Edmonton School District No. 7 v. Alberta Teachers' Association, 2012 ABQB 386

Court of Queen ’ s Bench of Alberta Citation: Edmonton School District No. 7 v. Alberta Teachers' Association, 2012 ABQB 386 Date: 20120614 Docket: 1203 00679 Registry: Edmonton Between: Edmonton School District No. 7 Applicant - and - Alberta Teachers' Association Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A. Browne _______________________________________________________ Introduction [ 1 ] Edmonton School District No. 7 (ESD7) applies for judicial review of an Arbitration Board (Board) decision.

The Board was required to interpret or determine whether the standard form temporary teacher’s contract complies with s. 101 of the School Act . The Board held that the contract which allowed termination on a specific event rather than a date was contrary to the School Act . ESD7 argues that the Board

interpretation was incorrect and should be set aside. The Alberta Teachers’ Association defends the Board’s decision. [ 2 ] ESD7 uses a standard form contract for temporarily hiring teachers that sets out that the contract will terminate on June 30 or

[ 2 ] ESD7 uses a standard form contract for temporarily hiring teachers that sets out that the contract will terminate on June 30 or on “the availability of a teacher holding a continuing or probationary contract who requires placement, whichever occurs first.”

Section 101 of the School Act , RSA 2000, c. S-3, provides that a temporary contract will be terminated either on the June 30 following the commencement date or on a date provided for in the contract; it also provides that the contract can be terminated on 30 days notice by either party. The Board interpreted s. 101 of the Act as providing that a teacher hired under a temporary contract can only be terminated on June 30, upon 30 days notice, or upon a specific date included in the contract, and that the standard form contract used by ESD7 is contrary to the Act because it does not refer to a specific date, but rather the occurrence of an event. [ 3 ] ESD7 argues that the Board

interpretation was incorrect and should be set aside. The Alberta Teachers' Association (ATA) defends the Board’s decision. School Act Provision and Contract Provisions Under Review [ 4 ] The School Act addresses temporary teacher contracts as follows: 101(1) A teacher may be employed by a board under a temporary contract of employment when that teacher is employed for the purpose of replacing a teacher who is absent from the teacher's duties for a period of 20 or more consecutive teaching days. 101(2) A temporary contract of employment entered into under subsection (1) shall (

a) specify the date on which the teacher commences employment with the board, and (

b) terminate (

i) on the June 30 next following the commencement date specified in the contract, or (ii) on a date provided for in the contract, whichever is earlier. 101(3) Notwithstanding anything contained in a temporary contract of employment, a party to a temporary contract of employment may terminate that contract by giving 30 days' written notice of the termination to the other party to the contract. 101(4)

Section 132 does not apply to the termination of a temporary contract of employment under this section. School Act , R.S.A. 2000, c. S-3, s. 101(2) [ 5 ] The contract provision drafted by ESD7 required to be signed by temporary teachers reads as follows: FROM: <contract begin date> To June 30 <>, or the availability of a teacher holding a continuing or probationary contract who requires placement, whichever occurs first. (Emphasis added)

Standard of Review - Positions of the Parties [ 6 ] The Applicant argues the standard of review of the Board decision is correctness on the following grounds: ∙ This application involves an

interpretation of law not an application of law to the facts or to the actual findings of fact and therefore correctness should apply. ∙ The proper

interpretation of words within a statute or contract is a question of law. ∙ The home statute of the Board is the Labour Relations Code, RSA 2000, c. L- 1 to which deference would apply. There is little or no deference required when the Board is asked to interpret the School Act . The School Act is

an act of general application to schools and various aspects of schools, and therefore less deference is owed. [ 7 ] The Respondent argues that the standard of review is reasonableness: ∙ Although this is not the home statute of the Board it is a closely aligned statute as it relates to the employment standards of teachers.

Therefore significant deference is owed. ∙ The Collective Agreement between the parties is closely connected to these provisions of the School Act and regularly both the Collective Agreement and the School Act intertwine with the Labour Relations Code . ​ The Supreme Court of Canada has limited the applicability of correctness as the standard of review in a series of 2011 cases. Discussion [ 8 ] As always, we begin with the chestnut of Dunsmuir ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190) in setting out fundamental principles of standard of review.

In 2011 the Supreme Court of Canada repeated and refined the Dunsmuir principles moving towards a reasonableness test in all but exceptional cases. A good

summary of the law’s development is taken from the ATA v. Edmonton School District No. 7, 2011 SCC 61 , [2011] 3 SCR 654 (at paras. 30 , 34, 39, and 46): The narrow question in this case is: Did the inquiry automatically terminate as a result of the Commissioner extending the 90-day period only after the expiry of that period? This question involves the

interpretation of s. 50(5) PIPA , a provision of the Commissioner's home statute. There is authority that "[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity" ( Dunsmuir , at para. 54 ; Alliance Pipeline Ltd. v. Smith , 2011 SCC 7 , [2011] 1 S.C.R. 160 (S.C.C.), at para. 28 , per Fish J.). This principle applies unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., "constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... questions regarding the jurisdictional lines between two or more competing specialized tribunals [and] true questions of jurisdiction or vires " ( Canada (Attorney General) v. Mowat , 2011 SCC 53 (S.C.C.) , at para. 18 , per LeBel and Cromwell JJ., citing Dunsmuir , at paras. 58, 60-61 ). ...

Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have

not seen such a situation since Dunsmuir , the

interpretation by the tribunal of "its own statute or statutes closely connected to its function, with which it will have particular familiarity" should be presumed to be a question of statutory

interpretation subject to deference on judicial review. ... What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's

interpretation of its home statute on the deferential standard of reasonableness. ...

At paragraph 22 of Canada (Canadian Human Rights Commission) , LeBel and Cromwell JJ. state: On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a basic consistency in the fundamental legal order of our country. [Emphasis added.] In other words, since Dunsmuir , for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator's specialized area of expertise. [ 9 ] The ATA acknowledges that the School Act is not the Board’s home statute, but it notes that particular provisions of the School Act parallel the Labour Relations Code and the Collective Agreement by prescribing minimum employment standards for teachers working in various capacities.

If the Board is to deal with the employment of teachers, then it must deal with the School Act , the Collective Agreement, and the Labour Relations Code to properly interpret and apply the minimum requirements for teachers’ employment. [ 10 ] Although the application involves interpreting the School Act and a teacher’s contract, it does not deal with a constitutional question nor does it deal with a question of law that is of central importance to the legal system as a whole, outside the adjudicator’s expertise. This is a discrete issue of

interpretation relevant to teachers’ employment and should be interpreted in the context of the Collective Agreement, the Labour Relations Code , and the School Act . There is therefore no true question of jurisdiction or question of central importance to the legal system. A proper

interpretation of the contract and the School Act necessarily involves a thorough understanding of the inter-relationship of the employment issues of teachers. [ 11 ] The Supreme Court of Canada has clearly moved towards reasonableness as the default standard of review, except in exceptional circumstances. The Board has particular knowledge and expertise in interpreting teachers' employment contracts. Therefore, deference is appropriate. Although the Board is being asked to interpret certain provisions of the School Act , those

interpretations do not take the matter out of the area of the Board’s expertise, and as such a reasonableness standard applies. [ 12 ] Having found that a reasonableness test must be applied to the decision of the Board, we move to a consideration of the meaning of reasonableness and whether the decision was in fact reasonable. [ 13 ] In ATA (at para. 52 ) the Court noted: In Dunsmuir , the majority explained what was required by the decision making body to meet the test of reasonableness (at paras. 47-48): In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the

decisionmaking 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. ... We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.

The Board ’s Decision [ 14 ] As indicated previously, the Board was asked to interpret the standard termination clause in ESD7's contracts for temporary teachers. It noted that if the Legislature intended “a date” in s. 101(2) (

b) to mean something other than a "specific day, month and year" it would have used much clearer language, suggesting for example: A temporary contract of employment ... shall (...) terminate (...) on the occurrence of an event or the fulfillment of a condition provided for in the contract (...) [ 15 ] The Board concluded that the Legislature did not intend to include the occurrence of an event or condition as a possible trigger for termination, but instead repeated the word "date". This led to the Board to the inevitable conclusion that s. 101(2) (

b) was intended to give school boards the ability to end a temporary contract by stating a specific calendar date in the contract. The Board found that this

interpretation was consistent with the scheme of the School Act to establish a continuum of employment status marked by escalating levels of commitment by the parties to each other, up to the modified tenure system created by the continuing contract. The Board held that the

interpretation urged by ESD7 was inconsistent with the legislative scheme that required teachers to give 30 days notice but allowed the employer to terminate the contract without notice so long as the event or condition stated in the contract occurs. It concluded: Accordingly, the grammatical and ordinary sense of the words "on a date provided for in the contract" in s. 101(2) (

b) corresponds with the overall scheme and purpose of the School Act to require that temporary contracts state a date certain as their termination date. Otherwise the contract terminates automatically on June 30 or on the giving of 30 days notice to the teacher. [ 16 ] While acknowledging the possible operational difficulties of this

interpretation, the Board held that these difficulties could not overcome the clear language of the Act. It held: For these reasons, we allow the grievance and declare that the term in the District's template temporary teacher contract at Exhibit #5, allowing termination without notice upon the "availability of a teacher holding a continuing or probationary contract who requires placement", is contrary to the School Act and ineffective.

