The Alberta Teachers ’ Association Applicant - v. -, 2010 ABQB 828

Court of Queen ’ s Bench of Alberta Citation: Alberta Teachers ’ Association v. Calgary Roman Catholic School District No. 1, 2010 ABQB 828 Date: 20101229 Docket: 1001 00369 Registry: Calgary In the Matter of The Labour Relations Code and In the Matter of a Grievance Arbitration Award dated December 15, 2009 and the Dissent of William J.

Johnson Q.C., member of the Board dated December 15, 2009 Between: The Alberta Teachers ’ Association Applicant - and - Calgary Roman Catholic Separate School District No. 1 Respondents Corrected judgment: A corrigendum was issued on June 3, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.S. Brooker _______________________________________________________ INTRODUCTION

[ 1 ] The Alberta Teachers’ Association (“ATA”) seeks judicial review of an arbitration board award in which the majority found that the Calgary Roman Catholic Separate School District No. 1 (“School District”) had not breached the Collective Agreement between the Parties by assigning duties to teachers for periods exceeding the maximum weekly hourly average mandated under the Collective Agreement. This turns on whether the School District assigns duties to teachers when it schedules time for the purpose of performing those duties, as it is required to do under the Collective Agreement. FACTS I.

Background [ 2 ] The Collective Agreement in issue was effective for the period September 1, 2003 to August 31, 2006. The Agreement contains

Article 11.1, known as a “work limit clause” or “hours of work” clause which came into effect on September 1, 2005 at the beginning of the 2005-2006 school year. Art. 11.1 prohibits the School District from assigning duties to teachers in excess of mandated average weekly amounts.

It caps teachers’ instructional hours at a maximum of 23.83 hours per week averaged over the school year and teachers’ total assigned hours, including instructional hours, at a maximum of 30 hours per week averaged over the school year. [ 3 ] The ATA filed a grievance under the Collective Agreement alleging that teachers’ instructional and total assigned hours were in excess of the hours prescribed under Art 11.1.

The issue was whether teachers were “assigned duties” during various school periods before, during and after school and during teachers’ conventions and if so whether the total assigned duty time exceeded the limits set under Art. 11.1. [ 4 ] The ATA’s evidence is summarized at pp. 5 - 31of the Award. The ATA provided the Board with schedules showing the specific assigned duties and assigned time for six particular teachers from six different District schools for the 2005-2006 school year. Five witnesses also gave evidence on behalf of the ATA.

Three of the witnesses were School District teachers with considerable experience who had taught for the School District during the 2005-2006 school year when Art. 11.1 was added to the Collective Agreement. Ms. Morrison had been a teacher since 1986 and had taught at the School District’s St. Helena Junior High School during the 2005-2006 school year. Ms. McIntyre had taught with the School District for 28 years, the last 26 years at St. Francis High School. Mr. Way had been a School District teacher for over 18 years and taught in the School District’s St.

Joseph School during the 2005-2006 school year. [ 5 ] The ATA’s other two witnesses were ATA executives, Ms. Vogrinetz and Mr. Jones. Ms. Vogrinetz was a teacher from 1982 to 1995, an executive assistant in the ATA Teacher Welfare

section from 1995 to 2008 where her duties included negotiating collective agreements and advising teachers about collective agreement issues, and the ATA Coordinator of Teacher Welfare from August 2008 to the date of the Board hearing. Mr. Jones was the Executive Assistant for ATA Calgary Local 55, a position which he had held since 2003.

Prior to that he had been a teacher with the School District for almost 30 years, and during nearly half of that time had held school administrative, executive and teacher representative positions with the ATA. [ 6 ] The School District’s evidence is summarized at pp. 32 - 40 of the Award. Mr. Gary Strother was its sole witness. Mr. Strother had worked for the School District for 26 years, as a teacher for the first 13 years, a school administrator for the next 5 years, and as a Superintendent for the last 8 years which was his position at the time of the Board hearing.

He was part of a senior leadership team for the District which consisted of the Chief Superintendent and Area, Instructional Services, and Support Staff Superintendents. Mr. Strother was the South East Area Superintendent. This Area contains 24 schools and Mr. Strother’s job required him to be in those schools and work with their principals on a daily basis. Mr. Strother was also the Superintendent of Information Technology responsible for all of the computers in the School District and supervised an IT staff of 15. [ 7 ] The Board hearing was held on June 17, 18, 22, 23 and 24, 2009.

