School Board Update

Ontario Confirms Average Full-Day Kindergarten Class Size

School Board Update

Ontario Confirms Average Full-Day Kindergarten Class Size

Date: March 6, 2012

On March 2, 2012, the Ontario government filed important new amendments to the class size regulation under the Education Act for full-day junior kindergarten and kindergarten classes. The amendments, which come into force on September 1, 2012, are intended to assist school boards which have kindergarten class size maxima in their teachers’ collective agreements that may be inconsistent with the Ministry’s funding model for full-day kindergarten classes.

In this FTR Now, we provide background on the impact this change will have upon affected boards.


On October 27, 2009, the Ministry of Education issued Memorandum 2009: B12 to Directors of Education across the province of Ontario, “Early Learning Program – Planning for 2010-11 and 2011-12” (“Memorandum B12”).

Memorandum B12 outlined the Ministry’s funding plan for full-day kindergarten classrooms in 2010-11 and 2011-12 based on an average 26:2 ratio of students to staff (i.e. one teacher and one designated early childhood educator). Because the 26:2 ratio was set out in a Memorandum, and not within a legislative amendment or regulation, some teachers’ unions brought grievances claiming that full-day kindergarten class sizes should be lower based on existing class size limits for kindergarten in collective agreements.

The amendments outlined in O. Reg. 26/12 are intended to confirm the 26:2 ratio outlined in Memorandum B12 for all full-day kindergarten classes.


On March 2, 2012, the government filed O. Reg. 26/12, which provides that effective September 1, 2012, the average size of the junior kindergarten and kindergarten classes that a board is required to operate under Ontario Regulation 224/10 (Full Day Junior Kindergarten and Kindergarten) “shall be 26.”

Section 277.13 of the Education Act states that in case of conflict, the Act and regulations prevail over the provisions of a collective agreement. It would not be possible for a school board to staff its full-day kindergarten classes in accordance with existing collective agreement provisions that provide for smaller class sizes without being in conflict with the new regulation. Accordingly, this amendment confirms that all full-day kindergarten classes should be staffed, on average, at 26:2, despite any collective agreement provisions that might apply to those classes.

In its Memorandum 2012: EL1 of March 2, 2012, “Full Day Kindergarten Class Size,” the Ministry of Education has provided the following rationale for establishing the full-day kindergarten class size by regulation:

While the government is committed to respecting the terms of existing collective agreements, it is important to move forward with a sustainable plan that is consistent with the announced policy direction and funding framework for the program. This is why the government recently amended O. Reg. 399/00 to include s. 2.1 under Elementary School Classes – Requirements Respecting Size. This section provides class size provisions for full-day junior kindergarten and kindergarten, clearly identifying an average class size unit of 26 pupils.


The new class size regulation confirms the 26:2 staffing level for all full-day kindergarten classes despite collective agreement provisions that might provide otherwise. It should be noted that these amendments come into force on September 1, 2012, which is the commencement of Year 3 of the government’s five-year phase-in plan of the Early Learning Program.

If you have any questions about the regulation, please contact Dolores M. Barbini at 416.864.7303 or any member of our School Board Practice Group.

The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©