School Board Update

Arbitrator Declares that DECEs Need Not be Scheduled “Side By Side” with FDK Teachers

School Board Update

Arbitrator Declares that DECEs Need Not be Scheduled “Side By Side” with FDK Teachers

Date: October 17, 2017

In an arbitration award released on October 13, 2017, Arbitrator Russell Goodfellow dismissed a grievance brought by the Ontario English Catholic Teachers’ Association (OECTA) concerning the scheduling of breaks accorded to Designated Early Childhood Educators (DECEs) under the Canadian Union of Public Employees (CUPE) support staff collective agreements applicable to them. Arbitrator Goodfellow declined to follow the controversial path taken by Arbitrator George Surdykowski in a 2014 decision involving the Windsor-Essex Catholic District School Board (Surdykowski Award) and has established a very useful precedent for school boards to employ. Learn more in this School Board Update.

In Ontario English Catholic Teachers’ Association and the Ontario Catholic School Trustees’ Association and the Crown in Right of Ontario, the dispute before Arbitrator Goodfellow arose in the Ottawa Catholic School Board (OCSB). However, it was treated as a “central” arbitration between OECTA, the Ontario Catholic School Trustees’ Association (OCSTA) and the Crown.

As noted, an unusual aspect of this grievance involved the fact that OECTA was grieving the manner in which the OCSB was scheduling the DECE members of a bargaining unit represented by another trade organization, namely CUPE. OECTA’s concern was that the OCSB was scheduling DECE breaks at times when Full Day Kindergarten (FDK) students were receiving instruction from their OECTA teachers, rather than at times when no instructional program was being delivered. This required the OECTA FDK teachers to instruct, from time to time, FDK classes that might exceed 25 students without a DECE present.

OECTA could not point to any provision of either the OECTA or CUPE collective agreements that expressly prohibited such scheduling. Rather, OECTA asserted that the Education Act (Act), as supplemented by regulations and allegedly binding policies and guidelines, did not permit such arrangements.

OECTA’s case rested on a combination of arbitral precedent concerning teachers and its theory concerning the relationship established by the Act between FDK teachers and DECEs who were jointly assigned to deliver program to a specified FDK class of students. While containing considerable nuance, the argument can be summarized in three steps:

  1. The arbitral precedent in question had established some time ago the proposition that only teachers are legally permitted to deliver “instruction”. This proposition has been extended to the further proposition that a teacher (although not necessarily the same teacher) must be present with students during every one of the 300 instructional minutes those students are to receive each day according to Regulation 298 to the Act.
  1. Bearing this proposition in mind, OECTA argued also that the “team” relationship between FDK teachers and DECEs made such teams the “functional equivalent” of teachers in other contexts and of the FDK teachers who teach alone in FDK classes of 15 or fewer students.
  1. OECTA then argued that because a teacher has to be present for all instructional minutes under ordinary circumstances (according to arbitral precedent), similarly, a DECE (a necessary component of the “functional equivalent” of a teacher in the FDK program for larger classes) has to be present for all instructional minutes. Put differently, a school board cannot schedule a DECE for a break during instructional time without replacing that DECE with another for the duration of the break.

This restrictive view of the scheduling and, more broadly, the managerial powers of school boards was endorsed in the Surdykowski Award. That decision rested heavily on a statement made in October 2009 by a Deputy Minister that, in the new FDK play-based learning model, FDK teachers and DECEs were to work “side by side” in delivering program. It also relied on the language of the newly-amended Act that required each DECE and the associated FDK teacher to cooperate with one another in the planning, delivery and monitoring of the FDK program. Arbitrator Surdykowski stated:

