TDSB Trustees Request a Legal Opinion on Regulation 274, the Seniority Hiring Rule

At a Board meeting held on September 11, 2013, the Toronto District School Board (“TDSB”) trustees passed a motion to ask the provincial government whether its new seniority hiring rule contravenes Ontario’s Human Rights Code.1

The controversial regulation requires school principals to hire teachers from among the five applicants with the most seniority. Certain TDSB trustees argued that this new regulation may violate the board’s obligation to employ a diverse workforce under the Human Rights Code.2

The TDSB motion asks the Director of Education to request that the Minister of Education, Liz Sandals, “submit a request to the Divisional Court for an opinion and a decision “as to whether the school board can avoid the new seniority hiring regulation if it conflicts with the Human Rights Code or a provincial policy that calls for bias-free hiring.

The TDSB also requested that the Minister of Education seek the views, in writing, of the Ontario Human Rights Commission as to whether complying with Regulation 274 would conflict with the school board’s duties under provincial policy.

In addition, the TDSB directed its Director of Education to implement safeguards in the hiring process to prevent, to the extent reasonably possible, nepotistic hiring and promotion practices, and to ensure fair and transparent hiring and promotion practices.

The TDSB has seen the diversity of its staff grow each year, with some 39 percent of new teachers hired in the 2012/2013 school year identifying themselves as racial minorities, up from 22 percent in the 2006/2007 school year.3

TDSB trustees have pointed out that the newer group of teachers came from more diverse backgrounds as a result of broader recruitment from teachers colleges and many school boards. Reducing the prospects for recent graduates could result in a move away from a more diverse teaching staff.

The Dean of York University’s Faculty of Education, Ron Owston has said that he believes school boards can avoid nepotism by using standard hiring processes rather than the “heavy-handed” tool of seniority.4 Dean Owston stated, “The diversity of our students has definitely grown, so if you’re hiring teachers who graduated a few years ago and have been occasional teaches for a longer time, they may not be as diverse a group.”5

Education Minister Sandals has said that she would be willing to discuss the board’s request for a legal opinion as to whether Regulation 274 contravenes the Human Rights Code by leading to a less diverse teaching staff.

The TDSB motion pointed out that a 2007 settlement between the Ministry of Education and the Ontario Human Rights Commission made a diverse workforce a priority and that the Code has primacy over all other provincial legislation.

The motion also confirms that a 2009 Ministry policy (PPM 119) provides that a school board’s workforce “should reflect the diversity within the community so that students, parents, and community members are able to see themselves represented.” Ministry policy states that the board’s workforce should be capable of understanding and responding to the experiences of the diverse communities within the board’s jurisdiction.

TDSB Trustee Howard Goodman said that the new seniority rule puts new teachers at a disadvantage.6 “If we have a school with, for example, many Vietnamese students but not one staff person who speaks Vietnamese – but we get a new grad applying who speaks Vietnamese, we want that person in the school.” Mr. Goodman stated, “It’s good for students and parents and other  staff.”7

Regulation 274 was introduced after the Ontario English Catholic Teachers’ Association complained about nepotism in their boards and the Ministry of Education later applied it to all boards across
the province.

Critics of Regulation 274 say that it denies positions to talented young teachers who find themselves not eligible for permanent jobs or even job interviews. Those critics state that school principals should hire the teachers who are the best fit for the job, regardless of how much time teachers spend in supply positions.8

On September 25, 2013, Conservative MPP Lisa MacLeod introduced a private member’s bill that would end the rule that forces Ontario principals to hire teachers with the most seniority. The Tory bill would require school boards to have fair hiring policies approved by the province. The bill would also return to principals the authority to hire the teacher they want for long-term and permanent positions.

The new hiring rules in Regulation 274 are opposed by other school boards, all four school board associations and the deans of Ontario’s faculties of education. The Ministry of Education has struck committees with both the Ontario Secondary School Teachers’ Federation and the Elementary Teachers’ Federation of Ontario to consider changes to the legislation.

Author: Eric M. Roher


1 L. Brown and K. Rushowy, “Toronto trustees wrestle with seniority-hiring rule,” Toronto Star(September 11, 2013) at http://www.thestar.com/yourtoronto/education/2013/09/11/toronto_trustees_wrestle_with_seniorityhiring_rule.html
2 K. Rushowy and L. Brown, “TDSB trustee wants legal opinion on Regulation 274, the seniority hiring rule”, Toronto Star (September 11, 2013) at http://www.thestar.com/news/gta/2013/09/11/tdsb_trustee_wants_legal_opinion_on_regulation_274_the_seniority_hiring_rule.html.
3 Ibid.
4 Ibid.
5 Ibid.
6 L. Brown and K. Rushowy, op. cit., footnote 1.
7Ibid.
8
K. Rushowy and L. Brown, op. cit., footnote 2.

