Labour Board Assigns Teaching of Elementary-Level Curriculum to Secondary Teachers

January 1, 2005
Author: Sean C. Doyle
15 Education and Law Journal 73

Ontario Secondary School Teachers' Federation District 14 v.
Kawartha Pine Ridge District School Board 1

Jurisdictional Dispute - Learning Life Skills Program - Primary-Level Curriculum Delivered to Students Enrolled in Secondary Schools - Whether Work Belonging to Bargaining Unit Comprised of Elementary or Secondary Teachers - Ontario Education Act, s. 277 - Ontario Labour Relations Act, 1995, s. 99

1. INTRODUCTION

Following the amalgamation of two school boards in 1998,2 a jurisdictional dispute arose between the Ontario Secondary School Teachers' Federation ("OSSTF") and the Elementary Teachers' Federation of Ontario ("ETFO") concerning the teaching of the Learning Life Skills ("LLS") program to students enrolled in the Board's secondary schools.

Designed for the lowest functioning students within the Board's special education portfolio, the LLS program strives to foster independent living by stressing such basic skills as reading signs, following instructions, making lists, and writing names. Students enrolled in the LLS program typically have multiple disabilities. Many are confined to a wheelchair, while others require regular medical attention, as well as assistance with dressing, feeding, and toileting. They typically proceed from elementary to secondary school at about fourteen years of age, and generally perform at the primary level. LLS students are not expected to complete more than nineteen percent of the primary curriculum by the time they leave school at twenty-one years of age.

The qualifications of LLS teachers are the same regardless of whether they teach in the elementary or secondary setting. They must have basic teacher certification, as well as a special education qualification, and typically have some training as teachers of the developmentally disabled. LLS teachers in secondary schools report to the principal, and are treated the same as other special education teachers within the school.

The practice of one of the predecessor boards was to assign the teaching of the LLS program in its secondary schools to members of the OSSTF, while in the other board the work was performed ETFO members. The jurisdictional dispute concerned the teaching of the LLS program in the amalgamated Board's secondary schools, and both federations agreed that only one was entitled to the work.

2. THE ONTARIO LABOUR RELATIONS BOARD

The parties agreed that the resolution of the jurisdictional dispute depended upon the proper interpretation of the designated bargaining agent provisions of the Ontario Education Act ("Act")3 which prescribed, for English-language boards, ETFO as the bargaining agent for elementary teachers, and the OSSTF as the bargaining agent for secondary teachers.4 Thus, the Ontario Labour Relations Board ("OLRB") first considered whether the Act precludes the assignment of the disputed work to members of either federation.

The ORLB noted that the Act refers not only to the assignment of teachers to schools, but to the performance of duties within those schools. Where the duties performed by a teacher are associated with a particular level of school,"then the teacher's bargaining unit is defined by that school".5 The OLRB then observed that elementary and secondary schools may be distinguished on the basis of program content, and that the LLS program consists of an elementary-level curriculum. Consequently, the OLRB reasoned, the teaching of the LLS program in secondary schools by members of ETFO would not necessarily offend the Act.

The OLRB cautioned, however, that this interpretation may over-emphasize course content at the expense of organizational structure, and fails to consider certain exceptions and qualifications contained in the Act. For instance, not every program delivered in a secondary school must be credit-worthy, and the regulations6permit some non-credit special education programs to qualify as secondary programs. Therefore, some "ostensibly elementary programs" could be taught by the secondary panel, which "suggests" that the teaching of the LLS program by members of the OSSTF would not offend the Act.7

The OLRB next considered whether LLS students above the age of thirteen are elementary or secondary students. In conducting this analysis, the OLRB looked beyond curriculum content to the physical learning environment, noting that gifted intermediate-level students following a secondary curriculum remain elementary pupils, notwithstanding that the course content may be taught to secondary students. The OLRB then stated:

The same principle applies to the LLS students who learn (albeit elementary courses) in secondary schools. If one has regard to the body of pupils who make up the LLS students affected by this decision, they are secondary school students, not elementary school students. The content of what they learn at school is of a primary standard, but they are nonetheless secondary school students: their age, the location where they learn … and the peers with whom they are organized for an educational purpose make them secondary school students.8

The OLRB supported this conclusion on several grounds. First, LLS students above fourteen years of age are registered as secondary pupils, are treated as such by the Ministry of Education, and have the right to attend secondary schools. The Board also characterizes the portion of the LLS program delivered in secondary schools as a secondary-level service for funding purposes.

