What is the Impact of Bill 115 On School Administrators?

On March 26, 2013, Ontario’s public elementary teachers were advised by their own union to restore extra-curricular activities in time for the spring sports season, Grade 8 graduation trips and end-of-year field trips.

The Elementary Teachers’ Federation of Ontario (“ETFO”) said that it is confident that the Ontario government has “demonstrated a commitment to dealing with concrete items of importance to our members.”1

The union joins its public school board colleagues at the high school level, who resumed their participation in extracurriculars in February, 2013 after making similar progress in talks with the province.2

Public school parents are uncertain as to whether all teachers will resume extracurriculars and whether it will include all activities.

Teachers began protests in September 2012 when the Liberal government introduced the Putting Students First Act, 2012 (Bill 115 or the “PSFA”) which had the effect of dictating the terms of their contracts.

Principals and vice-principals in public school boards have worked diligently to ensure the continuity of the education program and the effective operation and administration of their schools. Ensuring proper supervision, delivery of appropriate curriculum and student safety were key considerations during the period of labour uncertainty.

With respect to Catholic school boards, a period of local bargaining took place across the Province following the signing of the Memorandum of Understanding between the Ontario English Catholic Teachers’ Association (“OECTA”) and the Ministry of Education on July 5, 2012 (“OECTA MOU”). This period of local bargaining ended on December 31, 2012. OECTA and the Ministry agreed that there would be no strikes, lockouts or applications for conciliation during the period of local bargaining. However, there have been  a range of disputes and grievances initiated by OECTA over the interpretation and application of the new legislation.

Across the province, there has been significant uncertainty as to the implementation and operation of the PSFA. Questions have also arisen as to the impact of the PSFA on principals and vice- principals in Ontario. Furthermore, questions have arisen about the status of Bill 115 in light of the fact that on January 23, 2013, the legislation was repealed by the Government.

The Putting Students First Act imposes a broad compensation freeze on all employees in the education  sector, including school administrators.

Putting Students First Act, 2012

School administrators across Ontario, including principals and vice-principals, are governed by the provisions of the PSFA. The Act, which came into force on September 11, 2012, imposes a broad compensation freeze on all employees in the education sector, including school administrators. The PSFA also imposes the OECTA MOU or similar memoranda of understanding, on all unionized employees.

The PSFA establishes a two-year restraint period, which started on September 1, 2012.

Employment Contracts for Principals and   Vice-Principals

For employees who do not bargain collectively, such as principals and vice-principals, the Act requires that their contracts of employment contain the specific restraint measures itemized in section 2 of the PSFA.

The key provisions that must be included in employment contracts with principals and vice- principals are as follows:

  • no across-the-board increase in compensation during the restraint period;
  • no accumulation of sick leave credits after August 31, 2012;
  • three unpaid leave days in 2013-14 school year, scheduled on professional activity days. Principals and vice-principals would not be expected to work on these days; and
  • eligibility for increased compensation from grid movement on the 97th day of each school year during the term of the agreement.

The Ministry will continue to provide school boards with funding for principals and vice-principals salaries as it has in the past. The Ministry has also stated that principals and vice-principals (or principals in French-language school boards) who choose to return to teaching within 12 months of their permanent appointment will be permitted to do so. A vice-principal’s return to the bargaining unit is contingent on there being a teaching vacancy, for which he or she is qualified. No member of the bargaining unit will be adversely affected due to the return of a vice- principal to the bargaining unit.

In the case of French-language school boards, the right to return to the bargaining unit includes both principals and vice-principals, but does not apply to vice-principals being appointed to principal.

As indicated above, for non-unionized employees, such as principals and vice-principals, the PSFA freezes their compensation as of September 1, 2012 for a period of two years, although that period may be further extended by regulation. Compensation is broadly defined and includes “anything paid or provided, directly or indirectly to or for the benefit of a person who performs duties and functions that entitle him or her to be paid and includes salary, benefits, perquisites and all forms of non-discretionary and discretionary payments.” In light of this broad definition, it is apparent that additional vacation or any other benefit or perquisites cannot be provided to an employee during the restraint period.

The compensation restraint measures in the PSFA do not apply to superintendents and directors of education earning more than $100,000, whose compensation has already been frozen pursuant to the terms of the Broader Public Sector Accountability Act, 2010.

The PSFA provides that if an employment contract that applies during the restraint period is inconsistent with the terms set out in the Act, the contract is inoperative to the extent of the inconsistency.

The PSFA also states that a school board will not provide compensation to an employee, before, during or after the restraint period, for compensation that he or she will not, does not, or did not receive as a result of the Act.

Retirement Gratuity, Sick Leave and Post-Retirement   Benefits

By Regulation, the Government amended the employment contracts between a school board and board employees who do not bargain collectively. Board employees who do not bargain collectively, such as school administrators, are not eligible to receive any form of retirement gratuity, after August 31, 2012, except the retirement gratuity that the employee had accumulated and was eligible to receive as of that day.

By Regulation, the Government also developed a new formula with respect to eligibility to receive a retirement gratuity based on the number of years of service as an employee with the board as of August 31, 2012.

