School Board Update
Welcome Back to School!
Date: September 25, 2019
We hope that you all enjoyed the summer months! In this Back to School edition of our School Board Update, we highlight three decisions which will be of interest to school boards. First, we review a special education human rights decision in which the Human Rights Tribunal of Ontario concluded that an accommodation process was ultimately frustrated – in this instance by the student’s mother, who failed to participate in the process. Next, we discuss two decisions relevant to the central collective agreement terms with ETFO – whether a grievance can be brought against the Crown, and the interpretation of Article C12.00: “The board will make every effort to limit FDK/Grade 1 split grades where feasible.”
We also include a “Quick Hit” on the government’s new Health and Physical Education curriculum.
We want to thank Diana Holloway, Michael Jaworski, Danika Winkel and Claudia Warner-Romano for their assistance in preparing this School Board Update.
Best wishes for the school year,
Dianne Jozefacki and Amanda Lawrence-Patel
Tribunal Comments on Scope of Accommodation for Students with Exceptionalities
In Kahn v. Upper Grand District School Board, the Human Rights Tribunal of Ontario (Tribunal) rendered a significant decision involving the accommodation of a child with Autism Spectrum Disorder (ASD) and learning disabilities, ultimately finding that the School Board had fulfilled its obligation to accommodate the student but that its efforts to provide accommodation were unsuccessful because of the failure of the student’s mother to cooperate in the process.
At the time of the proceeding, the student was in grade two and had been diagnosed with ASD in kindergarten. From that point on, the student’s parents and the school staff worked together to accommodate his needs both in and outside of the classroom. At the start of second grade, however, the student’s behaviour declined to a point of extreme dysregulation. After multiple attempts to accommodate the student failed and agreement could not be reached with his parents on a plan to safely return him to school, the School Board expelled the student out of concerns for the safety of both staff and students. The expulsion was upheld by the Child and Family Services Review Board.
Through his litigation guardian (his mother), the student brought an application to the Tribunal alleging that the School Board failed to accommodate his disabilities and therefore discriminated against him in the delivery of education services, denying him meaningful access to education.
At the hearing, both parties led extensive evidence, including from expert witnesses.
The School Board took the position that it had accommodated the student to the point of undue hardship and that its efforts to provide accommodation were unsuccessful due to the student’s mother. In particular, the evidence demonstrated that from the time that the student was first diagnosed with ASD, he was given an Individual Education Plan (IEP), set up with technological supports, given a modified curriculum and assigned Education Assistants (EAs) to support his learning and development.
The evidence further demonstrated that as the student became increasingly dysregulated, the School Board made repeated efforts to work in conjunction with the student’s parents, as well as private practitioners hired by the parents, to find a solution. However, the student’s mother was often uncooperative and hostile towards staff. In particular, there were “a number of interactions between school staff and [the mother] in which [the mother] displayed what can only be described as inappropriate behaviour, including raising her voice and using profanities towards staff.”
Relying on the leading Supreme Court of Canada decision in Moore v British Columbia, which sets out the legal analysis for establishing discrimination in education cases, the Tribunal addressed the following three questions:
(i) Has the student established that he was denied meaningful access to his education because of his disability?
In assessing this question, the Tribunal examined two distinct time periods – before and after the student’s second grade year. The Tribunal found that with respect to the first period, the School Board met its obligation to provide the student with meaningful access to education. However, it found that once the student became increasingly dysregulated in second grade, the student had been unable to access meaningful education. Therefore, the Tribunal ultimately concluded that a case of prima facie discrimination existed.
(ii) Has the School Board established that the reason the student was denied meaningful access to education was because he was unable to fulfill the requirements necessary to do so because of his disability or that the requirement that prevented his meaningful access to education was reasonable and bona fide?
At this point in the analysis, the burden shifted to the School Board to show that it had complied with the requirements of the Human Rights Code (Code) and had accommodated the student to the point of undue hardship. The Tribunal referred to section 17 of the Code, which states:
17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. (emphasis added)
The Tribunal held that, as a result of his dysregulation, the student was unable to fulfill the requirement that he remain in class in order to receive his academic program and, ultimately, he was unable to remain in school without creating an unacceptable safety risk for himself and others, which is also a requirement of attending school in order to access education. Applying section 17 of the Code, the Tribunal held that the reason the student was denied a meaningful access to education was due to his own inability to participate in school.
