Province Of Ontario And Teachers’ Unions Appear Set For A Tense Showdown

The collective agreements for all teachers in the Province of Ontario expired on August 31, 2014. Teachers’ unions have given notice to bargain. The Ontario Secondary School Teachers’ Federation (“OSSTF”) has engaged in preliminary negotiations with the Ontario Public School Boards’ Association.

On August 13, 2014, Ontario Premier Kathleen Wynne told the annual meeting of the Elementary Teachers’ Federation of Ontario that the Liberal government won the recent election, but not the lottery. She confirmed that the province faces fiscal challenges. “I said there is no new money for compensation increases. But we have no intention of bargaining in the media...and I am confident the bargaining will be fair and issues will be dealt with at the bargaining table”, Ms. Wynne stated.1

On July 14, 2014, the government retabled its May 1st budget with a spending plan that projects a deficit of $12.5 billion, more than the $11.3 billion previously projected for this year. In the budget, the government indicated that it plans to maintain the education spending that has already been promised.

Deb Matthews, Treasury Board President, recently indicated that the objective in public sector bargaining will be “net zeroes,” something approximating a wage freeze. The government believes that savings can be achieved through structural changes over the course of the contract rather than during negotiations.

Ontario’s public high school teachers have said that the Provincial budget has set the stage for “unnecessary conflict” because the government has “unilaterally extended” a wage cut imposed in 2013, which it alleges will go beyond the agreed two-year restraint period.”2

Paul Elliott, President of OSSTF, has been critical of the provincial government, which has proposed a budget that maintains the status quo on previous promises, but has nearly no new education spending beyond what has previously been announced.

The budget pledges to follow through with key policies, including the roll-out of full-day kindergarten to 265,000 children across the province commencing in September 2014 and will maintain the approximately $1.8 billion that the government spends annually on education infrastructure for a decade. Although the budget does not contain a reduction in education spending, the lack of new funding in the budget has left Mr. Elliott dissatisfied.3

“Our members have more than done their part,” he said, “but this government persists in treating public education workers in Ontario as easy targets for an agenda of restraint that even the government itself is no longer comfortable acknowledging.”4

Education Minister Liz Sandals said that it is standard practice that when collective agreements are set to expire, as the teachers’ agreements will in September 2014, provisions are “rolled forward”. The Minister also noted that the province’s relationships with teachers’ unions and school boards have improved, despite the “rhetoric”.5

“The government never announces what the deal’s going to be before you negotiate it”, she said.6

This Act put in place a two-tiered bargaining process for unionized employees employed by school boards: one for central negotiations and another for local negotiations. Big monetary issues, such as salaries and benefits, would be negotiated centrally by the government, provincial unions and school board associations. Bargaining on local issues, such as teacher workload, access to technology and training, would take place between individual school boards.8

In the present circumstances, the school boards and the teachers’ unions appear to like the idea of the legislation, but not necessarily everything that’s in it.

For example, the teachers’ unions have complained that, in their view, Bill 122 gives the Minister of Education too much power in determining what gets bargained provincially and locally and on issues such as the length of future contracts.9 Under the legislation, the Minister may reserve a matter for the central table if the Minister is of the opinion that there could be a “significant impact” on implementation of provincial education policy or expenditure for benefits.

The government is caught between addressing a climate of fiscal constraint and appeasing a group that was a strong supporter in the last provincial election.

To facilitate negotiations in the education sector, on April 9, 2014, the government passed Bill 122, the School Boards Collective Bargaining Act, 2014.7

Bargaining is just in its early stages and the tone appears tense. In early June 2014, OSSTF unanimously approved a new levy on its members to bolster its strike fund.10 The fee will be used to enhance the strike fund and provide an increase in strike pay. The Globe and Mail recently reported that OSSTF members will receive three-quarters of their pay if they are involved in a strike.11 OSSTF has indicated that the increase in strike pay will enable the teachers’ union to “negotiate from a position of strength.”12

Furthermore, many in the education sector are expecting a tense showdown because the government will have to grapple with a large deficit and the teachers’ unions will fight any new reductions. With a new debt of $267.5 billion that is growing at a faster rate than the economy, the province is facing pressure from the credit agencies to get its fiscal finances in order.13 Currently, the province pays $11 billion annually in interest payments to finance its debt.

On July 2, 2014, the bond rating agency, Moody’s, issued a stark warning on Ontario’s growing deficit. Moody’s changed its outlook on the province from “stable” to “negative”, cautioning its credit rating could be downgraded if the province does not show progress with cutting spending or increasing revenues.14

The province is pledging to balance the books in three years, but will run a far larger deficit this year than originally projected.15

Michael Yake, Moody’s lead analyst for Ontario, said, “The expected path to balance and stabilization of the debt burden, in our opinion, faces greater challenges than before.”16

It is evident that a future downgrade by the credit agencies would result in higher borrowing costs, adding billions more to the debt-to-revenue ratio.17 Ontario currently spends 9.2% of its revenues on interest payments and provincial government estimates predict that figure will rise to almost 11% in the next four years.

The cost of carrying the debt will also dramatically increase, as much as $3 billion in annual interest costs for every point increase in interest rates, according to Jack Mintz, the Palmer Chair and Director of The School of Public Policy at the University of Calgary.18 If interest rates increase, the bottom line is that more money will be earmarked for servicing the debt and less spending will be available for important public services, such as education.

“It’s been an issue that has been lingering for several years,” said Mazen Issa, Senior Canada Macro Strategist at TD Securities in Toronto. “Some very tough decisions are going to have to be made to get the books in order.”19

It will fall to Deb Matthews, as the head of the newly empowered treasury board of cabinet, to attempt to balance these competing interests. The Speech from the Throne of July 3, 2014 made it clear that she will oversee all public sector negotiations with teachers, nurses and other public servants who have been allocated no increases in the coming years.

The challenge for the provincial government will be to find a way to manage a debt load that is larger than California’s while attempting to meet the expectations of the teacher unions and other public sector employees in current and upcoming contract negotiations.

