Author: danny

Court Clarifies Monitoring Requirements for Special Education Teachers

A recent decision of the Ontario Superior Court of Justice has clarified Ontario’s Special Education Resource Teachers (“SERT”s) responsibilities regarding student monitoring. In the case the court reviewed an arbitrator’s decision involving a dispute between the Halton Catholic District School Board (“School Board”) and the Ontario English Catholic Teacher’s Association (“Association”) involving the scheduling requirements of SERTs.

Traditionally, SERTs have been assigned a caseload involving monitoring the progress of students with learning exceptionalities against individually tailored Individual Education Plans.  Neither side disputed that this caseload included both students the SERT had classroom contact with and students with whom they did not. The dispute arose following the signing of a new collective agreement between the parties in 2005. During the arbitration the Association argued that this monitoring duty, which was not specifically defined in the agreement, should be credited as one of the SERTs three daily required courses.

In a surprise decision, the arbitrator ruled that under the new agreement, SERTs could not be assigned to monitor students with whom they no direct classroom contact.  This position was not advanced by either party during the arbitration, and the School Board subsequently applied for judicial review of the decision.

The court reviewed the arbitrator’s decision, found it to be unreasonable and substituted its own decision. In reviewing the collective agreement, the court found that it was not reasonable to treat the agreement as “a statement of the totality of a teacher’s activities and obligations”. Rather, they held that the agreement serves to detail the express constraints which the parties have negotiated. The court further held that beyond these constraints it was the reasonable expectation of the parties that the SERTs would “perform all of the activities and functions the [teaching] profession entails from time to time.”

In applying this interpretation of the agreement, the court concluded that the monitoring duty should not be credited as a required course for the SERTs. Instead, the court held that this duty was one of the functions the teaching profession entails that was beyond the scope of the collective agreement.

This decision is important both for the rule that SERTs can be required to monitor students they have no direct contact with and also as being illustrative of the court’s approach to collective agreement interpretation in the education law context. Here the court has made it clear that a teacher’s responsibilities extend beyond those expressed in their collective agreements to include activities and functions that the profession traditionally entails.

The “Privilege” of Confidentiality: Guidance for Guidance Counsellors

What is Legal Privilege?

Generally speaking, all relevant evidence is admissible at trial and everyone who is competent to testify may be compelled to give evidence. Every witness has an enforceable legal duty to testify and give evidence to the best of their knowledge as well as produce any supporting documentation. However, there are important exceptions to this general rule when the relevant information should remain confidential. The information that falls under these exceptions is called privileged information. Solicitor-client privilege is a kind of privilege that we hear about on a regular basis ob television programs and in the media. However, the courts are reluctant to create new classes of privileged information and many kinds of communications that we think are confidential are not automatically privileged in the eyes of the courts.

When Does this Issue of Privilege Arise?

Usually questions of confidentiality and privilege arise when evidence given is a trail is challenged as inadmissible because the information was divulged in confidence. A test has evolved which sets out four criteria which must be met if “legal confidentiality” is to be established. These criteria are called “Wigmore’s Criteria” after the law professor who first extrapolated then into legal rules:

1. The communication must originate in a confidence that the parties would not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship.
3. The relationship must be one which in the option of the community ought to be actively or constantly fostered.
4. The injury that would have an effect on the relationship by the discloser of the communication must be greater than the benefit to be gained by the correct disposal of the case.

How Have the Courts Interpreted Student-Guidance Counsellor Communications?

There have been conflicting court decisions involving communications between students and guidance counsellors so it is important to understand in which circumstances a counsellor may be required to disclose confidential information and in which the counselor may successfully argue that notes and communication should not be disclosed.

Criminal Cases

As stated above, the default position of the courts is that all information is admissible as evidence. This remains the position of the courts where student-counsellor communications are concerned. The criminal courts have not directly dealt with disclosure of records by guidance counsellors per se but there have been cases that are comparable such as cases involving notes and communications between a psychiatrist and patient.

The 1997 Supreme Court of Canada decision, M.(A.) v. Ryan, is a seminal case on the application of the Wigamore criteria to situations where the courts must assess privilege on a case by case basis. Justice McLaughlin asserts that “[t]he defendant
in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty.” As a result, privilege is less likely to be protected in a criminal case since the correct disposal of the charges outweighs the benefit of protecting the confidential information. The court does say, however, that this does not mean that everything must be disclosed but that there are circumstances where partial disclosure will achieve the ends of justice.

Motions in the Criminal Court

In 1992 the New Brunswick Provincial court dealt with the issue of counsellor communication in R v. M. (G.). An application was brought to transfer a young offender to adult court and a voir dire (a motion in criminal court) was held to determine whether
the counsellor’s file was privileged. The Court stressed that this case was not a trial of a criminal offense but rather a hearing to determine whether to transfer the case to adult court. The Wigamore Criteria were applied by the Court and it was determined that:

1. the communications and testing were made on the understanding that the information was confidential;
2. the confidentiality was important to maintain the relationship between the student and counsellor;
3. the relationship between a school counsellor or therapist and the student should be sedulously fostered.
4. “any disclosure of the information could cause greater damage than the benefit from receipt of such information for a Section 16 transfer hearing. At such a hearing the guilt or innocence of the young person is not to be determined. It might well be that a trial such information could be more crucial and the search for the truth might well outweigh the injury cause to counselling needy students in the school.”

Although access to the counsellor’s file was denied in this case, the Judge was careful to point out that Courts have historically been reluctant to extend privilege and that it should only do so in rare circumstances since the disclosure would cause less injury or harm than the benefit which would be derived from maintaining confidentiality. “As schools are public institutions, funded by the public, school officials should also be concerned that the administration of justice if facilitated. This will not involve the school becoming an arm of the police, but only remaining a responsible part of our society.”

