September 3, 2021 – The Divisional Court unanimously agreed that constitutional rights of management employees do not provide a positive right to strike

Download Télécharger

The Divisional Court unanimously agreed that constitutional rights of management employees do not provide a positive right to strike

UFCW v. Aurora Cannabis

Ontario’s principals’ and vice-principals’ associations intervened at the Divisional Court to argue that labour relations schemes must include an express right to strike. The four Ontario trustee associations (OPSBA, ACÉPO, AFOCSC, OCSTA) opposed the position of the Ontario’s principals’ and vice-principals’ associations. The Court unanimously upheld the position of the Ontario trustee associations. Emond Harnden’s Paul Marshall and Joël Rocque successfully represented the two public school boards’ associations. The Court’s decision reinforces the constitutionality of principals’ and vice-principals’ labour relations framework, which does not provide a positive right to strike for these management employees.

 

LABOUR RELATIONS

Toronto District School Board v. CUPE, Local 4400, 2020 CanLII 98762

The Arbitrator dismissed a grievance relating to the discipline of an employee who left work without permission to join a protest about budget cuts in the music program. The Arbitrator ruled that an employee is free to join a protest but not during paid work hours, and therefore the employee’s rights under the Charter were not breached.

Halton District School Board v. Elementary Teachers’ Federation of Ontario, 2021 CanLII 39378

An Early Childhood Educator was disciplined after a student fled the school property under her supervision. The Arbitrator quashed the one-day suspension imposed by the school board because the employee followed the student’s safety plan.

CUPE Local 4400 v. Toronto District School Board, 2021 CanLII 59488

The Union filed group and policy grievances challenging the School Board’s practice of not paying members their regular wages for time spent attending return to work meetings. The Award confirms that there must be clear language in the collective agreement regarding an employee’s right to be paid for attending meetings to discuss their return to work from a medical leave.

 

PRIVACY

Dufferin-Peel Catholic District School Board (Re), 2021 CanLII 33061

School board communications with its in-house legal counsel pertaining to an assault involving a student were not ordered to be disclosed. The Information and Privacy Commissioner of Ontario ruled that solicitor-client privilege is not simply confined to communicating the law but also includes legal opinions regarding strategies that may be implemented.

 

HUMAN RIGHTS

G.G. obo A.G. and A.D.G. v. Edmonton Public School Board, 2021 AHRC 94

The Alberta Human Rights Commission confirmed that a school board is not obligated to implement the preferred accommodation of the complainant. There was no evidence that the preferred accommodation was necessary to provide a meaningful access to education.

 

CIVIL LITIGATION

Neufeld v. Hansman, 2021 BCCA 222

The British Columbia Court of Appeal set aside the dismissal of a defamation claim brought forward by a school board trustee against the Chilliwack Teacher’s Association. The case involved negative comments made by the school board trustee about how a sexual orientation and gender identity program was being implemented in BC schools. The Court of Appeal set aside the Trial Court’s decision to dismiss the school board trustee’s claim and ordered a new trial to properly consider public interests.

 

LEGISLATIVE UPDATE

 

MINISTRY OF EDUCATION UPDATES