Nova Scotia’s Cyber-Safety Act

On August 6, 2013 the Nova Scotia Cyber-safety Act (the Act) was proclaimed. This legislation represents significant steps by Nova Scotia to address online bullying and, in the legislation’s words, “provide safer communities.”1 In doing so, Nova Scotia serves as an innovator in provincial legislation for combating cyber-bullying and other provinces will likely look to its successes and failures for guidance.

Background

Recently, the Government of Nova Scotia has been under pressure to address youth safety, bullying and the dangers of social media. This pressure was ignited by the suicide of 17-year old high school student Rehtaeh Parsons on April 4, 2013. Ms. Parsons’ family attributed her suicide to what was described publicly as several years of cyber- bullying after an alleged sexual assault when she was 15. Ms. Parsons’ story brought media attention to issues such as cyber-bullying and  the ways in which bullying behaviour has evolved through social media. The public responded by demanding greater action from police and government to help youth deal with cyber-bullying.

On April 25, 2013, less than a month after Ms. Parsons’ death, the Government of Nova Scotia introduced legislation in response to cyber-bullying.

The Cyber-Safety Act

The Act is a multi-faceted attempt to make it easier for individuals to report bullying and to give the courts increased authority to protect victims of cyber-bullying. The main provisions of the Act are as follows:

  1. Greater powers and responsibilities to principals and school boards through amendments to the Nova Scotia Education Act.
  2. Parental responsibility for cyber-bullying in some circumstances;
  3. Creation of a cyber-investigative unit;
  4. Victims of cyber-bullying may apply for a protection order from the court; and
  5. New statutory tort of cyber-bullying which permits individuals to sue for damages or obtain an injunction.

Definition of Cyber-Bullying

The Act provides a broad definition of cyber- bullying that includes both adults and minors (less than 19 years of age). The Act defines cyber-bullying as:

[A]ny electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

Greater Powers and Responsibilities of Educators

The Act grants school principals the power to discipline students for bullying that occurs both on and off school property.2 For example, a principal may suspend a student who engages in disruptive behaviour on property adjacent to the school or on a school bus. If a student engages in disruptive behaviour off school property that “significantly disrupts the learning climate at school,” a   principal may also suspend the student. The suspension may not exceed five days. In addition, school boards are required by the Act to cooperate with government agencies, such as Nova Scotia’s new cyber-bullying investigative unit Cyber SCAN (discussed below), to promote a safe learning environment.3

Parental Responsibility

Parents who do not prevent their minor children from engaging in cyber-bullying are deemed by the new legislation to engage in cyber-bullying. Where a minor engages in cyber-bullying, and a parent (a) knows of the activity; (b) knows or ought reasonably to expect the activity to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation; and (c) fails to take steps to prevent the activity from continuing, the parent is deemed to have engaged in cyber-bullying. As such, they may be found civilly liable for the damages caused by their minor children.

Cyber-Investigative Unit

The Act establishes Cyber SCAN, an investigative unit within the Nova Scotia Justice Department charged with responding to complaints of cyber- bullying and negotiating resolutions between bullies and victims. Cyber SCAN is the first investigative body of its kind in Canada. Although it has no authority to make orders, the unit’s director has been granted discretion to take any action that he or she considers appropriate, including the power to request an internet service provider discontinue service to an Internet Protocol address.4 The director of the unit may also apply to the court for a protective order.

Protective Order

The Act also permits a victim, who has already made a complaint to Cyber SCAN, to file an application with the court for a protective order. Interestingly, the application may be made without notice to the respondent (bully)5 and  the application may identify the respondent by Internet Protocol address if his or her identity is unknown.6 If the court is satisfied the respondent engaged in cyber-bullying and the bullying is likely to continue in the future, it may make a protection order.7 A court may make any order that it considers necessary for the protection of the bullying victim, including prohibiting the bully from contacting the victim or restricting the bully’s use of electronic communication.

Statutory Tort

The Act states that cyber-bullying is a tort.8 As such, the Act grants the courts authority to award damages to a plaintiff, issue an injunction, and make any other order the court considers just and reasonable. Further, the parent of a cyber-bully who is a minor is jointly and severally liable for any damages awarded to the plaintiff. The parent may only escape liability if it can be demonstrated that he or she exercised reasonable supervision  of the cyber-bully and made reasonable efforts to discourage the child from engaging in cyber-bullying.

Reaction to The Act

The Act has faced several criticisms. First, critics argue that the Act’s definition of cyber-bullying is too broad and will enable individuals to bring applications before the court for “hurt feelings.” Second, media have questioned the application process established by the Act whereby individuals can bring applications for protective orders without notifying the respondent. Third, concerns have been raised regarding whether the legislation violates an individual’s Charter of Rights and Freedoms guarantee of freedom of expression.

Criticism of the Act focuses on doing more to protect victims of cyber-bullying. For instance, critics note that existing Criminal Code provisions, such as anti-harassment provisions, are rarely invoked and provide little protection. However, critics have also questioned if the Act has gone too far.9

The Nova Scotia legislation has also ignited interest from other provinces. Alberta’s Associate Minister of Family and Community Safety, Sandra Jansen, has expressed interest in studying the Act. In addition, Alberta’s Wild Rose party has indicated it will introduce a private member’s bill in the fall similar to the one in force in Nova Scotia.10 However, whether other provinces follow in Nova Scotia’s footsteps may have to wait until the effectiveness of the Act can be assessed both by governments and perhaps in the courts.