Author: Eric M. Roher

1 C. Alphonso, “No new money for pay bumps, Ontario Premiere Wynne tells teachers”, The Globe and Mail (August 13, 2014) at no-new-money-for-pay-bumps-ontario-premier-wynne-tells-teachers/article20032943/
2 J. Bradshaw and C. Alphonso, “Lack of new education funding in Ontario budget irks teachers’ union”, The Globe and Mail (May 1, 2014) at national/education/lack-of-new-education-funding-in-ontario-budget-irks-teachers-union/ article18385040/#dashboard/follows/
3 Ibid.
5 Ibid.
S.O. 2014 C.5.
C. Alphonso, “Why Ontario and teachers’ unions seem set for another tense showdown: Wynne’s Liberals are caught between dealing with a climate of fiscal constraint and appeasing a group that has, until lately been among its strongest supporters”, The Globe and Mail (February 27, 2014) at why-ontario-and-teachers-unions-seem-set-for-another-tense-showdown/article17140392/
9 Ibid.
10 C. Alphonso, “Ontario high-school teachers approve new levy to bolster strike fund”, The Globe and Mail (June 1, 2014) at article18940106/
11 K. Hammer and C. Alphonso, “Ontario teachers to receive three-quarters of pay in case of strike”, The Globe and Mail (June 9, 2014) at
13 T. Tedesco, “Kathleen Wynne’s reality: Ontario’s massive debt cannot be ignored”, National Post (June 12, 2014) at
14 A. Morrow, “Moody issues warning about Ontario’s growing deficit”, The Globe and Mail (July 2, 2014) at
15 Ibid.
16 Ibid.
17 T. Tedesco, op. cit., footnote 13.
18 Ibid.
19 Ibid.

Ontario Human Rights Tribunal Rules Atheism Is Included In The Meaning Of “Creed”

In R.C. v. District School Board of Niagara, 2013 HRTO 1382, the Ontario Human Rights Tribunal (the “HRTO”) was asked to determine if a policy of the District School Board of Niagara (the “Board”) discriminated against R.C. and S.C., the Applicants, on the basis of creed. The Canadian Civil Liberties Association and the Ontario Human Rights Commission were both granted intervenor status in this case. In the decision, which was released on August 13, 2013, the HRTO granted the Application, finding that the Board’s policy, as drafted at the time, allowing the distribution of religious materials in the school after school hours, was discriminatory.

Factual Background

There were two versions of one Board policy at issue in this case. The first version of the policy was adopted from the Board’s predecessor and permitted only the Gideons International In Canada to distribute their version of the New Testament to Grade 5 students in Board schools, if the principal - in consultation with the school council - agreed, and if parental consent forms were signed. The Gideons would also make a presentation to the students whose parents signed the consent forms.

When the Applicant S.C., a Board student, was in Grade 5, she brought home a consent form pursuant to the Board’s policy. Her family identifies as atheist.

After receiving the Board’s consent form, and following his attendance at the Gideons’ presentation, S.C.’s father, R.C., contacted the school’s principal and asked to distribute a book entitled “Just Pretend: A Freethought Book for Children”, which promotes atheism. R.C. explained to the HRTO that his intentions were not to promote atheism in the school, but to make the point that asking parents to consent to the distribution of his materials or the Gideons’ materials might be upsetting, and to encourage a change in the Board’s policy. As a result of R.C.’s actions, S.C.’s school decided it would not allow the distribution of any materials under the policy that year.

Following the school’s decision not to allow distribution of Just Pretend or the Gideons’ materials, R.C. continued to advocate for a change in the Board’s policy. The Application was filed in January 2010, and delivered to the Board in March 2010. Before it received the Application, the Board changed its policy in February, in an attempt to make it more inclusive. The new policy did not restrict the distribution of materials to any specific religion and simply stated that any requests for the distribution of religious publications must be approved by the school, in consultation with the school council and with pre-approved parental consent.

After the policy was amended, R.C. made a second request to distribute Just Pretend. The Board refused his request, taking the position that atheism was not a religion and that Just Pretend was a secondary publication and not a recognized sacred text or authoritative source of any religion. Thus, the Board contended, his materials could not be distributed under the policy.

The Decision

In its decision, the HRTO undertook an analysis of whether atheism falls under the protected ground of creed in the Ontario Human Rights Code (the “Code”). The HRTO noted that the rights provided for in the Code are to be interpreted broadly and exceptions to those rights interpreted narrowly. With respect to whether atheism is included within the definition of creed, the HRTO stated the following:

In my view, a purposive interpretation of the prohibition on discrimination because of “creed” in the Code includes a prohibition on discrimination because a person is atheist. To accept the respondent’s submissions would be to find that the Code only protects core beliefs about oneself, humankind and nature linked to one’s self-definition when they accept the existence of a deity or have particular practices. The purpose of prohibiting discrimination because of creed includes ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.

The HRTO also noted that it is well-established that “creed” encompasses discrimination because of religion. The HRTO found that the protection against discrimination because of religion must include protection of the belief that there is no deity. These beliefs relate to religion, and they engage the Code’s purpose of ensuring equal treatment regardless of one’s views on religious matters. The HRTO further stated that the exclusion of atheism from “creed” would “allow discrimination against persons because they do not accept a particular religion, so long as they are not adherents of another set of beliefs and practices.”

Relying, in part, on Supreme Court of Canada decisions addressing freedom of religion, statutory interpretation principles, and a dictionary definition of “creed”, the HRTO concluded that “a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’ includes atheism and that discrimination because a person is atheist is prohibited by the Code.”

In the end, the HRTO found that both versions of the Board’s policy were discriminatory. The first policy was discriminatory in permitting students to receive literature in public schools from the Gideons only, and not others. The second version of the policy was discriminatory because: it was inconsistently applied in a discriminatory manner; it did not provide clear guidance on decisions regarding which materials may be distributed; and it permitted judgment on a case-by-case basis of the validity of particular religions and religious texts.


The Board’s policy was declared invalid and the Board was ordered not to allow distribution of religious materials unless it developed a policy that was compliant with the Code. The HRTO further ordered that the Board provide any new policy to the intervenors and the Applicants, at which time they may write to the HRTO if they see any Code compliance issues with the draft policy.


