Special Education Duties

Court Clarifies Monitoring Requirements for Special Education Teachers

A recent decision of the Ontario Superior Court of Justice has clarified Ontario's Special Education Resource Teachers ("SERT"s) responsibilities regarding student monitoring. In the case the court reviewed an arbitrator's decision involving a dispute between the Halton Catholic District School Board ("School Board") and the Ontario English Catholic Teacher's Association ("Association") involving the scheduling requirements of SERTs.

Traditionally, SERTs have been assigned a caseload involving monitoring the progress of students with learning exceptionalities against individually tailored Individual Education Plans.  Neither side disputed that this caseload included both students the SERT had classroom contact with and students with whom they did not. The dispute arose following the signing of a new collective agreement between the parties in 2005. During the arbitration the Association argued that this monitoring duty, which was not specifically defined in the agreement, should be credited as one of the SERTs three daily required courses.

In a surprise decision, the arbitrator ruled that under the new agreement, SERTs could not be assigned to monitor students with whom they no direct classroom contact.  This position was not advanced by either party during the arbitration, and the School Board subsequently applied for judicial review of the decision.

The court reviewed the arbitrator's decision, found it to be unreasonable and substituted its own decision. In reviewing the collective agreement, the court found that it was not reasonable to treat the agreement as "a statement of the totality of a teacher's activities and obligations". Rather, they held that the agreement serves to detail the express constraints which the parties have negotiated. The court further held that beyond these constraints it was the reasonable expectation of the parties that the SERTs would "perform all of the activities and functions the [teaching] profession entails from time to time."

In applying this interpretation of the agreement, the court concluded that the monitoring duty should not be credited as a required course for the SERTs. Instead, the court held that this duty was one of the functions the teaching profession entails that was beyond the scope of the collective agreement.

This decision is important both for the rule that SERTs can be required to monitor students they have no direct contact with and also as being illustrative of the court's approach to collective agreement interpretation in the education law context. Here the court has made it clear that a teacher's responsibilities extend beyond those expressed in their collective agreements to include activities and functions that the profession traditionally entails.

Author:

Don Shanks

Education Law Contact:

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