Layoff out of seniority order not permitted where teacher meets OCT qualification

In Keewatin-Patricia District School Board v. Ontario Secondary School Teachers’ Federation, 2019 ONSC 7102, the Ontario Divisional Court dismissed an application for judicial review of Arbitrator Michael Lynk’s decision upholding the grievance of a teacher alleging that she was laid off out of seniority order. The court rejected the Keewatin-Patricia District School Board’s (the Board) position that the arbitration award was unreasonable because it misapprehended the Board’s obligation to provide the “best possible educational program” as stipulated in subsection 19(1) of Regulation 298 under the Education Act.

Facts

Due to declining enrollment following the 2012-2013 academic year, the Board was required to reduce six full-time positions at Beaver Brae Secondary School (Beaver Brae or the School) for the 2013-2014 year. In making its decisions about who to lay off, the Board retained Kim Remus (Ms. Remus), a junior teacher, over Karen Edwards (Ms. Edwards), a more senior teacher, in the 2013-2014 academic year. The Ontario Secondary School Teachers’ Federation (OSSTF) grieved Ms. Edwards’ layoff out of seniority order, relying on a collective agreement provision that required that layoffs be in order of seniority, except where a junior teacher possessed “current qualifications” that a senior teacher lacked for a required area of teaching.

Board’s submissions at arbitration

In the arbitration proceedings, the Board argued that its decision to retain Ms. Remus was guided by the statutory obligation to provide the “best possible program” and was justified due to the particular skills and experience she possessed to teach Beaver Brae’s Community Life Skills (CLS) course — in particular, her training in American Sign Language (ASL) and Picture Exchange Communication System (PECS). Ms. Remus did not possess an Ontario College of Teachers (OCT) recognized qualification for ASL and her certificates in ASL and PECS were not recognized by the OCT.

The CLS course is a non-credit “sub-program” of special education for low-verbal and non-verbal students, developed by Ms. Remus and two other teachers who were no longer teaching at the School. The course was designated as a special education course and ASL and PECS were two of a non-exhaustive list of a variety of communication modes identified as appropriate for the course in the course manual.

In support of the Board’s position, the principal at Beaver Brae testified at the arbitration hearing that none of the nine more senior teachers to Ms. Remus that possessed OCT qualifications to teach special education were, in his view, qualified to teach the CLS course because they lacked training in ASL and PECS. In his opinion, having training and skills in these two communication modes was important to the success of the CLS course because of the predominance of non-verbal and low-verbal students. He also cited concerns about the other more senior teachers being unwilling to teach the course and the reaction of parents and students if a teacher assigned to the CLS course was unable to communicate through ASL and/or PECS.

Arbitration decision

Arbitrator Lynk upheld the grievance, finding that the relevant collective agreement provision only permitted a junior teacher to be retained where the teacher possessed “current qualifications” that a senior teacher lacked, and because “current qualifications” were defined in reference to the Ontario College of Teachers Act and its Regulations, only OCT qualifications could be considered. As Ms. Remus’ ASL and PECS qualifications were not recognized by OCT, her qualifications were equivalent to the other teachers senior to her who possessed special education qualifications.

With respect to the Board’s argument that they could not provide the “best possible program” if teachers could not communicate with students because they lacked ASL and PECS, Arbitrator Lynk found that there was no conflict between the relevant collective agreement provision and the statutory obligation to provide the “best possible program.” He held that there was no evidence that the teachers senior to Ms. Remus lacked the basic ability to communicate with the CLS course students. In coming to this conclusion he noted, inter alia, that ASL and PECS were only two of a non-exhaustive list of different communication modes identified as appropriate for the CLS course.

Judicial review decision

In its application for judicial review, the Board submitted that Arbitrator Lynk made reviewable errors by:

• failing to articulate in an intelligible, transparent and justifiable way how the principal erred in making teacher assignments;
• unreasonably concluding that teachers without the basic ability to communicate with students could be put in a position to teach those students; and
• failing to exercise jurisdiction to make factual findings regarding to what extent ASL and PECS are essential qualifications for teaching the CLS course.

The court rejected all of the Board’s arguments.

With respect to the first argument, the court found that Arbitrator Lynk had identified flaws in the principal’s decision to retain Ms. Remus. In its analysis on this point, the court first accepted that Arbitrator Lynk’s interpretation of the relevant collective agreement provision was reasonable.