Public school boards that presently have in place, or are considering drafting, a policy allowing the distribution of religious materials in their schools after school hours should be mindful of the following in reviewing, updating or drafting such policies:

  • The HRTO commented in this case that when a public school is not neutral with respect to creed, it discriminates against parents and children accessing the school’s services and marginalizes their creed.
  • Boards that have similar policies in place should make some effort to encourage a diversity of literature and awareness of the policy. There should be a clear statement in communication with parents confirming that all creeds are permitted to distribute materials with parental consent.
  • Make efforts to publicize the policy and make all students and parents aware of its contents.
  • The policy should be consistently applied and should not restrict the manner in which a creed must convey core beliefs. Creeds convey their messages in different ways.

While this decision does not prohibit optional religious activities in public schools outside the instructional day, all creeds must be treated equally in any optional religious activity. There must be no subtle or formal coercion to participate in such activities and schools must make clear that they are not favouring any creed. As noted by the HRTO in this decision, under a carefully developed policy that ensures equality between all creeds, public schools can permit distribution of religious literature outside the school day with parents’ consent.

Author: Stephanie Young

Acceptable Use of Technology Policies: How to Manage Employee Privacy Expectations With Respect to Personal Use of School Technology

When school employees are permitted to use their work computers for personal purposes, they are entitled to a reasonable expectation of privacy. While the exact scope of that privacy right is not entirely clear, the adoption by schools of an acceptable use of technology policy applicable to staff members is one factor that courts will consider in determining the extent to which employees’ privacy rights should be protected.

Many schools provide teachers with laptops or computers owned by the school for work-related uses, and permit them to use the laptops or computers for incidental personal uses. The legal issue that arises is whether a staff member has an expectation of privacy with respect to personal information he or she uses or accesses on the school’s computer and, if so, what steps a school can take to monitor and inspect a staff member’s personal use of the computer.

In the 2012 Supreme Court of Canada decision R. v. Cole1, the Supreme Court found that a high school teacher could reasonably expect a measure of privacy in his personal information stored on a work-issued laptop. The use of the laptop was governed by the school board’s Policy and Procedures Manual, which allowed for incidental personal use of the school board’s information technology, and provided that email correspondence was private, but did not address other types of files. Use of the laptop was also governed by the school’s Acceptable Use Policy, which warned users not to expect privacy in their files. At issue was the seizure of a folder on the teacher’s laptop containing nude pictures of an underage student. The Supreme Court found that even taking into account the relevant workplace policies, the employee expected a measure of privacy in his personal information on the laptop, but that it was a diminished expectation of privacy.

The Supreme Court considered the school board policy governing employee use of technology in assessing the “totality of the circumstances” to determine whether privacy is a reasonable expectation in the particular situation. Ironically, the Court found that the school’s policies weighed both for and against the reasonable expectation of privacy: for, because the policy permitted use of the laptop for personal use, and against, because the policy deprived the teacher of exclusive control and access to the personal information recorded on the computer.

The findings in the case suggest that acceptable use policies may not be determinative, but they will still be important in determining the scope of the employee’s privacy rights. It does not appear that the policies in question were as robust as might have been expected (not addressing the privacy of data other than email, for example). Accordingly, schools should develop comprehensive acceptable use policies that are specifically applicable to teachers and other staff members, and not just to students.

The acceptable use policy should specifically provide that staff members do not have a reasonable expectation of privacy in their use of the school’s computer, and in any data or messages stored on the computer or accessed or sent by the computer. It should also provide that the school may inspect the computer at any time with or without notice to the employee, including inspecting the content of any messages sent by the staff member. It is also advisable to include a statement that staff members should use their own personal devices not connected to the school’s computer systems if they wish to access data or communicate privately.

In addition to addressing the staff members’ rights of privacy, an acceptable use of technology policy applicable to staff members should generally address:

  • Obligations on staff members to use the technology in a lawful manner;
  • Examples of conduct that violates the policy;
  • Whether the staff member is permitted to install software on the school computer;
  • Prohibition on copyright infringement;
  • Prohibition on disclosure of passwords;
  • Responsibility of staff members for content of messages sent;
  • Limitations on the rights of staff members to use the computer (this may include a prohibition on using the computer for spamming or business activities unrelated to the school);
  • Rights of the school to revoke the staff member’s access to the school information services network;
  • Consequences for violation of the policy, which should include termination of employment and notification of law enforcement officials.

Schools should also have acceptable use policies governing the use of technology by students. While there will be overlap in the content of the policies, schools should adopt two separate policies: one for students and one for staff. There are sufficient differences in the relationship between a school and its students and a school and its employees that two separate policies are advisable.

Author: Kelly Morris

1 [2012] S.C.J. No. 53.

Ontario Divisional Court Rules on Whether Liturgies and Religious Retreats Fall Within the Scope of the Exemption Under The Education Act

On April 4, 2014, the Ontario Divisional Court ruled in Erazo et al. v. Dufferin-Peel Catholic District School Board1 that, pursuant to the Education Act, certain students of Catholic public schools are entitled to an exemption, upon request, from some religious activities, such as mass and religious retreats.

Given that the operative provision had not previously been judicially considered, this decision will be of interest to all Catholic school boards in the province.

The Facts of the Case

Section 42(13) of the Ontario Education Act (the “Act”) provides as follows:

[...] no person who is qualified to be a resident pupil in respect of a secondary school operated by a public board who attends a secondary school operated by a Roman Catholic board shall be required to take part in any program or course of study in religious education on written application to the Board of,

  1. the parent or guardian of the person;
  2. in the case of a person who is 16 or 17 years old who has withdrawn from parental control, the person himself or herself;
  3. in the case of a person who is 18 years old or older, the person himself or herself.

The provision applies to “Open Access” students only (i.e., “persons who are qualified to be resident pupils in respect of a secondary school operated by a public board who attend a secondary school operated by a Roman Catholic Board”).

In 2012, Oliver Erazo (on behalf of his son, Jonathan Erazo Reyes), and Amilcar Erazo (on his own behalf), both applied for an exemption from religious studies. At the time, both Jonathan and Amilcar were “Open Access” students at Notre Dame Catholic Secondary School in Brampton.2

After some discussion with the school and the Dufferin-Peel Catholic District School Board (the “Board”), the Board wrote to the Erazo family advising that Jonathan would be exempt from taking a mandatory religious education course for one year, but would be expected to attend and be respectful of all other religious observances.

After some further discussion, the Erazo family requested a further exemption from mandatory attendance at mass and religious retreats. It was the position of the Board that such activities did not fall within the scope of the exemption provision at section 42(13) of the Act, as they did not in the Board’s view constitute “....programs or courses of study in religious education”.