(iii) Has the School Board established that it was unable to accommodate the student to the point of undue hardship?
This was the most difficult question for the Tribunal to determine. It broke the timeline down into pre-expulsion and post-expulsion accommodations.
In the pre-expulsion period (kindergarten to the start of second grade), the Tribunal found that the School Board took reasonable steps to manage the student’s dysregulation in a timely manner and implemented a reasonable accommodation plan, including consultation with the student’s private practitioners. The only person who did not agree with the School Board’s plan was the student’s mother.
In the post-expulsion period, the Tribunal held that the School Board had also acted reasonably. Although the student was expelled from his former school, the School Board offered three alternate placements in an attempt to ensure that the student’s access to education was not disrupted. The School Board attempted to set up meetings with the student’s parents and counsel – invitations which were repeatedly declined.
The Tribunal ultimately concluded that the evidence established that, in rejecting the School Board’s repeated invitations to meet to discuss the student’s return to school, the student (and his mother) failed to engage in the accommodation process in any meaningful way. Moreover, the student (and his mother) had failed to accept reasonable accommodations offered by the School Board.
The Tribunal was clear in this decision that accommodation is not only the responsibility of School Boards, but of students and their families as well:
 An Applicant, who in this case is represented by his mother, has an obligation to co-operate in accommodation process, which includes a ‘duty to facilitate implementation’ of a proposal for accommodation that is reasonable.
The student’s mother therefore failed in her obligation to co-operate in the accommodation process in rejecting the plans that were presented to her. The Tribunal went on to state that “parents do not have the right to dictate the accommodations which their children will be provided to access education. While parents do have the right to provide input as part of the accommodation process… they must accept reasonable accommodations offered by the school board.”
This decision is helpful for school boards in emphasizing to students and their parents that the search for accommodation is a multi-party process and may ultimately be frustrated where a parent unreasonably refuses to attempt accommodations offered by a school board.
ETFO Can Bring Grievance Against Crown Even Though Crown Not a Party to Collective Agreement
In Elementary Teachers’ Federation of Ontario v Ontario, Arbitrator James Hayes found that given the framework of the School Boards Collective Bargaining Act, 2014 (SBCBA), the Elementary Teachers’ Federation of Ontario (ETFO) could bring a grievance against the Crown despite the fact it was not a party to the collective agreement in issue. However, the Arbitrator ultimately dismissed the grievance on the grounds that the dispute was outside of his jurisdiction.
ETFO’s grievance related to the Employee Life and Health Trust (ELHT) referenced in Letters of Agreement (LOAs) executed by the Crown, the Ontario Public School Boards’ Association (OPSBA) and ETFO. In October 2016, approximately a year after the execution of the LOAs, the ETFO ELHT was established with the execution of a Trust Agreement. The ELHT document itself was meant to supersede the LOAs.
The ETFO ELHT was created to consolidate the delivery of insured benefits for education sector employees across the province. In addition, the LOAs stipulated the obligation on the Crown to provide one-time funding to establish a Claims Fluctuation Reserve (CFR). The CFR was created as a safeguard to ensure the ELHT would have sufficient funds to offset any deficits in light of frequent fluctuations due to premiums.
The terms of the Crown’s CFR funding obligation did not specify whether the contribution was to be exclusive of any potential tax liability. The Crown took the position that payments made to the CFR were subject to a 10% Retail Sales Tax (RST). As a result, none of the Crown’s CFR funding payments were “grossed up” to account for the ELHT’s tax remittance.
Of note, in remedial settlements with other unions arising out of a Charter challenge to the Putting Students First Act, 2012, the Crown provided top-up payments to the CFR funding in order to address the RST issue. No such agreement was reached with the ETFO.
Key to this case was a provision of the Trust Agreement permitting the Trustees of the ELHT “to seek judicial determinations or declaratory judgments on any question related to the construction of the Trust Agreement or to obtain directions as to any action thereunder.”