In circumstances where an employee is eligible to receive a retirement gratuity, the school board is required to provide him/her with a report on  or before May 31, 2013. The report is to include, among other things, the amount of the employee’s retirement gratuity, together with the calculation used to determine that amount.

Non-unionized employees, such as school administrators, are eligible for 11 days of sick leave at 100% of their salary and thereafter 120 days of sick leave at a rate of pay of 66.67% or 90%, if the entitlement to 90% has been determined through an adjudicative process agreed to by the employee and the board.

By Regulation, the Ontario Government has moved to eliminate post-retirement benefits for certain employees who are eligible for group insurance benefits from the date of retirement until age 65. The provisions of the Regulation effectively deprive certain school board employees of post-retirement benefits unless they retire before September 1, 2013.

By Regulation, the Government amended the employment contracts between a school board and employees who do not bargain collectively.

Diagnostic  Assessment

On January 7, 2013, Policy Program Memorandum No. 155 entitled “Diagnostic Assessment in Support of Student Learning” was released by
the Ministry.

The memorandum, which is Ministry policy, outlines how teachers will use their professional judgement to determine:

  • which assessment and/or evaluation tool(s) from the board’s list of pre-approved tools is applicable;
  • for which student(s); and
  • the frequency and timing of the use of the tool.

The memorandum defines diagnostic assessment as “assessment that is used to identify student’s needs and abilities and the student’s readiness to acquire the knowledge and skills outlined in the curriculum expectations.”

Information from diagnostic assessment helps teachers determine where individual students are in their acquisition of knowledge and skills so that instruction can be personalized and tailored to provide the appropriate steps for learning.

In order to inform their instruction, teachers are required to utilize diagnostic assessment during the school year.

Senior school board personnel have raised concerns that this Ministry initiative could undermine the role and responsibility of school administrators regarding the effective assessment, evaluation and reporting of student achievement. Further, concerns have arisen that this Ministry policy may result in inconsistent practices from school-to-school and board-to-board in using diagnostic assessment tools.

School Boards and school administrators need to clearly articulate  their needs and priorities to ensure a successful school system.

Repeal of Bill 115

At 12:01 a.m. on January 23, 2013, the Government of Ontario officially repealed Bill 115.

Laurel Broten, the then Minister of Education, stated that the Bill was repealed to “show goodwill towards teachers”. The Minister stated, “There’s no doubt Bill 115 had become a lightning rod”.3

The question arises as to impact of the Government’s step to repeal the PSFA and the regulations made under the Act.

Pursuant to clause 51(1)(b) of the Legislature Act, “The repeal of an Act or the revocation of a regulation does not ... (b) affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation.”

Clearly, the Government’s intention is that while the PSFA and the regulations made pursuant to it will be repealed, contractual terms imposed by the PSFA and its regulations (including those related  to the salary freeze, sick leave, retirement gratuity and elimination of post-retirement benefits) will remain in force during the term of the restraint period.

In this regard, the collective agreements and changes to individual employment agreements imposed under the PSFA and its regulations remain in effect until August 31, 2014, although the PSFA and the regulations themselves are no longer in force.

Next Steps

It was the Greek philosopher Heraclitus who said, “The only thing that is constant is change.”

There will continue to be significant change in the education sector in the next few years. The Ministry of Education has been actively consulting with stakeholders to develop models for provincial bargaining to take effect January 1, 2014.

In addition, a committee of stakeholders is being established to look at creating one or more provincial benefit plans for the education sector.

The new Liberal Government is working diligently to rebuild the tattered relationship with teachers and other parties in the education sector.

For example, on April 1, 2013, the Ministry announced that it reached an agreement in principle with the Ontario Secondary School Teachers’ Federation, the union representing high-school teachers at the province’s public school boards.4 Talks are ongoing with ETFO, the public elementary teachers union.

It is important for school administrators, through their provincial associations, to work with the Ministry and other stakeholders in a collaborative and inclusive manner. School boards and school administrators need to clearly articulate their needs and priorities to ensure a successful school system. The focus should be on continuing to promote student achievement, the development of best practices and the delivery of effective education  programs.

Eric M. Roher

1 Kate Hammer, “Union moves to restore extras”, The Globe and Mail (March 27, 2013) p. A7.

2 Ibid

3 Kristin Rushowy and Rob Ferguson, “Ontario Teacher protest: Liberals repeal Bill 115”, The Toronto Star (January 23,2013) p. A1.

4 Caroline Alphonso, “Ontario reaches agreement in principle with teachers”, The Globe and Mail (April 1, 2013) p. A8.


Québec Court Of Appeal Finds That Private Catholic High School Cannot Teach Ethics and Religious Culture Course From a Catholic Perspective

On December 4, 2012, the Quebec Court of Appeal ruled in Québec (Procureur général) c. Loyola High School,1 that Loyola High School, a private Catholic high school in Montreal, was required to teach a secular Ethics and Religious Culture Course (the “Course”), and could not substitute an international religions course taught from a Catholic perspective. The decision will be of particular interest to private religious educational institutions across Canada, as the Court accepted an unprecedented degree of Government interference with the content of religious instruction in a private school.