The Erazo family commenced an application for judicial review of the Board’s decision before the Ontario Divisional Court. The family was seeking a declaration that Roman Catholic liturgies and religious retreats are programs in religious education from which they are entitled to an exemption under section 42(13) of the Act. They also sought an order directing the Board to provide alternative arrangements for Jonathan and Amilcar during the time period of any liturgy or religious retreat.

The issue before the Court was therefore whether liturgies and religious retreats fall within the scope of section 42(13) of the Act – that is, whether they are “programs or courses of study in religious education”. The Court’s analysis may be summarized as follows:

  • “Program” is not defined in the Act. The Court referred itself to a dictionary definition of “program”: a planned series of future events, items or performances. In the Court’s view, liturgies and religious retreats fall within the scope of “programs”.3
  • The uncontested evidence before the Divisional Court was that liturgies and retreats “contain a substantial component of ritual and prayer led by Catholic priests,” and “have as their central purpose the provision of religious experiences and education to the students who attend them”, and therefore are “religious”.
  • The Court held that this interpretation is consistent with the “evident purpose” of section 42(13): to “...give relief to students who may respect may Catholic principles and observances but do not wish to participate in Catholic, or perhaps any, form of worship, even at a minimal level.”

The Court therefore held that the Applicants were entitled to an exemption under section 42(13) of the Act from attendance at liturgies and religious retreats.

It is important to note that the constitutionality of section 42(13) of the Act was not squarely at issue in this particular application (although the Board did make submissions with respect to the protections granted to Catholic schools pursuant to section 93 of the Constitution Act, 1867). The constitutionality of section 42(13) may well be made an issue in future litigation.

Implications Of The Case

Section 42(13) leaves it to each Ontario Catholic school board to interpret when it is and is not appropriate to provide an exemption, upon request, to an “Open Access” student.4 The Erazo decision provides boards with some additional guidance on how that determination is to be made.

The decision clarifies that Catholic Mass and religious retreats fall within the scope of section 42(13) of the Act. Therefore, an application to a Catholic board by or on behalf of an Open Access student for an exemption from mass and/or religious retreats which is otherwise compliant with section 42(13) must now be granted.

The decision also provides some guidance with respect to other types of activities:

  • A school event which falls within the scope of “...a planned series of future events, items or performances” is likely to be interpreted to fall within the scope of a “program” under section 42(13).
  • Any such “program” which has a “... substantial component of prayer and ritual” and/or has “ its central purpose the provision of religious experiences and education to the students who attend” it is likely subject to the exemption at section 42(13) of the Act.

The decision does not provide any definitive guidance with respect to what may or may not fall within the scope of “courses of study in religious education”, as opposed to “programs in religious education”, under section 42(13) of the Act. The decision is also silent with respect to the degree to which the Board is required to provide supervision or “alternative arrangements” for students during the time that “religious programs” from which they are exempt are taking place.

Ontario Catholic school boards may wish to consider developing a consistent approach or process with respect to section 42(13) exemption requests from “Open Access” students for events which will occur frequently during the school year (e.g. school masses, religion classes, religious retreats, non-religious retreats, non-religious assemblies, etc.), recognizing that there will be events which will have to be considered on a case-by-case basis.

Catholic Identity

The Ontario Catholic School Graduate Expectations provides the distinctive expectations for graduates of Catholic schools are determined and shaped by the vision and destiny of the “human person” emerging from the Catholic faith and tradition. These expectations – and the issue of Catholic identity – were not at issue in the application.

The Ontario Catholic School Graduate Expectations, which was released in 2011, provides that Catholic education views human life as an integration of body, mind and spirit. It provides:

“Rooted in this vision, Catholic education fosters the search for knowledge as a lifelong spiritual and academic quest. The expectations of Catholic graduates, therefore, are described not only in terms of knowledge and skills, but in terms of values, attitudes and actions.”

All students who apply to a Catholic school should therefore be asked to recognize the importance of Catholic identity, which is rooted in the teachings and faith of the Church. The school should confirm to each student that its objective, in partnership with family and church, is to provide a Catholic education which develops spiritual, intellectual, aesthetic, emotional, social and physical capabilities of each individual to live fully today and enriching the community.

It should be recognized that the decision does not change the mission of the Catholic school community – which, we are advised, is, among other things, to grow in an understanding of Catholic teachings and traditions and incorporate them into a student’s daily life. In this regard, all prospective students should be made aware that a Catholic school is one in which God and His Life are integrated into the entire curriculum and life at the school.

In communicating with a student who qualifies for an exemption under section 42(13) of the Act, school administrators may therefore confirm that although the relevant exemption will be granted to this student for a particular school year, there will not be any alteration in the religious or moral education that infuses the remainder of the student’s timetable and school observances.

In communications with the student and his or her family, school administration may confirm that notwithstanding the exemption in the case of a particular student, the historical mandate of the Catholic school system in Ontario is to model the entire syllabus of the school on the life and teachings of Jesus Christ. School administrators may also confirm that throughout the province, Catholic school boards have been using the Ontario Catholic School Graduate Expectations as a foundation reflective of the vision of all learners and the strong sense of distinctiveness and purpose that is publicly-funded Catholic education.

The school may also indicate that it is the school board’s view that all students admitted to the Catholic system will benefit from these values and teachings. School administration may also confirm that it is the school board’s position that such values and teachings are important in forming students into responsible, reflective and well-rounded citizens.

Authors: Eric M. Roher and Heather Pessione

1 2014 ONSC 2072 (CanLII).
However, Amilcar was in his fifth year, and was therefore not required to take any mandatory religion course.
The Court observed at paragraph 29 of the decision that liturgies and religious retreats may also fall within the scope of “courses of study” under section 42(13) of the Act, and may therefore be subject to an exemption request on that basis as well, although it was not asked to rule on this issue.
4 The exemption is not automatic; a written application must be made to the Board, by the student’s parent or guardian, or the student him or herself (if he or she falls within the scope of subsections (b) or (c)).

Coroner’s Jury Recommendations Into Death of Jeffrey Baldwin

In February 14, 2014, a Coroner’s Jury looking into the death of Jeffrey Baldwin, a five-year-old Toronto boy who starved to death in 2002 while in the care of his grandparents, released 103 recommendations. A number of the recommendations made by the jury pertain to ways in which Ontario school boards can work to improve the identification and protection of children who are subjected to abuse and neglect.