  1. …Section 264.1 of the Education Act requires teachers and designated appointed ECEs to cooperate and coordinate, and plan and provide education to JK and K pupils. It also requires them to observe, monitor and assess their development. It is difficult to conceive how an ECE could provide education to JK or K pupils if s/he is absent during instructional time, and an ECE certainly cannot observe pupils if s/he is not present.
  1. Contrary to the School Board’s assertion, the October 27, 2009 policy or guideline specifies that a basic core component of the ELP is a full-day school instructional program delivered by a team of one certified teacher and one ECE registered with the College of Early Childhood Educators working “side by side to deliver the program” in  each JK  and K classroom. …
  1. As in the case of teachers, there is nothing in the legislation or guidelines which specifically states that an ECE must be in the classroom (or teaching area) with the teacher for every minute of every instructional day. However, it cannot be otherwise. The working side by side requirement of the basic core component of the ELP means exactly that. In this context, a teacher and an ECE cannot be working side by side if they are not actually side by side and actually working (i.e. not on a break) together in the classroom (or other teaching area). [emphasis in the original]

The Surdykowski Award was the subject of critical commentary at the time of its release. This was based in part on the fact that the “October 27 2009 policy” that was perceived to have been binding under powers granted in section 8(1) of the Act had actually been issued before the creation of that section, and so could not have been issued under it, as the Surdykowski Award had concluded. Doubts were also expressed concerning the Award’s acceptance of the concept that “teamwork” necessarily requires the team members to be working at the same time(s) all the time.

For whatever reason, OECTA did not expressly rely on the Surdykowski Award in arguing its case before Arbitrator Goodfellow, preferring to rest its position on the strength of the three step argument summarized above. Consequently, Arbitrator Goodfellow did not find it necessary to express his views directly on the correctness of the earlier Award.

However, Arbitrator Goodfellow was clear that he did not accept OECTA’s position that the FDK teacher/DECE “team” was the “functional equivalent” of teachers in other contexts such that the presence of both team members was required in order for time with their class to qualify as “instructional time”. This conclusion was reached for a number of reasons, including:

  1. First and foremost, the limitation/requirement asserted by OECTA (“FDK teachers cannot teach without a DECE present”) was clearly not set out expressly or directly in the Act or regulations, as it easily could have been.
  1. OECTA’s argument was based upon contextual materials coupled with phrases within the regulations and the Act that did not persuasively support its contention that the FDK teacher/DECE “team” was the “functional equivalent” of teachers in other contexts. On this second point, Arbitrator Goodfellow stated:

As I see it, “functional equivalence” is a theory, described as an inference, chasing a result, that is nowhere provided for. What is needed is not “functional equivalence” but legal equivalence – something that would convey a clear legislative intent that ECEs and teachers are to be treated the same in respect of school boards’ 300 minute “instructional program” obligations, and that something is not there.

  1. OECTA’s proposed unification of FDK teachers and DECEs was inconsistent with the fact that teachers alone retain statutory authority for “instruction” and the further fact that DECEs, while subject to a duty of cooperation and collaboration, remain separate and distinct “players” under the Act.

In concluding his Award, Arbitrator Goodfellow considered the following question/argument put forward by OECTA:

If school boards are not required to schedule ECEs to be present in FDK program classrooms for all of the instructional day, for what period of the instructional program, if any, must they be present or do school boards have complete and unfettered ECE scheduling freedom?

Essentially, OECTA was arguing that it would be absurd to conclude that boards were not required to schedule DECEs in perfect tandem with FDK teachers since that would allow boards to schedule DECEs in their discretion and, therefore, essentially out of existence. Such an assault, OECTA argued, on the provincial FDK program could not have been contemplated, and this necessarily implied the only logical limitation available, namely the “functional equivalent” structure that it advocated.

In response to the question posed by OECTA, Arbitrator Goodfellow stated:

I do not know the answer to that question. It is not what this case was about. I will leave to another day and another case, should it ever arise, the question of whether a school board can schedule an ECE mandatorily designated for a particular class to be away from the class for longer periods of time than the ECEs’ contractual breaks. …

The award in OECTA and OCSTA may not be the last word on the subject – we are aware of at least one other case that raises the same issues and is before another arbitrator, and there remains the possibility that OECTA will seek judicial review of the Goodfellow Award. That said, it is a welcome outcome for Ontario school boards, whether they initially declined to follow the Surdykowski Award or whether they did apply it and would now like to reconsider that decision.

If you would like to discuss the implications of the OECTA and OCSTA case for your district school board, please contact your regular Hicks Morley lawyer.

The article in this client update provides 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. ©