Labour and Privacy Update

May 30, 2018 | Gillian Tuck Kutarna, Greg Bush, Michael Cleveland

Teacher’s work refusal due to violence of five-year-old student upheld by Labour Board

In Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2017 CanLII 37597 (ON LRB), the Ontario Labour Relations Board (the “OLRB”) found that a teacher’s work refusal on the day following a violent outburst by a five-year-old student was appropriate.

The school board argued that the teacher had no right to engage in the work refusal because she was not in imminent danger the following day when she refused the work. The OLRB disagreed, finding that teachers are entitled to refuse unsafe work in relation to violent students as long as they have reason to believe – from their own perspective – that the violence is likely to endanger themselves at the time of refusal or in the immediate future. In other words, teachers are not expected to wait for a further violent outburst in order to refuse work.

In the case at hand, the OLRB found that, despite the student’s age and size, the teacher was entitled to refuse work because the student’s history of violent outbursts created a genuine and reasonable fear for the teacher that the student would engage in further violence.

No reinstatement after resignation in relation to mental health disabilities

A recent labour arbitration case, Peel District School Board v Ontario Secondary School Teachers’ Federation, District 19, 2018 CanLII 3049 (ON LA), examined the resignation of a high school teacher who lived with severe anxiety and depression, conditions which were exacerbated by his teaching responsibilities. After years of chronic absenteeism, he resigned his full-time position with the intention of working as an occasional teacher. However, he never did so, and he came to regret the financial consequences of his decision. The union sought to have the resignation set aside and to have the teacher reinstated to full-time employment, arguing that he had been “forced” to resign and that he had no true intention to do so due to his disability and a lack of appropriate accommodations by the school board.

In finding that the teacher was not entitled to reinstatement, the arbitrator found that it was clear the teacher had given great consideration to his resignation. He had resigned during summer break, was in a calm state of mind at the time, and took no steps to revoke his resignation until several months later. Additionally, the arbitrator found there was no evidence of duress, harassment or unfairness by the school board. In line with past cases, the arbitrator concluded that a resignation is not invalid simply because it is inadvisable.

No sick leave entitlement following unpaid leave without a bona fide return to work

In a recent arbitration involving the Ontario Catholic Teachers’ Association, the Ontario Catholic School Trustees Association, and the Ministry of Education, the arbitrator found that if a teacher sustains an injury during a voluntary unpaid leave and is unable to return to work, the teacher is not entitled to sick leave.

The arbitrator found that eligibility for sick leave is dependent upon attendance at the workplace; as a result, the teacher had no entitlement to access sick leave until a bona fide return to work had occurred. In coming to this conclusion, the arbitrator found that the purpose of sick leave is to provide income protection for those actually earning an income, not to protect employees on voluntary unpaid non-statutory leaves of absence. A teacher taking such a leave assumes for themselves the financial risk of illness.

Ontario Amends OCTA Mandatory Penalties for Sexual Abuse

On May 8, 2018, Bill 31, the Plan for Care and Opportunity Act (Budget Measures), 2018 (the “Act”) received Royal Assent. The Act amended the disciplinary mechanisms of the Ontario College of Teachers Act and the Early Childhood Educators Act. Members of either the College of Teachers or the College of Early Childhood Educators who are found guilty of an act of professional misconduct consisting of, or including, sexual abuse of a child or a prohibited act involving child pornography will now have their licences automatically suspended and revoked.

The amendments also expand the scope of acts that will result in mandatory revocation of a member’s license to include “touching of a sexual nature of the student’s genitals, anus, breasts or buttocks,” as well as other conduct of a sexual nature as may be prescribed by regulation.

Significantly, these amendments apply to an act of professional misconduct that occurred before the amendments came into force, provided that no order has already been made in respect of the matter.

Additional amendments, not yet in force, provide for the creation of a program to fund therapy and counselling for students who are subject to sexual abuse or a prohibited act involving child pornography in which an allegation has been made against a member of the Ontario College of Teachers or the College of Early Childhood Educators. A member can also be ordered to reimburse the College for the cost of a student’s therapy and counselling. The Investigation Committee of the Ontario College of Teachers and the Complaints Committee of the College of Early Childhood Educators will also have the authority to order medical assessments of members to assess them for incapacity.

The provision of therapeutic and counselling services is an important step for supporting students who are victims.  Hopefully, the fund might also be accessed retroactively.

Disclosure of students’ personal information to photography vendors

School boards may wish to review their procedures surrounding student picture days following a decision by the Office of the Information and Privacy Commissioner of Ontario (the “IPC”) involving the Toronto District School Board (the “Board”).

A privacy complaint arose after a photography vendor used the personal information provided by a school to advertise further services to a student’s parents. The IPC found that the Board’s collection and use of student photographs was in accordance with the Municipal Freedom of Information and Protection of Privacy Act (the “Act”); however, the IPC found that the Board’s notice of collection was not compliant with the notice provisions of the Act. School boards have a duty to provide notice to parents, guardians, and students which explains the Board’s authority to collect photographs, the principal purposes for which they will be used, and who may be contacted for questions. The fact that the school calendar made reference to “picture day,” and the fact that parents received a pamphlet from the photographer outlining their services, was not sufficient to put the Board in compliance with the Act.

The IPC found that the Board was permitted to disclose personal information to the photography vendor, and that it was reasonable to expect this information would be used for specific, limited marketing purposes. However, the IPC also found that the Board’s service agreement with the vendor did not contain adequate provisions for the protection of students’ personal information. The IPC made the following recommendations:

  • The agreements should provide that personal information is collected, retained, used, disclosed and disposed of in accordance with the Board’s obligations under the Act;
  • The agreements should explain that the vendor will take reasonable steps to protect the security and confidentiality of this information and ensure its destruction;
  • Personal information should not be retained by the photography vendor for longer than necessary; and
  • Parents/guardians should be clearly informed that they can request the vendor destroy the information so long as it does not interfere with the Board’s administrative requirements.

It should also be noted that a school board’s collection, use and disclosure authority is circumscribed by its duties and responsibilities.

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This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

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