In 1998, Jeffrey was taken by the Catholic Children’s Aid Society from his teenage parents, both of whom were emotionally volatile, and he and his siblings were placed in the care of their grandparents. Both of Jeffrey’s grandparents had previous convictions for child abuse, but those records weren’t discovered in the Catholic Children’s Aid Society’s own files until after his death in 2002. The family’s caseworker testified that she never conducted any record checks on Jeffrey’s grandparents, as she perceived them to be reliable and supportive in comparison to Jeffrey’s own parents.

In March 2003, Jeffrey’s grandparents were arrested and charged with first-degree murder for their role in his death.

The Coroner’s Jury’s Recommendations

One of the findings of the inquest relating to Jeffrey’s case was that his death was the result of systemic failure, rather than the failure of any one party. As such, the jury’s recommendations target a number of ministries, including the Ministry of Children and Youth Services, Ministry of the Attorney General, the Ministry of Health and Long-term Care, the Ministry of Education, the Information and Privacy Commissioner of Ontario, and various children’s aid societies.

Some recommendations are focused on improving record keeping and information sharing among children’s aid societies in Ontario, including urging the government to implement the Child Protection Information Network, a province-wide system accessible by any children’s aid society in the province in the next two years. The jury has also recommended that the Ministry of Children and Youth Services conduct and fund a review of all child protection standards, including the provincial kinship service standard.

Recommendations For The Toronto District School Board

The jury has made a number of specific recommendations directed at the Toronto District School Board (the “TDSB”), which are partly the result of evidence presented at the inquest regarding the role the TDSB could have potentially played in Jeffrey’s case. Specifically, the jury was presented with evidence that one of Jeffrey’s sisters, who was abused by his grandparents like Jeffrey was, most likely only survived the abuse because she was allowed to go to school, where she was given a small snack every day. The evidence suggested that Jeffrey was not attending school at the time of his death because he was not toilet trained. The jury was also presented with evidence that some of Jeffrey’s sister’s teachers were unaware of their duty to report suspected abuse or neglect to children’s aid.

In the context of the above-noted evidence, the jury recommended that prior to the start of the 2014-15 academic year, the TDSB review and update its P045 (Dealing With Abuse and Neglect of Students) and PR560 (Operational Procedure – Abuse and Neglect of Students) policies in consultation with Toronto children’s aid societies, the Ministry of Children and Youth Services and Ontario Association of Children’s Aid Societies.

The jury recommended that the TDSB deliver a directive to principals and staff that where a member of staff suspects that a child may be in need of protection, as defined in the Child and Family Services Act, R.S.O. 1990, c. C.11, and current TDSB policies regarding abuse and neglect of students, the staff member has a legal obligation to report directly to a children’s aid society. The directive should also confirm that the staff member should not investigate or discuss the concern prior to making the call to the children’s aid society. As part of the identification of potential cases of student neglect and abuse, the jury’s recommendations encouraged the TDSB to develop attendance alerts for students who are consistently absent or who are absent for prolonged periods of time.

The jury also recommended that the TDSB implement annual training for all of its staff, including teachers, administrators, trustees and all office staff and educators, on the duty to report child abuse and neglect, including how to recognize it, report it, and how to manage the consequences of making a report. The TDSB was also encouraged to implement a policy or procedure to take effect in the 2014-5 school year requiring that a Vulnerable Sector Screening (VSS) be completed for all volunteers, with an updated VSS to be completed by each volunteer no less than every 5 years.

The jury also recommended that the TDSB implement a procedure to address barriers, such as toilet training, faced by children who are eligible to be enrolled in school but are not yet required to attend, in order to encourage their enrollment in school. The jury recommended that the TDSB liaise with community partners, such as libraries, religious and community centres, and children’s aid societies in developing this procedure and addressing barriers.

Recommendations for The Ontario Ministry of Education

The jury made a number of recommendations for the implementation of policies by the Ministry of Education (the “MOE”) in order to ensure a uniform approach to dealing with student abuse and neglect across school boards. Most notably, the jury recommended that the MOE review all of the recommendations the jury directed at the TDSB and consider whether they should be applied at other school boards across the province.

The jury recommended that the MOE include definitions of “abuse” and “neglect” in appropriate policies and documents to improve the identification tools provided to educators and staff in its school boards.

Significantly, the jury encouraged the MOE to conduct a review of the Ontario Teacher’s College’s curriculum and teacher training, to ensure that the College adequately covers training in identifying abuse and neglect in children and the duty to report.

Also significant was the jury’s recommendation that the MOE consider incorporating into the Physical and Health Education curriculum the requirement that students from Kindergarten to Grade 12 be educated about neglect in an age-appropriate manner.

The jury also suggested that the MOE play a role in obtaining information about students’ guardians and relatives, by incorporating student sibling and family composition information as part of the standard MOE student registration forms.

The Significance of the Jury’s Recommendations

The Baldwin inquiry and recommendations confirm that all employees of school boards have a special role and responsibility in the protection of children and students of all ages.

School boards should ensure that all educators and staff receive appropriate and frequent training with respect to school board policies and procedures on the identification and reporting of student abuse and neglect.

The Law Relating to Reporting Suspected or Actual Child Abuse and Neglect

In Ontario, the Child and Family Services Act places a general duty on people, including any person who performs professional duties with respect to a child, to report the abuse and neglect of a child to a children’s aid society. Any member of school staff has a duty to report suspected abuse or neglect “forthwith” once he or she has reasonable grounds to suspect that the child is in need of protection.

Notably, it is not the duty of the teacher or principal to assess the severity of the abuse – it is mandatory for teachers and principals to report any and all cases where there are reasonable grounds to suspect that abuse has occurred, regardless of whether the injury is minimal. It is also not the role of the principal to fully investigate or to confirm whether, in fact, abuse has occurred, subject to the minimal investigation necessary in order for the educator to determine whether reasonable grounds exist to suspect that abuse has occurred. A full-scale investigation should be left to the police and/or children’s aid society.