The Board issued its award on December 19, 2009. It found that a duty is assigned under Art. 11.1 when a teacher is required to do it at a particular time and place. Applying that test, it found that teachers performed “assigned duties”, and that teacher time devoted to such duties should be included in the average weekly maximum assigned hours prescribed under Art 11.1, during the following times: the 15 minutes before and after school; the period between the warning bell and the start of classes; periods when classes change; nutrition breaks at the junior high level; and teachers’

convention periods. The parties did not dispute these findings at this judicial review hearing. [ 8 ] The main issue on which the ATA seeks judicial review is the Majority’s finding that duties performed by teachers during timetable periods designated as “time free from instruction” (TFFI periods), “unassigned time” or simply left blank are not “assigned duties” within the meaning of

Article 11.1. The Majority found that teachers are not assigned duties during TFFI periods because teachers are free to do as they wish and can leave the school premises for purely personal reasons during these periods, as long as they notify school management that they will be absent. The ATA nominee on the Board dissented, finding that when the School District schedules time for the purpose of performing professional duties, as it is required to do under 11.2.3 of the Collective Agreement, it assigns duties under Art. 11.1: Award, pp. 75 - 76. II. Collective Agreement Provisions [ 9 ]

Article XI of the Collective Agreement is entitled “Employment Conditions” and states: 11.1 Hours of Work Effective September 1, 2005, a school-based full-time equivalent teacher not in receipt of any salary allowance will not be assigned duties in excess of thirty (30) hours per week, averaged over the school year. A maximum of one thousand four hundred and thirty (1,430) minutes (23.83 hours) per week, averaged over the school year, shall be devoted to the instruction of students.

The remainder of assignable hours shall be devoted to professional duties including, but not limited to, supervision of students, preparation, staff meetings, consultation, parent teacher conferences and administrative tasks. 11.2 Professional Staff Deployment 11.2.1 Staff deployment within a school shall be the responsibility of the Principal and the Staff. 11.2.2 Teachers will be expected to assume, outside of regular school class time, professional duties including, but not limited to, supervision of students, preparation, staff meetings and parent-teacher conferences.

Extra-curricular activities will be the collective responsibilities of the staff of the school.

Individual teachers choose from among these activities based on their knowledge, skills and interests. 11.2.3 The parties to this Collective Agreement recognize that, except when temporarily impractical, each teacher will have regularly scheduled school class time free from classroom instruction or supervision for the purpose of attending to professional responsibilities including preparation, consultation and administrative tasks. 11.2.4 In the normal course of school planning, a Principal should consult with the school council regarding optional program offerings, co-curricular and extra-curricular activities. 11.3 Substitute Teacher Coverage 11.3.1 Both parties to the Collective Agreement recognize the importance of continuity of instruction by the regular classroom teacher in the creation of a quality learning environment for students.

11.3.2 Teachers will, where possible,

schedule doctor and dental appointments outside of classroom hours. If scheduling such appointments is not possible outside of classroom hours, teachers will make every effort to limit their absences for appointments to a maximum of one-half (½) day for each such occurrence. 11.3.3 The District agrees to continue to make every effort to provide a substitute teacher for a classroom teacher whose absence will interrupt the provision of instruction for students. The provision for substitute teachers for these purposes may be altered, if agreed, between the District, and the Principal and teachers at any school.

ISSUES 1. What is the applicable standard of review? 2. Applying this standard of review did the Board err in concluding that teachers are not assigned duties during TFFI periods and therefore, that these time periods are not to be included in calculating the maximum weekly average of 30 hours of “assigned duties”? ANALYSIS [ 10 ] As a preliminary matter, the parties requested and were granted a consent order removing the names of the members of the arbitration panel from the style of cause. A. Standard of Review [ 11 ] The parties agree that the applicable standard of review is reasonableness.

Decisions of labour arbitrators regarding the

interpretation and application of collective bargaining agreements are accorded a high level of judicial deference. It is well settled by the case law that the applicable standard of review in such cases is reasonableness: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190; Alberta Union of Provincial Employees v. Lethbridge Community College , 2004 SCC 28 , [2004] 1 S.C.R. 727; Alberta Union of Provincial Employees v. Health Sciences Assn. of Alberta , 2009 ABCA 266 , 457 A.R. 386, leave to appeal ref’d [2009] S.C.C.A. No. 405; Alberta v.

Alberta Union of Provincial Employees , 2008 ABCA 258 , 433 A.R. 159. As a result, the standard of review has been settled, and it is not necessary to embark on a contextual standard of review analysis in this case. [ 12 ] A court reviewing a decision on a reasonableness standard must examine both the reasonableness of the administrative body’s reasons and decision. The reasonableness standard is a deferential one. If an administrative tribunal reasonably interprets a collective bargaining agreement as having one of several reasonable meanings, it is not the court’s role to substitute the

interpretation it prefers for the tribunal’s

interpretation. This was explained in Dunsmuir at para. 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 13 ] The Board’s reasons will be reasonable if they contain a line of analysis that leads to its conclusion, described by Iacobucci J. at paras. 55 - 56 of Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 as follows:

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. (See Southam, supra , at para. 56).

This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. (see Southam , at para. 79). This does not mean that every element of the reasoning must independently pass a test for reasonableness. The question is whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.

Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. B. Applying this standard of review, did the Majority err in concluding that teachers are not assigned duties during TFFI periods and therefore, that these time periods are not to be included in calculating the maximum weekly average of 30 hours of “assigned duties”? 1. Parties’ positions [ 14 ] The ATA argues that applying a purposive

interpretation and giving

Article 11 of the Collective Agreement its plain and ordinary meaning, it was unreasonable for the Majority to conclude that professional duties were not assigned to teachers during the time scheduled as TFFI periods on teachers’ timetables. It argues that the Majority’s reasons for concluding that TFFI periods are not assigned time are based on a number of errors of fact and law which caused the Board to lose jurisdiction, exceed its jurisdiction or make jurisdictional errors, and thereby make an unreasonable decision.

It argues that the Majority unreasonably interpreted the Collective Agreement in a manner that altered, amended or changed it; failed to give meaning to the terms “preparation”, “consultation” and “administrative tasks”; made findings of fact unsupported by the evidence; made contradictory findings of fact; and ignored or failed to consider relevant evidence. [ 15 ] The ATA argues that Art. 11 of the Collective Agreement gives school management responsibity for deploying its teaching staff, which is the same as assigning them duties and that it accomplishes this by scheduling their duties in their timetables. [ 16 ] The School District does not dispute that the ATA’s

interpretation of Art. 11.1 is one possible

interpretation but argues that the Majority decided on an alternative reasonable

interpretation. The District argues that scheduling time for duties is not the same as assigning duties and that a duty is not assigned until the School District requires a teacher to perform a duty at a particular time and place. 2.

Case law and other arbitration decisions [ 17 ] The ATA submitted a number of arbitration decisions to support its position that duties performed by teachers during TFFI periods are assigned duties under an hours of work clause. [ 18 ] For example, in Alberta Teachers’ Association and Calgary Public School Board (Central Memorial #2) , (April 20, 1978), unreported, Arbitrator Mason (as he then was), interpreting an hours of work clause in a collective agreement between the ATA and the Calgary Public School Board (CPSB), stated that “obviously assigned duties would include teaching duties, preparation time, supervisory time and other duties which are required of teachers from time to time on a daily or weekly basis”.

The clause stated:

19.3 A teacher not in receipt of any administrative allowance will not be assigned duties in excess of thirty (30) hours per week, averaged over the school year. The present policies and practices with respect to instructional time will not be changed to increase the instructional load. [ 19 ] More recently, in Clara Bruse and Calgary Board of Education , [2009] A.G.A.A.

No. 44, Arbitrator Elliot found that teacher preparation duties were assigned duties and that periods used for preparation were to be counted as “assigned time” under the following hours of work clause in the collective agreement between the ATA and the Calgary Board of Education: 21.3 Effective September 1, 2004, a teacher not in receipt of any administrative allowance will not be assigned duties in excess of 30 hours per week, averaged over the school year. A maximum of 1,430 minutes per week, averaged over the school year, shall be devoted to the instruction of students.

The remainder of assignable hours shall be devoted to non-instructional duties such as marking, lesson preparation, student interviews, supervision and other related professional duties as the principal may deem necessary for the purpose and orderly functioning of the school [ 20 ] I agree with the Majority that the observations and conclusions reached in these and other decisions provided to the Board are context specific, deal with different issues and facts, and differently worded hours of work clauses and are therefore of limited assistance in interpreting the provisions of the subject Collective Agreement. 3.

Board’s

interpretation [ 21 ] Finding no definition of “assigned duty” in the School Act , R.S.A. 2000, c. S-3 or the Collective Agreement, and no binding case law or applicable arbitration decisions on point, the Board fashioned its own definition of “assigned duty”. It concluded that the test for whether a duty is “assigned” is “whether the teacher is required to do it at a particular time and place”: Award p. 65. It held that an assigned duty is one where attendance is required. It is not enough that teachers are usually in attendance. a. Historical context [ 22 ] The Board examined the historical context leading to the addition of Art. 11.1 to the Collective Agreement.

Article 11.2, entitled “ Professional Staff Deployment”, was enacted prior to Art 11.1 and deals with teachers’ professional duties both inside and outside regular school class time. The Principal and the Staff are responsible for the deployment of professional staff: Art 11.2.1. Teachers are expected to perform professional duties outside regular school class time:

Article 11.2.2. Teachers are also to have regularly scheduled school class time that is “free from classroom instruction and supervision” and “for the purpose of attending to professional responsibilities including preparation, consultation and administrative tasks.”: Art. 11.2.3. [ 23 ] The responsibility for preparing teacher timetables rests with the principals or their designates at the senior high level and with the teachers at the elementary school level. However, in both cases, timetables require the principal’s approval: Mr. Strother’s direct, Award p. 38.

Prior to the 2005-2006 school year, teacher timetables contained a period designated as “prep time” or “unassigned time”. When Art. 11.1 of the Collective Agreement came into effect in September 2005, the “prep” time designation was dropped and these periods were instead designated as TFFI periods, “unassigned ” periods or were left blank: Mr. Strother’s cross-examination, Award p. 39. [ 24 ] Ms. Vogrinetz and Mr.