Child Protection Hearings

Children’s Aid Society of Ottawa v. S. (N.) is a recent Ontario Superior Court case that involved a child protection hearing. The Court dealt specifically the confidentiality of guidance counsellor-student communications between the child and school guidance counsellor and the counsellor’s notes. The Court held that the notes were not protected by statutory privilege as they were not “pupil records” within meaning of Education Act. However, the notes did did meet the Wigamore four-part test for common law privilege:

1. The communications to the guidance counsellor were made in confidence they would not be disclosed;
2. The assurance of confidentiality was essential to the student-counsellor relationship;
3. The relationship was one that in opinion of community ought to be sedulously fostered; and
4. The child’s interest in the relationship with their guidance counsellor outweighed the benefit of disclosure.

The court noted that terms such as “full answer and defence” do not lead to automatic disclosure. “[T]he onus is any application for disclosure of school records that have elements of confidentiality and privilege falls on the Applicant.” Although the mother had an important interest in full disclosure in order to meet case against her, she in fact already received disclosure of communications through other sources. Disclosure was not in child’s best interests which was an overriding consideration in this case and so the mother was not entitled to question the guidance counsellor about the notes. The Court emphasized that its decision may have been different if the matter involved the laying of criminal charges or a finding of criminal liability which involves a different analysis.

The Bottom Line on Student-Guidance Counsellor Privilege

The bottom line is that there is no bottom line. As a rule, the communications and notes contained in a guidance counsellors’ file may be entered into evidence during a trial but there are circumstances where this information may be ruled as privileged. This decision will be made on a case-by-case basis. It is important to seek legal advice if a situation arises where a guidance counsellor might be asked to disclose the contents of his or her confidential communications with a student.

1. OVERVIEW

There has been increasing intervention by Courts and Arbitrators in the education field as summarized below.

Ontario’s highest court provided guidance to Principals on the rights of parents of special needs students and school systems on balancing the need for safety in schools with parental rights to placement status quo.

The use of collective agreement grievance procedures to replace Human Rights complaints continues a pace.

This paper provides details of the changes and suggestions in how to make the best of a dynamic situation.

2. EXCLUDING SPECIAL NEEDS

The Court of Appeal of Ontario provided parents, Boards of Education and principals guidance on a principal’s power to “exclude” special needs students from school, due to safety concerns (Bonnah v. Ottawa-Carleton District School Board). The Court ultimately ruled that a principal may exclude an exceptional pupil from a school for legitimate safety reasons, but with express limitations.

Zachary Bonnah was an eleven year old with a variety of disabilities. He functioned at a kindergarten level intellectually.  As a special needs or “exceptional pupil”, Zachary’s placement was determined by the detailed regulatory scheme created by the Education Act.  Zachary had attended school since he was six.  For the first four years he was at a school that catered to the needs of children with developmental disabilities.  He went to a new school starting in the fall of 2000 and was placed in a regular class environment on a parttime basis, with an education assistant to help him.  In September 2001 he began the school year in a regular grade two class on a full-time basis. It did not take long for the principal of the school to request a review of this placement. This request was based in part on safety concerns. Zachary was much larger than the other children in the grade two class and acted out on occasion. The Identification Placement and Review Committee (IPRC) recommended, by the end of October, that Zachary be moved from the school he was then in back to the segregated placement school that he had attended for the first four years of his school life.  The parents refused to consent to this change of placement and exercised their rights of appeal.  In accordance with Education Act Regulation 181, Zachary was to remain in his placement in the regular grade two class pending the outcome of the appeal, unless the parents agreed otherwise, which they would not.

It was in this tension charged atmosphere that the principal acted.  He continued to remain concerned about the safety of Zachary, other students and the staff, and he expressed these concerns to the parents and officials of the Board.  By late December, the parents were advised that Zachary’s continued presence posed an immediate and significant risk to the safety of himself, other students and staff.  Zachary would be transferred from his existing school back to the school he had initially gone to for the first four years of his school life.  At the time this decision to transfer was made, the appeal of the decision of the IPRC was still outstanding.  The parents thought this “administrative transfer” was an attempt to circumvent the “status quo” requirement created by the IPRC appeal taken by the parents.

The parents did not send Zachary to the new school, but rather challenged the Board’s action by way of judicial review.  Zachary did not return to school in January 2002, and was still not in school when the court heard the appeal in December of 2002.  Ultimately, the IPRC decision went to the Special Education Appeal Tribunal.  It rendered a final decision in January of 2003, ordering that Zachary be enrolled in a grade seven regular class in which there was also a class for children with a “dual diagnosis”. Zachary was to attend opening exercises, lunch, physical education, music and a computer program with the class, but the remainder of the time was spent in a dual diagnosis classroom for his academic program.

A. Importance of the Decision

The Court of first instance hearing the application by the parents claiming the decision of the Board to transfer Zachary from one school to another was void concluded the Board in fact had the authority to transfer students for safety reasons.  It also said the authority extended to exceptional pupils, even if that had the effect of changing a placement while an appeal in respect of that placement was outstanding.

The Ontario Court of Appeal expressly disagreed with this conclusion.  Justice Doherty of the Court of Appeal rejected that conclusion and found that for exceptional pupils the right to remain in a specific placement can not be overridden when an IPRC decision is being appealed, nor by any implied power to transfer the exceptional student for safety reasons.  The Court noted that although the power to transfer students from one school to another for safety reasons, as well as a general authority to determine what school any particular student should attend, might apply to students that are not exceptional, this was not the case for Zachary.

Having decided the right to do an administrative transfer did not exist, the Court then reviewed the principal’s power under section 265(1)(m) of the Education Act.  It states:

Subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.