The Facts

The Québec Ministry of Education developed the Course as part of a deliberate effort to replace existing Catholic and Protestant programs of religious and moral instruction in Québec’s public schools with non-denominational ethical instruction and the presentation of various religions in a manner intended to be “cultural” rather than “religious”, and “neutral” rather than “partisan”. While students were previously allowed to choose between Catholic instruction, Protestant instruction or a non-confessional morality and ethics course, from 2005 to 2008, the Québec Government gradually moved to replace this system with the single, mandatory Course. The Québec Minister of Education has stated that the change was intended to better reflect the increasingly pluralistic reality  of Québec. Under the applicable legislation, the Course is mandatory for all Grade 1 to Grade 11 students in Québec, regardless of whether they attend public or private schools or are homeschooled. Parents are not given the option of exempting their children from the course.

In S.L. v. Commission scolaire des Chênes,2  the Course was challenged by the Roman Catholic parents of students attending a public school  in Drummondville, Québec. The parents asked the school board to exempt their children from participating in the Course. The parents argued that the course imposed a normative pluralism, trivialized religion, and promoted relativism. Furthermore, they argued that the mandatory nature of the course undermined parental choice with regard to their children’s religious education. In a decision released on February 17, 2012, the Supreme Court of Canada upheld the validity of the Course, finding that exposing children to the views of various religions did not constitute an indoctrination of students that would infringe their parents’ freedom of religion.3

One question not addressed by the Supreme Court of Canada was whether private religious schools could also be required to teach the Course. That question has now been answered in the affirmative by the Québec Court of Appeal in a case involving Loyola High School, a Jesuit-administered Catholic private school. Loyola asked the Minister of Education, Sports and Leisure for an exemption from teaching the course on the basis that it was premised on a moral relativism incompatible with Catholic beliefs. It asked the Minister for permission to instead continue teaching an existing course covering similar content, and intended to achieve the same goals, as the Course, but from a Catholic perspective. The Minister refused to grant an exemption, and informed Loyola that the Course could not be taught according to ministerial expectations within a “confessional” context.

Loyola has sought leave to appeal the decision to the Supreme Court of Canada.

Loyola took the case to court, arguing that prohibiting religious instruction in a private Catholic school infringed upon the parental right  to ensure the religious and moral education of their children in accordance with their convictions. Loyola was successful in the Québec Superior Court, but unsuccessful on the Minister’s appeal to the Québec Court of Appeal. The Court of Appeal found that:

  • The Minister was within the sphere of discretion conferred upon her by the legislature in designing and implementing the Course, which was consistent with the legislative intent to “deconfessionalize” education in Québec.
  • The Minister’s decision that the alternative course taught by Loyola was not equivalent  to the Course was entitled to a high degree of deference from the Court. While the two courses were similar, Loyola’s course was undoubtedly taught from a Catholic perspective. The Minister was within her discretion when deciding that the objectives of the course could not be fulfilled if taught from a religious perspective.
  • There was doubt as to whether Loyola, as a corporate body, was entitled to freedom of religion (a right accorded only to “individuals” under the Canadian Charter of Rights and Freedoms).4
  • There was no significant infringement of religious rights in this case, given that the Course was only one of many courses taught at the school and did not require teachers to refute Catholic beliefs, but only to refrain from expressing their opinions or convictions about any of the religions discussed in the Course. Requiring Loyola to teach various religious beliefs from a global and ethical perspective without requiring adherence to those beliefs did not constitute an infringement of religious freedom. It simply entailed Loyola putting aside its Catholic perspective for the duration of one class.
  • Even if there were an infringement of religious freedom, that infringement was justified by the Course’s important goals of acknowledging diversity and the pursuit of the common good.5

Loyola has sought leave to appeal the decision  to the Supreme Court of Canada. It remains to be seen whether that Court is prepared to entertain a second appeal involving the same legislation it considered so recently in S.L. v. Commission scolaire des Chênes.

Implications of the Case

The Québec Court of Appeal’s decision, like the Supreme Court of Canada’s decision in S.L. v. Commission scolaire des Chênes, evinces a clear preference for a secular approach towards religious instruction. Taken together, the two decisions seem to be signalling an increased judicial willingness to limit administrators’ and parents’ right to control the religious instruction that their children receive in school, in order to promote multiculturalism and dialogue between religious faiths.

While the Supreme Court of Canada has held in the past that the right to freedom of religion does not include the right to denominational schools,6 the Loyola decision arguably goes further, and suggests that religious indoctrination in private schools can, to some extent, be prohibited. In weighing the importance of the case, however, it is important to note that:
  • The Court’s decision was based, in part, upon the fact that the Québec Government had prescribed only a single course that had to be taught from a secular perspective. It is by no means clear that the Court would have upheld a law that purported to prohibit all Catholic instruction at Loyola.
  • The Loyola decision may be of limited application to Catholic separate schools in Ontario, and to denominational schools in Saskatchewan and Alberta. In each of those provinces, separate schools have a unique constitutional status that provides additional protection of their denominational character from interference by the provincial governments.

