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EAs Accompanying Students on Overnight Excursion is Not ‘Volunteering’

Nadya Tymochenko, Toronto

The Ontario Divisional Court recently heard an application for judicial review of a labour arbitration decision involving the Toronto District School Board (the “Board”) and the Canadian Union of Public Employees, Local 4400, (“CUPE”) representing educational assistants (“EAs”) working for the Board.

The issue before the arbitrator was whether four EAs, who agreed to attend an overnight excursion after the Board made a request for volunteers to attend, were owed pay as a result of their attendance on the excursion.  The arbitrator, relying on article W.25 in the collective agreement, found that the EAs were owed 5 hours of pay.  The article stated: “Employees who are required to accompany classes on overnight visits shall receive five (5) hours pay at their regular rate of pay for each night of the overnight visit.  Such hours shall not be counted towards eligibility for overtime.”

The Board sought judicial review of the decision arguing that article W.25 did not apply because the EAs had volunteered to attend the excursion and were not “required” or, in other words, compelled by the Board to attend.  CUPE argued that the word “required” in article W.25 should be interpreted to mean that the EAs were needed or necessary for the excursion to proceed.

In addition to article W.25, the arbitrator considered article AA.2 which provided that volunteers would not be used by the Board “if such use adversely affects the terms and conditions of employment of a bargaining unit Employee or permanently replaces, or is used in lieu of employing a Bargaining Unit Employee.”

The arbitrator found that the same staffing ratio required at the school was required for the excursion and that employees were asked to volunteer to attend the excursion.  The arbitrator also found that, had an insufficient number of staff volunteered to attend, the excursion would not have proceeded.

The arbitrator concluded that it was inconsistent with the terms of the collective agreement for EAs to volunteer to do their own jobs without pay, and that they were “needed” for the excursion to proceed, consistent with CUPE’s interpretation of the word “required” in article W.25.

The Divisional Court found that the decision of the arbitrator was reasonable and that the decision provided the requisite level of justification, transparency and intelligibility.

The staffing of school excursions can be a difficult issue for school boards, particularly when there are a number of students with high needs who are attending the excursion.  In some cases, it may be necessary for schools to reconsider the destination and/or the duration of the excursion to ensure that all of the students who wish to participate are able to do so.  The inability of a school to find a sufficient number of staff to accompany students and provide accommodations for one or more students with special needs should not be a barrier to a particular student’s attendance on an excursion.

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Update Regarding the Accepting Schools Act

Sylvain Rouleau, Toronto

Bill 13, the Accepting Schools Act, was introduced by the government on November 30, 2011. Its stated purpose is to provide additional protections to students who are victims of bullying.

Bill 13 was presented to the legislative assembly for first reading, along with a Conservative member’s private bill, Bill 14, titled the Anti-Bullying Act. Since that time, both bills have been referred together for public hearings before the Standing Committee on Social Policy.

Both Bill 13 and 14 constitute attempts to address bullying by amending the Act to add specific measures regarding bullying. Some of the main aspects that these bills have in common are the addition of a definition of bullying and the explicit obligations placed upon schools and school boards to ensure education with respect to bullying, as well as the inclusion of sanctions and reporting obligations for occurrences of bullying.

Bill 13 proposes a number of amendments to the Act which differ from the ones made in Bill 14.  One of the more contentious proposed amendments, which has received significant coverage in the press, is to include an obligation for all schools and school boards to permit student led groups with a goal to “promote the awareness and understanding of, and respect for, people of all sexual orientations and gender identities, including organizations with the name gay-straight alliance or another name”.

In an effort to clarify this section of Bill 13, the government introduced a motion on Friday, May 25, 2012, to amend the section to add the following sections:

Same, gay-straight alliance
(2) For greater certainty, neither the board nor the principal shall refuse to allow a pupil to use the name gay-straight alliance or similar name for an organization described in clause (1) (d).

Inclusive and accepting name
(3) The name of an activity or organization described in subsection (1) must be consistent with the promotion of a positive school climate that is inclusive and accepting of all pupils.

Same
(4) A board shall comply with this section in a way that does not adversely affect any right of a pupil guaranteed by the Canadian Charter of Rights and Freedoms.

If this amendment to Bill 13 is accepted, it is intended to require schools and school boards to permit groups under the name “gay-straight alliance” to be formed in schools.  Some members of Ontario’s Catholic community have been reported by the media as indicating requiring such groups in Catholic schools is contrary to their constitutionally protected right to Catholic education.

It is anticipated that Bill 13 in an amended version of some form will receive Royal Assent in June and require school boards to implement the new requirements on the return on students in September.

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