School Board Update

Can There Be a Central Arbitration Over Local Terms? The Divisional Court Weighs In

School Board Update

Can There Be a Central Arbitration Over Local Terms? The Divisional Court Weighs In

Date: November 16, 2022

The Ontario Divisional Court recently dismissed an application for judicial review of a preliminary arbitration decision in which Arbitrator Steinberg concluded that he lacked jurisdiction over aspects of the Ontario English Catholic Teachers’ Association’s (OECTA) grievance alleging violations of the preparation, planning and supervision (PPS) provisions of the collective agreement. He determined that the PPS provisions were not “central terms” within the meaning of the School Boards Collective Bargaining Act, 2014 (SBCBA).

Central Bargaining/Steinberg Arbitration Award

The case involved a dispute between OECTA, the Ontario Catholic Schools Trustees’ Association (OCSTA) and the Crown in Right of Ontario (Ministry of Education).

In accordance with the two-tier collective bargaining process established in the SBCBA, the central parties and the Crown were required to determine the matters to be included within the scope of central bargaining. The parties agreed, among other things, that “supervision and on-calls” and “preparation and planning time provisions” were within the scope of central bargaining.

Despite this agreement, the evidence before the Arbitrator was:

  • no proposals in respect of PPS were exchanged during central bargaining
  • the Minutes of Settlement (MOS) setting out the terms of the parties’ agreement on central terms made no reference to PPS
  • the ratified central terms which constitute Part A of the collective agreement made no reference to PPS.

Rather, PPS provisions were included in Part B (the local terms) of each school board collective agreement. When the parties concluded central bargaining, the following paragraph was included in the MOS:

7. The terms herein, and in the accompanying Appendix I shall form the entirety of the central terms of the collective agreement and any directions to local Parties with respect to centrally bargained issues. Exclusive of matters relating to class size, where a matter was agreed as a central item and no new collective agreement language was agreed to, any existing collective agreement language from the 2014-2017 agreements, and extension thereof, including Letters of Understanding/Agreements having application during the term of that 2014-2017 collective agreement and the 2017-2019 extension agreement, shall continue in force and effect for the term of this Agreement and the matter shall not be available for local bargaining.

This paragraph meant that because the central parties had agreed that PPS was a matter for central bargaining but had not agreed to any new collective agreement language, the existing collective agreement language would apply and PPS would not be available as a matter for local bargaining (even though the PPS provisions were in the local terms).

At the hearing before Arbitrator Steinberg, OECTA argued that since the central parties had agreed that the existing local language would apply (i.e. status quo), the underlying local language had become a central term. As a result, OECTA asserted that it could bring a central grievance about an individual PPS provision in a collective agreement, with the result that a central arbitration award would be binding on all 29 Catholic school boards.

OECTA argued that paragraph 7 of the MOS brought PPS into the realm of central terms, in accordance with the SBCBA definition:

“central terms” means, in relation to a collective agreement, the terms and conditions of the collective agreement that are determined through, or in connection with, central bargaining

As noted above, Arbitrator Steinberg rejected this argument. He held that it was the status quo agreement itself had been was “determined through, or in connection with, central bargaining” and that was the central term—not any specific PPS provision in the local terms. In rejecting this argument, Arbitrator Steinberg commented, “OECTA’s interpretation would undermine the certainty required by the scheme of the [SBCBA] in delineating central terms and local terms and adversely impact on the collective bargaining process.”

Divisional Court

The Court reviewed the arbitration decision on the reasonableness standard and held that the Arbitrator’s decision was reasonable.

The Court affirmed the principle that legislation must be read in its entire context—even where words are clear and unequivocal, the purpose, context and statutory scheme remain relevant and must be considered.

With this purpose, context and statutory scheme in mind, the Court held that the Arbitrator’s conclusion that OECTA’s interpretation would erode the central/local distinction was reasonable.

The Court also held that OECTA’s position neglected the distinction between central terms and central matters. This issue is relevant to a decision on jurisdiction because the Arbitrator’s jurisdiction was limited to central terms. Matters included in the scope of central bargaining do not become central terms by virtue of that fact, unless they result in terms in the collective agreement.

Finally, the Court noted there were 29 distinct sets of PPS provisions between OECTA and each local school board. Therefore, it was reasonable to conclude the PPS provisions were not “determined through, or in connection with, central bargaining.” A conclusion that the PPS provisions were central terms would lead to the illogical result of including in central terms subject matter that had been agreed to through local bargaining.

In dismissing the application, the Court stated that Arbitrator Steinberg’s award bore the hallmarks of reasonableness in terms of justification, transparency and intelligibility.

This decision rejects OECTA’s effort to expand the scope of matters which could be referred to central arbitration. Such an expansion could have led to central arbitrations about local collective agreement terms, and the possibility of central arbitration awards about those terms that could have an impact on all of the other boards. The decision reaffirms the importance of local arbitrations and helps school boards retain control over local disputes.

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