Markus F. Kremer

Nevena Urosevic

1 2012 QCCA 2139.
2 [2012] S.C.J. No. 7.
3 For a more detailed discussion of the Supreme Court of Canada’s decision, please refer to the Spring 2012 edition of BLG’s Education Law Newsletter.
4 The Québec Attorney General argued that as a “moral person” (i.e. a corporation, organization or institution that is not a human being but is deemed to be a “person” for the purposes of the law) the Board did not have the right to freedom of religion under the Canadian Charter of Rights and Freedoms. There is some debate in the case law as to whether a School Board can invoke freedom of religion in cases where Provincial legislation would result in “exceptional prejudice” to the Board and the people it represents. See Good Spirit School Division, No. 204, v. Christ the Teacher Roman Catholic Separate, School Division No. 212, 2012 SKQB 343 at paras. 26 to 35, affirmed, 2012 SKCA 99.
5 Ibid., at para. 181.
6 Adler v. Ontario, [1996] 3 S.C.R. 609 at 640 – 642, Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377 at 401, Reference re: Education Act (Que.), [1993] 2 S.C.R. 511 at 529 and 539 – 540.


Ontario Labour Relations Board Dismisses OSSTF Unfair Labour Practice Complaint Against the Crown

On April 17, 2012, the Ontario Secondary School Teachers’ Federation (the “OSSTF”) filed an unfair labour practice complaint against the Crown in Right of Ontario, the Premier of Ontario, the Minister of Education, the Minister of Finance, Dalton McGuinty in his personal capacity, Laurel Broten in her personal capacity and Dwight Duncan in his personal capacity (the “Crown”) before the Ontario Labour Relations Board (the “Labour Board”).

In their application, the OSSTF made several allegations against the Crown in relation to its conduct at the Provincial Discussion Table (“PDT”).

Specifically, the OSSTF alleged that public statements made by the Crown during the PDT process, including Premier McGuinty’s YouTube video, directed at Ontario teachers, amounted to failing to bargain in good faith contrary to section 17 of the Labour Relations Act (the “LRA”) and threatening or intimidating its members contrary to sections 72 and 76 of the LRA. A number of parties obtained intervenor status in this application including the Ontario Catholic Schools Trustees’ Association (“OCSTA”) and the Ontario Public School Boards’ Association. (“OPSBA”).

Background to the Complaint

The PDT was a non-binding process established by the Ministry of Education with the purpose of achieving ongoing labour peace and progress in the publicly-funded education sector. The PDT process represented informal discussions with trustee groups, teacher federations and unions representing support workers.

The PDT discussions successfully produced framework agreements in 2008 involving, among others, OSSTF, ETFO and CUPE. It is clear that the discussions in 2012 were not so successful. The Government found itself in serious financial difficulties and since education is a significant part of the provincial budget, not surprisingly, it wished to limit the expenditures in that sector and wished to use the PDT process to obtain agreement to those objectives.

The Government produced and tabled for the PDT discussions a document called “Government of Ontario Parameters for the 2012 PDT” that set out the Government’s expectations for the collective agreement results it wished in the education sector. Among other things, the Government wanted the unions to agree to a wage and grid freeze and changes to the ability to bank and “cash out” sick leave credits upon retirement.

The Labour Board found that the Labour Relations Act does not apply to  the Crown.

It was the conduct of the Government with respect to the PDT discussions that formed the basis of this complaint.

The Labour Board Decision

In the decision released on December 11, 2012, Bernard Fishbein, the Chair of the Ontario Labour Relations Board, dismissed the OSSTF complaint.

Among other things, the Labour Board found that the LRA does not apply to the Crown. It further stated that since the LRA is not binding on the Crown, there was no point to any evidentiary  hearing.

The Crown had bought a preliminary motion to dismiss the application arguing that the Labour Board did not have jurisdiction to hear the application on three grounds:

  1. the LRA does not apply to any of the responding parties because of Crown immunity;
  2. the responding parties’ alleged actions are not justiciable; and
  3. the OSSTF had not made out a prima facie case of violations of the LRA.

The Crown’s argument with respect to crown immunity was straight forward. The Legislation Act provides:

“No Act or regulation binds Her Majesty or affects Her Majesty’s rights or prerogatives unless it expressly states an intention to do so.”

Accordingly, the Crown is not bound by legislation unless that legislation states that it is bound. Further, the Labour Board ruled that in accordance with subsection 4(2) of the LRA, the Crown is not bound. This was fatal to the OSSTF application.

The Labour Board further did not agree with the OSSTF position that the Government inserted itself into the statutory collective bargaining scheme
in an effort to implement policy decisions by controlling collective bargaining and outcomes. Chair Fishbein stated, “I am simply not persuaded by this characterization.” The Chair stated that this ignores that the PDT process was voluntary and that OSSTF could and did withdraw from
the process.