While the duty to report lies with the staff member who formed the suspicion or heard the disclosure, he or she may request the principal’s or designate’s presence while making the report to the children’s aid society. Moreover, school board policies require that the principal be informed of the suspected abuse or neglect in writing, regardless of his/her participation in the call to the children’s aid society. It must be stressed, however, that the responsibility to report is a personal one and that an educator is not required to wait or obtain the approval of the principal or designate before making a report.

Where a student raises a concern in school regarding possible abuse at home, or where home abuse is suspected on reasonable grounds, the school staff does not have control with respect to the removal of the possible offender. As such, where a teacher or principal decides to take no action, the child may return home to an abusive situation. In this regard, where suspected abuse involves family members or someone in the student’s home, it is particularly crucial that the suspected abuse is reported as quickly as possible.

Finally, whenever an educator receives information that causes him or her to consider whether a report should be made to the children’s aid society, the school should review its obligations under the relevant police/school board protocol. In general, incidents involving violence or an imminent threat to the safety and security of the school community will also require a police response.

Author: Maria Gergin

Ontario Government Has Reintroduced the Broader Public Sector Executive Compensation Act, 2014

On March 24, 2014, the Ontario government introduced Bill 179 which, if passed, would give the government the authority to establish new “compensation frameworks” for certain senior public sector executives and implement new accountability and transparency measures for the broader public sector (“BPS”). On April 9, 2014, the Bill went to second reading.

When the provincial election was called, Bill 179 died on the order paper.

Following the Ontario provincial election, the Bill was reintroduced on July 16, 2014, as Bill 8, which contains amendments to several acts, including the Broader Public Sector Accountability Act, 2010 (“BPSAA”), and creates a new statute called the Broader Public Sector Executive Compensation Act, 2014 (“BPSECA”). The government has indicated that if passed, Bill 8 will act to expand oversight of government agencies and the broader public sector.

BPSECA applies to designated broader public sector employers, including school boards, hospitals, universities, colleges, Hydro One, the Independent Electricity System Operator, the Ontario Power Authority, Ontario Power Generation, and community care access corporations. BPSECA applies to employees and office holders who are “designated executives,” defined as persons who make at least $100,000 in compensation per year, or who could potentially receive $100,000 per year, and who are:

  • the head of an organization;
  • vice president or other executive (e.g., chief operating officer, chief administrative officer, chief information officer), regardless of title; or
  • a director of education or supervisory officer of a school board.

Designated executives do not include full-time members of a board of directors, board of governors or board of trustees, or provosts and deans of colleges and universities.

If enacted, BPSECA would authorize the government to make regulations establishing “compensation frameworks” that could impose compensation restraints on all designated executives, a limited class, or even a specific individual. These compensation frameworks could create limits on any aspect of an employer’s compensation plan, including salary, benefits, bonuses, or perquisites.

In addition, BPSECA gives the government the power to issue directives to BPS organizations, requiring them to provide detailed compensation information with respect to one or more designated executives.

Any new limit imposed by a compensation framework would not reduce current executives’ compensation as long as they remained in their current positions. However, increases to designated executives’ compensation will not be permitted to the extent that such increases would be contrary to the applicable compensation framework. Compensation restraints would further apply to individuals who became designated executives on or after the effective date of an applicable compensation framework, or who moved from one executive position to another after a compensation framework came into effect.

Enforcement of Compensation Restraint Measures

To ensure that BPS organizations would comply with their obligations under BPSECA, the Bill provides for a number of enforcement mechanisms:

  • New government power to require organiza­tions to submit reports to show their compli­ance with compensation frameworks. Each report must include a statement, signed by the organization’s highest ranking officer, attesting to the fact that it has complied with the applicable compensation frameworks.
  • New audit power that allows the government to appoint a public accountant to confirm an organization’s compliance with the applicable compensation frameworks.
  • New offences resulting in a fine of up to $5,000 for:
    • wilfully failing to provide report, statement or attestation under BPSECA;
    • wilfully providing a false report, statement or attestation under BPSECA; or,
    • obstructing an auditor in the performance of their auditing functions under the Act.
  • New liability for “overpayments”:
    • the executive to whom an overpayment has been made can be held personally liable for a corresponding debt to the organization; and
    • the organization that made an overpayment can be held liable for a corresponding debt to the Crown, which can be deducted from future financing.

For example, a compensation framework might institute a hard salary cap for a supervisory officer of a school board. Exceeding that salary cap could have serious consequences for both the supervisory officer and/or the school board. The supervisory officer could be held personally liable for the debt to the school board and/or the amount could be deducted from the school board’s future funding in order to account for its debt to the government.

Accountability Measures

In terms of accountability measures, Bill 8 builds on existing measures under the BPSAA, and contains several amendments to the BPSAA, including:

  • Government-issued directives requiring certain BPS organizations, including school boards, to prepare and publish business plans and/or other business or financial documents specified in the directive; and
  • Government-issued guidelines with respect to how publicly funded organizations, such as school boards, must prepare and publish business plans and other financial documents.

In addition, Bill 8 amends the Municipal Freedom of Information and Protection of Privacy Act, which applies to school boards, to require institutions to put “reasonable measures” in place to preserve records within their custody and control. The Bill also creates a new offence where a person has altered, concealed or destroyed a record in order to deny a right of access to the record or the information contained in it.

Finally, Bill 8 amends the Ombudsman Act, expanding the Ombudsman’s powers to apply to matters related to school boards, universities and certain municipal entities. The Ombudsman would have the power to investigate complaints about a school board, make recommendations, and report on his findings. This new Ombudsman oversight could result in increased public scrutiny of school boards’ policies and practices.

Author: Meghan Lindo

Ontario’s Information and Privacy Commissioner (IPC) Rules That There Is No Right of Access To Certain Records of School Board Trustees

In Order MO-3031, regarding the York Region District School Board, (the “School Board”) the IPC ruled that certain records of School Board trustees were not in the custody or under the control of the School Board and therefore were not governed by access to information provisions of Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”).

Section 4(1) of MFIPPA states that “every person has a right of access to a record or a part of a record in the custody or under the control of an institution...” If the records at issue are not in the custody or under the control of the school board, then the right of access cannot apply.

This decision, made on April 7, 2014, is the first time the IPC has ruled on whether certain records of school board trustees were accessible under MFIPPA. The IPC applied its past decisions regarding elected municipal councillors to elected school board trustees and reasoned that, with some exceptions, such records may not be accessed under MFIPPA.

