School Board Update
School Boards Take Note: Arbitrator Finds Class Size Maxima Still Apply to Mainstream Classes with Special Needs Students Expecting to Receive Less than Full Credit
Date: September 15, 2025
School Boards with specific language in their collective agreements around secondary staffing in situations where special needs students receive less than full credit will want to take note of the recent decision in Avon Maitland District School Board v Ontario Secondary School Teachers’ Federation, where Arbitrator Robert Herman concluded that the class size maxima in the collective agreement still apply even when the mainstream class in question includes students with identified special education exceptionalities who are not expected to receive a full credit.
Background
In 2013, the Avon Maitland District School Board (the AMDSB or the Board) began phasing out its use of Self-Contained Classes (SCCs) for the education of students with certain special education needs. Such classes, sometimes referred to as “special education classes” or “segregated classes”, had been regulated for over 40 years (with little change) by section 31 of Ontario Regulation 298, “Operation of Schools – General” (the Regulation) to the Education Act and its predecessors.
Section 31 sets out exceptionality-specific maximum class sizes for segregated special education classes established for students who reflect particular exceptionalities. For example, the Regulation sets a maximum of six (6) for a class established “for aphasic or autistic pupils”, a maximum of 10 for a class established “for pupils who have developmental disabilities”, and so on.
The Board’s change in policy involving the inclusion of students formerly taught in SCCs into mainstream classes was to take place over a four-year period. It would be initiated in the 2013-14 school year through the inclusion of incoming special needs students in mainstream Grade 9 classes. Successive inclusionary cohorts would then progress through the school system.
As a part of this new inclusionary model, several of the students formerly taught in SCCs were ultimately identified in each semester as being expected to receive either a 0.5 credit or no credit at all in one or more of the mainstream courses in which they were enrolled. This new procedure of identifying, course by course, students earning less than full credit (LTFC) was included in 2013-14 as part of the well-established process of developing and revising Individual Education Plans (IEPs) for exceptional students. By law, the IEP development/revision process must be completed on or before the 30th school day of each semester.
As stated, the identification of students earning LTFC was new to the AMDSB. As in other boards, AMDSB had previously included students with learning disabilities in mainstream classes. However, this had been on a full credit basis, alongside their neurotypical classmates. The new process of identifying students earning LTFC primarily affected only students with more significant exceptionalities. Such exceptionalities would, in almost all cases, have been identified while the students were in elementary school and reflected at that time on their IEP.
Significantly, therefore, although the nature of a student’s IEP’d exceptionality would be known before the commencement of the school year (e.g., Mild Intellectual Disability (MID), Developmental Disability (DD), etc.), that student’s anticipated credit achievement in any particular mainstream course (whether for 1.0, 0.5 or 0.0 credits) would only be determined (and identified in the IEP) after the initial IEP diagnostic assessments had taken place in that class, taking that course with that teacher.
The Grievance
In response to the new inclusion of students earning LTFC, the Ontario Secondary School Teachers’ Federation (OSSTF) filed a grievance claiming that the regular maximum class sizes established in the AMDSB Collective Agreement for a particular course did not apply if the class included one or more students earning LTFC. Rather, for reasons set out below, OSSTF argued that the size of such a class would be governed by the lowest class size maximum set out in the Regulation that applied to the exceptionalities presented by any of the students earning LTFC.
As was commonly the case in other OSSTF contracts, maximum class sizes for AMDSB’s mainstream classes were generally established depending on the nature of the curricular course being taught. For example, the maximum class size for a Grade 9 or 10 Applied course was 25, whereas the maximum for Technology courses in all grades (other than Computer Technology) was 20. These maxima, found in Article 25.01(a) of the Collective Agreement, were to be met by October 15 of the first semester and by February 15 of the second semester.
The Collective Agreement did not expressly contemplate the enrollment of students earning LTFC in otherwise credit-bearing classes, either in its maximum class size provisions or otherwise. This was because the Agreement’s class size language was bargained in 2008, years before the AMDSB decided to phase out its SCCs and move to a more inclusive teaching model in which students earning LTFC would be taught in mainstream classes.