The Labour Board stated that the Government’s PDT parameters did wish to control collective bargaining outcomes – a wage and grid freeze and changes to the ability to bank and cash out sick leave credits upon retirement. The Labour Board indicated that it viewed that as more “consistent with budgetary allocations and the constraints which they entail in terms of the allocation of resources.” In his decision, Chair Fishbein stated:

“I do not consider a political decision to no longer fund in a publicly-funded education system, for example, the cashing out of sick leave credits, and a process (albeit arguably a blunt and heavy-handed one) to get unions to agree to it, a justiciable issue.”

The Labour Board recognized that neither OCSTA nor OPSBA regarded the PDT process as collective bargaining. The Labour Board also acknowledged that neither OCSTA nor OPSBA was the employer of relevant school board employees. It stated:

“Both trustee associations who were present (at least at the outset) are not the employer either. In fact, they specifically deny (and it is not disputed) that they cannot compel the district school boards to even belong, let alone commit or bind them. In fact, even though OECTA ultimately did reach and sign a MOU, not only did the OCSTA not sign, but quit the PDT process. Neither the OPSBA nor the OCSTA regard the PDT process as collective bargaining or governed by section 17 of the Labour Relations Act.”

The Impact of the Decision

The OSSTF and other unions have also filed a Charter challenge against the Government with respect to the status of the Putting Students First Act, 2012. The unions have initiated a challenge to the PSFA under subsection 2(d) of the Charter, which protects freedom of association. The Labour Board decision may assist OSSTF in this Charter challenge in trying to demonstrate to a court that OSSTF exhausted relevant avenues of redress with the Labour Board.

Adam Guy


What You Need to Know About Access Copyright

Recent changes in the fair dealing exception under Canadian copyright have caused certain Canadian educational institutions to question the value of their Access Copyright license or tariff. Notwithstanding these changes, it is generally recommended that educational institutions first assess their individual copyright licensing situations prior to deciding whether they can rely on the fair dealing exception as a substitute for their Access Copyright license or tariff.

It is recommended that educational institutions assess their individual copyright licensing situations.

Background on Access Copyright

Access Copyright is a collective society. It administers the rights of certain authors and publishers of literary and artistic works. It does  so by licensing use of the works to third parties through either individual licensing agreements, or through certified tariffs from the Copyright Board (the “Board”). Individual licensing agreements are private transactions between the licensed party and Access Copyright. Certified tariffs, however, apply equally to all users to whom or which they apply.

Access Copyright has, among others, a certified tariff for the reprographic reproduction, in Canada, of works in its repertoire by public elementary  and secondary educational institutions (the “K-12 tariff”). Access Copyright also has a certified interim tariff (the “post-secondary interim tariff”), and a pending proposed tariff, for the reprographic reproduction, in Canada, of works in its repertoire by post-secondary educational institutions.

Changes to the Fair Dealing Exception

The Copyright Act (Canada) (the “Act ”) provides a fair dealing exception to copyright infringement.

According to the Supreme Court of Canada, the fair dealing exception is a user’s right. It maintains the balance between the rights of a copyright owner and the interests of the user.1

To fall under the fair dealing exception, a two-stage test must be satisfied, namely

  1. the allegedly infringing act must have been for one of the Act’s allowable purposes specified in the fair dealing exception; and
  2. the dealings must have actually been “fair”.2

In July 2012, the Supreme Court of Canada issued its decision in Albert (Education) v. Canadian Copyright Licensing Agency (Access Copyright).3 This case was an appeal by all of the Ministries of Education for each Canadian province and territory (excluding Quebec) to the decision of the Copyright Board certifying Access Copyright’s tariff for K-12 public educational institutions. A central issue in this case, and the case decided by the Copyright Board when certifying the tariff, was whether copies made by a teacher to distribute to students as part of class instruction can qualify as fair dealing (namely, for the purpose of “research or private study”) under the Copyright Act. The allowable purposes under the Act at the time of the decision included “research or private study”, “news reporting”, and “criticism or review”.

According to the Supreme Court of Canada, the fair dealing exception is a user’s right.

In its decision, the majority of the Court gave a broad interpretation to the meaning of research and private study. They found that copies of a copyrighted work made by a teacher to distribute to students as part of class instruction are, unless made for an ulterior or commercial motive, for the purpose of the students’ “research or private study.”

Shortly thereafter, in November 2012, the majority of Bill C-11: the Copyright Modernization Act came into force. The bill added the purposes of “education”, and “parody or satire” to the fair dealing exception. It is unclear to what extent the new “education” purpose expands the fair dealing exception beyond the broad interpretation given by the Supreme Court of Canada in Alberta, supra, to the research and private study purpose. Arguably, this new purpose simply affirms the Court’s decision.

In any case, the second stage of the test is the more difficult stage to meet. The second stage requires that the dealing be “fair”. What is “fair” is not defined in the Act. The Supreme Court of Canada has clearly stated that what is “fair” depends on the individual facts of each case and an assessment of the following factors:

  1. the purpose of the dealing,
  2. the character of the dealing,
  3. the amount of the dealing,
  4. alternatives to the dealing,
  5. the nature of the work, and
  6. the effect of the dealing on the work.

