August 13, 2019 – Arbitrator upholds teacher’s termination for inappropriate relationships with students

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Sudbury Catholic District School Board and OECTA, Re2019 CarswellOnt 4511 

The grievor, an automotive technology teacher with three (3) years of service, was terminated for inappropriate relationships with two female students. The inappropriate behaviour included discussions about a sexually transmitted disease, helping one of the students get a tattoo, paying for part of it and driving her home thereafter. The grievor also gave one of the students money to purchase a sex toy, sent frequent and inappropriate text messages and had the two students sign a contract that they were not having sex. The Arbitrator, in upholding the termination of the grievor’s employment, found that the grievor failed to maintain a professional relationship with appropriate boundaries. His actions were outside acceptable norms of the teacher/student relationship, showed lack of judgment and disregard for his responsibilities to the School Board. The grievor, a short-term employee, failed to understand the inappropriateness of his conduct.

 

LABOUR RELATIONS

ETFO v. Ontario Public School Boards’ Association2019 CanLII 52269 (ON LA)
The ETFO filed two central grievances on the use of full-day Kindergarten/Grade 1 (FDK/Grade 1) splits at a number of school boards for 2017/18 year. The Arbitrator found the collective agreement imposes substantive restrictions on the School Board’s management right to schedule FDK/Grade 1 splits, and further noted that while the School Board has considerable discretion in determining its operational needs and priorities, its conclusion that it is not feasible to meet those needs without the use of FDK/Grade 1 splits must have a solid functional basis and is reviewable by an arbitrator. The Arbitrator concluded that one of the school boards established a solid functional basis that it was not feasible to further limit the use of split grades and dismissed that grievance. The matter was remitted back to the parties to determine what if anything remains to be determined with respect to the outstanding elements of these grievances.

District School Board Ontario North East v. Ontario Secondary School Teachers’ Federation, District 1, 2019 CanLII 54741 (ON LA)
The OSSTF filed a policy grievance regarding statutory class caps for self-contained Special Education classes in the Fall Semester of the 2016-2017 School Year. The School Board  proposed that the Arbitrator take a view of “representative” classrooms in order to put the School Board’s evidence into context. In an interim ruling, the Arbitrator found that the circumstances of the case invoked an arbitrator’s authority under the Labour Relations Act to view the classrooms and to view and inspect the work of the teachers that is the subject matter of the grievances. The Arbitrator noted that a viewing may be of assistance in assessing the Union’s evidence, and may give relevant content to the Employer’s proposed evidence concerning criteria it applied and still applies when assigning the “exceptional” students to each self-contained classroom. In ordering several conditions for the viewing, the Arbitrator was sensitive to its impact, particularly with respect to the autism class.

 

PRIVACY

Prairie Spirit School Division No. 2062019 CanLII 46881 (SK IPC)
The Complainant, a Trustee, revealed he consumed certain prescription medications, including cannabis, at Board meetings. The Board alleged its policies and law prohibited such consumption at Board meetings and it requested personal information from the Trustee so that it could accommodate his needs. The Trustee refused to provide the information. The Commissioner held that the Board did not have the authority to collect the information sought and that it should have asked whether the Complainant was registered with the Minister to consume cannabis for medical reasons, as required by provincial law, instead of requesting the personal information sought. The Commissioner found that no privacy breach had occurred since the Complainant did not provide the personal information sought.  The Commissioner recommended changes to Prairie Spirit’s policies.

 

CIVIL LITIGATION

Deborah Tilli v. Hamilton-Wentworth Catholic District School Board et al.2019 ONSC 1783 (CanLII)
The plaintiff sought damages for personal injuries sustained in a physical altercation in the school with another student and claimed the School Board was vicariously liable for the actions of its teachers. The plaintiff alleged she was assaulted by a fellow student, who smashed her head on the floor. The fight lasted 30-45 seconds in between classes. The Court found that the teachers and the School were not liable because the teachers acted in accordance with the Board’s policies and their actions were those of a careful and prudent parent. The Court noted that a 15-year-old teenager is not constantly supervised by a careful parent and that only by having a teacher posted in the exact area of the incident, at the very time it occurred, could the School have prevented the fight from occurring. The Court found such a standard is not reasonable and not one any reasonable and prudent parent would be expected to adhere to with its own teenage child. The action was dismissed against the teachers and School Board.

 

CONSTITUTIONAL RIGHTS AND FREEDOMS

A.B., Commission scolaire francophone des Territoires du Nord-Ouest v Ministre de l’Éducation, de la Culture et de la Formation des Territoires du Nord-Ouest2019 NWTSC 25 (CanLII)
W.B.’s parents and the Commission scolaire francophone were successful in their application for judicial review of the Minister’s refusal to allow W.B. to enroll in a French-language school.

The parents of W.B., a Canadian citizen child who attended a francophone daycare, requested permission to enroll their son at a French-language school for the following school year. The Minister refused the request because W.B. did not meet any of the criteria set out in the Ministry’s directives.

W.B.’s parents and the Commission scolaire applied for judicial review of the Minister’s decision. The Application was granted and W.B.’s application seeking admission was returned to the Minister for reconsideration. The Court emphasized that it was clear that s. 23 of the Charter and the needs of the linguistic minority must be factors to be considered by the Minister in the exercise of her discretion regarding the admission of non-rights holders in French-language schools. The Court held that to do otherwise would not respect the purpose of s. 23 of the Charter to end the progressive erosion of the culture and language of the minority and to actively promote its growth.

LEGISLATIVE UPDATE

Bill 124 – An Act to implement moderation measures in respect of compensation in Ontario’s public sector
On June 5, 2019, the Ontario government introduced Bill 124. The proposed legislation would operate to limit salary rate and compensation increases to a maximum of one per cent over a three-year “moderation period” for both unionized and non-unionized employees in the Ontario public service and the broader public sector, including school boards. Bill 124 is not scheduled for Second Reading until October 28, 2019, when the Ontario Legislature returns from an extended break. We will keep readers informed of any updates.

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