Excluding Special Needs

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.

Author:

Don Shanks

Education Law Contact:

Don Shanks
Thunder Bay, Lawyer
Phone: 807.625.7135
Email: cheadles%23com|shanksd