We direct the Employer to bring its temporary contracts into compliance with the Act , and reserve jurisdiction over implementation of this directive for a period of one year from release of this Award. Positions of the Parties [ 17 ] ESD7 argues that the School Act contemplates that termination may be upon a particular event occurring, such as the availability of a tenured teacher or a probationary teacher, without the need to provide notice. ESD7 argues that, although the word “date” is used throughout

section 101, it can mean “day, month, year” in the context of s. 101(2) (a), but it can also mean on the happening of an event in the context of s. 101(2) (b). ESD7 distinguishes these provisions based on whether the word “date” follows “the” or “a”, and it argues that there are many problems with the School Act provision if interpreted as proposed by the ATA. The 30-day notice provision required to be given if no specific date is set causes financial and logistical problems because if an employee returns to work, then the temporary employee must be given 30 days notice if the employee being replaced with the temporary teacher comes back early or on a date not specified in the contract.

[ 18 ] The ATA argues that if the

interpretation proposed by ESD7 is accepted, then pursuant to the temporary teachers’ contract, ESD7 is not required to give any notice yet the teacher is bound until June 30 or upon giving 30 days notice. The Respondent further argues that although that

interpretation is awkward for ESD7, it is nonetheless clear. Decision [ 19 ] The test of reasonableness requires justification, transparency and intelligibility within the decision making process.

Further, the decision must fall within a range of possible acceptable outcomes defensible on the facts and in the law. [ 20 ] Under the School Act , there are five types of contracts under which a teacher may be hired by a school authority in Alberta: ∙ a continuing permanent contract which provides employment from year to year; ∙ a probationary contract; ∙ a time limited contract; ∙ a temporary contract which is intended to fill absences of tenured teachers; and ∙ a substitute teacher on a daily basis with no contract except from day to day (but for less than 20 days), no benefits. [ 21 ] For the purposes of this application, it is important to set out the differences between the benefits of a substitute teacher and a temporary contract teacher.

A substitute teacher works on an on-call basis from day to day. A substitute teacher does not receive any benefits. A temporary contract teacher is one step above a substitute teacher. There is an increase in the pay grid, some benefits are payable, and the contract lasts more than 20 days. The notice provision for the temporary teacher is the subject of this application.

The ESD7 suggests that the teacher be required to provide 30 days notice, but that the ESD7 be permitted to terminate upon the occurrence of an event - the availability of a teacher holding a continuing or probationary contract who requires placement, whichever occurs first thereby supplanting the requirement for 30 days notice. [ 22 ] ESD7 invites grammatical gymnastics to infer into s. 101 of the School Act some meaning to the word “date” that implies the occurrence of an event in the future, rather than a date specific (day, month, year). [ 23 ] During the course of argument, discussion took place about whether a temporary teacher’s contract could be conditional upon the return of the teacher being replaced.

That was an interesting discussion and ESD7 seemed to suggest that a specific event like that was possible. The ATA was not asked to address the issue and no judicial comment would therefore be appropriate, but perhaps that is an area for discussion between the parties. The contract presently used is not related to the absence of a particular teacher or the happening of an event related to the initial temporary contract, but gives ESD7 broad latitude to terminate a teacher at their discretion. [ 24 ] The Board recognized that the

interpretation of the School Act was awkward for ESD7 because they often do not know when and for how long they will require a temporary teacher. On the other hand, the Board noted that the ESD7

interpretation of the contract would mean that the temporary teacher would have no security of tenure, even though those teachers would be committed to continuing availability to ESD7 until a date certain or upon the teacher giving 30 days notice. The teacher would have none of the freedom of a substitute teacher and yet could be terminated by ESD7 without notice. [ 25 ] Reference is made to the

preamble of the School Act , “Whereas the best educational interests of the student are the paramount considerations in the exercise of any authority under this Act ...”. The best educational interests of a student whose teacher is on some kind of leave, would be that they have one temporary teacher in place that would cover the absence of their regular tenured teacher. The replacement of substitute teachers time and again is certainly not in the interests of students. [ 26 ] The Board clearly considered both of the above noted

interpretations. It noted that there were financial and logistical complications involved in adopting what appeared to be the common sense and plain and grammatical sense of the language used in the

statute. However, in analysing the appropriate

interpretation, the Board took into account the legislative scheme as a whole and the

section in particular, noting that ESD7's

interpretation would impose an unfair burden on the teacher to give notice, yet give the school board a virtually unfettered ability to terminate without notice. Conclusion [ 27 ] I conclude that the Board’s

interpretation was reasonable; it was within the range of possible and acceptable outcomes, and was intelligible and transparent. The application for judicial review is dismissed. Heard on the 25 th day of April, 2012. Dated at the City of Edmonton, Alberta this 14 th day of June, 2012. B.A. Browne J.C.Q.B.A. Appearances: Teresa Haykowsky McLennan Ross LLP for the Applicant Katrina M. Haymond / Michael P. Wall Field LLP for the Respondent