The court identified the flaws Arbitrator Lynk had found with the decision to retain Ms. Remus. The most significant being the Board’s failure to consider the implication that the statutory obligation to provide the “best possible program” is to be read in conjunction with the Ministry of Education publication “Teaching Assignments in Ontario Schools: A Resource Guide” (the Resource Guide). Arbitrator Lynk found that considering the Resource Guide demonstrated that Ms. Edwards should have been retained. The court accepted Arbitrator Lynk’s findings and summarized his comments as follows in paragraph 22 of the decision:

“Arbitrator Lynd [sic] went on to hold that Ms. Edwards would have been able to teach courses within her designated qualifications, past experience and competency that had been assigned to some of the nine more senior teachers who possessed qualifications in special education, one of whom should have been assigned to teach the CLS course. He held that applying the primary consideration of surplusing by seniority in a complementary fashion to the statutory factors led to the conclusion that Ms. Edwards was laid off out of seniority in a manner contrary to the collective agreement and the applicable law. I find nothing unreasonable in the Arbitrator’s approach which was intelligible, transparent and justifiable.”

Related to the above analysis, the Board submitted that Arbitrator Lynk misapprehended the key issue of “best possible program.” However, the court found that Arbitrator Lynk’s interpretation of the “best possible program” objective was reasonable and consistent with the jurisprudence. Arbitrator Lynk identified the following principles that informed his analysis on the “best possible program” objective and the court accepted his reliance on these principles:

1. Although legislation is supreme, in an industrial relations setting, legislation and collective agreements should be read as complementing one another, unless there is an obvious clash.
2. The Resource Guide explicitly expresses the complementary nature of ensuring teachers are qualified in the subjects they teach and providing the “best possible” program: a teacher’s qualifications are an indication that he or she has the knowledge and skills to provide the best possible program.
3. Canadian courts will not set aside or ignore collective agreement requirements around seniority unless there is “a clear collision with a statute.”
4. With respect to providing the “best possible program,” the use of the word “possible” implicitly recognizes limitation, including those that emerge from the statutorily rooted and Charter-protected process of collective bargaining.
5. There is no legal principle [in s. 19(1)] requiring an arbitrator to interpret controversial Collective Agreement language in a manner that best promotes the employer’s objectives even if they are statutorily prescribed.
6. The Education Act and the Ontario College of Teachers Act create a mandatory connection between a teacher’s qualifications as recorded on their OCT certificate and the subjects they can be assigned to teach.  This is subject to only limited exceptions.
7. In preparing a school timetable, principals can be constrained by collective agreement language to which their employer has agreed which requires surplus decisions to be made by seniority.  Exceptions to that rule should be read narrowly. 

With respect to the second argument, the court reviewed Arbitrator Lynk’s comments concerning Ms. Remus and the other nine more senior teachers’ qualifications. His findings noted that Ms. Remus did not have OCT recognized qualifications in ASL and PECS and that ASL and PECS were only two of a non-exhaustive list of different communication modes appropriate for the CLS course. The court held that there was no evidence supporting the other nine teachers more senior than Ms. Remus lacked a basic ability to communicate with the students in the CLS course. The Board’s submissions that it was unreasonable to conclude any teacher with special education qualifications can fulfill the obligation to provide the best possible program to non-communicative students in a specially designed course were rejected by the court.

Lastly, the court found no merit to the Board’s argument that Arbitrator Lynk failed to make findings about whether skills in ASL and PECS were required to teach the CLS class. The court found Arbitrator Lynk’s finding that having OCT qualifications in a particular subject or program area means a teacher is qualified to teach that course was not unreasonable.

Comment

This decision serves as a twofold authority for future arbitrators to hold:

• where a collective agreement provision only allows retaining junior teachers where they possess required qualifications that senior teachers lack, the assessment of qualifications should be based on OCT qualifications; and
• the “best possible program” objective is met when a course is taught by a teacher that possesses the OCT qualifications to teach that course.

More broadly, the decision is also a reminder that both arbitrators and courts will be reluctant to interpret statutory obligations in a way that overrides negotiated collective agreement provisions unless there is a clear and obvious conflict, in which case the legislation will reign supreme. School boards should keep this reluctance in mind when relying on statutory obligations in the grievance resolution process.