Case Name:
Toronto District School Board v. Elementary Teachers'
Federation of Ontario (Brown Grievance)
IN THE MATTER OF an arbitration
Between
Toronto District School Board (the "Board" or the
"Employer"), and
Elementary Teachers' Federation of Ontario (the
"Federation")
Grievances of Courtney Brown (dated December 19,
2005 and January
24, 2006)
[2006] O.L.A.A. No. 485
Ontario
Labour Arbitration
B. Herlich (Sole Arbitrator)
Heard: June 26 and August 2,
2006, by written
submissions.
Award: August 21, 2006.
(25 paras.)
Appearances:
Patricia G. Murray, Steven Talsky and Rose Clarke for the
Employer.
Mark Wright, Bill Getty, John Smith, Doris Duni, Courtney Brown
and Matt Siph for the Union.
Selwyn A. Pieters for J.A., a student.
AWARD
¶ 1 Two grievances have
been referred to me for determination. They each emerge, in essence, from the
same series of events and, in particular, an altercation that took place between
the grievor and a student, to whom we shall refer as "J.A.".
¶ 2 In the first
grievance, dated December 19, 2005, the Federation asserts:
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The teacher [i.e. Courtney Brown also referred to as the
"grievor"] was assaulted by a student [i.e. J.A.]. The Board did not
provide adequate protection for the teacher and did not disclose to the
staff that the student had a violent history. |
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¶ 3 The grievance goes
on to claim violations of numerous provisions of the collective agreement,
including those related to Health and Safety and seeks various remedies.
¶ 4 In the second
grievance, dated January 24, 2006, the union claims that the grievor was
disciplined without just cause.
¶ 5 By letter dated
January 20, 2006, the Board imposed a written disciplinary warning on the
grievor. The grievor is alleged to have made an inappropriate homophobic remark
to a student. In particular, it is alleged that he called J.A. a "batty boy"
(which the Federation agrees is a derogatory Jamaican expression for a
homosexual). The Federation acknowledges that the making of such a comment to a
student would warrant the disciplinary response here imposed. However, the
Federation denies that any such statement was made and therefore asserts that
there was no cause for discipline in this case.
¶ 6 As set out in my
award dated June 8, 2006 in this matter, the Federation seeks an order directing
the Board to produce the Ontario Student Record ("OSR") of J.A. Further to that
decision, the parties and counsel for J.A. have been provided with and have
availed themselves of a full opportunity to make written submissions on the
question of whether I can or ought to order the production sought. I have now
had the opportunity to review and consider those submissions.
¶ 7 The submissions
referred to a number of statutory provisions. The first of the two central
provisions is found in section 266(2) of the Education Act:
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A record is privileged for the information and use of
supervisory officers and the principal and teachers of the school for the
improvement of instruction of the pupil, and such record, |
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| (a) |
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subject to subsections (2.1), (3), (5), (5.1), (5.2) and
(5.3), is not available to any other person; and |
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| (b) |
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except for the purposes of subsections (5), (5.1), (5.2)
and (5.3), is not admissible in evidence for any purpose in any trial,
inquest, inquiry, examination, hearing or other proceeding, except to
prove the establishment, maintenance, retention or transfer of the
record, |
|
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without the written permission of the parent or guardian
of the pupil or, where the pupil is an adult, the written permission of
the pupil. |
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¶ 8 There was no issue
that the "record" referred to is the OSR, that subsections (2.1), (3), (5),
(5.1), (5.2) and (5.3) have no present application, and that the written
permission contemplated by the section has not been provided.
¶ 9 The other
significant statutory provision is to be found in the Labour Relations Act in
the following portions of section 48(12):
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An arbitrator or the chair of an arbitration board, as
the case may be, has power, |
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...
| (b) |
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to require any party to produce documents or things that
may be relevant to the matter and to do so before or during the
hearing; |
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...
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and an arbitrator or an arbitration board, as the case
may be, has power, |
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| (f) |
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to accept the oral or written evidence as the arbitrator
or the arbitration board, as the case may be, in its discretion considers
proper, whether admissible in a court of law or not; |
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¶ 10 None of the cases
filed by counsel for J.A, dealt with the issue before me (although, I do note
that the decision of the Divisional Court in K.B. v. Toronto District School
Board, 2006 CanLII 14411 (ON S.C.D.C.) suggests that with respect to an OSR
which was part of the court's record accessible to the public:
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Once the name and identifying information with respect to
a pupil is removed from the OSR, the anonymous information being disclosed
is consistent with the objectives of the Education Act. |
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¶ 11 As I indicated in
my previous decision in this matter, the parties have already agreed to preserve
the anonymity of all students in these proceedings).
¶ 12 Four prior
arbitration decisions have considered the specific question of an arbitrator's
authority to direct the production of an OSR. The Federation and the Board each
filed the same four arbitration decisions: Windsor Board of Education,
unreported, June 12, 1995 (Samuels); Ontario Public School Authority [2000]
O.L.A.A. No. 857 (Roberts); Hastings and Prince Edwards District School Board
(2000), 62 C.L.A.S. 193 (Knopf); and Re Toronto District School Board and
Ontario Secondary School Teachers' Federation (2005), 144
L.A.C. (4th) 232 (Whitaker).