As stated, Article 25.01(a) of the Collective Agreement was silent on how to treat the inclusion of students with special needs earning LTFC in otherwise mainstream classes. In the absence of class size language in Article 25.01(a) expressly dealing with the Board’s new inclusionary model, the OSSTF relied upon a different provision, Article 25.01(c), which stated:
“In a multi-level class, the maximum class size shall be the maximum of the lowest level.”
The parties agreed, and past practice demonstrated, that Article 25.01(c) and the expression “multi-level class” had historically been used to address situations where a teacher in a mainstream class was required to teach two or more cohorts of students that were enrolled in different Ministry of Education (MOE) courses. This might involve, for example, a single composite class involving one or more students enrolled in Grade 10 Applied English and one or more students enrolled in Grade 11 College English. The maximum allowable in such a “multi-level class” would be the lower of the two applicable caps found in Article 25.01(a).
The fundamental issue in the grievance was whether the inclusion of one or more students earning LTFC within an otherwise single-curriculum mainstream class generated a “multi-level class”.
The Positions of the Parties
OSSTF argued that, given the magnitude of the departures from the regular curriculum that lay behind credit ascriptions of 0.5 credits or 0.0 credits for some students with IEPs, the teacher was being required to deliver what was, in effect, more than one curriculum to the students in the class. It therefore constituted a “multi-level class” requiring a lower class size as per Article 25.01(c) of the Collective Agreement.
In support of its position, OSSTF pointed to the evidence disclosed by one teacher (an agreed upon “test case” for the arbitration) concerning the additional workload and stress associated with teaching mainstream classes that included students with special needs earning LTFC. It argued that class size maximum clauses are essentially workload provisions and that the circumstances generated increased workload, therefore justifying the characterization of a multi-level class and a reduced maximum enrollment.
In the absence of any numerical Collective Agreement class size maximum pertaining to the inclusion of students earning LTFC, OSSTF argued that the class size maxima established in the Regulation for SCCs should apply. Thus, the inclusion of even one student with, for example, a developmental disability in an otherwise mainstream Grade 9 Applied Geography class would cause the Collective Agreement maximum of 25 to be set aside and the SCC maximum of 10 to be applied, in accordance with the Regulation.
In response, the AMDSB argued that all classroom teachers are required to engage in “differentiated instruction”, taking into account and adapting instruction to the individual strengths and learning needs of all of their students. This approach to teaching had evolved over the decade prior to the Board’s adoption of its inclusionary model, culminating in the 2013 MOE Policy document “Learning For All”. Students with exceptionalities, said the Board, were (like their neurotypical classmates) entitled to the benefits of differentiated instruction in mainstream classrooms as a matter of MOE policy. The Board also argued that the classroom teacher in the test case had not taken advantage of available supports and professional guidance, and pointed out that the class size maximum provision, Article 25.01(a), referred expressly to “courses” rather than to characteristics possessed by individual students.
Finally, the Board asserted the untenable impracticality of OSSTF’s position. Students with IEPs would not present themselves on the first day of school as “0.0”, “0.5” or “1.0” credit students. Rather, “credit ascription” for any given student with an IEP in any particular class would not be established until several weeks into the semester. The class would, according to OSSTF’s interpretation, then “become” a multi-level class, with a new maximum drawn from the rules for SCCs in the Regulation. Faced with these new, lower maximum caps, the Board would have to split classes, find duplicate teaching spaces and hire additional teachers, all several weeks into each new semester.
The Arbitrator’s Decision
In an award released on August 25, 2025, Arbitrator Robert Herman accepted the essential points of the AMDSB argument and dismissed the grievance as it pertained to the test case he had considered. Importantly, he expressly rejected the OSSTF’s position that the inclusion of one or more students earning LTFC generated a “multi-level class”.
The Arbitrator began by observing that the SCC class size provisions of the Regulation did not apply directly to the test case since it was clearly not a self-contained class established for students with specific exceptionalities.
He then observed that the contractual class size maxima listed in Article 25.01(a) were arranged “by type of class or type of course, such as Academic, Applied, or Technological Studies, or by a type of pedagogical or instructional course”. By contrast, he pointed out that Article 25.01 “did not describe class size maximums with reference to the characteristics of individual students, to their exceptionalities or credit expectations in a given course,” as OSSTF had argued.