With respect to these factors in the case of Alberta,supra, the majority for the Court found that the teachers’ purposes and the students’ purposes were unified: the purpose for reproducing the materials was for the students’ research and private study. With respect to the alternatives to the dealing the Court found that it was NOT realistic to require teachers to purchase textbooks for each student as an alternative to copying short excerpts. With respect to the effect of the dealing on the work, the Court found that there was no evidence showing a connection between decreased textbook sales and photocopying short excepts. Although  the Court decided that the dealings at issues in Alberta, supra, were fair, the Court cautioned that similar dealings may not be fair where the person making the copies is doing so for an ulterior motive such as for a commercial purpose.

Reaction to the SCC Decision and the Changes to the Act

In response to the decision of the Supreme Court  of Canada in Alberta, supra, and the amendments to the Act, the Council of Ministers of Education Canada (“CMEC”), Copyright Consortium developed Fair Dealing Guidelines.4 These guidelines purportedly describe the uses non-profit K-12 schools may make of copyrighted materials which are permitted under the expanded fair dealing exception. The uses described in the Fair Dealing Guidelines are quite similar to the uses permitted by Access Copyright’s K-12 tariff.

In October 2012 the Ontario Public School Boards’ Association advised school boards in the province that commencing January 1, 2013, boards will
no longer operate under Access Copyright’s tariff. Some school boards within Ontario have already adopted policies to comply with the CMEC Fair Dealing Guidelines with the belief that in so  doing they may “opt out” of the Access Copyright tariff entirely.

The Association of Universities and Colleges of Canada and the Association of Community Colleges of Canada have also, purportedly, recommended
to their members the adoption of a fair dealing policy. The policy is almost identical to CMEC’s Fair Dealing Guidelines. The permitted uses described in the policy are also similar to a number of rights granted under their members’ interim Access Copyright tariff. Arguably, however, there are still
a number of rights under the proposed Post- Secondary Access Copyright tariff which are not covered by the policy.

Educational  Institutions  Should Conduct their Own Copyright Licensing Assessment

Although the fair dealing exception has been expanded, the exception may still not be substitutable, in individual cases, for rights granted under an Access Copyright license or tariff. Educational institutions should first assess their individual copyright licensing situation prior to determining whether they can replace their Access Copyright license or tariff with the fair dealing exception.

It should be noted that many of the public K-12 educational institutions across Canada performed a copyright licensing assessment as part of the certification process for the Access Copyright K-12 tariff. The assessment was conducted during the 2005-2006 school year and examined copying in 894 schools and 31 school boards across Canada (excluding Quebec) for ten consecutive days at each location. The results were then extrapolated to determine the total amount of copying by
all public elementary and post-secondary educational schools and boards across Canada (except Quebec). The assessment found that of the 10.3 billion copies of pages made, only 246 million pages (approximately 2.5%) triggered remuneration to Access Copyright. Why the significant difference? Of the original 10.3 billion pages copied, only 3.1 billion pages were from published documents. Furthermore, over 2.8 billion pages of these published documents were in the public domain, documents intended for a single use and that may not be reproduced, and documents sold with the separate authorization from the owners to reproduce them for in-class use.

Care should be taken when determining the extent to which the fair dealing exception covers an educational institution’s use of copyrighted materials.

Although such an extensive assessment may not be possible in all cases, an educational institution will still likely want to consider the following:

  1. what copyright it is using, and how it is using that copyright;
  2. how much of its copyright use is covered by rights granted by third-parties or works in the public domain;
  3. the scope of its individual fair dealing exception and how much of its copyright use falls thereunder; and
  4. the overlap of rights granted under its current Access Copyright license / tariff with the above.

If, after performing a copyright licensing assessment, the educational institution discovers that an Access Copyright license or tariff does not provide novel rights, or that the novel rights are not being used (or with some changes, could be rendered unnecessary), then the institution may be justified in not renewing its Access Copyright license or opting out of the tariff.

Notwithstanding the above, care should be taken when determining the extent to which  the fair dealing exception covers an educational institution’s use of copyrighted materials, and when developing (or relying on another party’s) fair dealing guidelines. As previously stated, whether a particular dealing is fair depends on the facts of each case. What may be fair for one educational institution may not be fair for another. Because fairness is assessed on a case-by-case basis, it will also be challenging for educational institutions to draft fair dealing guidelines which can easily be applied by their users, but which account for the subtle differences of each situation to keep their users within the safe harbour of the fair dealing exception.

Brandon Evenson

1 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339.
2 Ibid.
3 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 [Alberta].
4 The Fair Dealing Guidelines was published in CMEC’s third edition of its Copyright Matters! publication available at http://cmec.ca/Publications/ Lists/Publications/Attachments/291/Copyright_Matters.pdf.


New Study Finds that the Effects of Bullying Last Into Adulthood

The recent bullying-related suicides of several Canadian students, like Amanda Todd, a Vancouver-area teenager who posted a story to YouTube about being cyber-bullied, have shown that bullying in schools is not simply a harmless rite of passage, but rather an activity that has serious deleterious effects on students. Now, an important new study authored by researchers from Duke University and University of Warwick, England, has confirmed that bullying in the school context has a profound negative impact on bullies and their victims well into adulthood.