In this case, the records involved communications between trustees regarding the selection of a new trustee to replace a departing one. The IPC found that these communications were not made by the trustees in a context where they were in effect acting as an officer or employee of the school board or discharging a special duty assigned to them by the school board. The IPC noted that the records of elected officials would not generally, subject to that exception, be governed by the access to information provisions of MFIPPA.

However, the IPC also noted that records of trustees could become covered by the access to information provisions of MFIPPA if they are held by the school board and relate to a school board matter in circumstances where the record could be obtained by the school board on request. In this respect, the IPC applied the Supreme Court of Canada’s decision in Canada (Information Commissioner) v. Canada (Minister of National Defence) 2011 SCC 25, where this test was articulated in the federal government context. The Court had distinguished between the records of elected officials and those of the government department.

The IPC found that these particular communications between trustees were not held by the school board and were not in respect of a school board matter. The IPC accepted the Board’s characterization of the email communications as “political discussions” and noted as well that these records were not integrated with the Board’s business records. In this latter respect, the IPC applied the Divisional Court’s ruling in City of Ottawa v. Ontario (Information and Privacy Commissioner), 2010 ONSC 6835, that the use of the City’s email system or server to store communications that are not related to the business of the institution cannot result in the application of the right of access.

This decision is significant in that it is the first time the IPC has dealt with records of school board trustees in this manner. Ultimately, when a request is made for such records the content of the records and the context in which they were created will have to be assessed in order to determine whether the right of access under MFIPPA applies.

Author: Priscilla Platt

Trustee Election Contributions And Disqualifying Conflicts Of Interest

In British Columbia and across the country, school trustees will face election in the fall. In the run-up to the election, it is important to bear in mind that election campaign contributions have been the basis for claims of disqualifying conflicts of interest. While the case law indicates that a disclosed election campaign donation does not amount to a conflict of interest in and of itself, the donation may be evidence of a conflict which should result in disqualification of the elected official. Much, however, depends on the unique circumstances around the donation, as discussed in further detail below.

What Is a Disqualifying Conflict of Interest?

In British Columbia, both the School Act, R.S.B.C. 1996, c. 412 and the common law establish rules about conflicts of interest that are applicable to school board trustees. Other provinces have similar legislation with similar requirements.

Under the School Act, only a “pecuniary interest” is set out as a possible disqualifying conflict of interest in Part 5 (the common law likely supplements this with other grounds for disqualification).

“Pecuniary interest” is defined in section 55 of the School Act as “an interest in a matter that could monetarily affect the trustee and includes an indirect pecuniary interest referred to in section 56”. Section 56 deals with the trustee’s ownership of shares of public and private companies and employment and business relationships (either through partnership, firm membership, or direct employment). Pecuniary interests of the trustee’s spouse, child, or parent can also be deemed to be the pecuniary interest of the trustee in certain circumstances (section 57). “Pecuniary interests” are similarly defined across Canada.

If a trustee has a “pecuniary interest” in a matter and is present at a meeting of the board at which the matter is considered, the trustee must disclose the interest and not take part in the discussion or vote on any question in respect of the matter. As well, the trustee must not attempt, whether before, during, or after the meeting, to influence the voting on the question (section 58). A knowing contravention of section 58 can result in the trustee’s office being declared vacant or requiring the trustee to make restitution if a benefit is received by the trustee (section 63).

There are certain kinds of “pecuniary interests” that do not require disclosure under section 58, namely a pecuniary interest in any matter that a trustee may have:

  1. by reason of the trustee having a pecuniary interest in the matter which is a pecuniary interest in common with electors generally,
  2. by reason of the trustee being entitled to receive any indemnity, expenses or remuneration payable to one or more trustees in respect of the matter,
  3. by reason only that the trustee is a member of an association incorporated under the Cooperative Association Act or a credit union having dealings or contracts in respect of the matter with the board of the school district of which he or she is a trustee, or
  4. by reason only of a pecuniary interest of the trustee that is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the trustee (section 59).

If in doubt about whether an interest requires disclosure under section 59, seek legal advice.

Financial Contributions To A Trustee’s Election Campaign

There is a wealth of case law on pecuniary interests of trustees, municipal counsellors and alderpersons, especially in the non-election context. In many of these cases, a disqualifying interest has been found to exist. For a recent decision where council members were found to be in a conflict of interest when the council members voted on certain contracts, see Schlenker v. Torgrimson, 2013 BCCA 9.

There have only been a handful of cases in which elected officials have faced allegations of undisclosed pecuniary interests when they were called to vote on a matter that involved a person who contributed funds to their election campaign. The leading case law is from British Columbia. While this issue arises more frequently in the municipal context, it could easily arise for school board trustees given that trustees may accept election campaign donations and, like many municipal officials, can be disqualified from office for the failure to comply with conflict of interest laws.

The principles that arise from election campaign donation cases can be summarized as follows:

  • it is important to balance democratic rights to accept election campaign funding with the transparency and integrity of elected officials;
  • so long as the elected official properly discloses the donation in full compliance with election laws, the donations do not, without more, give rise to a pecuniary interest and disqualification; and
  • there is no magic number that a donation must exceed to rise to a pecuniary interest and disqualification.

We explore the judicial comments on these principles below.

(a) It is Important to Balance Democratic Rights with Transparency and Integrity of Elected Officials

In Guimond v. Vancouver (City) (1999), 22 B.C.T.C. 109 (S.C.), the petitioners alleged that the Mayor and two counsellors were in a conflict of interest when they voted on a re-zoning application for a company that had made contributions to each of their election campaigns. The contributions represented 0.78%, 1.16% and 0.58% of their respective total campaign contributions. The judge observed that “at issue is the balancing of the democratic right to support a candidate or party of choice in a municipal election and the importance of transparency and integrity in the carrying out of the duties of public office”. The Court found that the contributions had been disclosed as required by law and that the amounts of contributions were very small. The Court also found that the “saving provisions” (or exception provisions) of the conflict rules applied, as any such pecuniary interest caused by these contributions was sufficiently remote and insignificant to not reasonably be expected to influence the officials in relation to the matter.

