Lessons in Labour Relations for School Board Employers

In this edition of our fall 2025 School Board Update, we review two recent decisions and provide important takeaways in interpreting collective agreements for school board employers.

First, Jordynne Hislop outlines the facts and Arbitrator Hayes’ decision in Toronto District School Board v Elementary Teachers’ Federation on whether boards are required to pay benefit premiums for teachers on self-funded leave.

Then, Vincent Panetta and Brittany Bates look at the impact of Arbitrator Wilson’s decision in Limestone District School Board v Elementary Teachers’ Federation of Ontario. Finally, we provide a note on the Ministry of Education’s recent proposal to amend Ontario Regulation 521/01, which seeks to expand requirements for police record checks.

Are Boards Required to Pay Benefit Premiums for Teachers on Self-Funded Leave?

By: Jordynne Hislop

In Toronto District School Board v Elementary Teachers’ Federation, Arbitrator Hayes made a key decision regarding the unenforceability of Local Terms in 2019-2022 ETFO Collective Agreements. This case was specifically about whether the Toronto District School Board (TDSB) was required to pay the benefit premiums for teachers on a four over five agreement in the year of their leave. Important for the sector, Arbitrator Hayes concluded that the relevant local benefit had been rendered unenforceable by the Central Terms. For TDSB specifically, Arbitrator Hayes further added that the Local Terms had also been revised to no longer require the Board to pay the premiums for the teacher in the year of their leave.

Previous 2014-2017 Collective Agreement

In an earlier decision, Durham District School Board v Elementary Teachers’ Federation of Ontario, Arbitrator Nyman concluded that under the 2014-2019 Collective Agreement, a similar local term in the applicable collective agreement remained enforceable during the transition to the provincial benefit trusts. The Central Terms of the 2014-2019 Collective Agreement contained Letter of Agreement #6 to deal with the transition to provincial benefit trusts. The opening paragraph of Letter of Agreement #6 stated that once all employees covered by the Central Terms become covered by the ELHT (the “Participation Date”), all references to life, health and dental benefits in the applicable local collective agreements were to be removed from the local agreement.

Despite this clear statement that local terms were to be removed, there was additional language in the Central Terms as follows:

C6.2 Cost Sharing

a) With respect to funding in C.6.1a), should there be an amount of employee co-pay, the Trust will advise boards what that amount shall be. Unless advised otherwise, there will be no deductions upon the Participation Date.

b) Any further cost sharing or funding arrangements as per previous local agreements in effect as of August 31, 2014 remain status quo.

In the Durham case, Arbitrator Nyman determined that, by virtue of C6.2b), the central parties intended for the local term requiring the Durham District School Board to pay for teacher’s benefit premiums in the year of leave when on a deferred leave plan to remain enforceable despite the opening paragraph of Letter of Understanding #6 since it was a “cost sharing or funding arrangement”.

The 2019-2022 Collective Agreement

By the next round of bargaining, all eligible employees had been transitioned to the provincial trust and some key amendments to the Collective Agreement occurred as a result thereof. In the 2019-2022 Collective Agreement, the Central parties removed Letter of Understanding #6 (included only as a historical reference) and revised the Central Terms as follows:

C5.1 ELHT Benefits

The parties agree that since all active eligible employees have now transitioned to ETFO ELHT all references to existing life, health, and dental benefits plans in the applicable local collective agreement for active eligible employees shall be removed from that local agreement.

C5.7 Benefits not provided by the ETFO ELHT

a) any further cost sharing or funding arrangements regarding the EI rebate as per previous local collective agreements in effect as of August 31, 2014 shall remain status quo.

The Central Terms recognized that the provincial benefit trusts were in place and any applicable local collective agreement terms should accordingly be removed (C5.1). The text of the former C6.2b) was also changed to apply only to the EI rebate and renumbered to C5.7.

The ETFO argued that, despite these language changes, the requirement to pay benefit premiums in the leave year remained enforceable in the Local Terms. Among other arguments, the ETFO submitted that the words “cost sharing” in Article C5.7 a) were not limited to the EI rebate and remained more broadly applicable.

The Board submitted that the outcome in Durham was no longer applicable given that in the 2019-2022 Collective Agreement:

1.Letter of Agreement #6 had been removed

2. C5.1 made it clear that local terms regarding life, health, and dental benefits plans shall be removed from local agreements; and

3. C5.7a) was amended to apply only to the EI rebate (1).

TDSB Local Terms

In addition to the change to Central Terms, the local parties had also bargained changes to their Local Terms by removing the explicit requirement for TDSB to pay premiums in the year of the leave while a teacher was on a deferred leave plan. Arbitrator Hayes confirmed that this requirement had been removed in the Local Terms of the 2019-2022 Collective Agreement.

During the time the parties were bargaining Local terms for the 2019-2022 Collective Agreement, Arbitrator Nyman’s decision in the Durham case was still pending. In an attempt to address the still unknown outcome of that decision, the parties had entered into Minutes of Settlement on the same day that they finally agreed on the Local Terms.

ETFO argued that the Minutes of Settlement constituted an agreement to maintain the prior practice under the 2014-2019 Collective Agreement pending the outcome of the Nyman award. Arbitrator Hayes found that the language of the Minutes of Settlement was not clear enough to override the parties’ clear agreement in the newly bargained Local Terms that TDSB was no longer required to pay the teacher premiums in the year of the leave while a teacher was on a deferred leave plan.

Key Takeaways for School Board Employers

Local collective agreement terms regarding life, health, and dental benefits plans for permanent full time ETFO teachers should be of no force and effect unless they fall under the narrow exception of C5.7a). In addition, Arbitrators continue to rely on the sophistication of the parties when interpreting collective agreement language. Where a collective agreement provision is substantially altered or removed from an agreement, it is assumed to be a deliberate action by the parties.