Jones testified that Art 11.1 was a new provision in the Collective Agreement and that the ATA requested the School District to provide the ATA with information on the number of hours being assigned to teachers from six sample schools in order to determine whether the School District was complying with Art. 11.1. [ 25 ] Ms. Vogrinetz and Mr. Jones also testified that the District and the ATA disagreed on the

interpretation and administration of Art. 11.1. Discussions took place between the ATA and the District in April 2005 and June 2005 but nothing was resolved.

[ 26 ] In September 2005, when Art. 11.1 became effective, School District teachers received memos from their principals stating that they had a block of unassigned time each day, that this was the teacher’s time and could be used as teachers wished, and that teachers could leave the school premises during this time. The only stipulation was that teachers sign out at the office in case there was an emergency. Ms.

McIntyre testified that on September 9, 2005, she received the following memo from the principal of her school, which was addressed to all the school’s teachers: Subject: Unassigned Time Teachers: Each day you have an 85 minute or a 70 minute block of unassigned time. This unassigned time is your time and may be used for run time to do an errand or any activity that you choose. The only stipulation is that if you leave the school you must sign out at the office in the case that we have an emergency.

If you have any questions, please see your Coordinating Teacher or any member of your Administrative Team. [ 27 ] Ms. McIntyre testified that she was surprised by this memo because she had been told throughout her teaching career that prep time was not a teacher’s “own time” and that teachers could not leave the school during that time. She stated that she had never received such a memo before and had not received one since. Mr.

Jones also testified that teachers in various schools were confused when they received draft timetables with blank spaces on them and then received memoranda similar to the one produced by Ms. McIntyre. Mr. Jones received telephone calls from teachers asking about this and he told them that these periods were the former “prep” periods. [ 28 ] Mr. Jones testified that the introduction of Art. 11.1 was considered ground-breaking since the ATA had been bargaining for a work limit clause for some time.

He was of the view that Art. 11.1 had been added to recognize that teachers are expected to use and, in practice, must use TFFI periods to perform professional duties, if they are to satisfactorily complete professional duties related to classroom instruction, which are assigned duties, as well as other professional duties. As a result, it was Mr. Jones’ opinion that teachers have never been free to do whatever they wish during TFFI periods, whether such periods are referred to as “prep”, “unassigned” or “TFFI” periods, but rather, were required to use that time for the performance of professional duties.

His understanding was that Art. 11.2.3 enshrined preparation time into teachers’ regularly scheduled timetables and that Art 11.1 was added to recognize that TFFI periods must be used for that purpose. He testified that it was his understanding that the reference to “preparation” in Art. 11.1 was to time formerly designated as “prep time”. [ 29 ] Ms.Vogrinetz testified that although approximately 60% of the contracts governing Alberta teachers contain work limit clauses, they are being interpreted differently.

She testified that TFFI periods are scheduled to recognize that teachers are required to do other work besides instruction, and that time must be scheduled for this work during the regular school day. Further, she testified that certain professional duties, other than classroom instruction and supervision, can only be performed during regularly scheduled school class time. For example, consultations with other teachers and preparation of individualized program plans (IPPs) for students identified as having special needs are non-classroom duties which must be performed at the school.

As such, teachers must spend at least some of their TFFI periods at school. [ 30 ] Ms. Vogrinetz was also of the view that Art. 11.1 was introduced to recognize that both instructional and preparation time had increased and that teachers therefore required more time and were spending more time in classrooms and in preparation for classroom work. She referred to her M. Ed. study on Alberta teachers’ workloads.

Her study concluded that for every hour of teaching, teachers spend 80 minutes on related activities such as planning, report cards and parent-teacher interviews.The School District had increased instructional hours for senior high students in 2003 after it was discovered that these students were not being provided with the minimum number of instructional hours mandated by Alberta Education. As a result, it was Ms. Vogrinetz’s opinion that the number of hours required to prepare for classroom instruction had also increased proportionately.

Teachers required more time during regular school class hours to prepare for classes as well as to complete other non-classroom duties. b. Legislative context

[ 31 ] The Board interpreted the Collective Agreement in the context of the following provisions of the School Act . Section 39 (1) (

c) of the School Act authorizes the Minister of Education to prescribe a minimum total number of instructional hours for students, and the Minister mandated the following minimums: 475 hours for students in kindergarten; 950 hours for students in grades one to nine; and 1,000 hours for students in grades ten to twelve. The School District is required to specify the school opening date, the number and days of school operation, the length of the school day, the number and length of recesses, and the number of hours of instruction subject to the minimums prescribed under s. 39: s. 56(1).

It is a term of teachers’ employment contracts that teachers must agree before they can be required to instruct students for more than 1100 hours or 200 teaching days in a school year: s. 97(2). [ 32 ] Considering the legislative context in which Art 11.1 operates, in particular the foregoing provisions of the School Act , the Board found that instruction is an assigned duty and is to be counted in determining the average maximum weekly instructional hours assigned under Art. 11.1.