In May 2018, ETFO filed a grievance alleging a breach of the LOAs. It named the Crown as a party to the grievance and sought an order that the Crown gross-up payments for the CFR to account for taxes. In response, the Crown submitted:
- ETFO may not use the central grievance process to directly pursue a claim against the Crown as the Crown is a not a party to the collective agreement;
- the Trust Agreement governed the dispute in issue and therefore the Trustees, not ETFO, had the right to pursue the claim;
- the essence of the dispute did not fall within the collective agreement (here the Crown relied on the Weber analysis);
- the Arbitrator had no jurisdiction to grant any relief on the basis that the Crown had reached settlements on the issue with other unions.
OPSBA, participating in the central grievance process, similarly argued that while the SBCBA required Crown participation in central bargaining, it did not elevate the Crown’s status to a party. It also referenced the Weber line of cases in support of its position that ETFO’s dispute with the Crown lay outside arbitral jurisdiction.
Arbitrator Hayes referred to the expansive role assigned to the Crown under the SBCBA and noted that the Crown was a party to certain LOAs, which formed part of the collective agreement. As a result, the Arbitrator concluded that ETFO could properly bring a grievance against the Crown. He stated:
 […] it would take the clearest of language for me to conclude that the SBCBA should be read to permit any collective bargaining participant, including the Crown, to accept an obligation that leaves the receiving party without a forum in the event of a breach. No credible collective bargaining regime could tolerate such a possibility. I do not see that the SBCBA requires such an extraordinary interpretation when the comprehensive statutory role of the Crown is assessed in context. Where there is a right, there must be a remedy.
Arbitrator Hayes then considered whether the jurisdiction to consider the dispute properly rested with the courts because of the Trust Agreement, as opposed to with a labour arbitrator. The Arbitrator concluded that the parties intended for the Trust Agreement to supersede the LOAs. Therefore the dispute fell to be decided in the courts pursuant to the language of the Trust Agreement, which allows the trustees to seek judicial determinations or directions related to the construction of that agreement. Arbitrator Hayes found that while the Weber analysis “unnecessarily complicated the issue,” he acknowledged that had that analysis been used the same result would have been reached.
The finding that ETFO can bring a grievance against the Crown, even though the Crown is not a party to the collective agreement, is significant because it confirms the expanded scope of the Crown’s role in the school board labour relations regime. Whether the Crown will be required to gross-up its payments to the CFR is a question to be determined by the courts. We will provide further updates should the ETFO seek judicial determination on this matter.
School Board not in Breach of Central Terms When It Established FDK/Grade 1 Split Grades
In Re ETFO and Ontario Public School Boards’ Association, Arbitrator Gedalof provided helpful guidance on the interpretation of Article C12.00 of the central terms with ETFO, which states: “The board will make every effort to limit FDK/Grade 1 split grades where feasible.”
Arbitrator Gedalof found that the Article imposes both substantive and procedural obligations on school boards regarding their use of FDK/Grade 1 split grades. He ultimately concluded that considerable deference is owed to school boards in determining whether it is operationally feasible to limit the use of split grades in the circumstances.
In this case, ETFO had alleged that a number of different school boards, including Simcoe County District School Board (SCDSB), had violated Article C12.00 by utilizing FDK/Grade 1 split grade classes at a number of different schools in the 2017/18 school year. Although multiple boards were alleged to have breached Article C12.00, the parties agreed to first argue the case on the basis of the facts in SCDSB.
SCDSB had provided ETFO with information on class sizes both prior to and shortly after the commencement of the 2017/18 school year. There was no evidence that ETFO sought to engage with the SCDSB prior to the start of the school year, at which time the FDK/Grade 1 splits were already in use at certain schools (as the SCDSB had already determined on its own that it was not operationally feasible to further limit their use).
The evidence demonstrated that SCDSB had, in any event, considered the use of split grades before their implementation. In addition to factors such as regulatory limitations on class sizes, student needs, bussing considerations and facilities limitations, SCDSB’s evidence was that it did not consider it feasible to further limit the use of FDK/Grade 1 split grades because, in this particular school year, certain schools were expected to get a large number of mid-year enrollments due to house closings in the catchment areas. As such, SCDSB thought it appropriate to leave space for these students to be integrated into existing classrooms rather than reorganizing and disrupting students mid-year.