In the past, child rights advocates have taken the position a principal does not have the authority to exclude a pupil with the exclusion power given by s. 265.  This argument is now no longer available.  In this case, Ontario’s highest court has expressly stated pupils in fact can be excluded, confirming the power to exclude students without resort to the suspension/expulsion provisions of the Education Act.  The Court holds expressly that the word “person” in s. 265(1)(m) and in s. 3(1) of Regulation 474/00 governs both pupils as well as non-pupils.  It also governs pupils that are exceptional pupils. The Court notes:

An interpretation of s. 265(1)(m) and s. 3(1) that would place exceptional pupils beyond the reach of the principal’s power to exclude persons for safety reasons from the school is not only inconsistent with the language used in the Act and the regulation, but would seriously imperil the safety of exceptional pupils and other children who interact with that exceptional pupil. Where there are genuine concerns, considerations of the best interests of the child must extend to all of the children whose safety is at risk.

The Court notes the purpose of these sections is to allow principals to act quickly where the conduct of a person puts the safety of those under the charge of the principal at risk.  The limitation the court attaches to this power is the principal can only properly exercise these powers if:

1. the safety concerns are genuine;
2. the principal’s response to those concerns is a reasonable one in all the circumstances;
3. the use of the powers is not intended to circumvent an obligation to leave an exceptional pupil in his or her placement pending an appeal; and
4. the principal is not using these powers for any other improper purpose.

B. Application to Zachary’s Circumstances

Zachary had a right by the scheme of the Education Act and its Regulations to be left in his placement that existed as of the time of the IPRC decision, while the IPRC decision was challenged.  The Court emphasized that a principal can exercise his or her powers under the Act and Regulations to exclude students, but must bear in mind the special significance of the placement decision as it relates to the exceptional pupils and strive to minimize any interference with that placement.  The Court gives the example that if safety concerns can properly be addressed by removal from the classroom rather the school, then the removal or limited removal must be preferred in the case of an exceptional pupil.

Doherty J. expressly found that a Board cannot transfer exceptional pupils to different schools for safety reasons while an appeal from a placement decision is pending. The principal’s power to exclude does not authorize a transfer, and no other provision of the Act or Regulation gave the Board or the principal the power to transfer simply for safety reasons when dealing with exceptional pupils whose placement is under appeal.  Rather than transfer, the Court found that under the existing legislative scheme, once the principal determines that a pupil can not attend a specific school because of safety concerns, the most the Board can do is offer an alternative placement to the pupil’s parents, where in the Board’s view the safety concerns do not arise.  The parents then have to decide whether to send their son or daughter to that other school, pending the outcome of the appeal.  If the parents decline to have their son or daughter go to the other school, then the result is the exceptional pupil stays out of school.

The end result was the Board action of administratively transferring Zachary to another school, due to safety concerns, was invalid.  What should have been done was the parents offered the opportunity to have Zachary attend another school or placement where the safety concerns were not an issue.  If they rejected that opportunity, then Zachary could not attend school and would have to await the outcome of the IPRC appeal process.

C. What can we take home from this Decision?

The power of the principal to exclude persons from his or her school has been clearly spelled out by the Court:

1. The power to exclude applies to “all persons”, which includes students, whether they have special needs or not.
2. The purpose of the exclusion power of principals is to allow principals to act quickly where the conduct of a person puts the safety of those under the charge of the principal at risk.  To exercise the power, the principal must show:
   • (i) safety concerns are genuine;
   • (ii) principal’s response to the concern is a reasonable one in all the circumstances;
   • (iii) the powers must not be used to circumvent an obligation to leave an exceptional
   • pupil in a placement pending an appeal; and
   • (iv) there must be no improper purpose in the exercising of the power.

The suspension/expulsion provisions of the Act dealing with discipline do apply to exceptional pupils, but disciplinary measures must take into account individual circumstances (note the Board did not rely on its power to discipline to support its decision to transfer Zachary).

For principals exercising the power to exclude, points mentioned above should be considered and documented.  If there is a genuine safety concern, there must be some evidence of what the concern is and the likelihood of it occurring.  Assessments of how to manage the risk without moving the pupil from the school have to be considered and found to be wanting before the pupil is excluded completely.  The Board must take into consideration that the parent has a right of appeal to the Board of Trustees if the principal exercises their right to exclude under s. 265(1)(m).

Although placing the draconian choice on parents of either having their exceptional son or daughter sit at home while the IPRC decision is appealed is not one the education system would want to force on a parent, the fact that the safety of everyone in the school overrides the exceptional students’ rights in limited circumstances is good news for principals and Boards.

3. EXPANSION OF HUMAN RIGHTS IN ARBITRATIONS

The Supreme Court of Canada clearly expanded the powers of arbitrators to apply the Human Rights Code (Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324).

The Court allowed a probationary employee to grieve her dismissal, despite the express wording of the collective agreement stating:

A probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the employer and such action by the employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties.

The grievor, Joan O’Brien, was a probationary employee of the Social Services Board and member of OP-SUI.  While still a probationary employee, Ms. O’Brien went on maternity leave.  Within a few days of her returning, she was discharged.  She filed a grievance claiming discharge from her position without justification.  At the arbitration hearing the employer objected to the jurisdiction of the Arbitration Board, claiming the collective agreement clearly expressed the parties’ intention that discharge of a probationary employee was not arbitrable. The Arbitrators disagreed. The arbitration decision of February 1999 was taken before the Ontario Superior Court of Justice (Divisional Court) in January of 2000.  Divisional Court agreed with the employer that since the agreement did not cover dismissal of probationary employees, the arbitration Board had no jurisdiction.  This in turn was appealed to the Ontario Court of Appeal. In June 2001 the Court agreed the arbitrator had jurisdiction through the “implied incorporation” of the Human Rights Code into the collective agreement by s. 48 of the Labour Relations Act.