It found that teachers are required to perform instructional duties during the times scheduled for instruction during the school day, and are required to be at school to do so. [ 33 ] This was a reasonable conclusion. Although the Collective Agreement does not require that instructional time be assigned, the School Act indirectly does so by mandating that students receive a minimum number of instructional hours. Common sense dictates that the only time instructional duties can be assigned is on school days during regularly scheduled school class time.

As a result, it is clear that a minimum number of instructional hours must be assigned and that those hours are “assigned time” and should be included in the maximum “instructional time” that can be assigned under Art. 11.1.

Although the Majority’s reasons do not follow the foregoing sequence of analytical steps, it made reference to the above provisions of the School Act and can be taken to have considered them in concluding that instructional duties were assigned duties. [ 34 ] There are no similar provisions in the School Act mandating that a minimum number of non-classroom instruction and supervision duties be assigned.

Article 11.2.2 requires teachers to perform professional duties outside of regular school class times and Art. 11.2.3 requires that time for professional duties other than classroom instruction and supervision duties be scheduled. Neither provision requires that professional duties be assigned. c. Collective Agreement context [ 35 ]

Article 11.1 must be interpreted in the context of the Agreement as a whole, in a manner that avoids conflicts or internal inconsistencies and seeks to reconcile the provisions of the Agreement with each other: United Food and Commercial Workers' Union, Local 401 v. Real Canadian Superstore , 2008 ABCA 210 , 432 A.R. 212 at para. 15 . It must also be given its plain and ordinary meaning interpreted in harmony with the scheme and object of the Agreement and the intentions of the parties: Donald J. M. Brown and David H. Beatty , Canadian Labour Arbitration, 4th ed., looseleaf (Aurora: Canada Law Book Inc., 2010) at para. 4:2110. [ 36 ] The Majority referred to its duty to “reach a purposive

interpretation of the provisions [of the Collective Agreement] ...in the context of the whole agreement, and apply that

interpretation to the issues in dispute...”: Award p. 59 - 60. [ 37 ]

Article 11.2.2 states that teachers will be expected to assume, outside of regular school class time, professional duties including “supervision of students, preparation, staff meetings and parent-teacher conferences.” [ 38 ]

Article 11.2.3 states that each teacher will have regularly scheduled school class time “free from classroom instruction or supervision”, unless it is temporarily impractical to do so, and “for the purpose of attending to professional responsibilities including... preparation, consultation and administrative tasks ...” [ 39 ] The ATA submits that it was the intention of the Parties that the reference in Arts. 11.2.2 and 11.2.3 to duties other than classroom instruction and supervision duties be mirrored in Art. 11.1.

It submits that the “regular school class time” that must be scheduled for professional duties other than classroom instruction and supervision under Art. 11.2.3 is the same time referred to in Art. 11.1. It argues that if time scheduled for the purpose of preparation, consultation and administrative tasks, and used by teachers for that purpose, is not assigned duty time under Art. 11.1, the Majority’s decision gives no meaning to the requirement that such time be scheduled for that purpose. It argues that Arts. 11.1 and Art. 11.2.3 both refer to “preparation”, “consultation” and “administrative tasks”

and that those words were intended to and should be given the same meaning in both cases. It submits that while the Majority stated that Arts. 11.1 and 11.2 were to be interpreted together in a purposive manner, its decision ignores this requirement. It argues that it is not possible to determine from the Majority’s reasons how it reconciled these two provisions. The Majority simply stated at p. 66 of the Award: Although

Article 11.2.3 requires the School District to provide some time free from classroom instruction or supervision, the mere fact that that time appears on the timetable is not sufficient to constitute it to be “assigned duties”. [ 40 ] As discussed above, the Majority found that instructional time was assigned time and that it was therefore limited under Art. 11.1. It then considered the phrase “time devoted to instruction” in Art 11.1 to determine whether it is the equivalent of “regular school class time” referred to in Art. 11.2.2 and 11.2.3.

It interpreted the phrase “regular school class time” as being more than instructional time. The time which was not instructional time was obviously not “time devoted to instruction”, which was the time limited under Art. 11.1. It reasoned that since Art 11.2.3 refers to “regularly scheduled school class time free from classroom instruction and supervision ”, it can be inferred that “regular school class time” includes both classroom instruction and supervision time and other time that is “free from classroom instruction and supervision”.

As a result, it reasoned that “regular school class time” refers to the time when students are normally in school during the school day. Time devoted to professional duties other than classroom instruction and supervision, referred to in Arts. 11.2.2 and 11.2.3, was not “time devoted to the instruction of students” limited under Art. 11.1. [ 41 ] This is a reasonable

interpretation. If the parties had intended that “regular school class time” and “time...devoted to the instruction of students” be the same, it could have used the same phrase to describe both. Further, Art. 11.2.3 clearly states that regular school class time be scheduled which is “free from classroom instruction and supervision and for the purpose of attending to professional responsibilities including preparation, consultation and administrative tasks”.