¶ 13 In each of these
cases, the arbitrator concluded that, notwithstanding the previously cited
provision of the Education Act, an arbitrator exercising the powers conferred by
the Labour Relations Act (and indeed, in the Windsor case, even without those
explicit statutory powers) retains the jurisdiction to direct the production of
an OSR in appropriate circumstances.
¶ 14 Of course, these
cases must be read for what they have decided and nothing more. The issue in
each case, as before me, was whether an arbitrator has the authority to direct
production of an OSR. (I note, in that regard, that although the issue in the
Hastings case initially arose or was framed as one regarding the admissibility
of documents, the arbitrator, having concluded that "nothing in the legislative
scheme dictates that a pupil's record cannot be compelled to be produced by a
tribunal such as a board of arbitration", specifically left open the question of
what aspects of the OSR which were produced would then become admissible in
evidence.)
¶ 15 The wording of the
Education Act privilege is broad - at least with respect to the disparate types
of proceedings explicitly contemplated therein. The section is clear and
specific, however, with respect to what it precludes: a record is not admissible
in evidence. And as I have already indicated, none of the prior cases makes any
determination with respect to an arbitrator's authority to admit an OSR in
evidence in an arbitration proceeding. Neither is it clear to me that the prior
cases can or should be relied upon to support the admissibility of an OSR in an
arbitration proceeding. But I am not called upon to make such a determination.
¶ 16 Whatever the impact
of section 266(2) of the Education Act may be on an arbitrator's authority to
"accept ... evidence as the arbitrator ... considers proper, whether admissible
in a court of law or not" under section 48(12)(f) of the Labour Relations Act,
the section does not explicitly address or curtail an arbitrator's authority to
require a party to produce documents under section 48(12)(b). Thus, I am
satisfied that I retain that authority.
¶ 17 Having determined
that I have the authority to do so, I turn now to whether I ought to exercise
that authority in this case.
¶ 18 Although the manner
and consequences have varied, the arbitration awards cited have also been
uniform with respect to a further aspect of their approach to production. In
light of the statutory privilege set out in the Education Act, arbitrators have
been vigilant in granting the orders sought only to the limited extent necessary
in the circumstances of the case.
¶ 19 The most recent
manifestation of this prudence is found in the previous case involving this
Board, supra. In that case, the arbitrator set out a novel procedure whereby an
ex parte in camera hearing would be held - only the arbitrator and the employer
were to attend to determine what portions of the OSR ought to be produced. While
there might be a certain ascendancy in the prevalence of ex parte (or even
secret) proceedings in other contexts, I am not persuaded that their entry into
the labour relations realm ought to be welcomed or encouraged in anything but
the most extreme sorts of circumstances which appear to attend their use. I am
not persuaded that such an approach is either necessary or warranted in the
instant case. However, neither am I persuaded that a simple and blanket order
that the OSR be produced is appropriate.
¶ 20 The Federation has
advanced two bases for the arguable relevance of the OSR. First, in the context
of the health and safety grievance, it asserts, as part of its case, that J.A.
has been involved in prior violent incidents and that the clear expectation,
given the nature of the OSR and its typical contents, is that such incidents
would be the subject of some notation in the OSR. The Federation notes that this
material may be relevant not so much for the truth of its content, but because
it may serve to establish what information was in the possession of the Board at
the time of J.A.'s transfer to the grievor's school.
¶ 21 The second basis
for the production of the OSR relates to credibility. I note that we have not
been advised whether J.A. will be called to testify in these proceedings.
Certainly, no such undertaking has been provided. In any event, the Federation
asserts that given the central factual dispute in the discipline grievance -
i.e. whether or not the grievor made the impugned comments - there is likely to
be a significant issue of credibility in this case. The OSR should therefore be
produced since its contents may be relevant to that issue.
¶ 22 I am satisfied that
the first ground establishes a basis to conclude that the information sought to
be produced is arguably relevant to the proceedings. I am not persuaded,
however, that the mere fact that there may be an issue of credibility with
respect to a possible student witness gives rise to an automatic right to
production of that student's OSR in advance of the hearing. In the absence of a
firmer or more specific basis in the pleadings (i.e. in the relative evidentiary
vacuum in which we are currently operating, at least in the assertions advanced
by the parties), I am not persuaded that it is appropriate to order production
of the OSR sought on this basis.
¶ 23 Having regard to
the foregoing, I hereby direct the Board to produce J.A.'s OSR only to the
extent that it contains information related to events or behaviours (prior to
J.A.'s arrival at the grievor's school) that potentially pose health and safety
concerns, including risk of injury to other persons in the respondent's schools.
This information is to be edited in a fashion to preserve the anonymity of all
students.
¶ 24 Any material
produced to the Federation under the terms of this award is to be shared only
with counsel, with the federation's litigation advisor and with the grievor. The
material produced is not to be used by any of them for any purposes other than
the instant proceedings.
¶ 25 I am confident the
parties will make every effort to implement my direction herein prior to the
resumption of the hearing in this matter. However, if there are any residual
issues regarding this award and its implementation, they may be dealt with when
the hearing reconvenes on September 19, 2006.
QL Update: 20060825
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