(b) Disclosed Donations, Without More, Do Not Give Rise to Disqualifications

In Ferneley v. Sharp (1999), 72 B.C.L.R. (3d) 121 (S.C.), a counsellor had voted in favour of proposals put forward by the Canadian Union of Public Employees, a union that was the counsellor’s major campaign contributor, contributing $2,500 (75% of her total contributions). The petitioner alleged that the counsellor voted in favour of a compressed work week because of the campaign financing received from the Union. The Court observed that counsellors

...must make their decisions upon what they believe is in the best interests of the municipality and its electors. On the other hand, it is clear that every elector should be eligible to run for office in the municipality regardless or their status, their wealth, or occupation of their spouse. Elections cost money and they are most frequently funded by contributions from friends, family and political or other supporters of the candidate. It is a fact in the real world that contributions are made by those who frequently hope that the candidate, if elected, will think as they do and support those ideals, policies and projects which they support. This is so whether the contributors be trade unions, corporations, institutions, or wealthy individuals.

It is a traditional part of democratic system to permit (with certain limitations) those wishing to run for office to accept campaign donations. There is nothing in the legislation to prohibit it, though the Municipal Act [now the Local Government Act] does require full disclosure of donations beyond a minimal amount.

In summary, the receipt of a donation to a political campaign that has been fully disclosed does not amount to a conflict of interest in and of itself. It can of course be evidence of such a conflict depending on the context of its receipt and the conduct of the recipient. Each case involving issues such as we have here must be decided on its own facts.

The Court found that the respondent fully disclosed the contributions. The Court was “far from satisfied” that the counsellor had a direct or indirect pecuniary interest when voting for the proposal of a compressed work week.

In King v. Nanaimo (City), 2001 BCCA 610, rev’g [1999] B.C.J. No. 83 (S.C.), Mr. King failed to file a proper disclosure statement about his campaign finances, including a donation of $1,000 from a property developer (representing 22% of his total campaign finances). He later voted on a proposal made by that property developer, and the petitioner alleged that he was in a conflict of interest when he did so. The trial Court agreed that Mr. King was in a disqualifying conflict of interest. The Court of Appeal disagreed, holding:

… Nothing in the facts established in this proceeding could justify the conclusion that Mr. King had a pecuniary interest, direct or indirect, in any of [the matters voted on]. The mere fact that Northridge made campaign contributions could not,
in and of itself, establish any such interest. There could, of course, be circumstances in which the contribution and the “matter” could be so linked as to justify a conclusion that the contribution created a pecuniary interest in the matter. Indeed, the chambers judge took note of an example of such a situation when he said in his reasons:

There is no evidence of a direct pecuniary interest in the sense that he agreed to vote for those projects in return for their campaign contribution of $1,000.

It would not be useful to speculate as to what circumstances could create an indirect pecuniary interest. It is enough to say that the mere fact of the applicant having made a campaign contribution is not enough.

The Court of Appeal set aside the trial decision and found that Mr. King was not in a conflict of interest. The Court of Appeal refused to deal with the issue of the non-proper disclosure of campaign financing (which the City argued required that he be disqualified under the applicable municipal legislation), since Mr. King’s term as alderman had expired, making the issue moot.

(c) No Magic Number which Campaign Contributions Cannot Exceed

... Nothing in the facts established in this proceeding could justify the conclusion that Mr. King had a pecuniary interest, direct or indirect, in any of [the matters voted on]. The mere fact that Northridge made campaign contributions could not, in and of itself, establish any such interest. There could, of course, be circumstances in which the contribution and the “matter” could be so linked as to justify a conclusion that the contribution created a pecuniary interest in the matter. Indeed, the chambers judge took note of an example of such a situation when he said in his reasons:

There is no evidence of a direct pecuniary interest in the sense that he agreed to vote for those projects in return for their campaign contribution of $1,000.

It would not be useful to speculate as to what circumstances could create an indirect pecuniary interest. It is enough to say that the mere fact of the applicant having made a campaign contribution is not enough.

The Court of Appeal set aside the trial decision and found that Mr. King was not in a conflict of interest. The Court of Appeal refused to deal with the issue of the non-proper disclosure of campaign financing (which the City argued In Highlands Preservation Society v. Highlands (District), 2005 BCSC 1743, a corporation contributed $250 to each of four counsellors during their election campaigns. Arithmetically, the corporation’s contributions amounted to more than 25% of the collective total received by the four counsellors. All these amounts were properly disclosed. The counsellors later voted on a proposal involving the corporation. The petitioner alleged that the counsellors were in a conflict of interest when they voted on the proposal, as they voted in favour as a quid pro quo for the financial contributions. In his arguments about disqualification, the petitioner focused on the percentage of the total contributions received by the counsellors, which the Court held was misguided, writing:

The question is not whether there is a magical number which campaign contributions cannot exceed, but whether there is any evidence of contributions coupled with a promise, implicit or otherwise, to deliver a vote. If the evidence revealed that a counsellor agreed to sell her vote for a campaign contribution of five dollars, the size of the bribe, or the percentage overall contributions, would be superfluous. In such a case, it is the link to dishonest conduct that is reprehensible.

Similarly, if a counsellor happens to receive only one campaign contribution from a single person, it does not automatically follow that the counsellor must have agreed to sell his vote in exchange. Absent such an arrangement, the contributor is simply exercising the democratic right to make a campaign contribution to a candidate that she or he chooses to support. There is nothing reprehensible in that so long as the councillor does not agree, implicitly or otherwise, to vote a certain way.

The Court held that the counsellor did not have a pecuniary interest in the matter voted upon.

Contributions Alone Not Enough to Disqualify

The above cases from British Columbia support the rule that campaign contributions are not, in and of themselves, enough to give rise to a disqualifying conflict of interest. However, as with all conflicts of interest, the circumstances surrounding the donation and the conduct of the elected official are important to determine whether there is a pecuniary interest that must be disclosed. With so few cases on this issue, there are many circumstances that might give rise to a pecuniary interest. The case law is clear that, at minimum, trustees will need to consider:

  • whether the contribution is really a “bribe” (and so should be rejected); and
  • whether the contribution must be disclosed under election laws (and if it must, then how to comply with the disclosure requirements).

Yet, even if a pecuniary interest arises from a given campaign contribution, a disqualification or removal from office does not automatically result. Trustees must carefully consider their obligations under sections 58 and 59 of the School Act.

Author: Michelle T. Maniago


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