School’s (Almost) Out! Our Final School Board Update for the 2018-2019 School Year

As another academic year draws to a close and we are finally getting a glimpse of summer, we bring you our last School Board Update of the Spring term. In it, we discuss two arbitration awards. The first deals with whether teachers on pregnancy or parental leave for a full academic year are able to carry over their sick leave credits upon their return from leave. The second considers the dismissal of a teacher for inappropriate interactions with female students. We also provide you with an overview of Bill 48, Safe and Supportive Classrooms Act, 2018.

Finally, over the past year we heard repeatedly of your concerns over high absenteeism, the challenges your school administrators face in conducting fair and reliable investigations and the struggles you experience in managing ever-increasing requests for accommodation (including with respect to the implications of legalizing cannabis). Set out in this Update is a list of workshops Hicks Morley can provide which will help you navigate through these challenging areas.

Many thanks to Diana Holloway and Kate Shao for their help in preparing the articles for this edition.

Have a wonderful summer!
Amanda Lawrence-Patel and Dianne Jozefacki

Pregnancy / Parental Leave and Carrying Over Sick Leave Credits

Are teachers on pregnancy or parental leave for a full academic year able to carry over their sick leave credits upon their return from leave? Arbitrator Gail Misra considered this question in District School Board Ontario North East v Elementary Teachers’ Federation of Ontario and concluded that teachers are not entitled to accumulate sick leave credits during their year off work and that this lack of entitlement does not amount to discrimination on the basis of sex or pregnancy.

Teachers at the District School Board North East (Board) are allocated 11 Sick Leave Days at the start of each school year. The Sick Leave Days are paid at 100% of the teacher’s salary and do not carry over, except for the purpose of topping up a Short-Term Leave and Disability Plan (STLDP). Teachers have access to a STLDP bank of 120 days paid at 90% of their salary, which re-sets each September. The collective agreement provision at issue is in the Central part of the Collective Agreement at Article C7e):

Teachers accessing STLDP will have access to any unused Sick Leave Days from their last year worked for the purpose of topping up salary to 100% under the STLDP.

The Federation filed a policy grievance after a teacher (the individual grievor) was denied her request to carry over Sick Leave Days she thought she accumulated in the 2015/16 school year while on pregnancy and parental leave. The grievor did not have any unused Sick Leave Days from the 2014/15 school year and was on leave the entirety of the 2015/16 school year. She used all of her 11 Sick Leave Days in the 2016/17 school year. She subsequently went on a STLDP leave for an additional three days and requested a top-up using her 2015/16 Sick Leave Days.

In response, the Board informed the grievor that her “last year worked” was the 2014/15 school year and she did not have any remaining days to use as top-up. She did not work in the 2015/16 school year and therefore was not entitled to the annual allotment of Sick Leave Days. The Federation argued that the grievor was adversely impacted because of her pregnancy.

Arbitrator Misra agreed with the Board’s application of Article C7e). She held that the qualification of only being able to carry forward remaining Sick Leave Days from the “last year worked” was universal. It had nothing to do with the reason one may have not worked for any intervening period between the last year worked and the year in which a STLDP leave is taken. As such, it did not adversely affect those who took pregnancy or parental leaves. If the grievor worked one day in the 2015/16 school year, she would have been entitled to Sick Leave Days and been able to carry them forward to be used as top-up.

The Arbitrator commented that the Federation appeared to be seeking to put those teachers who take pregnancy or parental leaves in a better position than all other teachers who may be off work for a full academic year. Article C7e) is neutral and applies to any teacher who has been on a leave for any reason seeking to use their STLDP bank.

Further, the STLDP top-up bank is not based on an employee’s status, but is instead related to having worked. The right to carry forward unused Sick Leave Days is a reward or incentive for not using those days in the previous year that one worked. Teachers who have not worked during the entirety of an academic year would not have had to decide on whether to take that incentive.

This case provides a helpful interpretation of the centrally-bargained Article C7e) and sheds insight on the meaning of “last year worked.” It is clear that an employee who has been off work for an entire academic year, even if on a pregnancy or parental leave, has not “worked” while on leave for the purposes of sick leave credit entitlements under this collective agreement provision.

The District School Board Ontario North East was represented by Tim Liznick of Hicks Morley.

Arbitrator Upholds Termination of Teacher’s Employment for Having Inappropriate Relationships with Students

When will a teacher’s relationship with a student cross the line – justifying termination? The recent arbitration decision in Sudbury Catholic District School Board and OECTA, Re, 2019 CarswellOnt 4511, provides helpful commentary on the appropriate boundaries of a student-teacher relationship.

