Introduction
In a previous Education Law News (Winter 2007), Robert W. Weir reported on the status of the centrally assigned principal. That article followed upon the then-recent release of an award by arbitrator Gerald Charney on July 12, 2006. The Charney award departed from two previous arbitration decisions on this issue (the Watters and Shime awards), both of which held that only principals assigned to specific schools are excluded from the teacher bargaining unit defined by the Education Act. Arbitrator Charney disagreed, and held that centrally assigned principals whose core duties were managerial in character were also excluded from the teacher bargaining unit.
Since that time, one court decision and two further arbitration awards have been released dealing with this topic. Each of these will now be examined in turn.
Dufferin-Peel Catholic District School Board v. OECTA
On January 8, 2008, the Ontario Divisional Court released its decision following upon an application for judicial review of the Charney award by the Dufferin-Peel CDSB. The Board had asked the Court to set aside arbitrator Charney's decision that the core functions of the two centrally assigned principal positions in that case were not supervisory or managerial in nature, and therefore fell within the teachers' bargaining unit.
Before the Court, OECTA argued that arbitrator Charney had interpreted the collective agreement, the Education Act and its regulations a meaning that each could reasonably bear and that was consistent with prior arbitral decisions. The Court agreed, and upheld the Charney award. The Court's decision provided support to those boards who maintained that centrally assigned principals could be excluded from teacher bargaining units, at least insofar as their core functions were managerial in nature.
Ottawa-Carleton Catholic District School Board v. Ontario English Catholic Teachers' Association
On August 26, 2008, arbitrator Russell Goodfellow released an interim award in Ottawa-Carleton CDSB v. OECTA. In that case, arbitrator Goodfellow found that the Board's centrally assigned Principal of Elementary Programs could not be a "principal" within the meaning of the Education Act and was therefore not excluded from the teachers' bargaining unit.
In reaching this conclusion, arbitrator Goodfellow agreed with arbitrators Shime and Watters. The Board's contention that the position was excluded from the bargaining unit because of the managerial nature of its core duties was not considered by arbitrator Goodfellow in this interim award, although the Board retained the right to raise this defense when the arbitration hearing resumed.
St. Clair Catholic District School Board v. Ontario English Catholic Teachers' Association (Principals at Large)
On November 11, 2009, arbitrator Brian Keller released an interim award in St. Clair Catholic DSB v. OECTA. In that case, St. Clair CDSB and OECTA put a specific preliminary legal question to the arbitrator, as to whether the exercise of managerial duties could result in an exclusion from the bargaining unit under the current legislative scheme. The arguments were based on a common assumption, that each of the three positions in issue requires the exercise of authority that would be considered "managerial" under clause 1(3)(b) of the Ontario Labour Relations Act. The positions in issue in St. Clair were Principal of Literacy, Principal of Catholic Curriculum and Principal of Special Education.
OECTA maintained that the award of arbitrator Charney, issued in 2006 and upheld by the Divisional Court in 2008, was incorrectly decided on this point. Arbitrator Keller agreed. He reasoned that the exclusions to the teacher bargaining units under the Education Act are specifically enumerated, and do not provide for a managerial exclusion either explicitly or by incorporation of clause 1(3)(b) of the Labour Relations Act.
Arbitrator Keller held that the exclusion of principals from the bargaining unit is limited to those principals who are assigned to perform the duties of a principal in respect of a school. Arbitrator Keller concluded that, although he understood the Board's desire for flexibility, the legislature has left him no discretion to expand the definition of "principal" prescribed by the legislation. It is not anticipated that this arbitration award will be contested by way of judicial review.
Sudbury Catholic District School Board v. Ontario English Catholic Teachers' Association (Bargaining Unit Work), December 18, 2009
On December 18, 2009, arbitrator Stephen Raymond released his award in Sudbury Catholic DSB v. OECTA. In that case, the Board had eliminated the position before the arbitration proceeding convened. Arbitrator Raymond held that the elimination of the position (School Effectiveness Lead/Assistant to the Superintendents) did not bring an end to the grievance. He decided that there was no basis for a managerial exclusion and declared that the Board violated the collective agreement by not placing the position in the bargaining unit. As a remedy, arbitrator Raymond ordered the Board to pay union dues for the period the position ought to have been in the bargaining unit. One issue remains to be determined by arbitrator Raymond: OECTA has asked for an award of "damages for lost opportunity". That issue will be determined at a later date.
Additional Developments
Additional grievances by OECTA pertaining to centrally assigned principals are moving forward in many school boards in the province. In addition, the Ontario Secondary School Teachers' Federation has begun to grieve centrally assigned principal assignments. We are not aware of any grievances on this issue by the Elementary Teachers' Federation of Ontario or by l'Association des enseignantes et des enseignants franco-ontariens. We note that the twelve French-language school boards have entered a letter of understanding with AEFO on this issue as a result of the 2008 provincial agreement.
Conclusion
Based on the jurisprudence to date, school boards are vulnerable in respect of any member of the Ontario College of Teachers assigned to perform administrative duties, except (a) principals and vice-principals performing duties in respect of a school, and (b) supervisory officers in positions approved by the Minister of Education under subsection 285(2) of the Education Act. We anticipate that this will continue to be the case unless the Education Act is amended.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