This implies that “regular school class time” is more than “time ...devoted to the instruction of students”. [ 42 ] The Majority then examined the phrase “the remainder of the [6.17] assignable hours” in Art. 11.1. It found that while the phrase was “picking up all of the duties specified in Articles 11.2.2 and 11.2.3" (Award p. 64), it referred to the categories of duties that are “assignable”. Although assignable, these duties are not “assigned”, and therefore not counted in calculating the “remainder of the assignable hours” to be limited under Art. 11.1, unless they are assigned.

It found that management’s duty to

schedule time for such duties under Art. 11.2.3 is not the equivalent of assigning those duties under Art 11.1: Award p. 66. It found that an assigned duty is one which is required to be done at a particular place and time. [ 43 ] The Majority interpreted Arts. 11.1 and 11.2 together in a manner that avoids conflicts or internal inconsistencies and seeks to reconcile the two provisions. Its

interpretation also shows how it came to the conclusion that the duty to

schedule duties under Art. 11.2.3 is not equivalent to assigning duties. d. Reasonableness of conclusion that detailed specification of duties not required [ 44 ] The School District’s position is that duties performed during TFFI periods are not assigned duties because teachers are not assigned specific tasks during that time. It argues that only if principals assign specific duties to teachers during TFFI periods, is it converted to assigned time: Mr. Strother’s direct testimony, Award p. 33; Mr.

Strother’s cross-examination, Award p. 39. [ 45 ] It was reasonable for the Majority to conclude that it is not necessary for management to provide a detailed specification about what is to be done during a time period in order for the duties performed during that time period to be classified as assigned duties. As the Majority found, instruction is clearly an assigned duty, yet teachers decide what must be done during instructional periods: Award, p. 65. e.

Reasonableness of conclusion that assigned duty requires attendance and performance of a professional duty [ 46 ] The Majority’s test for an assigned duty was whether a teacher is required to do it at a particular place and time. “Assigned duty” is not defined in the Collective Agreement or the applicable legislation and it was therefore necessary for the Board to provide a reasonable

interpretation. The Majority’s definition does not, as the ATA argues, unreasonably interpret the Collective Agreement in a

way that alters, amends or changes it.The reasonableness of the Majority’s decision depends upon whether it was based on reasonable findings of fact and whether it was consistently applied to all time periods in issue. [ 47 ] As previously noted, the primary issue in this application for judicial review concerns the Majority’s decision that scheduled TFFI periods are not to be included in calculating the 30 hour maximum weekly average assigned time under Art. 11.1.

This depends upon whether teachers were free to do whatever they wish during TFFI periods, including leaving the school premises. [ 48 ] The Majority found that TFFI periods are more like lunch periods than like other periods that it found to be assigned duty time because teachers can not only do as they wish but can leave the school to attend to matters unrelated to their professional duties during TFFI periods. It found that the simple fact that teachers can do as they wish during TFFI periods is not determinative of the issue.

Not only can they do as they wish but they are free to leave the school to attend to personal matters if they wish. [ 49 ] The ATA argues that teachers are not free to do as they wish because they must obtain permission to leave the school during TFFI periods. The School District argues that teachers are free to do as they wish and do not have to obtain permission to leave the school during TFFI periods but are only required to notify management that they are leaving the school. [ 50 ] Significantly, the School District’s witness, Mr.

Strother, testified that teachers are not generally assigned specific duties during TFFI periods and are free to leave the school during that time to attend to personal matters. He testified that teachers can be assigned specific duties during TFFI periods but if they are, the time spent on those duties is counted as “assigned time”. [ 51 ] Teachers’ practices and understanding as to whether they were free to do as they wished during TFFI periods differed.

The evidence indicates that teachers were confused by the September 2005 memo from their principals stating they could leave the school during “unassigned time”. Mr. Jones testified that he received telephone calls from a number of teachers questioning the meaning of “unassigned time” or blank periods in their timetables and that he advised them that these periods were the same as the previous “prep periods”. [ 52 ] Ms.

Morrison testified that she could leave the school during TFFI or prep periods, as long as she notified the office, but could only leave and had only left to perform duties related to her professional duties. This understanding was based on what she had been told by the Superintendent during her first year of teaching in 1986 and she had followed that practice throughout her career. [ 53 ] Ms.

McIntyre testified that although she does not regard prep time as “free time” and did not leave the school during that time to attend to personal matters prior to the 2005-2006 school year, she sometimes left the school to attend to personal matters after receiving the September 2006 memo. She stated that teachers are encouraged to use prep time, rather than classroom time, to go to medical or dental appointments to avoid the cost of obtaining substitute teachers for classroom time. [ 54 ] Mr.

