) ) GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Applicant – v. –, 2010 ONSC 6467

CITATION: Greater Essex County District School Board v. Elementary Teachers’ Federation 2010 ONSC 6467 DIVISIONAL COURT FILE NO.: 82/09 DATE: 20101123 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, HERMAN AND HARVISON YOUNG JJ. BETWEEN: ) ) GREATER ESSEX COUNTY DISTRICTSCHOOL BOARD Applicant – and – ELEMENTARY TEACHERS’FEDERATION OF ONTARIO, GREATERESSEX COUNTY LOCAL Respondent )))))))))))) Leonard P. Kavanaugh, Q.C., for the Applicant Howard Goldblatt, for the Respondent ) ) ) HEARD at Toronto: November 23, 2010 SACHS J. Standard of Review [1] In Toronto Catholic District School Board v.

Ontario English Catholic Teachers’ Assn. (Toronto Elementary Unit) (2001) (ON CA), 55 O.R. (3d) 737, the Court of Appeal dealt with an arbitrator’s decision concerning the

interpretation of aregulation under the Education Act and specifically addressed the standard of review applicable to that decision. In doing so, the Courtof Appeal went through the factors that the Supreme Court of Canada subsequently decided should be considered in conducting astandard of review analysis. (See Dunsmuir v. New Brunswick 2008 SCC 9 , [2008], 1 S.C.R. 190). Therefore, there is no needfor us to revisit this analysis. [2] In Toronto Catholic District School Board, the Court of Appeal decided that the applicable standard of review to thearbitrator’s decision was that of patent unreasonableness.

Given the Supreme Court of Canada’s decision in Dunsmuir, we find that thestandard is now reasonableness. [3] The issue in this case concerns the

interpretation of a regulation governing performance appraisals which, as with the issue inToronto Catholic District School Board, is “essentially an employment or labour relations matter” (para. 32). [4] The statute, the Education Act, is the same statute discussed in Toronto Catholic District School Board and, as found by theCourt of Appeal in that case, is one that is “intimately connected with the mandate of the Tribunal and … encountered frequently as aresult.” (para. 28). [5] For these reasons, we are all of the view that the standard of review applicable to this application is reasonableness. Analysis [6] The applicant essentially raises two issues.

(

i) Does s.5(2) of the Regulation preserve the unfettered discretion previously enjoyed by principals and vice-principals to conduct teacher performance appraisals? (ii) If it does not, does s.6(1) of the Regulation give the principal the discretion to conduct a performance appraisal where the teacher is new to the school and/or new to the division? [ 7 ] The Arbitrator gave thorough and extensive reasons for his

interpretation of s.5(2) and concluded that it was intended to address the timing of appraisals, rather than to provide additional discretion to conduct extra appraisals. [ 8 ] In our view, the Arbitrator’s decision clearly meets the reasonableness standard. It is justifiable, transparent and intelligible. The decisions falls “within the range of possible acceptable outcomes which are defensible in respect of the facts and law.” (para. 47 of Dunsmuir ). In particular, the Arbitrator’s

interpretation of s.5(2) is the only one that gives meaning to s.6(1) of the Regulation. [ 9 ] With respect to the Arbitrator’s

interpretation of s.6(1), the applicant submits that this

interpretation is unreasonable because instead of using the word in the regulation, i.e. “circumstances”, the Arbitrator used a word with a narrower meaning, namely “issues”. In our view, this submission inadequately represents the Arbitrator’s reasoning with respect to the sections he was interpreting.

Regardless of whether the word used is “circumstances” or “issues”, the regulation requires that the circumstances must relate to the teacher’s performance. [ 10 ] According to the Arbitrator, the circumstances put forward by the applicant, namely, the fact the teacher was new to the school and new to the division, were not circumstances relating to the teacher’s performance. They were circumstances that might or might not affect performance, but at the point when the decision was made to conduct a performance appraisal, any performance issues were speculative.

The Arbitrator decided that for s.6(1) to apply, the performance issues must be actual and not speculative. Again, the Arbitrator’s decision on this point is justifiable, transparent and intelligible. Furthermore, his conclusion falls within the range of acceptable outcomes based on the facts and the law. [ 11 ] Therefore, we find that his decision was a reasonable one. [ 12 ] We note that the applicant, in support of their submissions, place considerable emphasis on the Teacher Performance Appraisal Manual published by the Ministry that was given to all principals and vice-principals.

We agree that this manual does leave the impression that principals and vice-principals have an unfettered discretion to conduct performance appraisals. [ 13 ] We also note that the respondent appears to have operated under the same impression at some point.

However, we agree with the Arbitrator that his task was to interpret the legislation and regulations at issue and that the Manual could not displace the intention of the legislature as expressed in the legislation and regulations that he was required to interpret. [ 14 ] For these reasons, the application for judicial review is dismissed. [ 15 ] I have endorsed the Record, “This application is dismissed for reasons given orally, on behalf of the Court, by Sachs J. The respondent is entitled to their costs of this application, fixed in the amount of $7,500.00.” SACHS J. HERMAN J.

HARVISON YOUNG Date of Reasons for Judgment: November 23, 2010 Date of Release: December 3, 2010 CITATION : Greater Essex County District School Board v. Elementary Teachers’ Federation 2010 ONSC 6467 DIVISIONAL COURT FILE NO.: 82/09 DATE: 20101123

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, HERMAN AND HARVISON YOUNG JJ. BETWEEN: GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Applicant – and – ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO, GREATER ESSEX COUNTY LOCAL Respondent ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: November 23, 2010 Date of Release: December 3, 2010