School Board Update

Debate Regarding Regulatory Obligations for Kindergarten Class Size Caps Now Resolved in Favour of School Boards

School Board Update

Debate Regarding Regulatory Obligations for Kindergarten Class Size Caps Now Resolved in Favour of School Boards

Date: February 11, 2021

For 20 years, beginning in 1997, school boards and teachers’ federations agreed that class size limits pertaining to elementary school students needed to be met only by and on a “determination date” identified in the first half of the fall term. Following the negotiation of its 2017 Extension Agreement and an associated Letter of Commitment from the Crown, the Elementary Teachers’ Federation of Ontario (ETFO) challenged this mutual understanding in two related arbitrations.

Two arbitration awards and one judicial review later, the issue has now been definitively resolved – in favour of the school boards’ interpretation and the continuation of the historical compliance system.

Prior to 1997, school boards were constrained in determining class sizes only by their collective agreements and their own good judgment. This changed in 1997 with the passage by the Harris government of the Education Improvement Act, 1997. That Act, among other things, required school boards to ensure that, as of October 31 of each year, the system-wide average size of their elementary and secondary classes did not exceed 25 and 22, respectively. School boards had to report their figures to the Ministry of Education and to their school councils on or before December 15 of each year.

Importantly, the particular statutory sections setting out the new maximum numbers stood independently from the section that established the date for the “determination” of all such averages. It would therefore have been possible to argue that the word “determination” in that latter section simply referred to a mechanical process of calculation for the purpose of reporting, and that the “stand alone” maxima, which were not expressly limited in terms of their temporal application, therefore applied throughout the entire school year.

That was not, however, how the new statutory constraints were applied. Rather, all stakeholders agreed that the October 31 “determination date” was the date not only for a calculation of the various averages for reporting purposes, but also stood as a proxy for the school board’s annual compliance with the various averages.

This “one and done” approach to the issue persisted over the years through several statutory and regulatory changes to the class size provisions. For example, in 2012, the “determination date” was no longer set as October 31 by statute, but was rather placed in the discretion of the school boards by regulation (Ontario Regulation 132/12 – the “Regulation”), so long as it was no later than September 30 of each year. This was achieved by the inclusion of language that would later be of great significance in the disputes to follow:

Class size determination

3. (1) Each board shall select for each school year a date not earlier than September 1 and not later than September 30 as the date as of which class sizes in elementary schools shall be determined.

As well, the 2012 amendments provided for the first time that the classes of a particular sub-population of elementary students, namely primary students, were made subject to an individual class size cap. This was no doubt designed to prohibit boards from allowing very large primary classes in some schools to be offset by very small primary classes in other schools, as the pre-existing regulation of average class sizes invited boards to do. As well, the statutory/regulatory scheme began to apply to more and more student sub-groups (e.g. grades 7 and 8), each with their own critical numbers. Through all of these modifications, the “one and done” approach never changed.

This approach made sense for several reasons. First, it meant that school boards, students and parents would not face the spectre of needing to divide and re-organize classes potentially at any point throughout the year in response to, for example, an unexpected influx of new students. This might not have been a great risk when class size averages were involved, since a very large influx would be needed to upset a system-wide average. However, the risk was particularly real in the primary grades after the 2012 amendment that applied the specified maximum “class size cap” to every single primary class.

Second, the “one and done” approach provided a sensible answer to the following question – if the determination date is merely a calculation date for reporting purposes, does that mean that the various maxima really do apply to the entire school year, even the (typically chaotic) first days and weeks of September? The use of the “one and done” approach allowed the needed flexibility both before and after the determination date.

Finally, the “one and done” approach provided a sensible match to the associated reporting system, which, itself, involved a “one and done” structure. It would make no sense to use a singular, relatively early reporting date (which, as of the 2012 amendment, moved from December 15 to October 31) if the obligation placed on boards was an “enduring” one that lasted until the last weeks of June.