Way testified that he never left the school for personal matters during prep periods and he was never told that he could do so. [ 55 ] Ms. Morrison, Ms. McIntryre and Mr. Way all testified that they did not know if other teachers left the school during TFFI periods. [ 56 ] Ms. Vogrinetz’s view was that teachers are “assigned duties” when they are required to be present at school and that even if a teacher is given permission to be away from school for personal reasons during TFFI periods, that “permission comes with strings”: Award p. 12. [ 57 ] Mr.

Jones described discussions between the ATA and the School District about Art. 11.1 which took place in April 2005. He testified that this was the first time that the ATA heard of the concept of “unassigned time” on teachers’ timetables. Mr. Jones testified that upon questioning Mr. Foley, the District Superintendent of Human Resources, Mr. Foley advised him that teachers must stay in the school building during TFFI periods in case the principal decided to assign them specific duties: Award p. 27. Mr. Jones testified that he was surprised at the contents of the September 2005 memo sent to teachers, given Mr.

Foley’s earlier assertion that teachers could not leave the school during TFFI periods. After receiving a copy of the September 2005 memo, Mr. Jones wrote a letter to Mr. Krupa, the

District’s Director of Labour Relations, indicating that “unassigned time” was not a term in the Collective Agreement, was counter to Art. 11.2.3, and requesting that principals be directed to cease using the term. Mr. Jones testified that at a meeting on November 30, 2005, Mr. Foley again repeated that teachers were not free to leave the school during “unassigned time” periods in case the principals needed to assign them duties: Award p. 29. Mr. Jones reiterated, on cross-examination, that he understood Mr.

Foley’s position to be that teachers could not leave the school during TFFI periods unless they received permission from the principal. The difference, in his view, was that teachers did not have the discretion to leave the school upon notifying the principal but had to obtain permission. Control was therefore in the hands of the management and not the teachers.

As a result, teachers were not free to do as they wished during unassigned time: Award p. 31. [ 58 ] The District’s evidence was that teachers are expected to notify the office if they plan to be absent during TFFI periods so that management knows where teachers are in case of an emergency, although protocols differ from school to school: Mr. Strother’s direct testimony, Award p. 33. However, it was also the District’s evidence that a principal can assign specific duties to teachers during TFFI periods and direct teachers to stay at the school for the purpose of performing those duties.

It was also the District’s evidence that teachers can be disciplined by the school board for leaving the school when the principal has directed them to stay: Mr. Strother’s cross, Award p. 38. Based on this evidence, TFFI periods are not the same as lunch periods. Principals do not have the unilateral power to require teachers to stay at the school and perform specific duties during lunch periods and teachers are not required to inform anyone that they are leaving the school during the lunch period.

Principals do have this authority and teachers are required to notify management that they are leaving the school during TFFI periods. [ 59 ] It is not clear, based on this evidence, whether teachers were free to do as they wished during TFFI periods. However, there is another difference between TFFI periods and other periods which the Majority characterized as assigned duty time.

The difference is that teachers are not required to perform professional duties during TFFI periods. [ 60 ] The Majority’s conclusions that various duties are assigned duties under Art. 11.1 are not based solely on its finding that teachers are required to be in attendance at the school during those periods. It conclusions are also based on its finding that teachers are required to perform professional duties during those time periods, although those duties need not be specified.

The Majority found that there is no requirement in the Collective Agreement or otherwise that TFFI periods be used for the purpose of performing professional duties.

As a result, it found that TFFI time is not assigned duty time under Art. 11.1. [ 61 ] The ATA submits that teachers are required to perform non-classroom instruction and supervision duties during TFFI periods based on the following three assertions: 1) the parties understood, prior to the introduction of Art. 11.1, that TFFI periods were used for the purpose of performing non-classroom professional duties; 2) the parties understood that teachers’ professional duties were too demanding to be completed during regularly scheduled school days and that teachers had no choice but to use TFFI periods as well as time outside of regular school class time in order to satisfy duties other than classroom instruction and supervision duties; and 3) certain professional duties, other than classroom duties, must be performed during regular school class time and therefore during TFFI periods. [ 62 ] As to the first assertion, there is substantial evidence to support the ATA’s submission that TFFI periods have historically been used and continue to be used to attend to professional duties.

Ms. Morrison, Ms. McIntryre and Mr. Way all testified that they understood that TFFI periods were to be used exclusively for the performance of professional duties and that they had used these periods for that purpose throughout their lengthy careers. This does not prove that this was the understanding or the practice of all or even most of the other teachers in the School District, but I accept that this was the norm. However, the practice does not mean that that is the proper

interpretation of the provisions of the Collective Agreement. [ 63 ] However, there is also evidence that TFFI periods are not solely devoted to performing professional duties. Two of the three teachers who testified stated that they also used TFFI periods to attend to personal matters. Mr. Strother, the School District’s witness, has experience as a teacher, a teachers’ representative to the ATA and the Southeast Area Superintendent for the School District.