A. The Law Before Parry Sound

The Ontario Court of Appeal decision authorizing arbitrators to take jurisdiction over a matter that the collective agreement says is not arbitrable, simply because of an allegation of breach of the Human Rights Code, was a bombshell for many employment lawyers and employers.  It was assumed the Supreme Court of Canada would set the matter straight based on previous decisions of the Supreme Court of Canada.  This was not to be.

i) The Dissent

The dissent of the Supreme Court of Canada of Justice Major sets out what the law used to be and what most people assumed were proper restrictions on arbitrators’ jurisdiction. When a collective agreement explicitly did not cover a particular matter, such as dismissal of a probationary employee, this meant the employee had to go to the Human Rights Commission to have their claim of breach of the Human Rights Code adjudicated.  Major J. felt this appeal should not be about public policy and human rights, but simply discerning the intent of the parties and the legislature on the appropriate forum for vindicating those rights.  In his view, simply because the legislature provides powers to arbitrators to interpret collective agreements in light of the Human Rights Code, this did not mean that the entire Human Rights Code was incorporated in its substance into collective agreements.  His view was unions and employers could define which employee disputes were covered by the collective agreement, and would have access to binding arbitration, and which would not. The parties had agreed the discharge of probationary employees was not covered by the agreement, and on the face of the collective agreement this removed those disputes from an arbitrator’s jurisdiction.

His concern was “overloading the grievance and arbitration procedure with issues the parties neither intended nor contemplated channeling there, may make labour arbitration anything but expeditious and cost effective.  The present case speaks for itself in this respect.”

As succinctly stated by the dissent and the decision of Justice Major:

“O’Brien’s dismissal is not arbitrable because her Union and her employer agreed not to cover the dismissal of probationary employees in their collective agreement, and the legislature did not intend to require that they do so.  She must seek the vindication of her rights before the Human Rights Commission, as would any employee not covered by a collective agreement.”

B. The New Law – the Majority

I set out the dissent in some detail, as this is the law most people thought existed prior to the Supreme Court of Canada dramatically changing it.  The majority of the Supreme Court sided with Justice Iacobucci.  They concluded that a grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations of the Human Rights Code … as if they were part of the collective agreement.  Section 48 of the Labour Relations Act was reviewed.

“S. 48  Every collective agreement shall provide for the final and bind settlement by arbitration … of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement … an Arbitration Board … has power … to interpret and apply human rights and other employment related statutes, despite any conflict between those statutes and the terms of the collective agreement”.

Iacobucci J. got right to the heart of the matter.  He determined the critical issue to be decided was whether or not the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which an Arbitration Board has jurisdiction.  Put another way, were the broad rights of an employer to manage the enterprise and direct the work force subject not only to the express provisions of the collective agreement, but also to the statutory provisions of the Human Rights Code? His answer was yes.  The majority of the Supreme Court of Canada concluded that the Human Rights Code (and other employment related statutes) establish a floor beneath which an employer and a union can not contract.  Although a collective agreement might extend to an employer a broad right to manage its enterprise as it sees fit, this right was circumscribed by employees’ statutory rights.  Simply because there was an absence of an express provision that prohibits the violation of a particular statutory right, this was insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement.

As a result of this analysis, the Court concluded the terms of the collective agreement setting out the substantive rights and duties of parties is not determined just by looking at the mutual intentions of the parties as set out in the collective agreement. Included within the collective agreement (even if it is not stated in the collective agreement) are a bundle of “statutory rights” of employees to which the parties can add, but from which they can not take away.  The court acknowledged indirectly that by making these statements, it was being inconsistent with the traditional view that a collective agreement is a private contract between equal parties and that the parties are free to determine what does or does not constitute an arbitrable difference.

It is fascinating that two judges of the highest level of court in Canada managed to come to completely opposite conclusions, based on the same statute and the same facts.  Dealing with the question of overburdening the arbitration system, Justice Iacobucci emphasized policy considerations. Even though there existed a Human Rights Commission with the power to deal with Human Rights Act violations, the expanding of the jurisdiction of an arbitrator to enforce the substantive rights and obligations of the Human Rights Code, further bolstered human rights protection and:

It is a reasonable assumption that the availability of an accessible and an inexpensive forum for the resolution of human rights disputes will increase the ability of grieved employees to assert their right to equal treatment without discrimination and that this, in turn, will encourage compliance with the Human Rights Code.

The end result is the Court was more concerned with having available a significant societal benefit of having an accessible and informal forum for the prompt resolution of allegations of human rights violations.  Effectively, the Court is making the statement that the legislature has in its wisdom not provided sufficient resources for the Human Rights Commission to expeditiously deal with human rights complaints, and by the Court making an alternative forum available, this lack of legislative initiative can be remedied.  This view is one that ignores the reality that the persons paying for the cost of arbitrating these disputes are employers, employees and unions, rather than the general public.  It also ignores the reality that in a forum where costs against a party for frivolous claims are not a concern, and employers are paying one half the costs of the arbitration panel, claims of “discrimination” can be raised, and litigated, for days and days on end, whether or not there in fact is a factual basis for the claim advanced.

Iacobucci makes a sweeping statement:

But even if it is true that a dispute must be arbitrable before an arbitrator obtains the power to interpret and apply the Human Rights Code, it does not thereby follow that an alleged contravention of an express provision of a collective agreement is a condition precedent of an arbitrator’s authority to enforce the substantive rights and obligations of employment-related statutes. (Emphasis Added).

If this expression of expanded arbitrable jurisdiction means what it says, then simply because there is no contravention of an express term of the collective agreement will still allow for arbitration of human rights disputes that exist in a workplace.  The cost of arbitrations, the number of arbitrations and the time unions, employers and the employer’s employees are going to spend with grievances may well meet Justice Major’s prediction of “overloading the grievance and arbitration procedure with issues the parties neither intended nor contemplated channeling there, making labour arbitration anything but expeditious and cost effective”. Given that Ms. O’Brien filed her grievance on June 26th of 1998, and that the Supreme Court of Canada gave its decision September 18, 2003, the expeditious nature of grievance procedures is already in doubt:  and that is without ever touching on the merits of whether the discrimination ever happened!