Author: Bethan Dinning


1 Cyber-safety Act, SNS 2013, c 2, at s 2.
2 Ibid. at s. 26.
3Ibid. at s. 25.
4Ibid. at s. 33. 
5Ibid. at s. 5(1).
6Ibid. at s. 5(3).
7 Ibid. at s. 8.
8Ibid. at s. 21.
9 “Legislators should ask if Nova Scotia’s aggressive Cyber-safety Act is worth the price”, The Globe and Mail
(May  6,  2013).
10 James Wood, “Alberta minister to examine Nova Scotia’s Cyber Safety Act”, Calgary Herald (August 9, 2013). Online:
<http://www.calgaryherald.com/news/alberta/Alberta+minister+examine+Nova+Scotia+Cyber+Safety/8766879/story.html>.

Highlights and Lessons from the Pepler and Milton External Review of the Halifax Regional School Board’s Support of Rehtaeh Parsons

The tragic death of Rehtaeh Parsons, on April 4, 2013, the Nova Scotia teenager who took her own life after experiencing cyberbullying, continues to attract significant attention from the Nova Scotia government, the police, school communities, and advocates from across the country. On August 6, 2013, the Nova Scotia government proclaimed in force the Cyber-safety Act, which provides victims of cyberbullying with a number of unprecedented rights and protections. Also in August 2013, police charged two 18-year-old males with child pornography offences relating to Rehtaeh Parsons’ alleged cyberbullying.

Notably, the government of Nova Scotia has also responded to calls for a more detailed inquiry into some of the systemic factors that are believed to be related to the Parsons case. In April 2013, the government appointed Debra Pepler, a York University professor and psychologist, and Penny Milton, a former deputy minister of the Premier’s Advisory Council on Health, Wellbeing and Social Justice in Ontario, to conduct an independent review of the policies and protocols of the Halifax Regional School Board (“HRSB”) and associated agencies as they related to Parsons’ death.

The Report

On June 14, 2013, Dr. Pepler and Ms. Milton released their review, entitled, “External Review of the Halifax Regional School Board’s Support of Rehtaeh Parsons” (the “Report”).

The Report reviews Parsons’ struggle with  mental health issues after an alleged incident involving a number of boys at her school, and her subsequent cyberbullying, in the context of the policies, procedures and support mechanisms that were available at the schools she attended and in her community.

The Report notes that one of the key questions that remains in the aftermath of the Parsons tragedy was why Cole Harbour High School,  the school which Parsons was attending at the time of the alleged incident, did not investigate the incident after being made aware of it by police. The police had informed the Cole Harbour principal that some of the boys implicated in the incident were students at Cole Harbour and that Parsons’ mother intended to transfer her daughter to Dartmouth High School. The principal was asked to look out for any indications that explicit pictures of Parsons taken during the incident  were circulating among students, i.e. the ongoing effects of cyberbullying.

The school, however, took no further action investigating the incident, on the basis that Parsons immediately transferred to another school. Because a police investigation was underway, the school was unsure whether it should take further action because of the criminal investigation.

Notably, the Report does not comment on the appropriateness of the school’s approach in the context of the police investigation, but commentators suggest that this remains a live issue.

The Report notes that another key question arising from the Parsons tragedy was whether information regarding the alleged incident and cyberbullying should have been transferred to Dartmouth High School, the school Parsons attended after Cole Harbour. As it was, when Parsons transferred to Dartmouth, no information about the incident or possible cyberbullying was shared with the principal, and Parsons’ records did not include any reference to the incident. It  was only after the vice-principal of Prince Andrew High School, the high school Parsons attended after Dartmouth, contacted Cole Harbour to learn more about Parsons, that he was told by the Cole Harbour principal that Parsons had been involved in an incident. As such, Parsons drifted from  school to school without any review of the incident or Parsons’ need for support.

With respect to the sharing of student information, the Report notes that there is a “fine balance between respecting privacy and sharing information to facilitate support within the receiving school”. Again, the Report does not  make specific comments with respect to the appropriateness of the approach taken by the HRSB not to transfer information of the incident as Parsons transferred from school to school.

The Report does note, however, that Parsons’ sparse attendance limited the application of the HRSB’s policies on student support and intervention. As the Report notes, a student’s absences may indicate the need for intervention. The authors note that school staff must learn from and be sensitive to the “indicators of crisis” in their day-to-day interaction with students, particularly because a crisis may manifest by disruptive behaviour, but could also be internalized and result in poor attendance.