This well-settled understanding persisted until 2017. It only came into question due to a component of the 2017 Extension Agreement negotiations between ETFO, the Ontario Public School Boards’ Association (OPSBA) and the Crown. Specifically, in the course of those negotiations, the Crown (without OPSBA’s involvement) agreed in a collateral Letter of Commitment (LOC) to ETFO to establish by regulation a class size cap for individual Kindergarten (Kg) classes, similar to that which already applied to the primary grades.

The LOC did not expressly state whether the new Kg Class Size Cap would be subject to the traditional “one and done” approach, or whether it would establish a novel “enduring” year long obligation that would apply only to Kg students and teachers, as distinct from all others. Indeed, the issue of the temporal application of the new Kg Caps was never even discussed in the negotiations. The Crown negotiators assumed that the “one and done” approach would continue to apply, while the ETFO negotiators believed that they had won a breakthrough that established, for the first time, an enduring year-long obligation.

The LOC led to the issuance of the new Kg regulatory provision amending the Regulation in the summer of 2017. This did not, in itself, provoke disagreement – both the Crown and ETFO saw in the new language signs that were consistent with their respective understandings of the new deal. The divergence in these understandings was only revealed early on in the 2017-18 school year when, predictably, boards with fully subscribed Kg classes in small schools faced, for one reason or another, the need to introduce one or more new students on dates after the board-specified determination dates. ETFO grieved what it saw as post-determination date violations, the boards claimed that they had satisfied their “one and done” obligations and, ultimately, the Crown went on record as supporting the position of the boards.

While, as stated, Kg Class Size grievances surfaced around the province, only three boards, Bluewater, Peel and Toronto, actually faced arbitration over the issue. The first case was dealt with before Arbitrator Jesse Nyman. ETFO first pointed to the standalone sections of the Regulation that set out the promised new Kg class caps – thirty students per Kg class for 2017-18 and twenty-nine thereafter[1]. ETFO argued that those provisions, being temporally unrestricted, presumptively applied to the entire school year, and most specifically on and after the Board’s September determination date.

ETFO also pointed to the language of subsection 3(1), which was not expressly associated with the new class size caps, arguing that the “determination date” established under section 3(1) therefore only applied to the calculation of average kindergarten class sizes and not the new individual kindergarten class size limits. ETFO pointed as well to the corresponding Kg average class size limit, which was addressed directly by subsections 3(2) and 3(4) of the pre-existing system. Subsection 3(2) stated:

(2) The average size in a school year of a board’s full day junior kindergarten and kindergarten classes shall be determined for the school year, as of the date selected under subsection (1), as follows: [details of a mathematical calculation omitted, emphasis added]

ETFO argued that the old proxy system was attributable to subsection 3(2). It was that provision that made it clear that the average class size was, “in each school year”, to be “determined [and used as a proxy] for the school year”. Since nothing limited the new individual caps in the same way or established a “for the school year” proxy system as subsection 3(2) did for average class sizes, it should be inferred that the old proxy system did not apply, and that the new limits were as unrestricted as they appeared to be.

ETFO reinforced its position by reference to subsection 3(4), which reads:

(4) For greater certainty, the purpose of the determination of the average size of a board’s full day junior kindergarten and kindergarten classes under subsection 3(2) is to ensure that the requirement set out in section 2 [which established the average class size limit] is met.

ETFO argued that subsection 3(4) expressly linked the proxy reference in subsection 3(2) of “for the school year” only to the old class size average limitation, and not to the new subsections that established individual class limits. This, said ETFO, reinforced the conclusion that a new, enduring non-proxy system was meant to apply to those new limits for the entire school year.

ETFO also appealed to the understanding that the ETFO bargainers had taken away from the 2017 Extension Agreement negotiations, which it had, in turn communicated to its members in securing ratification of the Agreement.