4. REINSTATEMENT AFTER PREGNANCY LEAVE: SAME GRADE AND SUBJECT?

The Toronto District School Board had a grievance, this time over placement of a teacher returning from pregnancy leave. The teacher demanded the Principal return her to “her” French assignment in April of 2002 on her return to work. The Principal’s decision to assign her a senior science class of grade 7’s and 8’s was ultimately upheld by Arbitrator Stanley Beck as “reassignment to the position the employee most recently held…”.

This case focuses on the meaning of the phrase “position” in the Employment Standards Act, and whether it is synonymous with the meaning of teaching assignment. In this case, the critical test is to perform an examination “on a case by case basis” to determine what constitutes a person’s position for the purposes of the Employment Standards Act.

An examination of the facts about this teacher and in this school was undertaken. Ms. Vuong, the teacher in question, had a general Ontario certificate, as well as a specialist French qualification. When she returned from leave, there were three months of the school year left. Her previous assignment to Senior French had been filled for the school year by a qualified French Specialist.

Under the collective agreement for grades kindergarten to eight, there was a system of work assignment, with the assignment done on a yearly basis.  It is interesting to note the arbitrators found useful a comparison of the assignment as compared to others in the school who taught French.  In the year of Ms. Vuong’s return from pregnancy leave, one teacher was doing senior French, another junior French, and Ms. Vuong assigned a senior science.  The next year, the junior French person was assigned to physical education, the senior French person moved to junior French, and Ms. Vuong moved back to senior French.

The arbitration panel found that this comparison of work assignments indicated that Ms. Vuong’s “position” was that of a teacher with a general Ontario certificate. Of most importance, she was treated exactly the same way as her fellow employees.  Because she is treated in exactly the same way as her fellow employees, there was no discrimination because of her taking her leave.  Once she was assigned to teach a subject for which she was qualified under her Ontario Teaching Certificate upon return from maternity leave, that assignment is acceptable as reinstatement to her “position” even though that assignment is different from what she was teaching when she went on leave.  Ms. Vuong or any other teacher in the school could have been assigned to any nonspecialist subject in any one year, and there is no guarantee they would continue to teach the same subject, or even one for which they had special qualifications, in the following year.  The maternity leave provisions could not be used to give a teacher greater rights than she would have had if she had not gone on maternity leave.

The end result was the panel held that in the context of a teacher at a specific school, she has the right to be returned to her position as a teacher at that school, assigned to a subject for which she is qualified.  Specific grade or courses are not protected.

A. What is the take home message?

When teachers go on leaves, whether maternity, parental or emergency, there is an obligation to reinstate them to the position they were in.  This obligation does not have to be expressed directly in the collective agreement as the Employment Standards Act of Ontario is deemed to be a floor under which rights can not descend.  To determine whether or not the position that they are being reinstated to is the same as the one they had before one must review:

i)   the specific collective agreement;
ii)  the work situation and circumstances;
iii) the qualifications of the teacher or employee, and
iv) the reason for the change in assignment.

All must be examined in detail to know if the “position” is the same.

5. SUMMARY

The arbitration procedures under collective agreements continue to be used by unions and federations as an alternate forum for arguing claims under statutory provisions of labour related Acts.  The expansion in substantive rights given to employees to argue these claims in the arbitration environment will continue to make demands on the time of administrators, the resources of Boards and the ingenuity of counsel.  With the addition of claims for general damages, aggravated and punitive damages and costs under the Human Rights Code being added to the remedies that can be imposed by an arbitrator, the description of the arbitration panel as a “labour court” rather than a private dispute resolution mechanism is becoming more and more apt.

An expansion of the arbitrator’s powers is now more fully in place, and we can expect to see the blossoming of more arbitration never seen before.

I. Introduction – Guiding Members of Boards in their Conduct

This paper deals with conduct of elected officials, particularly Trustees of Boards of Education. Conduct, or rather misconduct, often arises from the tension between the public duty of officials (reflected in the Trustees’ oath when they take office) and Trustees abusing their authority for personal gain or self-aggrandizement. The expectations of the courts of Trustees is found in the statement from the 1979 decision of the Ontario Supreme Court:

“Trustees, like Caesar’s wife, must be and appear to be beyond temptation and reproach….The enactment [MCIA], like all conflict-of-interest rules, is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters…Public office is a trust conferred by public authority for public purpose.” [emphasis added] (Re: Moll and Fisher (1979), 23 O.R. (2d) 609, p. 612 per Robins J.)

II. Background

Most often, when discussion arises about “conflict of interest” within public office, most people think it is dealt with exclusively by the Municipal Conflict of Interest Act (“MCIA”). They certainly would be correct in assuming that the MCIA does deal with conflicts, but these conflicts are of the pecuniary kind: are you lining your purse rather than watching out for the public purse? The MCIA allows a ratepayer to apply to court to have a Trustee removed from office for breach of its provisions. Apart from this statutory mechanism, the Education Act holds little in the way of teeth for conflict issues that arise outside of the provisions of the MCIA. As an example, there is no power in a Board of Education to remove a Trustee from office directly. Trustees become disqualified to sit as Trustees on an ongoing basis if they fail to meet the qualifications necessary – residency, lack of serious criminal conviction, attending meetings, and so on. Even though a Trustee may become disqualified and no longer be a Trustee by the terms of the legislation, the Trustees acting by majority vote have no power to remove the recalcitrant Trustee. Arguably, someone could apply to have the Trustee declared to be no longer in office. Instead, the Education Act provides a reverse process. If the Trustee has ceased to be qualified, the remaining Trustees have the obligation to fill the vacancy created. Interesting political manoeuvring happens when the Trustee in question refuses to acknowledge they are no longer qualified to hold office, and refuses to stop coming to meetings. With careful procedural manoeuvring and due regard for natural justice, Boards can fill a vacancy and sometimes gently ease the defaulting Trustee out of their position. Most often these situations deal with residency and people moving from one Board jurisdiction to another. It has been a topic of several Board resolutions within Northwestern Ontario in recent years.