Ultimately, the Report makes thirteen recommendations, along a number of themes, including, emphasizing prevention, involving youth in decisions, building strong relationships, and focusing on mental health. As part of these recommendations, the authors suggest that school boards in particular must:

  • promote the core values of safety and respect in order to prevent bullying, cyberbullying, and sexual aggression by revising school codes of conduct to include opportunities for students to learn from their mistakes by way of restorative practices;
  • clarify the process relating to student transfers between schools, and determine which student information must be shared between schools;
  • survey students about the quality of their relationships within the school community, report the findings in the school boards’ accountability reports to the community, and engage and collaborate with parents; and
  • promote mental health literacy and intervention among educators and the school community.

The authors of the Report view adolescent mental health issues as a challenge requiring a collective approach:

We cannot know whether different interventions by educators could have set Rehtaeh on a successful path towards coping with trauma and continuing her education. We cannot know whether different interventions by health-care clinicians could have helped Rehtaeh effectively address her trauma and the potential of her self-harm. We cannot know whether different interventions by the police officers could have shut down any cyberbullying and protected Rehtaeh from its effects.

We do know that it is very difficult to stabilize and support a youth through a mental health crisis. Rehtaeh Parsons’ story is one of too many in Nova Scotia and across Canada involving young  people who see no way out of their problems. This is why our emphasis has  to be upstream on prevention of bullying, cyberbullying, and sexual assault. The problems belong to all of us. The solutions will take determined and long-term efforts on the part of governments, schools, health care, justice, community agencies, students, parents, media, and all citizens.1

While the Report makes a number of general recommendations to promote safety and well- being of students, commentators have noted that the Report does not analyze or comment directly on whether the school board, police and community responses to Parsons’ circumstances were in line with policies and procedures, and whether they were appropriate.

Nevertheless, a number of important principles may be taken from the Report, and particularly with respect to school investigations and the sharing of student information in the context of school transfers.

School Investigations

Pursuant to the Ontario Education Act, regardless of whether charges are laid by the police, a principal is responsible for conducting an investigation independent of the police and taking appropriate disciplinary action. Police conduct their own investigations and make decisions with respect to criminal charges based on their own assessment of the circumstances. As such, the purpose and nature of actions taken by the police under the Criminal Code are different from the purpose and nature of actions taken by a school principal.

The Education Act also sets out provisions regarding the timing of the principal’s investigation: when the police have been contacted, the principal should halt his or her review of the incident until either the police investigation is complete or until such time as the school’s investigation will not interfere with the police investigation. Beyond complying with their express statutory duties, principals have a degree of discretion and flexibility in the way in which they conduct their investigations.

Furthermore, under the Education Act, a principal is required to suspend a student if he or she believes that a student has engaged in a number of specific activities at school, including bullying, where engaging in the activity will have an impact on the school climate. Specific timelines apply with respect to a principal’s decision to expel a suspended student post-investigation. As such, in accordance with the Provincial Model for a Local Police/School Board Protocol,police and schools are required to cooperate regarding their separate investigations, and share information about the progress made in each investigation of the student, whenever possible.

Transfers of Student Information

The record of a student’s educational progress through schools in Ontario is kept by way of the Ontario Student Record (“OSR”), which, in addition to report cards, may include “additional information identified as being conducive to the improvement of the instruction of the student”.

School boards have discretion with respect   to the type of information they deem as being conducive to the improvement of the student, and the purposes for which such information is to be used by schools. As such, a board may develop specific policies mandating the inclusion of any information about a student’s involvement in incidents at school, and any specific supports required by a student. Pursuant to the Ontario Student Record Guideline, 2000 a transferring student’s OSR will be sent to their new school upon receipt of an official written request from the school.

The Parsons tragedy highlights the importance  of ensuring the transfer of a student’s complete record, and the taking of a proactive approach to becoming informed about the full range of the transferring student’s history and support needs.

Author: Maria Gergin


1 At p. 7.

State of California Enshrines Rights for Transgender Student

On August 12, 2013, the Governor of California approved amendments to the California Education Code that provides certain rights for transgender students from kindergarten through grade 12.1 The law requires public schools to permit students to access the washroom of their choice and participate in sex-segregated activities according to their own sense of gender identity, regardless of the gender listed in a student’s records.

The amendment to section 221.5 of California’s Education Code states as follows:

221.5.

  1. It is the policy of the state that elementary and secondary school classes and courses, including nonacademic and elective classes and courses, be conducted, without regard to the sex of the pupil enrolled in these classes and courses.
  2. A school district may not prohibit a pupil from enrolling in any class or course on the basis of the sex of the pupil, except a class subject to Chapter 5.6 (commencing with Section 51930) of Part 28 of Division 4 of Title 2.
  3. A school district may not require a pupil of one sex to enroll in a particular class or course, unless the same class or course is also required of a pupil of the opposite sex.
  4. A school counselor, teacher, instructor, administrator, or aide may not, on the basis of the sex of a pupil, offer vocational or school program guidance to a pupil of one sex that is different from that offered to a pupil of the opposite sex or, in counselling a pupil, differentiate career, vocational, or higher education opportunities on the basis of the sex of the pupil counseled. Any school personnel acting in a career counselling or course selection capacity to a pupil shall affirmatively explore with the pupil the possibility of careers, or courses leading to careers, that are nontraditional for that pupil’s sex. The parents or legal guardian of the pupil shall be notified in a general manner at least once in the manner prescribed by Section 48980, in advance of career counselling and course selection commencing with course selection for grade 7 so that they may participate in  the counselling sessions and decisions.
  5. Participation in a particular physical education activity or sport, if required of pupils of one sex, shall be available to pupils of each sex.
  6. A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.