The Arbitrator’s Interpretation of Article C12.00
In interpreting Article C12.00, Arbitrator Gedalof analyzed the words used to determine the intent of the parties.
First, by using the word “limit,” Arbitrator Gedalof found that the parties did not intend to require that school boards eliminate their use of FDK/Grade 1 split grade classes altogether. In other words, the requirement to “limit” the use of FDK/Grade 1 split grades in Article C12.00 was something less than a complete prohibition.
Arbitrator Gedalof then concluded that the word “feasible” in the Article was a reference to the school boards’ operational requirements. He reasoned that the determination of operational needs was an exercise of a school board’s management rights and was therefore entitled to a degree of deference. More specifically, he held that the Article called for “a significant degree of deference to the Board’s discretion to determine what is or is not feasible” according to its operational needs and priorities. He then concluded that school boards therefore have the right (and a corresponding obligation) to determine the feasibility of further limiting the use of FDK/Grade 1 split grades in any particular circumstance, and that the right (and obligation) did not belong to ETFO.
Notwithstanding the finding of deference owed, Arbitrator Gedalof cautioned that school boards must ensure there is a “solid functional basis,” linked to their operational requirements, for determining that it is not feasible to further limit the use of FDK/Grade 1 split grades. Arbitrator Gedalof confirmed that the reasoning and factors considered by a school board in coming to this conclusion are reviewable on an objective standard.
Finally, the Arbitrator found that the obligation to make “every effort” to limit FDK/Grade 1 split grade classes was a “substantive obligation” with both substantive and procedural elements. Arbitrator Gedalof confirmed that the procedural obligations flowing from Article C12.00 include: an obligation to engage in a timely consultation with ETFO at the board level, where requested by ETFO; the consultation should include the timely exchange of information; and, it should involve a discussion regarding the feasibility any alternatives that may be proposed by ETFO.
The Conclusion: No Breach of the Collective Agreement by Scheduling Split Classes
Applying this reasoning to the facts, Arbitrator Gedalof dismissed the grievance against SCDSB, finding no violation of Article C12.00. He rejected ETFO’s arguments that SCDSB was required to make every possible effort to limit the use of split grades. He also found that there was no positive obligation on SCDSB to solicit feedback from ETFO and in this case, ETFO’s failure to initiate consultation in a timely manner did not result in a breach of Article C12.00.
As to the substantive duty to make efforts to limit the use of FDK/Grade 1 splits, Arbitrator Gedalof held that the SCDSB demonstrated a “solid functional basis” for concluding that it was not feasible in the circumstances to further limit its use of split grades. Arbitrator Gedalof described these considerations and the factors examined by SCDSB as all “legitimate fodder for the Board’s consideration.” He specifically confirmed that SCDSB was entitled to organize its business in a manner that sought to minimize student disruption.
Arbitrator Gedalof’s decision clarifies school boards’ procedural and substantive obligations regarding the use of FDK/Grade 1 split grade class. The Arbitrator recognized the proper the role of management rights and the discretion that should be afforded to school boards in the assessment of what is feasible. The decision also provides legitimacy to the myriad of factors that school boards consider and balance when determining how to organize classrooms.
The Ontario Public School Boards’ Association was represented by John-Paul Alexandrowicz and Julia Nanos of Hicks Morley.
On August 21, 2019, the Ontario government released its revised elementary Health and Physical Education (HPE) curriculum.
As stated by the government, the new curriculum will teach students about:
- mental health, including social-emotional learning skills
- the effects and consequences of vaping and cannabis
- cyber safety, including bullying prevention and digital privacy
- healthy eating and body image
- healthy relationships, including consent.
The government has also published PPM 162: Exemption from Instruction related to the Human Development and Sexual Health Expectations in The Ontario Curriculum: Health and Physical Education, Grades 1–8, 2019. School boards are required to develop a policy or procedure that permits students, at the request of their parents/guardians, to be excluded from the “Human Development and Sexual Health” expectation component of the HPE.
Please do not hesitate to contact Amanda Lawrence-Patel at 416.864.7030, Dianne Jozefacki at 416.864.7029 or any member of our School Board group if you have any questions about issues raised in this Update.
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. ©