When the MCIA is involved or invoked, it deals with Trustees or those near them having pecuniary interests in matters being discussed or dealt with by the Board, creating an obligation on the Trustee to disclose the pecuniary interest, avoided discussion or voting on the matter, and sometimes actually leaving a meeting if they are in-camera.

Even though this question of “declarations of conflict of interest under the MCIA” comes up at the beginning of each Board meeting where Trustees are asked whether there are any declarations of conflict, the public, and in many cases the Trustees themselves, view “conflict” in a much broader context. Instances of bias or improper purpose or motive, completely unrelated to any monetary advantage, have Trustees gnashing their teeth in meetings wondering what they can do about a fellow Trustee who appears not to have the best interest of the Board of Education at heart, but rather a desire to promote themselves, or a special interest cause.

Interestingly, in 1993 the Ontario government of the day introduced amendments to the MCIA to include a Code of Conduct that municipal bodies, including Boards of Education, could pass by by-law to create standards of conduct for the members relating to conflict of interest beyond the narrow definition dealing with monetary conflicts. The 1993 proposed amendment to the MCIA was never passed, and Codes of Conduct authorized by legislation went the way of the dodo bird. The Education Act contains nothing (beyond the declaration of the Trustee on attaining office) that defines conduct, and even then in the most general terms.

“I will truly, faithfully, impartially and to the best of my ability execute the office of Board member, and that I have not received and with not receive any payment or reward or promise thereof for the exercise of any partiality or malversation or other undue execution of the said office and that I will disclose any pecuniary interest, direct or indirect, as required by and in accordance with the Municipal Conflict of Interest Act.

The broader conflict of interest beyond the MCIA definition remains undefined by statute. Despite the statutory vacuum, senior administrators and Trustees have grappled with “misconduct” by Trustees (which varies depending on which side of the fence you are sitting on, or, beauty is in the eye of the beholder). Indeed, grappling with misconduct has been raised to an “art form” in Alberta, and especially in Calgary. The Calgary Public Board was disbanded at the request of the Minister of Education because it had become dysfunctional. In the Calgary Separate Board, a war between a determined Irishman by the name of Michael O’Malley and his fellow Trustees and senior administrators holds lessons for everyone. Closer to home, the Toronto District School Board has had its set-tos among Trustees. Many Boards of Education across Ontario are now in the process of creating an ethical code passed as a policy of the Board, with procedures arising from the policy made into a Code of Conduct. As part of the procedure, or as a practice of the Board, a toolbox of enforcement mechanisms are developed by Trustees to put teeth into the Codes.

Questions of validity of the sanctions created by Trustees are still in untested waters within education law in Ontario.

Ultimately, because the Education Act itself has no express Code of Conduct or ethical guideline expressed, nor has powers for Boards to deal with these issues directly, it has been left up to the courts to find standards and fashion remedies when Trustees fail to meet their public duties, and charge off on personal vendettas of either their own making, or from special interest groups. This paper reviews the way in which the courts have attempted to fashion remedies in the statutory vacuum for dealing with Trustee misbehaviour.

III.    Confidential Information

Some problems reoccur on an ongoing or regular basis, and misuse of confidential information by Trustees is one of those. It is particularly problematic for Trustees when they receive information in meetings that are in-camera, when that information then turns up outside the meetings and in the hands of someone who can use it against the Board or in the media, and it is supplied by a fellow Trustee. In Ontario, there are restrictions on disclosure and use of confidential information, some statutory and some judge made.

1. Municipal Freedom of Information and Protection of Privacy Act

The ability of Trustees to receive and use personal information is limited by this Act, as well as the ability to disclose the same to others. There is a broad definition of record containing personal information, and severe restrictions exist on what use can be made of personal information with consent. Of significant importance is the presumption that employment history and education history are personal information and must not be disclosed without consent as it is presumed to be an unjustified invasion of privacy. Trustees can unwittingly get themselves into situations where they receive information about the education history of a student from teachers or Principals, yet that is information they should not have, nor use or disclose. If this personal information is abused, breach of the Act can result in investigation, a finding of breach and a fine by the wrongdoer, with attendant publicity and embarrassment. A sample of the ways misuse of information can create problems for Trustees is highlighted in the fact situation attached as “A Day in the Life of Victoria Tim, Trustee”.

2. Breach of Trustees Duties and Common Law Claims

Case law states clearly that in some circumstances Trustees are fiduciaries – persons having duties of utmost good faith owed to others and imparting a high degree of trust requiring a very high standard of care. In the Calgary Roman Catholic Separate School  District No. 1 v. O’Malley, [2008] 2 W.W.R. 88 (Q.B.) per Clark J. decision, the standards of conduct for Trustees as fiduciaries were found to be set by the Code of Ethics and Code of Conduct that the Board passed. Justice Clark confirmed who a Trustee owes this duty to:

“…Mr. O’Malley had a misguided understanding of to whom his fiduciary duties are owed…Mr. O’Malley wrongly believes that his duties are owed only to the people that voted for him…the fiduciary duties are owed to the corporate body (the Board) which is, in turn, accountable to the Catholic ownership.” [para 109 – 110]

The Alberta court concluded Mr. O’Malley breached his fiduciary duty by engaging lawsuits against the Board of which he was a member, and discussing and voting on a motion to commence legal proceedings against him. By Trustee O’Malley choosing personally to engage his own Board in litigation, by attacking the Board’s core governance policies, he placed his private interests ahead of his public duty. This created an untenable conflict of interest as he had a shared public duty to advance the work of the Board in good faith and with reasonable diligence. The end result was Mr. O’Malley was in a conflict of interest at common law, and the court was entitled to disqualify him as a Trustee and remove him from office as part of the judge’s inherent jurisdiction. The test to determine if there is a conflict of interest beyond that of a pecuniary nature is this:

“The interest must be personal and substantial such that a reasonably well-informed person would conclude that it might influence the exercise of the public duty owed by that person. The interest must be more than an interest held in common with other persons of like opinion.” [O’Malley para 96 – 97]

By Mr. O’Malley voting on a motion before the Board to sue him, Mr. O’Malley had a non-pecuniary personal interest in continuing in his office which would have influenced his vote, irrespective of whether it was consistent with his public duty. In the course of concluding Mr. O’Malley breached these duties, there were several statements made that are of importance to Trustees in guiding their actions between themselves.