American courts have heard several cases dealing with transgender students’ rights. For example, in Massachusetts, the Superior Court held that a transgender student had the right to dress according to her gender identity.2 In 2009, the Maine Human Rights Commission found discrimination where a transgender student in grade five was forced to use the staff washroom for her own safety after being attacked in the girls’ washroom.3 The Commission found that the consequence of the school’s actions were “to ostracize a vulnerable child from her peers, amplifying her feelings of being ‘different’”.4 Using the staff washroom was not, therefore, an appropriate accommodation.5

Although there is no law in any Canadian jurisdiction that grants specific rights to transgender students, provincial anti-discrimination legislation may require accommodation for transgender youth that mirrors some of the provisions of the California law. The application of anti-discrimination legislation to transgender persons varies by province. In Quebec and British Columbia, human rights tribunals have considered discrimination relating to transgender individuals to fall within the ambit of discrimination on the basis of “sex” or “sexual orientation.”6

Ontario has taken a different approach. In June 2012, Ontario added “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Human Rights Code7 in recognition of the fact that a person’s gender identity is “fundamentally different from and not determinative of” their sex or sexual orientation.8

Because this is a new and evolving area of law, there is limited case law to interpret anti- discrimination provisions with respect to trans- gendered youth in the Canadian school context.

In 2010, a group of parents in Abbotsford,  British Columbia filed a human rights complaint with the British Columbia Human Rights Tribunal (“BCHRT”) arguing that the Abbotsford School Board’s (the “Board”) failure to include certain topics in the curriculum related to lesbian, gay, bi-sexual and transgender people was discriminatory.9 The group had settled a prior claim with the Board where the Board had agreed to implement an elective course in social justice that covered those topics, but the Board withdrew the course before it started. The group argued that the Board withdrew the course in response to other parents’ concerns about the content, whereas the Board claimed that the course was still under review. The Board tried to have the case dismissed on various preliminary grounds, but was unsuccessful.

In 2012, the Ontario Human Rights Tribunal found that the Ontario government discriminated against a transgender person by requiring proof of transsexual surgery before permitting them to change the sex indicated on their birth certificate.10 The Tribunal commented on the tendency to focus on physiology in the context of gender:

This reinforces the prejudicial view in society that, unless and until a transgender person has “transsexual surgery”, we as a society are entitled to disregard their felt and expressed gender identity and treat them as if they are “really” the sex assigned at birth.11

Bullying at school has been identified as a major concern for transgender students. The Ontario Education Act definition of bullying was amended to specifically refer to “gender identity” and “gender expression” [emphasis added]:

"bullying” means aggressive and typically repeated behaviour by a pupil where,

    1. the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,
      1. causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual’s reputation or harm to the individual’s property, or
      2. creating a negative environment at a school for another individual, and
    2. the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education;12

Under Ontario’s Human Rights Code,students have the right to equal treatment, free from harassment and discrimination because of gender identity or gender expression. The Ontario Human Rights Commission has said that harassment in this context includes, but is not limited to making transphobic comments and jokes, and ridiculing, singling out or humiliating a student because of their gender identity and gender expression.13

Transgender students should feel comfortable seeking assistance from teachers and other school staff. And, educators have a responsibility to take appropriate measures pursuant to the Ontario Provincial Code of Conduct to prevent and address bullying.14

School boards may wish to consider drafting guidelines to address the day-to-day needs of transgender students. The Toronto District School Board has guidelines that outline students’ rights and provide suggestions for their implementation in schools. Topics covered in the guidelines include confidentiality, addressing transgender students (names/ pronouns), access to washrooms, dress codes, participation in school sports and physical education, and integrating trans-positive content into the curriculum.15

Addressing the issues facing transgender students in schools can be challenging and will require a delicate balancing of the rights and interests of all members of the school community. Nonetheless, all students, parents, teachers and other school staff have the right to be safe, and feel safe, in the school community.