The researchers concluded that the effects of being bullied at school are direct and long-lasting.

The study, Adult Psychiatric Outcomes of Bullying and Being Bullied by Peers in Childhood and Adolescence, released on February 20, 2013, documents the elevated risks over a wide range of mental health outcomes. It assessed psychiatric outcomes such as depression, anxiety, antisocial personality disorder, substance use disorders, and suicidality (including recurrent thoughts of death, suicidal ideation, or a suicide attempt), in persons between the ages of 19 and 26 years, by use of structured diagnostic interviews conducted over the course of almost 20 years.

The researchers concluded that the effects of being bullied at school are direct and long-lasting, with the worst effects for those who are both victims and bullies. Researchers have found that elevated risk of psychiatric trouble extends into adulthood, sometimes even a decade after the bullying behaviour has ended.

Both male and female bullies and victims were found to be at highly increased risk for depression and suicidality in their adult years. Notably, being a victim of bullying, or being both a victim and a bully, was found to be a risk factor for serious emotional problems in adulthood independent of pre-existing problems, such as family conflict or other challenging circumstances. The study has further suggested that the experience of being bullied at school likely alters a student’s physiological response to stress, permanently changing the student’s cognitive responses to threatening situations long after the bullying has ceased.

The study followed 1,420 subjects from Western North Carolina who were assessed four to six times between the ages of 9 and 16. Researchers asked both the children and their primary caregivers if they had been bullied or had bullied others in the three months before each assessment.1 Participants were assessed again in young adulthood – at 19, 21 and between 24 and 26 – using diagnostic interviews.

Researchers found that victims of bullying in childhood were 4.3 times more likely to have an anxiety disorder as adults compared to those with ho history of bullying or being bullied.2

The researchers concluded:

“Bullying is not just a harmless rite of passage or an inevitable part of growing up. Victims of bullying are at increased risk for emotional disorders in adulthood. Bullies / victims are at highest risk and are most likely to think about or plan suicide. These problems are associated with great emotional and financial costs
to society. Bullying can be easily assessed and monitored by health professionals and school personnel, and effective interventions that reduce victimization are available. Such interventions are likely to reduce human suffering and long-term health costs and provide a safer environment for children to grow up in.”

The conclusions drawn by the researchers highlight some of the reasons why urgent intervention is needed for both bullies and victims, and why the Ontario government, school administrators, parents and students themselves are increasingly stepping in to address the problem. According to the Centre for Addiction and Mental Health, almost one-third  of students are being bullied at school, and more than one-fifth of students report having bullied someone else.

Research has shown that a proactive and clearly articulated school-wide bullying prevention policy is one of the foundations of effective
bullying prevention programming, and the Ontario government has recently set out a number of legal standards and guidelines for the establishment of such programming in schools.

Most notably, on June 5, 2012, Bill 13, the Accepting Schools Act, 2012 was passed, amending the Education Act. The amendments came into force on September 1, 2012, setting out a number of provisions related to the promotion of a safe, inclusive and accepting school climate. Under the amendments, for instance, principals must suspend a student for bullying and consider referring that student for expulsion if the student has previously been suspended for bullying, and the student’s continuing presence in the school creates, in the principal’s opinion, an unacceptable risk to the safety of another person. Principals must now also suspend students for a serious incident, including bullying, that is motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor.

Bullying is not just a harmless rite of passage or an inevitable part of growing up.

On December 5, 2012, the Ontario government revised the Provincial Code of Conduct, by way of Policy/Program Memorandum 128: The Provincial Code of Conduct and School Board Codes of Conduct [“PPM 128”], in order to reflect the Bill 13 amendments. PPM 128 gives direction to school boards on reviewing their own codes of conduct and the local codes of conduct in their schools in order to ensure compliance with the Bill 13 amendments.

PPM 128 sets out standards with respect to respect, civility, responsible citizenship, and safety, as well as roles and responsibilities of school boards, principals, teachers, students, parents and community members. It also includes directions with respect to school boards’ duties to consult with various community stakeholders when revising codes of conduct, and tailoring codes of conduct to the specific setting of each school.

Pursuant to the Education Act, school boards are also required to establish specific policies and guidelines on bullying prevention and intervention. As of December 5, 2012, Policy/ Program Memorandum 144: Bullying Prevention and Intervention [“PPM 144”] sets out new directions to school boards on the required elements of such policies, which must be in place by February 1, 2013. PPM 144 provides that school board policies must set out a comprehensive prevention and awareness-raising strategy, which includes clear expectations for appropriate student behaviour, procedures for student reporting of bullying incidents safely, teaching strategies that support school-wide bullying prevention, timely, progressive discipline steps to address bullying, and procedures for reporting bullying incidents to parents.

Bullying threatens not only the integrity of the school climate, but students’ long-term mental health and emotional well-being.