Arbitrator Barry Stephens upheld the termination of a teacher’s employment from the Sudbury Catholic District School Board (Board) as a result of his inappropriate relationships with two female students, X and Y.

The teacher (grievor) had been employed by the Board for approximately three years as a teacher in automotive technology. He was well-liked by students and staff and was successful as a teacher, revitalizing the automotive technology program at the school.

In 2015, the grievor was charged with sexual misconduct in relation to X and was subsequently suspended. The criminal trial was ongoing at the time the grievor’s employment was terminated in January 2016. Ultimately, the grievor was not convicted but his criminal charges did not play a role in the Board’s termination decision. Instead, the Board relied upon the following five grounds for the termination:

The grievor learned that X had a sexually transmitted disease and then engaged in a conversation with her about it.
The grievor aided and assisted Y in getting a tattoo without any knowledge of whether her parents would approve. The grievor drove Y to the tattoo parlour, weighed in on the tattoo design, and partially paid for the tattoo.
The grievor gave money to X, which she used to purchase a sex toy. The grievor provided inconsistent answers as to the purpose for the money.
The grievor had inappropriate text message conversations with X and lied about how X had come to get his personal cell phone number.
The grievor had a “threesome” contract drawn up in his notebook between the two students, X and Y, which pledged that they would not have sex. The grievor was vague and evasive in his answers when asked about the contract.

The Arbitrator’s Decision

The Arbitrator found that it was inappropriate for the grievor to have an intimate discussion with X regarding her sexually transmitted disease and that this conduct amounted to just cause for discipline. The grievor ought to have known that he was not in a position to provide medical, psychological, or health advice of any kind and that his statements to X on this issue should have been restricted to offering to assist X to seek professional health and support to the extent it was necessary. The Arbitrator agreed with the Board that the subject-matter of the conversation went beyond what is considered a normal conversation between a teacher and a student.

He also agreed with the Board that the grievor’s actions regarding the tattoo were outside the acceptable norms of a student-teacher relationship and amounted to just cause for discipline. Moreover, the grievor’s inconsistency on why he provided money to X was enough to undermine the trust a School Board must necessarily place in a teacher. The grievor’s conduct was an example of poor judgment and demonstrated a lack of common sense, which amounted to just cause for discipline

Finally, the Arbitrator found that the grievor’s text message communications and the “threesome contract” also established just cause for discipline.

The Arbitrator concluded that the grievor’s conduct in relation to X and Y went beyond the teacher-student relationship: the grievor’s relationships with the students represented a fundamental lack of judgment on his part and were not merely poor choices that could be reliably corrected through training. The grievor’s conduct went to the heart of his relationships with the students, which undermined the trust necessary in the employment relationship of any teacher and breached the commitment to the safety and well-being of students. As a consequence, the Arbitrator upheld the Board’s decision to terminate the grievor’s employment.

The Sudbury Catholic District School Board was represented by Dolores Barbini of Hicks Morley.

An Overview of Bill 48, Safe and Supportive Classrooms Act, 2018

On April 3, 2019 Bill 48, Safe and Supportive Classrooms Act, 2019 received Royal Assent. It makes amendments to the Early Childhood Educators Act, 2007, the Education Act, the Ontario College of Teachers Act, 1996 and the Teaching Profession Act. Most of the amendments brought about by Bill 48 are now in force. The amendments to the Ontario College of Teachers Act will come into force upon proclamation.

Amendments to the Early Childhood Educators Act, 2007

Schedule 1 of Bill 48 sets out the following amendments to the Early Childhood Educators Act, 2007:

The definition of “professional misconduct” is amended to include “prescribed sexual acts,” which are acts of a sexual nature prohibited under the Criminal Code and prescribed by a regulation made under the Act;
The new subsection 1(3) clarifies that sexual abuse of a child does not include touching or behaviour that is a necessary part of an early childhood educator’s professional responsibilities or remarks that are pedagogically appropriate; and
Section 33.2 is amended to require mandatory revocation of a member’s certificate if the Discipline Committee finds the member guilty of an act of professional misconduct that consists of or includes sexual abuse of a child, a prohibited act involving child pornography or a prescribed sexual act.

These substantive amendments are intended to create expanded protections for children from sexual misconduct. However, by making the revocation of a teacher’s certificate mandatory following a finding – on the balance of probabilities – that the teacher engaged in sexual misconduct, the Discipline Committee’s discretion has been restricted to a large degree.

These amendments are still in their infancy, so we expect to see their implications over time as the case law develops.

Amendments to the Education Act

Schedule 2 of Bill 48 amends the Education Act to provide that the Minister may establish policies and guidelines respecting service animals in schools. The Minister may require boards to comply with these policies and guidelines and to develop policies in accordance with these policies and guidelines. We anticipate that the Minister’s primary focus will be to address service dogs and to make the requirements for dog training and certification consistent across Ontario.