Author: Meghan Lindo


1 AB-1266 Pupil rights: sex-segregated school programs and activities, Assembly Bill No. 1266, Chapter 85, An act to amend Section 221.5 of the Education Code, relating to pupil rights.
2Doe v. Yunits, 2000 WL 33162199 (Mass Super Ct).
3  Parent of Minor Student 1 v School Union 87, et al (Orono), Investigator’s Report, (Orono: Maine Human Rights Commission, June  5, 2009)  online: <http://www.maine.gov/mhrc/investigation/rg/PAED08-0239r.pdf>.
4   Ibid, at para 11.
5   Ibid, at para 19.
6    See Commission des droits de la personne et des droits de la jeunesse du Quebec v. Maison des jeunes, 33 CHRR D/263 ; and,
Sheridan v. Sanctuary Investments Ltd., 33 CHRR D/467 (BCHRT).
7    RSO 1990, c H-19, as amended by RSO 2012, c 7.
8  Ontario Human Rights Commission, Policy on discrimination and harassment because of gender identity¸ (OHRC, March 2000) online:
<http://www.ohrc.on.ca/en/policy-discrimination-and-harassment-because-gender-identity>.
9    Corren v. Abbotsford School Board, 2010 BCHRT 32.
10 2012 HRTO 726.
11Ibid, at para 172.
12  Education Act, R.S.O. 1990, c.E2, s.1(1).
13 Ontario Human Rights Commission, Policy on discrimination and harassment because of gender identity¸ (OHRC, March 2000) online:
<http://www.ohrc.on.ca/en/policy-discrimination-and-harassment-because-gender-identity>.
14 Ministry of Education, Code of Conduct, Policy/Program Memorandum No. 128, (Toronto: Ministry of Education, December 5, 2012).
15 Toronto District School Board, TDSB Guidelines for the Accommodation of Transgender and Gender Non-Conforming Students and Staff, Policy P031 (Toronto: TDSB, 2011) online: <http://www.tdsb.on.ca/wwwdocuments/programs/gender_based_violence_prevention_gbvp_/docs/tdsb%20transgender%20accommodation%20FINAL_1_.pdf>.

Labour Board Rules That Elementary Teachers’ Union Engaged In an Unlawful Strike

In a landmark decision, the Ontario Labour Relations Board held that the Elementary Teachers’ Federation of Ontario engaged in an illegal strike when it counseled its members to not participate in voluntary extracurricular activities.

In a decision, released on April 11, 2013, Bernard Fishbein, the Chair of the Labour Board, ruled  that the withdrawal in combination or in concert of participation in extracurricular activities constituted a strike within the meaning of the Education Act.

This decision could prevent future use of the type of concerted work-to-rule campaign that cancelled extracurricular activities for most of the 2012/2013 school year for 1.3 million students in the province’s public English-language schools.

Mr. Fishbein also held that notwithstanding the fact that on March 26, 2013, well after the hearing had concluded, the Elementary Teachers’ Federation of Ontario (ETFO) withdrew its “advice” to members not to participate in extracurricular activities, there was still a labour relations purpose to issuing the decision and it was not moot.

The Issues Before The Labour Board

The Trillium Lakelands District School Board in cottage country and the Upper Canada District School Board in eastern Ontario had sought a cease-and-desist order again bulletins issued by ETFO in January 2013 that advised members to stop doing anything other than teach the required 300 minutes a day to protest the imposition of contracts under Bill 115, the Putting Students First Act, 2012.

The submissions from the school boards contained e-mails from leaders of ETFO instructing their members not to collect milk and pizza money, attend field trips, supervise sports practices and games, participate in the chess club, distribute school newsletters and attend report-card workshops. Some of the e-mails from local officials to members of the local were quite explicit. For example, “In accordance with the ETFO Executive motion, members should not participate in voluntary/extra-curricular activities...These are voluntary activities and members should not participate in them – full  stop.”

The lawyers for ETFO argued that their members were neither coerced or compelled to stop voluntary activities and that their union leaders only offered advice.

The Labour Board pointed out that under section 81 of the Labour Relations Act,no trade union shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union shall “counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike”.

However these ETFO communications are characterized, Mr. Fishbein said that no one can credibly maintain or dispute, at a minimum, that ETFO, it’s officers, officials or agents “supported” or “encouraged” this activity. The question before the Labour Board was whether the activity amounted to a strike.

Was ETFO Encouraging a “Strike”?

Mr. Fishbein ruled that the collective withdrawal of extracurricular activities fell under the definition   of strike set out in the Education Act even though the activities are unpaid and voluntary. He stated: “Not only does the plain and clear wording of the [Education Act] easily include these activities but I think, if only from both the labour relations purpose and perspective, this is the far better interpretation, particularly, in the education sector with its long history and expectations about the delivery of these types of activities”.

While teachers are subject to the ordinary mechanics of the Labour Relations Act strike-lockout regime, they are governed by their own unique definition of “strike” found in section 277.2(4) of the Education Act. It provides:

“ ‘strike’ includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering  with,

    1. the normal activities of a board or its employees,
    2. the operation or functioning of one or more of a board’s schools or of one or more of the programs in one or more schools of a board, or
    3. the performance of the duties of teachers set out in the Act or the regulations under it,

including any withdrawal of services or work to rule by teachers acting in combination or in concert and in accordance with a common understanding.”

Mr. Fishbein stated that the plain wording of  the statute appears to support the position of the school boards. Mr. Fishbein noted that the activities in question include inter-school or intramural sports teams that have routinely occurred for many years at most, if not virtually all, of the boards’ schools – as well as chess clubs, art clubs, bands and choir. He said that by encouraging members to no longer perform any of these activities, ETFO is, at a minimum, “interfering” with either the operation of a school or a program in a school.

