) ) GRAND ERIE DISTRICT SCHOOL BOARD Applicant – v. –, 2013 ONSC 723

CITATION : Grand Erie District School Board v. Ontario Secondary School Teachers’ Federation, 2013 ONSC 723 DIVISIONAL COURT FILE NO.: 356/12 DATE: 20130130 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KENT, SWINTON AND HARVISON YOUNG JJ. BETWEEN: ) ) GRAND ERIE DISTRICT SCHOOL BOARD Applicant – and – ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, DISTRICT 23 Respondent )) )) )) )) )))) Christopher G. Riggs, Q.C. and Carolyn Cornford Greaves, for the Applicant Vaino Poysa , for the Respondent ) ) ) HEARD at Toronto: January 30, 2013 HARVISON YOUNG J. (orally) [ 1 ] The applicant seeks judicial review of an Arbitration Award interpreting

Article 12.06 of the Collective Agreement, which reads: No teacher shall be assigned more than 3.0 courses per semester unless there is an agreement by the teacher, the Bargaining Unit and the Board. [ 2 ] The standard of review of an arbitrator’s

interpretation and application of a Collective Agreement is reasonableness. [ 3 ] The core of the applicant’s submission is that the teacher has an obligation to exercise his or her discretion reasonably when refusing to agree to teach more than three courses.

The applicant argues that the arbitrator’s decision is unreasonable, both with respect to the outcome and the process of reaching his decision. [ 4 ] The applicant submits that unless the contract precludes a duty of reasonableness, such a duty should be presumed or implied any time a party exercises a discretion, in this case to refuse to agree to teach more than three courses. [ 5 ] In essence, the arbitrator did find that the parties had negotiated

Article 12.06 so as to give the teachers a right to refuse to teach more than three courses. The arbitrator carefully considered the provisions of the Collective Agreement, beginning with the fundamental principle of Collective Agreement

interpretation, that is, that the language of Collective Agreement must be given its plain and ordinary meaning and must be read in the context of the entire Collective Agreement. [ 6 ] In particular, the Arbitrator considered

Article 12.06 in the context of the other provisions negotiated by the parties in

Article 12, concluding that they had negotiated a range of requirements and constraints on the School Board’s assignment of work to teachers. [ 7 ] In particular, the arbitrator concluded that the plain and ordinary meaning of

Article 12.06 granted the teachers the right to withhold consent and was not subject to an implied duty to act reasonably and that to conclude otherwise would contradict other provisions of the Collective Agreement and would thus violate

Article 15.07.

[ 8 ] In our view, the arbitrator’s reasons provide a clear explanation of his

interpretation of the relevant provisions of the Collective Agreement, clearly discussing and distinguishing the cases put forward by the applicant, including the earlier decision of Arbitrator Devlin. His

interpretation was well within the range of possible and acceptable outcomes and his reasons adequately justify and explain this outcome. [ 9 ] Similarly, and in the alternative, we find no basis for interfering with the arbitrator’s conclusion that in the circumstances, if there were an implied duty to act reasonably, the teachers met that duty. In particular, the arbitrator concluded that there was insufficient evidence that the principal considered other options, and he accepted that the teachers had legitimate pedagogical concerns and reasons for refusing to agree.

This was a reasonable conclusion given the evidence before him. [ 10 ] Accordingly, the application for judicial review is dismissed. COSTS KENT J. [ 11 ] Costs are awarded to the Respondent, fixed in the amount of $5,000. HARVISON YOUNG J. KENT J. SWINTON J. Date of Reasons for Judgment: January 30, 2013 Date of Release: February 1, 2013 CITATION : Grand Erie District School Board v. Ontario Secondary School Teachers’ Federation, 2013 ONSC 723 DIVISIONAL COURT FILE NO.: 356/12 DATE: 20130130 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KENT, SWINTON AND HARVISON YOUNG JJ. BETWEEN:

GRAND ERIE DISTRICT SCHOOL BOARD Applicant – and – ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, DISTRICT 23 Respondent ORAL REASONS FOR JUDGMENT HARVISON YOUNG J. Date of Reasons for Judgment: January 30, 2013 Date of Release: February 1, 2013