The latter position gives him an opportunity to observe teachers in the 24 schools in his area and requires him to be in one or more of those schools on a daily basis. He was also a member of and then the chair of the Instructional Minutes Committee, which was responsible for determining how Art. 11.1 of the Collective Agreement would be satisfied. As such, he can be expected to know the purposes for which “prep periods” or “TFFI” periods are used by teachers.

He testified that teachers use these periods to attend to both professional duties such as planning and class preparation, and personal matters such as taking a coffee break or reading the paper. [ 64 ] Whereas Art. 11.3 of the Collective Agreement states that teachers are expected to be present and instruct during regularly scheduled classroom time, there is no similar provision governing the use of TFFI time.

Article 11.3 states that teachers are to limit doctor or dentist appointments during classroom time, if possible, and that if teachers must be absent, the School District will attempt to hire substitute teachers to take their place. There is no similar provision requiring attendance and performance of professional duties

during TFFI periods and the practice is in fact the opposite. The School District encourages teachers to use TFFI periods for doctor and dentist appointments. Ms. McIntyre testified that this was the practice and suggested that it is encouraged in order to reduce the costs of hiring substitute teachers to instruct when regular classroom teachers are absent. [ 65 ] The School District does not dispute the ATA’s second assertion.

It agrees with, and there is substantial evidence to support, the ATA’s assertion that teachers’ workloads are such that most cannot complete all of their professional duties inside regular school class time and therefore must use both TFFI periods and time outside of regular school class time to satisfy their professional duties. [ 66 ] As to the ATA’s third assertion, it is clear that the nature of certain non-instructional duties makes it necessary for them to be performed at school.

For example, teachers are responsible for preparing IPPs for students identified as having special needs, which requires teachers to examine the student’s cumulative file. Teachers are also required to input data into computerized student record systems. Student files and computerized record systems can only be accessed at school. As such, it is sensible for teachers to perform these duties during TFFI periods. Ms. McIntyre, Ms. Morrison and Mr. Wray all testified that they use their prep periods to work on such tasks. Ms.

Morrison’s evidence was that she uses TFFI periods to work on IPPs because IPPs require input from all affected teachers, specialists, administrators and parents and can only be worked on at school because they require teachers to have access to the student files, which cannot leave the school premises. [ 67 ] However, if teachers choose not to perform these tasks during TFFI periods or choose to perform all non-classroom duties outside of TFFI periods, there is nothing to prevent them from doing so.

Presumably some tasks that must be performed at school can be completed before or after regular school class time, during lunch hours or on the weekends. [ 68 ] The Majority’s decision that teachers are not required to be in attendance and are not required to perform professional duties during TFFI periods is also consistent with its decisions that other time periods are assigned duty time.

Unlike other periods which the Majority found to be assigned duty time, teachers are not required to be in attendance at the school and perform professional duties during TFFI periods, unless directed to do so by their principals. During all periods that the Majority found to be assigned duty times, the teachers have an overriding duty to be at the school to supervise the students. There is no similar requirement for teachers to be at the school during TFFI periods.

They are free to leave the school unless the principal requires them to stay and perform a specific duty. [ 69 ] I agree with the School District’s position that if teachers are assigned specific duties during TFFI periods, the specific duty is an “ assigned duty” and the time spent on the specific duty is converted from unassigned to assigned time. Schools were asked to track when specific duties were assigned during TFFI periods, and thus converted from non-assigned to assigned time, so that the assigned time can be “paid back” to teachers by freeing up equivalent time.

The ATA submits that this does not occur and that as a result the School District may be in breach of Art. 11.1. Mr. Strother did not know if specific assignments during TFFI periods are tracked and the District does not track this information: Mr. Strother’s cross, Award p. 39. As such, teachers may be working more than the 30-hour average weekly maximum for assigned time even if TFFI periods are not designated as assigned time. The lack of evidence on how much time was assigned during TFFI periods, made it impossible to decide the issue on this basis. V. Conclusion [ 70 ] While I recognize that the ATA’s

interpretation is one possible

interpretation of Art 11.1, the Majority’s decision that professional duties performed during TFFI periods are not assigned duties under Art. 11.1 is a reasonable

interpretation, looking both at the process it used to come to its conclusion and the conclusion itself. Its decision-making process was justifiable, transparent and intelligible. Its decision falls within a range of possible, acceptable

interpretations which are defensible in respect of the facts and law. Consequently, applying the proper standard of review as discussed earlier, the ATA’s application must be dismissed.

[ 71 ] If the parties cannot agree on costs, they may speak to them within 30 days. Dated at the City of Calgary, Alberta this 29th day of December, 2010. C.S. Brooker J.C.Q.B.A. Appearances: L. Frank Molnar for the Applicant Damon S. Bailey Richard J. Shaw for the Respondents _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice C.S. Brooker _______________________________________________________ A correction has been made on the first page “In the Matter of” section, the last sentence now reads ... dated December 15, 2009 instead of ... December 15, 2000.