Mr. Fishbein also ruled that ETFO was interfering in the normal activities of a board as these activities have been routinely offered for long periods of time.

This decision sets an important precedent for future education sector labour disputes. It will certainly have an impact on any future teacher’s union that wishes to counsel or advise their members to collectively withdraw from similar types of volunteer activities. However, the ruling does not prevent individual teachers from choosing not to coach a sports team or supervise the choir after school hours.

The decision also confirms that although the Government repealed the Putting Students First Act, 2012 on January 23, 2013, the collective agreements imposed by that legislation continue to exist and operate.

Legal counsel for ETFO took the position that in light of the repeal of Putting Students First Act, 2012, that all collective agreements established under Bill 115 now cease to exist. Mr. Fishbein rejected ETFO’s arguments that the collective agreements do not survive the repeal of Bill 115. He pointed out that the answer lies in section 51(1) of the Legislation Act, 2006.

It provides:

“The repeal of an Act or the revocation of a regulation does not,

  1. affect the previous operation of the repealed or revoked Act or regulation;
  2. affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or  regulation.”

In this regard, the Labour Board held that the collective agreements imposed under the Putting Students First Act, 2012 and its regulations remain in effect until August 31, 2014, although the Act and the regulations themselves are no longer in force.

Even though negotiations between the government and ETFO appeared promising at the time Mr. Fishbein wrote his decision, he ruled that it was still necessary to issue the decision due to the school board’s fear of a recurrence.

Mr. Fishbein said that he felt he still needed to make a ruling because of uncertain legal status  of the after-school boycott. Mr. Fishbein asserted that this issue “has bedevilled teacher labour relations in the province and others for decades.” He stated “ETFO has not asserted that it will not resort to this conduct again.” Mr. Fishbein concluded that he was not convinced there is no labour relations purpose to issuing this decision.

On April 10, 2013, ETFO President Sam Hammond said that his members would honour the ruling although the union has said that it intends to challenge it on the grounds that the Education  Act definition of strike restricts a teacher’s right  to freedom of association under the Canadian Charter of Rights and Freedoms.1

Mr. Hammond stated: “You can’t legislate goodwill. There is no other profession where people are expected to perform hours and hours of volunteer service each week, and then are castigated for making personal decisions to put their principles, their families and their own welfare first”.2

The Education Minister Liz Sandals said that the government is reviewing the decision but her focus is on its ongoing discussions with ETFO and rebuilding relationships across the sector.3

The Challenge for School Administrators

For principals and vice-principals in the province, the challenge will be to ensure the continuity of education and the effective operation of their schools. Many public elementary and secondary teachers have returned to extracurricular activities, but some have chosen not to. It is recognized that individual teachers continue to have the right not to participate in these voluntary after-school activities.

Ensuring proper supervision and support of students involved in extracurricular activities and communication with parents about the status of these activities continue to be key considerations during this period of transition.

In meeting with school staff in these challenging times, school administrations should:

  • ensure that teachers and other staff perform required duties and responsibilities;
  • strive to be sensitive, discreet and understanding in dealing with individual staff issues;
  • focus on supporting the school program and student learning;
  • communicate with school staff with clarity; and
  • be professional in providing leadership in the school community.

Principals and vice-principals no doubt recognize that labour relations can create stress and tension in a school environment. School administrators should be aware that with some local issues,  there may be larger political motivations at play. In these circumstances, it is important to put these issues into perspective.

In this period of transition, as most of the extracurricular activities return to Ontario’s  public schools, it is important to be patient and calm in supporting the school program. It is recommended that principals and vice-principals continue to build strong relationships with their school staff and union representatives. Where possible, it is recommended that the parties work in a collaborative and inclusive manner to resolve potential areas of disagreement. The focus on all parties should be to continue to support student achievement and ensuring a positive learning experience for all students.

Author: Eric M. Roher


1Louise Brown and Kristin Rushowy, “Landmark ruling bars teachers unions’ after-school boycotts”, The Toronto Star
(April 12, 2013), p. A1.
2 Ibid.
3Ibid.

Changes to the Taxation of Tuition Assistance: How Educational Institution Employees Can Benefit From the New Exemption In Subparagraph 6(1)(A)(Vi) of the Income Tax Act

Many private schools, independent schools, semi-private schools, universities and colleges across Canada provide some form of tuition assistance for family members (dependent children or spouses) of their employees. This assistance ranges from free to reduced tuition fees and helps the employee’s family members access higher education. The assisting institution usually covers the cost of tuition only, while the employee or family member of the employee remains responsible for paying any non-instructional fees and purchasing books and other supplies.