He also accepted the Board’s argument that OSSTF’s position was practically unworkable, pointing out the incongruity of the Collective Agreement’s requirement that class size maxima be met by October 15 of each semester, whereas the 30 school day IEP process could, in many school years, extend beyond that date. He also noted that IEPs can continue to be amended as the semester progresses. Assessing the operational consequences associated with “a scheme whereby the addition of a single student taking a class for less than full credit would result in that class becoming a multi-level class, as the Federation interpretation demands”, he stated:
114. … On the Federation’s interpretation and suggested remedial relief, when the first student taking the class for less than full credit joins the class, that class will have a sharply reduced maximum class size, requiring an immediate reduction in the class size to either 10 or 15…. Classes would likely have to be split into two, so that each is consistent in size with the reduced maximum size (assuming it was previously higher than 15), additional classrooms would have to be found and additional teachers found and potentially hired. The hiring process for teachers is governed by the Collective Agreement and can take some time, and it seems unlikely that the language used by the parties was intended to require the Board to make these changes whenever the first student taking the class for less than full credit became part of the class.
The Arbitrator also pointed out that OSSTF’s position would likely lead to considerable frequent debate between administrators and teaching staff over the reasonableness of credit expectations of students with IEPs, particularly if it appeared that the student in question would become the first student earning LTFC enrolled in a given class.
With respect to the Federation argument regarding increased workload, the Arbitrator stated:
119. The makeup of AB’s class did require of him materially greater time and effort in preparing and teaching his lessons, and evaluating his students, and teaching the students in his class required him to the utilize a wider diversity of techniques… The issue before me for determination, however, is whether [his class] was a “multi-level class”, not whether AB had to expend significant or unreasonable effort in teaching [it] nor whether his strengths and asserted deficiencies were responsible for the degree of extra work required of him. The extra work and its nature remain relevant factors, but primarily for purposes of shedding light on whether the IEP students in question were being taught at the same “level” or the same “curriculum”.
121. Despite the considerable extra work demanded of AB, I am unable to conclude that the modifications he made in content, delivery, and assessment with respect to the course curriculum in teaching his IEP students resulted in their being taught a different curriculum or being taught at a different “level” within the meaning of “multi-level class” in Article 25.01(c).
In conclusion, the Arbitrator found that a “level”, for purposes of determining whether a class is a “multi-level class”, is a type of course with its associated curriculum. The fact that there may be students in the class taking the course for less than a full credit did not have the effect of converting that class into a “multi-level class”. Accordingly, the AMDSB had not breached the Collective Agreement.
Evaluating the Impact on Your Board Staffing
This case was driven by the precise wording of the disputed language taken together with the related operational context of the contract. In that sense, the impact of the AMDSB case on other boards will depend on the degree of similarity those contracts bear to Articles 25.01(a) and (c) of the AMDSB contract, and specifically its use of the expression “multi-level class”.
Two points should be made about the approach taken by the Arbitrator in the AMDSB case:
Changes to workload associated with an inclusionary teaching model do not necessarily violate collective agreements
Although the Arbitrator accepted that an increase in teacher workload associated with an inclusionary teaching model would be a “relevant” consideration, such a consequence was not, in and of itself, determinative of a contractual violation or of an entitlement to relief. The demands on teachers have increased over the years, in part because of the introduction of such concepts as differentiated instruction. These changes do not necessarily violate collective agreements, and relief (if any) may be more appropriately addressed through existing bargaining structures.
Take into consideration the operational practicalities of implementing an inclusionary model
In this case, the Arbitrator was clearly influenced by the significant impracticalities associated with the Federation’s position – one that would predictably cause many classes to implode mid-semester with the ascription of earning LTFC status to even one special needs student in a class. Whatever language confronts a particular board in a dispute over an inclusionary instructional model, it will want to assess and possibly rely upon such operational difficulties in asserting its interpretive position.
The AMDSB was successfully represented by Hicks Morley’s Michael Hines.
It is very important that your collective agreement language and practices be reviewed in light of this significant decision. To discuss how we can assist you in this regard, please contact your regular Hicks Morley lawyer.
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