In a move that has brought significant public attention to the issue, the Ministry of Education recently launched a public consultation on service animals – giving students, families, school boards and community partners an opportunity to weigh-in.

Now more than ever, it is important for school boards to have comprehensive policies in place which address the use of service animals in schools. This issue requires careful consideration given the complex interplay between school boards’ duties under the Human Rights Code, the Education Act, and the Occupational Health and Safety Act and the possibility of the presence of service animals in schools creating competing claims (e.g. triggering allergies or phobias).

Amendments to the Ontario College of Teachers Act, 1996

Schedule 3 of Bill 48 sets out significant amendments to the Ontario College of Teachers Act, 1996, including:

Equivalent amendments as those to the Early Childhood Educators Act, 2007 listed above, namely amending the definition of “professional misconduct”, adding the new subsection 1(8) and amending section 30.2;
Amendments allowing the Lieutenant Governor-in-Council to determine the composition of the Council and creating new requirements for the composition of Council;
Re-enactment of section 17, which sets out the new requirements for committee panels;
Repeal of provisions governing the Public Interest Committee;
Re-enactment of subsection 18(1), which requires applicants to satisfy requirements relating to proficiency in mathematics;
Amendments allowing the number of members on the Investigation Committee, Discipline Committee and Fitness to Practise Committee to be prescribed by regulation; and
Revocation of Ontario Regulation 370/07, Public Interest Committee – Members.

Setting aside the substantive amendments to the Ontario College of Teachers Act, 1996, which echo those to the Early Childhood Educators Act, 2007 (described above), the amendments to the Ontario College of Teachers’ governance structure are both numerous and extensive. It is clear that authority is being centralized in the office of the Lieutenant Governor-in-Council, but the full ramifications of this will only be revealed in time.

It is also likely that with the re-enactment of requirements for teachers to demonstrate a certain level of proficiency in mathematics, challenges will arise for school boards in relation to those teachers who fail to satisfy this requirement.

Amendments to the Teaching Profession Act

Schedule 4 of Bill 48 amends the Teaching Profession Act to include a new subsection 12(3.1), which clarifies that sexual abuse of a student does not include touching or behaviour that is a necessary part of a teacher’s professional responsibilities or remarks that are pedagogically appropriate.

This amendment simply brings the Teaching Profession Act in step with the Early Childhood Educators Act, 2007 and the Ontario College of Teachers Act, 1996, given the equivalent substantive amendments to those pieces of legislation (discussed above).

Hicks Morley can assist school boards to prepare for, and navigate, the changes brought about by Bill 48.

Training at Your Premises – We’ll Come to You

To help you prepare for the next school year and all of the questions to come, Hicks Morley can deliver customized training for your employees at your premises on a wide variety of topics.

Whether you are looking to train principals, supervisors and managers about a specific employment law topic, educate management about new developments, provide broad-based information sessions for employees or coach front-line human resource (HR) professionals using scenario-based exercises, we can develop a program to meet your needs.

Currently, we offer full and ½ day workshops on the following:

Workplace Investigation. This workshop focuses on essential investigation skills required by HR professionals who are charged with investigating workplace incidents. By the end of this program, attendees will understand how to organize and conduct an efficient and effective investigation, get the most (and best) information out of the witnesses, collect, use and assess evidence, including electronic evidence, avoid claims and allegations that the investigation is flawed, biased or breached privacy, best ensure that their investigation will hold up under the scrutiny of a decision maker, write the report and conclude the investigation.

Accommodation. Designed to provide frontline HR professionals with the tools they need to address and manage accommodation issues in the workplace, this workshop includes instructional components on key accommodation principles, as well as case scenarios focused on specific “hot button” accommodation issues relating to disability, family status, religion and gender identity and expression. Attendees obtain an in-depth understanding of governing legal principles, best practices and common pitfalls that can arise in the accommodation process.

Cannabis. Our two hour workshop on cannabis, geared specifically to School Boards, provides an overview of the legislative framework and focuses on the key factors to consider when reviewing and amending health and safety and accommodation policies, educating staff and students, and dealing with accommodation requests in this unique context. By the end of the workshop, attendees will understand the governing laws, best practices and common pitfalls that can arise when addressing cannabis-related issues.

We also provide onsite training on sexual harassment, the recent changes to employment and labour laws enacted by Bill 47 and attendance management.

Please do not hesitate to contact Amanda Lawrence-Patel at 416.864.7030, Dianne Jozefacki at 416.864.7029 or your regular Hicks Morley lawyer if you would like to discuss your training needs or if you have any other 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. ©

School Board Update