Historically, the Canada Revenue Agency (the “CRA”) treated the provision of free or reduced tuition as a taxable benefit to the employee, requiring the educational institution to attribute a fair market value (FMV) to this benefit. Recent  case law successfully challenged this position1  and subparagraph 6(1)(a)(vi) of the Income Tax Act (Canada) (the “ITA”)2, which was passed into law June 26, 2013, legislatively overrules the CRA’s position in certain circumstances. The legislative amendment states that where specified conditions are met, an employee benefit in the form of free   or discounted tuition for a family member of an employee is not subject to tax in the hands of the employee. This means that if you provide the family members of your employees with free or reduced tuition assistance and the conditions for the application of the exemption are met, you will not need to include the amount of the assistance in the employee’s T4 as taxable income. Instead, you will need to report the FMV of this benefit as a bursary on a T4A slip for the family member. If the family member meets certain criteria, then this benefit might be excluded from tax altogether.3

In order to benefit from this new exemption, your institution will need to ensure the following four requirements are met. First, the benefit you provide must be enjoyed by an individual other than your employee. For instance, if you provide your employee with tuition assistance in order  to further his or her own education then this exemption does not apply (and therefore does not affect how the benefit was previously calculated and taxed). In order to benefit from the new exemption, the tuition assistance must be received or enjoyed by an individual other than the employee. The determination of who has received or enjoyed the benefit of your institution’s tuition assistance program is highly fact-dependent and requires an examination of the specific facts and circumstances relevant to a particular employee.

Second, the tuition assistance benefit must be provided under a structured program to further education. This means that the benefit should  arise from a documented program that is  designed to assist the employee’s family members to further their education and explicitly provides free or reduced tuition to accomplish this goal. Employer programs aimed at assisting an employee with family financial obligations will not qualify. The CRA takes the position that whether a program provided by an employer is designed to further education is factually dependent and will differ depending on the particular case.

Third, the employee and the employer must deal with each other at arm’s length. The ITA provides rules that determine whether persons are considered to deal with each other at arm’s  length. Specifically, under subsection 251(1) of   the ITA, non-arms length relationships will be determined by looking at whether or not individuals are related, whether or not there is a beneficial interest present (for instance, as between a taxpayer and a personal trust) and whether or not, as a question of fact, persons not related to each other are at a particular time dealing with each other at arm’s length. Therefore, if your employee is also an owner or shareholder of the employing business then this tuition assistance exemption will not apply.

Fourth, the tuition assistance benefit must not be a substitute for employee compensation. To satisfy this final requirement, the free or reduced tuition assistance must not be a substitute or replacement for any of your employee’s compensation or employment benefits. This means that the free or reduced tuition assistance must not be a negotiated term of employment or provided to employees as an optional benefit that can be substituted for another employment benefit.

Several institutions provide different levels of tuition assistance to family members of employees depending on whether or not the employee is a full-time or temporary faculty member or an administrative or support staff member. For instance, tuition assistance for family members of permanent faculty members is usually far greater than for family members of casual staff. This type of tiered assistance may prompt the CRA to perceive the benefit received as a substitute for employee compensation. It is important to structure the tuition assistance you offer to your employees’ family members in a manner that reduces the risk that this benefit may be included in your employees’ income.

Subsection 6(1)(1)(vi) applies retroactively to October 30, 2011. This means that if the four criteria described above have been satisfied from October 30, 2011 to the present, then your employee could be entitled to receive free or reduced tuition assistance for a family member throughout the entire period on a non-taxable basis. However, we expect that very few employees would have met all of the above criteria during the entire retroactive period, and therefore, very few would be entitled to a tax refund.

Qualifying for this new exemption means that your employees would pay less income tax as the tuition assistance benefit would no longer be included in their taxable income. To effect this change, you should obtain independent legal advice in order to tailor your institution’s tuition assistance program and policy manuals to the requirements described herein. Some modification to existing program documents will most likely be needed in order to ensure that the free or reduced tuition assistance benefit for your employee’s family member is not taxed in the hands of your employee. You may also need advice in ascertaining the specific filing requirements that need to be followed in order to revise prior tax reporting for the retroactive period in the few situations where the criteria were met for that period.

Author: Natasha Miklaucic


Not-For-Profit and Charity Law In Canada Blog

Have you seen BLG’s Not-for-Profit and Charity Law in Canada blog at blog.blg.com/nfp? Some of the more recent postings include:

  • NFP Q&A: Key Insurance Considerations in a Services Agreement
  • NFP Q&A: AGMs: The Simple Things That Can Go Wrong
  • NFP Q&A: Are Not-for-Profits and Charities Paying Too Much Property Tax?
  • Federal Court of Appeal Extends Time for Publication of Notice of Revocation of Registered Charity Status for Religious School

Keep checking the blog for postings on various legal issues that may affect your institution. 

Authors

Eric M. Roher 
ERoher@blg.com
416.367.6004

Bethan Dinning  
BDinning@blg.com
416.367.6226

Maria Gergin 
MGergin@blg.com
416.367.6449

Natasha Miklaucic 
NMiklaucic@blg.com
416.367.6233

Other Author

Meghan Lindo

Expertise

Education