Second, the Act authorizes a secondary school principal to permit a pupil to enroll in an alternate secondary program.9 Considering that some non-credit special education programs may qualify as secondary programs,10 the OLRB held that an alternate program (such as the LLS program) approved by a secondary school principal is a secondary program, notwithstanding that it may consist of a primary-level curriculum.

Third, the Act does not define special education with reference to either educational divisions (such as primary, intermediate, or senior), or school level.11 Special education programs are developed in response to the particular needs of exceptional pupils, and are organized across educational divisions and school levels. The determination of whether a special education program is an elementary or secondary program depends upon the characteristics of the pupil, with particular regard to a pupil's age. Therefore, the OLRB reasoned, students fourteen years of age and older "are secondary students if they are promoted to a secondary school or if, like the LLS students, the principal admits them under an alternate program…"12

Finally, the OLRB noted that the placement of exceptional pupils is determined by an Identification and Placement Review Committee ("IPRC"), and where an LLS student has been placed in a secondary school, it is because an IPRC has determined that such a placement would best serve his or her educational interests. Furthermore, the OLRB noted that the regulations13 requiring the development of a 'post-secondary plan' for exceptional pupils that are fourteen years of age or older suggest that these pupils are treated as secondary school students.

Having determined that the Act does not preclude the assignment of work to either federation, the OLRB turned to the traditional considerations in jurisdictional disputes, such as bargaining relationships, skill and training, safety, economy, efficiency, employer past practice, area or industry practice, and employer preference. In this case, however, the employer expressed no preference, and the parties agreed that the other considerations were not helpful.

The OLRB then looked to broader labour relations considerations, such as the importance of a clear demarcation between the elementary and secondary bargaining units, and determined that OSSTF members should teach the LLS program in secondary schools. According to the OLRB:

If the distinction between the bargaining units were based purely on the content of programs, then other special education programs would potentially be subject to challenge. This could open the door to challenges to existing assignments. Fine distinctions would need to be drawn as to whether the content were primary, intermediate, or secondary, when the particular program is part of what is offered by a board in its secondary schools. Looking at the nature of the school to determine which bargaining unit should perform the work will avoid this.14

The OLRB further stated that it would make labour relations sense to include LLS teachers in secondary schools within the OSSTF bargaining unit, because if they were members of ETFO and a strike or lockout occurred with respect to the secondary bargaining unit, they would be required to attend work during "circumstances when the school was effectively closed".15

Moreover, the growing tendency of parents wanting their children in regular classes persuaded the OLRB that the work should be assigned to OSSTF members, because otherwise some LLS students will be in regular classes taught by OSSTF members, while others would be in separate classrooms being taught by ETFO members. This would result in the composition of the bargaining unit being influenced not on the basis of labour relations principles, but by the choices parents make regarding their children's learning environment.

The OLRB therefore directed the Board to assign the teaching of the LLS program in secondary schools to members of the OSSTF. The OLRB noted, however, that the result may have been different had the Board expressed a preference as to whether OSSTF or ETFO members should have been assigned the work.