One case referenced dealt with an alderwoman who brought legal proceedings to quash a resolution she had voted against, but that had been passed by a municipal council. This resulted in forfeiture of her seat due to her conflict of interest. That same concept has been addressed in a School Board/Trustee context recently by the Ontario Superior Court decision in Hearst (Town) v. District School Board Ontario North East, [2000] O.J. No. 3419 at paragraphs 39 and 40:

“The individual trustees comprise the Board…The Board’s authority is exercised by the trustees making resolutions in duly convened meetings. While they are accountable to their communities, that accountability is both general and specific. From time to time, there will be a conflict between the interests of a specific constituency and the school community in general. That is to be expected. The trustees must make decisions in the best interests of the entire school community while trying to accommodate the specific constituencies. This will not always be easy. In fact, it is well accepted there will often be a minority view or position which cannot be accommodated without special measures. Should an individual trustee be unable to persuade her colleagues to accept her view and wish to ask the Courts to favour her position over the majority of her colleagues, she should resign…In answer to the vexing problems, that the trustee has limited powers of dissent if she disagrees with actions of the majority, the simple answer is that she should resign if she wishes to participate in litigation against the Board.”

The Hearst case dealt with a school Trustee who was intent on providing an affidavit to the Town of Hearst to aid them in their application to set aside a school Board decision changing the boundaries of Board representatives and the numbers of Trustees for each. It is within this context the court disapproved of a Trustee participating in litigation, even if they were not a named party.

However, do not assume from these cases that Trustees have no voice or right to object vigorously.

Courts have stated elected representatives can form views and opinions and declare themselves on issues of public interest. They have gone so far as to say:
“Elected officials are and should be entitled to maintain and forcefully to express their views without fear of disqualification or unwarranted interference by the courts. In this case, however, any reasonably well-informed person acquainted with the facts would inevitably conclude, as Justice McMahon did, that Mr. O’Malley, by attacking the validity of core governance policies through the courts, has a personal conflict of interest…that likely would preclude him from bringing an unbiased mind to the performance of his Board responsibilities.” (O’Malley decision, paragraph 104, page 23)

“Mr. O’Malley had a shared public duty to advance the work of the Board, which included deliberating on and passing a yearly budget. Yet he tried to halt the Board’s budget work, thus putting his private interest in conflict with his shared public duty to carry out the responsibilities and work of the Board…trustees collectively and individually owe a public duty to carry out their responsibilities and the work of the Board in good faith and with reasonable diligence. They are elected for that purpose. They need not be of like mind. They may hold strong conflicting views. They may debate with vigour, and occasionally with rancour. There is no rule requiring trustees to like each other. But they do have one overarching responsibility — a shared public duty to advance the work of the Board to which they had the privilege of being elected. A trustee who chooses to personally engage his Board in litigation concerning the Board’s fundamental operations places a private interest ahead of a public duty…A trustee who cannot in good conscience continue to perform that duty has a choice. He can resign his position and regain the elector’s right to challenge the Board in court. What he cannot do is remain and abandon his public duty to advance his private interest. He is unable, in those circumstances, to bring an unbiased mind to the performance of his public duty.” [emphasis added]

Interestingly, the court in O’Malley decided the appropriate remedy for breach of fiduciary duty and breach of the common law conflict of interest rules was to have the court disqualify Mr. O’Malley from holding office as a school Trustee, and to issue an order of prohibition preventing him from running in the next two elections. This was necessary as nothing short of removal from his office would deter the “unethical, unprofessional, destructive and offensive behaviour” exhibited by Mr. O’Malley.

3. Breach of Trust or Confidentiality Claims

If there is a breach of trust or breach of the duty of confidentiality by a Trustee, the remedy of a court action against the Trustee claiming what the Board has lost, i.e. an asset sale at a reduced price due to disclosure, or a disgorging of a benefit if the Trustee received something, would be appropriate. In theory this claim is an excellent remedy, but in practice often there is no loss from the disclosure of the confidential information that can be proved, but simply “misconduct” with no direct quantifiable damage. In these circumstances, a suit for breach of fiduciary duty or breach of the duty of confidentiality might be necessary, not to obtain judgment to have money paid, but rather to allow an injunction to be obtained prohibiting behaviour or actions of a similar nature in the future. Court proceedings are not for the faint of heart, and are expensive. Sometimes isolation of the offender can be as effective, and much less costly. See the next section on restrictions.

4. Restricting access to Board meetings, Committees and Board information

(i)    Chair’s authority to expel from meetings of the Board for “improper conduct at a meeting”

Section 207(3) of the Education Act gives certain powers to the Chair of meetings.

“The presiding officer may expel or exclude from     any meeting any person who has been guilty of  improper conduct at a meeting.”

Commentators have consistently interpreted this section to give a Chair the right to exclude not just the public, but also a Trustee if there is “improper conduct”. Improper conduct usually relates to conduct that affects ability of the Trustees to deliberate as they are obligated to do. Some conduct interferes with this right. Most often it is physical action such as shouting, or refusing to end a presentation. It has been suggested that in the appropriate case improper conduct could include a threat during a meeting of disclosure of confidential information by a Trustee after the meeting. In those circumstances, other Trustees may be inhibited from providing or disclosing this information, which in turn could inhibit proper decision making within the meeting. A pre-emptive expulsion by the Chair of a Trustee for a portion of a meeting dealing with those confidential matters could be upheld (see CAPSULE 1993 “School Boards: Affecting their decision” per Lauwer P.). The inhibition or restriction on other Trustees’ ability to bring forth information would be “improper conduct sufficient to expel a Trustee from a meeting”. It must be emphasized the use of this power would be most unusual, and should be exercised only in the clearest of cases. Restricting a Trustee’s right to be present, to speak and vote at a meeting, as well as the right of access to information other Trustees have access to fundamentally compromises Trustees’ common law rights. The courts will have an automatic reaction to bend over backwards to protect a Trustee’s right to attend the meeting and to access information. In those rare circumstances, proof in the clearest of terms of misuse of confidential information will be critical. Supposition as to what a Trustee might do with confidential matters would not be sufficient. In many instances, characterization by the excluded Trustee of an exclusion order as an effort to silence debate (even vigorous debate) could result in a court overruling the decision of the Chair to exclude the Trustee, at huge expense and significant adverse publicity.

