An Ontario arbitrator has ruled that a full
time teacher who, as a result of being accommodated for her disability worked a
half time schedule for a number of school years, was not entitled to a full
year’s teaching experience credit, sick leave credits or full benefits premium
payment while working half time.
For a number of years, the teacher, who
suffers from MS, taught one half of a full time teaching schedule, supplementing
her income with either sick leave or STD/LTD.
After a number of years, she noticed her placement on the grid was not
what she’d thought it ought to be (while she’d received full credit for the
year in which she used sick leave credits for the days she did not work, she
did not for those years in which she was paid STD/LTD for non working days).
She contacted her Union and a grievance was filed alleging discrimination both
under the collective agreement and pursuant to the Ontario Human Rights Code (the “Code”).
In finding no violation of the collective
agreement, the arbitrator ruled that the collective agreement specifically
contemplated the recognition of experience on a pro rata basis according to
actual time worked. In effect, the
arbitrator ruled that the employee had become a part time employee as a result
of her accommodated work schedule. As
such, the collective agreement provided for prorated teaching experience
credits, sick leave credits and benefits premiums.
As to the alleged violation of the Code,
the arbitrator relied on the Ontario Court of Appeal judgment in Orillia Soldiers Memorial Hospital, in
which the Court ruled that making adjustments on a salary grid for employees
who cannot work due to disability does not violate the Code, so long as they
are treated the same as other employees who, for whatever reason, cannot or are
not working. The Union’s argument that
the Code had been violated because “but for” her disability, the Grievor would
have worked a full time schedule, was rejected.
While recognizing the Grievor’s hardship, the arbitrator ruled that the
Code does not require employers to compensate employees for work that is not
A funny thing happened on the way to the
reform of the law regarding non-share capital corporations in Ontario. Unless
revised before proclamation (currently expected 1 July 2013), the new Ontario Not-for-profit Corporations Act, 2010,
(“ONCA”) will change the law respecting district school boards. For the most
part, the legislative changes will be of little consequence to district school
boards or their Trustees and staff, but in some areas, the effect could be
The possible ONCA “game-changers” are:
section 15 which provides that
a corporation has the capacity and rights, powers and privileges of a natural
section 35 which makes written
resolutions signed by all Trustee entitled to vote on an issue, as valid as if
passed at a meeting of the board or a committee of the board; and
sections 43 through 46 which
establish a standard of care and a due diligence defence for directors, a
presumption of consent to a decision unless there is a dissent, and authority
for indemnification of directors.
Education statutes have been restrictive in
the powers and authorities given to school boards. Jurisprudence over that past
nearly 200 years has held that a school board, as a creature of statute,
possesses only those powers and authorities that have been expressly (or by
necessary implication) granted to it by the statute that created the school
With the addition of section 15 of ONCA, a
district school board has plenary power and authority, subject only to the
restrictions that have been expressly placed upon it. So unless the Education Act prohibits or imposes
conditions or restrictions upon what it can do, a district school board will be
authorized to do anything that is not otherwise unlawful.
The addition of section
35, if used, presents an alternative to calling and holding board or committee
meetings, which could simplify the process for dealing with some kinds of board
action, including responding to urgent matters.
Of particular interest to Trustees are new
sections which provide (to quote from the Explanatory Note to the Bill that
became the statute) that:
out] directors’ liabilities and standard of care. The standard of care is to
act honestly and in good faith with a view to the best interests of the
corporation and to exercise the care, diligence and skill that a reasonably
prudent person would exercise in comparable circumstances. Directors are given
a reasonable diligence defence, including reliance on officers and employees of
the corporation and on professional advice. Directors and officers are entitled
to indemnification from the corporation so long as they acted honestly, in good
faith and with a view to the best interests of the corporation and believed
reasonably that their conduct was lawful.
The Government is
delaying proclamation while the Ministry of Consumer Services considers what
additional statutory corporations still need to be excepted from the
application of ONCA, and it is not known at this time whether District School
Boards will be added to that list.
So, it remains to be
seen what longer range impact this new statute will have on District School
A long service teacher who was given a home
assignment and disciplined as a result of a variety of concerns, was found to have
suffered harassment within the meaning of the Ontario Human Rights Code (the ”Code”) and awarded $20,000 in mental
After teaching at the same school for
approximately three decades without incident (but with ongoing disability
accommodation) a variety of concerns developed relating to the extent of the
teacher’s disability, her teaching ability and other issues, including the
state of her classroom. When two parents
brought forward complaints, later in the school year, that the teacher had
mistreated their children, the teacher was placed on home assignment with
pay. The Employer purported to do so as
a non-disciplinary measure, pending investigation.
The teacher remained on home assignment for
the balance of the school year, but was invited to return in September.
In response to the Employer’s actions, the
Union filed a grievance on behalf of the teacher alleging discipline without
cause and harassment in violation of both the collective agreement and the
Code. The hearing spanned some two and one half years and resulted in an award
highly critical of the manner in which the Board treated the teacher.
Despite some evidence to the contrary, the
arbitrator found the teacher to have had no proven deficiencies in her teaching
abilities. The arbitrator also found that the letters issued to the teacher,
purportedly in a non-disciplinary manner, were lacking cause, disciplinary in
nature, punitive in effect, excessive in measure, and evidence of animus
against the teacher. The Principal had
stated in the letter that the parent’s observations raised concerns about her
“well-being and fitness”.
The arbitrator was highly critical of the
Board accepting as fact the allegations made by children whose parents had
brought forward complaints relating to the teacher’s conduct. The arbitrator
found that the investigation was flawed and unreliable, as it apparently
consisted solely of speaking to three elementary school students, with no one
else present, and the teacher was not interviewed or told what the students had
The arbitrator concluded that, in sending
the teacher home for a protracted period, the Board had acted without
justification and its conduct amounted to an act of harassment within the
meaning of the Code; that is, “a course of vexatious comment or conduct which
was known or ought reasonably to be known to be unwelcome”. In particular, the arbitrator found the
teacher to have been harassed on the basis of “disability”.
The arbitrator declared the Board to have
violated both the collective agreement and the Code in its treatment of the
teacher and ordered all disciplinary letters expunged, as well as compensation
for any loss or earnings and benefits, including lost sick days. The arbitrator also ordered the Board to pay
$20,000 in general damages to the teacher as a result of mental distress which
the arbitrator believed the teacher had suffered. The arbitrator declined to award punitive
This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.
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