The Board argued that subsection 3(1) was nowhere expressly limited in its effect to the old average class size provisions. To repeat, subsection 3(1) states simply:

Class size determination

3. (1) Each board shall select for each school year a date not earlier than September 1 and not later than September 30 as the date as of which class sizes in elementary schools shall be determined. [emphasis added]

The Board argued that subsection 3(1) established a general rule that applied equally to all of the Regulation’s elementary school class size limitations. Moreover, that general rule indicated that the “determination” of each class size made in September counted as a determination “for each school year” – “one and done” for all purposes. This conclusion was, as noted above, supported by the similar structure of the reporting obligation as well as the expectation that a radical change in a well-understood 20-year process would be very clearly expressed, rather than reached by inference. Finally, the Board relied on the understanding of the Crown’s spokesperson in the 2017 negotiations, which corresponded with that of the Board.

In an Award released on October 1, 2019 (Elementary Teachers’ Federation of Ontario v Bluewater District School Board) Arbitrator Nyman acknowledged that although ETFO’s argument possessed “a great deal of initial attractiveness,” it could not succeed. He treated as irrelevant the understandings of ETFO and the Crown concerning the negotiations – they were “ships passing in the night” – and focused his attention on the words of the Regulation. He accepted the Board’s characterization of subsection 3(1) as setting out a general rule applicable to all class size regulators, and more importantly one that established a “one and done” proxy system based on the results found on each board’s determination date.

With respect to the Board’s reliance on the history and evolution of the Regulation, Arbitrator Nyman stated:

73       […]     [F]or 20 years prior to the addition of the kindergarten class limits…, class sizes in the education sector have been determined as of a fixed day. If Cabinet had intended a departure from this established understanding, it would have been easy to say so.

ETFO immediately filed an application for judicial review of the Nyman Award.

While that matter was being prepared for hearing by the Divisional Court, ETFO elected to proceed to arbitration on its Kg Class Size grievances in both Peel and Toronto. All three parties agreed to have both cases heard jointly by Arbitrator Brian Sheehan, commencing in the fall of 2019 and concluding in October, 2020. Just as the Peel/Toronto case was being concluded, the Bluewater Judicial Review was heard on October 19, 2020, with the Court reserving judgment.

In both of two proceedings that arose after the initial Bluewater arbitration case was decided, the parties refined and expanded their respective arguments, but the basic fundamentals remained consistent.

By an Award dated January 4, 2021, Toronto District School Board and Peel District School Board (Kindergarten Class Size Limit Policy), Re 2021 CarswellOnt 976, Arbitrator Sheehan agreed with the school boards and dismissed ETFO’s grievances. He agreed with and relied on Arbitrator Nyman’s analysis, placing emphasis on the wording of subsection 3(1), the reporting structure and the history of the system going back to 1997.

As with the Bluewater Award, on February 1, 2021, ETFO filed for judicial review of the Peel/Toronto Award with the Divisional Court.

Two days later, on February 3, 2021, the Divisional Court issued a unanimous decision rejecting ETFO’s application to overturn the Nyman Award in Bluewater. Relying on the factors noted above, the Court stated:

[50]     The arbitrator’s analysis followed a rational and logical line of reasoning. He employed well-established principles of statutory interpretation, engaged with the submissions before him, and drew on his knowledge of the field when considering the practical implications of his interpretation. There is no fatal flaw in rationality or logic.

On February 4, 2021, ETFO announced that it was abandoning its judicial review application concerning the Peel/Toronto Award of Arbitrator Sheehan.

As stated earlier, ETFO Kg class size grievances are still outstanding in a number of boards. However, these three decisions appear to have settled the debate. They confirm the important principle that the “one and done” proxy system in use since 1997 in the determination of class sizes and compliance with various class size limiters applies equally to the new individual Kg class size caps established in 2017.

If you have any questions regarding the issues discussed above, please do not hesitate to contact your Hicks Morley lawyer.

[1] The 2017-18 class size cap of 30 was higher than, for example, the 1997 average limit of 25 because, by 2017-18, Kg teachers were, by law, being paired with Early Childhood Educators, with the result that the number of students per adult actually decreased.

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