(ii)    Common Law – Resolution to restrict access to attend meetings or receive information

If use of the Chair’s powers to expel or exclude Trustees from meetings is not feasible, perhaps due to claims of personality conflict or personal vendetta, or due to a need to see the Board united publicly behind its actions, courts in England have accepted there are exceptions to the general rule that Trustees are entitled to Board information equally without restriction. Case law in England frames the question as to whether the councillor or Trustee requires disclosure of the documents as reasonably necessary to enable them to perform their duties (R. v. Clerk Lancashire Police Committee, [1980] All E.R. 353 (Ch)). The prima facie rule is the Trustee has a right to see documents and information if they relate to the council he is a member of. This right can be restricted if the facts disclose some indirect motive not consistent with the interests of the Board as a whole. If this can be proved, a court will exercise its discretion and refuse to compel the local council or Board of Education to give disclosure to the Trustee or councillor. Similar statements have been made by the English courts when dealing with a Trustee’s right to attend at meetings: Does a Trustee need to attend to perform duties properly as a member? One can imagine circumstances where a Board is involved in litigation or closure of schools and some Trustees may be inclined to report in-camera meeting debate or legal opinions to the persons suing the Board. Exclusion from meetings or from provision of legal opinions might be an option, but again proper proof must be available to show the restriction is necessary. Is it more probable than not the Trustee in question will use the information he or she receives improperly and for some indirect purpose or motive unrelated to the duties as Trustee?

As a subset of the English cases accepting a Trustee can be excluded from attendance at a meeting, or restricted from accessing documents, an alternate procedure used in the O’Malley decision in Alberta was to create a committee of Trustees that excluded Trustee O’Malley. This was because of his previous improper actions. The court in that case accepted the creation of a committee to deal with matters that excluded the Trustee who was acting improperly as a reasonable and valid exercise of the powers of the Board of Education. Trustee O’Malley had disclosed labour relations information to Unions in the middle of negotiations, as well as the provision of Board legal opinions. The use of a committee to avoid Trustee O’Malley receiving that information was accepted as a valid exercise of powers of the Board. If this method is considered, care must be taken to have decisions of the Board that are taken in-camera are taken to the public session and passed in accordance with the Education Act.

(iii)    Public or Private Censure

The School Board has the power by resolution to control the conduct of its meetings, and ensure compliance with its duties under its enabling statute, the Education Act. Part of these duties is to comply with the Act and Regulations. If a Trustee has exhibited misconduct of some kind, the Board would have the ability by resolution passed by a majority to censure a Trustee. It would be important for a Board to appreciate and accept that a motion for censure of a Trustee has no actual consequence other than a declaration of disapproval by fellow Trustees. Despite this, a declaration of this nature can have practical effects:

(a)    political – the ability to be re-elected (depending on who is seen as acting properly);

(b)    you may be wrestling with a pig – to coin Mark Twain’s phrase;

(c)    this may be simply heightening the conflict and is not an appropriate method of dealing with misconduct.

Certainly, before there is a motion to censure, there should have been full opportunity to discuss the matter with the Trustee accused of misconduct, either through the Chair, other Trustees or senior administration. The concept of using up valuable political capital by alienating fellow Trustees should have been discussed prior to any public or private censure. Despite that, if the decision is made to proceed, it will be most important to have clarity in the resolution and proof of the misconduct by the Trustee. If you do not have the clarity, there may be acrimonious debate and discussion and the censure motion may fail. If this censure is public, you can expect the newspaper will likely be interested in reporting it and it would be up to the Board to defend its actions in the public forum. Failure to be able to show clear misconduct would be disastrous.

The second matter that must be examined in deciding whether to censure someone is the requirement to be scrupulously fair with regard to natural justice requirements. This would include:

• the Trustee must know the allegations being made against him or her, and his or her side of the events should be canvassed before the motion is brought;
• resolution and report of administration that supports the censure motion should be served on the Trustee, the Trustee invited to respond in writing before the Trustees make a decision;
• consideration on how the Trustee who would otherwise have a conflict of interest be allowed to present on the matter, with the proper procedure;
• ensure consideration is had on the Trustee attending and discussing/voting on a censure motion, and determining in advance what the position of the Board will be to each of these procedural quagmires;
• ensure a Board plan exists for the media scrum after the censure motion is made public. The conflict will be heightened and the Board should be ready with a spokesperson identified who knows the position that is put forward and that other Trustees are ready to have the media directed to the appropriate spokesperson. Concern for issues of defamation if matters are discussed outside the meeting should be considered. A well-drafted report by administration and clear censure motion often are enough and “speak for themselves”.

IV.    Summary and Conclusions

Dealing with misconduct by a Trustee in relation to fellow Trustees, senior administration or the interests of the Board itself is sometimes enough to try the patience of Job, and of most Directors of Education. It requires not only patience, but determination and well thought out plans of action. In many cases, political isolation of the Trustee who is misbehaving, by refusal by other Trustees to support their initiatives or attempts to provide leadership in the Board can sometimes resolve a conflict. If those less drastic courses of action are unsuccessful, it may be time to dust off this paper and put on the proverbial boxing gloves. Best of luck.

Trustee Confidentiality and Conflict of Interest