3. THE ONTARIO DIVISONAL COURT

The Court dismissed ETFO's application for judicial review on the basis that the decision of the OLRB was correct. The Court held that the OLRB conducted the proper analysis, and reached the conclusions necessary to support its decision. In the view of the Court, the following findings of the OLRB were determinative:

(i) The LLS program for pupils aged fourteen or older is taught in secondary school buildings;

(ii) The educational purpose of the LLS program is 'more akin' to a secondary school, rather than an elementary school;

(iii) The LLS students in secondary schools are secondary pupils, notwithstanding that what they learn is of a primary standard; and,

(iv) The LLS program taught in secondary schools is a secondary-level program despite its primary-level curriculum.

The Court then stated that in light of these findings, the OLRB erred by suggesting that the Act does not prevent the assignment of the disputed work to ETFO members, or that it does not prescribe that the work belongs to one federation over the other. Having found the LLS program to be a "secondary program, taught in secondary schools to secondary students", the OLRB had essentially concluded that the program must be taught by members of the OSSTF.16

The Court also held that the OLRB had properly considered the labour relations context to augment its analysis, and that its conclusions were reasonable. Since the collective bargaining provisions of the Act17 must be read as if they formed part of the Ontario Labour Relations Act, 1995 ("OLRA"),18 the Court reasoned that the OLRA's objective of fostering stable and productive bargaining relationships must be considered in the resolution of any labour disputes within the education sector.

Therefore, the OLRB correctly concluded that there should be clear lines of demarcation between elementary and secondary bargaining units based on the 'nature of the school' as opposed to the content of the curriculum, and that it made labour relations sense to include all LLS teachers in secondary schools within the OSSTF bargaining unit. Furthermore, the Court noted that the OLRB recognized that the increasing parental preference for integration could affect the federation affiliation of LLS teachers, and that bargaining unit structure must be based on sound labour relations principles.

4. CONCLUSION

The outcome in KPRDSB is the product of an analytical framework that defined 'school' broadly as a composite of physical location, educational purpose, body of pupils, and program content, and which recognized the importance of stable bargaining relationships. The decision is also consistent with a 1989 ruling by the Ontario Teachers' Federation that those teaching the Trainable Mentally Retarded program (a predecessor of the LLS program) in secondary schools to pupils of secondary school age were members of the OSSTF.19

The approach adopted by the OLRB and endorsed by the Court should provide considerable guidance on the resolution of future jurisdictional disputes within the education sector. Perhaps most significantly, the Court resolved the ambiguity created by the OLRB's suggestion that the disputed work could be taught by ETFO members, holding that as a secondary program delivered in secondary schools to secondary pupils, the LLS program must be assigned to members of the OSSTF.

[2003] OLRB Rep. Sept./Oct. 819; application for judicial review dismissed, [2005] O.J., No. 284 (Div. Ct) ("KPRDSB").
The Northumberland-Clarington Board of Education merged with the Peterborough County Board of Education to create the Kawartha Pine Ridge District School Board ("Board").
Education Act, R.S.O. 1990, c. E.2.
Education Act, s. 277(3).
Above, note 1 at paragraph 70 (OLRB).
Ontario Regulation 274/01.
Above, note 1 at paragraph 72 (OLRB).
Ibid. at paragraph 74 (OLRB).
Education Act, s. 41(5).
See, Ontario Regulation 274/01.
Education Act, s. 1(1).
Above, note 1 at paragraph 77 (OLRB).
Ontario Regulation 181/98, s. 7(4).
Above, note 1 at paragraph 82 (OLRB).
Above, note 1 at paragraph 83 (OLRB).
Ibid. at paragraph 49 (Div. Ct.).
Education Act, s. 277.13.1(1).
S.O. 1995, c. 1, Sched. A.
Prior to 1997, disputes concerning federation affiliation were resolved through the Ontario Teachers' Federation pursuant to the School Boards and Teachers' Collective Negotiations Act, R.S.O. 1990, c. S.2. See above, note 1 at paragraph 25 (Div. Ct.), and generally, Elizabeth J. Shilton, Education Labour and Employment Law in Ontario(Aurora: Canada Law Book, 1998), ss. 5.130 - 5.150.