The Education Act Permits Students to Register with a Board Outside of Their Residential Area

By: Vincent Panetta and Brittany Bates

In Limestone District School Board v Elementary Teachers’ Federation of Ontario, Arbitrator Wilson provides clarity regarding the operation of the Education Act (the Act), confirming s. 33(6) of the Act permits pupils to register with a school board that they do not reside in, and an exchange of e-mails between Directors of Education constitutes an agreement between the Boards for the purposes of s. 33(6)(b).

The Facts Giving Rise to the Grievance

In the 2023-24 school year, the Limestone District School Board (LDSB), the Kawartha Pine Ridge District School Board (KPRDSB), and the Renfrew County District School Board (RCDSB) (collectively the Boards) entered into an agreement to create and operate an elementary virtual school (EVS), believing there was an advantage in multiple boards sharing in the operating of a single EVS.

In accordance with its Collective Agreement, the EVS was staffed by each board proportionately to the number of students from the respective board who enrolled for at least part of the school year. Much of the administrative and other supports were supplied by LDSB.

In its first year, 121 students, across the three boards, enrolled. In year two, RCDSB withdrew from the arrangement and enrollment dropped to 94 including 29 students who resided outside of the catchment areas of either LDSB or KPDSB. Those pupils were registered to the LDSB while attending the EVS. The Director of Education from LDSB (receiving board) and the Director(s) of Education from the sending board(s) exchanged e-mails verifying their agreement to have the non-resident pupil(s) register with the LDSB and participate in the EVS.

The Elementary Teachers’ Federation of Ontario (ETFO) filed three separate grievances in the 2023-24 school year related to the EVS and the grievances were referred to Arbitrator Matthew Wilson.

During the course of disclosure and hearing days, ETFO became aware that there were non-resident students participating in the EVS and objected. ETFO was of the view that if non-resident students were barred from participation in the EVS, this would likely result in the discontinuation of the EVS for the 2025-26 school year.

The Arbitrator’s Decision

The Boards argued that the provisions of the Act only address that resident pupils have a right, without cost to them, to attend the board in which they reside and that the Act does not preclude non-resident students from attending school in another board, pursuant to ss. 32 and 33(1). The Boards further argued that s. 33(6) of the Act allows non-resident students to register with a board that is not in that board’s geographic catchment area. In addition, section 33(6) of the Act allows for elementary students to register in a board outside of its “school section” if the pupil pays a fee or if the boards agree to provide education to the pupil.

ETFO argued that an exchange of e-mails between Directors of Education was insufficient to constitute an agreement between the Boards for the purposes of s. 33(6)(b). ETFO also argued that the Directors of Education were not the “board” for the purposes of s. 33(6)(b) and therefore, did not have the capacity to enter into such an agreement.

Arbitrator Wilson agreed that s. 33(6) of the Act allows elementary pupils residing outside of LDSB or KPRDSB, to register in the LDSB to participate in the EVS and that doing so was to provide education to that pupil. In addition, Arbitrator Wilson rejected ETFO’s arguments and found that the agreement between Directors of Education, by an exchange of e-mails, was sufficient to constitute an agreement between the boards for the purposes of s. 33(6)(b). Accordingly, the grievance as it relates to non-resident students was dismissed.

Key Takeaways for School Board Employers

When permitting pupils to register with a school board that they do not reside in, in order to be compliant with s. 33(6) of the Act, school boards must ensure that the pupil enrols in the receiving school board (where the pupil is not a resident) and the sending school board pay a fee to the receiving board on the pupil’s behalf, or there is an agreement between the school boards relating to the education of the pupil.

While Arbitrator Wilson confirms that an exchange of e-mails between Directors of Education constitutes an agreement between the Boards for the purposes of s. 33(6)(b) of the Act, it may be prudent for the school board Trustees to pass a motion to send and/or accept such pupils, as evidence that they have knowledge of and agree to the arrangement.

Final Note: Proposal for Amending O. Reg. 521/01: Collection of Personal Information and Consequential Regulations

By: Jordynne Hislop

On August 26, 2025, the Ministry of Education proposed amendments to Ontario Regulation 521/01 and other regulations to enhance safety and protection for children, youth, and students.

If accepted, the proposal would:

amend the Regulation to require school boards and school authorities to collect a police record check every five years from employees, service providers, volunteers, and students on educational placements. Checks would include:
- a Vulnerable Sector Check from employees, service providers, volunteers and students on an educational placement who are in or will be in a position of trust or authority in relation to pupils; and
- a Criminal Record and Judicial Matters Check from employees, service providers, volunteers and students on an educational placement who are not or will not be in a position of trust or authority in relation to pupils.
require school boards to collect the new police record checks for existing employees, service providers, and volunteers over a staggered timeline based on when their last check was collected. These requirements would come into effect in four phases as follows: January 1, 2026, March 31, 2026, September 1, 2026 and January 1, 2027
require an offence declaration each of the four years between the collection of required checks
implement revisions to align with new terminology and associated authorized disclosure of information under the Police Record Checks Reform Act, 2015
make consequential amendments to Regulation 298 (Operation of Schools), O. Reg. 142/08 (Letters of Permission) and O. Reg. 322/10 (Letters of Permission – Early Childhood Educators) to align with updated terminology and requirements in O. Reg 521/01

A staggered timeline is proposed for implementation in recognition of the increased volume of police record checks that would be required. It should be noted that these changes will result in direct compliance costs for those required to obtain Vulnerable Sector, Criminal Record and Judicial Matter Checks under the amended regulation.

The deadline to submit comments to the Ministry on the proposed amendments was September 25, 2025.

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. ©