board must all
consent to any increase in course load, with a noticeable absence of any
reference to a requirement that such consent should be subject to any standard
of reasonableness.

The Divisional Court found the
Arbitrator’s statement that “fundamental principles of
collective agreement interpretation require that the language of the collective
agreement be given its plain and ordinary meaning, and must be read in the
context of the entire collective agreement…” was well within the range of
possible and acceptable outcomes, and should therefore be upheld.

The Board’s suggestion that the right to
unreasonably withhold consent created onerous timetabling challenges for the
Principal which could contribute to the closure of the school failed to
persuade the Arbitrator.  At best, the
Arbitrator was willing to agree with the obiter
comment of the 2009 decision that a provision such as Article 12.06 “invites a reasonable approach on the
part of both parties…”.  Evidence had
been led that numerous other options were available to the Principal which
would not result in what the Arbitrator described as “diminishing if not
rendering meaningless the teacher’s ability to grant their consent.”  A requirement to be reasonable could
therefore not be inferred.

The Divisional Court applied a
reasonableness standard to the arbitrator’s review and interpretation of the
collective agreement and found the decision by the arbitrator reasonable. The
Court stated:

“we find no basis for interfering with the arbitrator’s conclusion that
in the circumstances, if there were an implied duty to act reasonably, the
teachers met that duty.  In particular,
the arbitrator concluded that there was insufficient evidence that the
principal considered other options, and he accepted that the teachers had
legitimate pedagogical concerns and reasons for refusing to agree.  This was a reasonable conclusion given the
evidence before him.”

Thus, the notion of
reasonableness cannot be read into a collective agreement. It must be explicitly
included if it is the standard against which a decision is to be judged.

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