As part of the monitoring and evaluation of their policies, school boards must also conduct anonymous school climate surveys of students, staff, and parents at least once every two years. In an effort to promote a safe school climate, PPM 144 also provides that each school must have in place a safe and accepting schools team that should include specified numbers of students, parents, teachers, school staff and community  members.

This new Ontario legislation and policy changes represents a notable effort to reinforce the importance of developing timely intervention methods to combat bullying among students. School boards, schools, students and the community at large all have distinct roles to play in this crucial effort. As the recent study on the adulthood effects of bullying has shown, bullying threatens not only the integrity of a safe and positive school climate, but students’ long-term mental health and emotional well-being.

Maria Gergin

1 Catherine Saint Louis, “Effects of Bullying Last into Adulthood, Study Finds”, The New York Times (February 20, 2013)
2 Ibid.


Human Rights Tribunal Rules that Student’s Application Does Not Have a Reasonable Prospect of Success

In a decision released on February 12, 2013, the Human Rights Tribunal of Ontario dismissed an application filed by a high school student who claimed he experienced discrimination contrary to the Human Rights Code (the “Code”).

In Marshall v. Dufferin-Peel Catholic District School Board, Jordan Marshall alleged that an incident in his Grade 11 Biology class at d’Youville Secondary School (“d’Youville”) which resulted in a suspension, and his experience in an extra- curricular entrepreneurship program amounted to discrimination on the basis of his race and colour. Mr. Marshall self-identifies as black. The Tribunal dismissed the application, finding that Mr. Marshall had failed to show, on a balance of probabilities, that there was a link between his race and colour and the suspension or entrepreneurship program.

Mr. Marshall’s claim of discrimination arose principally from an incident in Grade 11 Biology class. Mr. Marshall was suspended for five days for bumping into his teacher as he walked behind her. The Grade 11 Biology teacher alleged that during Biology class while walking behind the teacher’s lab bench, Mr. Marshall touched the teacher’s backside. Mr. Marshall’s parents appealed the suspension. The appeal process consisted of a statement read by d’Youville’s principal and a statement read by Mr. Marshall’s stepfather. The trustees voted to expunge the suspension. Mr. Marshall was transferred to a Grade 11 Biology class taught by another teacher.

At the Human Rights Tribunal hearing, the Tribunal heard evidence from Mr. Marshall, his mother and his step-father. All witnesses were subject to cross-examination by the school board. Prior to calling its witnesses, the school board requested the application be dismissed under Rule 19A of the Tribunal’s Rules of Procedure because it appeared, based on Mr. Marshall’s evidence, that the application had no reasonable prospect of success.

An application will be dismissed by the Tribunal if an applicant does not prove, on a balance of probabilities, that this or her Code rights were violated. This requires an applicant to show a link between an event or adverse treatment and the alleged prohibited ground under the Code.

In his evidence before the Tribunal, Mr. Marshall testified that his teacher was unfair to him because he was ‘a black male’. He claimed that teachers at the school ‘hid the bias toward black students’. Mr. Marshall suggested the bumping incident was a way to get him out of the class.

Mr. Marshall’s mother, Wendy O’Hare, also testified, although she had no direct evidence of the bumping incident. She stated that her son’s Grade 11 Biology teacher thought her son was a black male and therefore a ‘black thug’. Mrs. O’Hare told the Tribunal she knew in her ‘gut’ and her ‘soul’ that the teacher was a racist and looking for any excuse to get rid of Mr. Marshall from her class. On cross-examination, Mrs. O’Hare admitted that she, not the school board, had characterized the bumping incident as an allegation of sexual assault.

The second incident related to an extracurricular entrepreneurship program. The Tribunal found that Mr. Marshall missed and/or was late to the Saturday meetings and then dropped out. The Tribunal ruled that Mr. Marshall failed to show any differential treatment. He had admitted in his testimony that his own actions caused the end of his participation.

The Tribunal found that Mr. Marshall’s allegations amounted to a ‘bald assertion that his race must have been a factor in his suspension.’ The Tribunal stated that Mr. Marshall’s own certitude, and that of his witnesses, was not sufficient to establish a violation of the Code.

The Tribunal concluded that Mr. Marshall’s suspicions about his teacher were based on ‘sweeping and speculative allegations’ of discrimination at the school.

The Tribunal stated that the applicant’s own feeling or suspicions are not sufficient to meet the test for establishing an application has a reasonable prospect of success.

It ruled:

“The applicant is required to demonstrate a reasonable prospect that he can prove, on a balance of probabilities that his Code rights were violated. Specifically he must show a link, connection or nexus between his race  and colour and the differential treatment being claimed, that is, the suspension. In my view, the applicant failed to show any such link.”

The Tribunal found that an applicant must do more than point to his membership in a racialized
group and adverse treatment to establish a case of discrimination. In this case, the Tribunal concluded that the application had no reasonable prospect of success. Accordingly, the Tribunal dismissed Mr. Marshall’s application without further hearing.

Kate Dearden


Eric M. Roher 

Markus F. Kremer 

Adam Guy 

Brandon Evenson 

Maria Gergin 

Kate Dearden