SCHEDULE “B”

A.The Applicant

  1. The Elementary Teachers’ Federation of Ontario (hereinafter “ETFO”) is the statutory bargaining agent under the School Boards Collective Bargaining Act, 2014 (hereinafter “Bill 122”) and, at the time of some of the events in question, under the Education Act, for all public elementary school teachers in all district school boards and school authorities in the Province of Ontario.
  1. In addition, ETFO has the bargaining rights under Bill 122 and, at the time of some of the events in question, under the Labour Relations Act, 1995 for a number of support persons, paraprofessionals and early childhood educators in some district school boards.
  1. In total, ETFO represents approximately 81,000 members, equating to approximately 67,500 full time equivalent members.

B.Background to Bill 115 and the Charter Challenge

  1. In February, 2012 the Government of Ontario convened a meeting of all unions in the education sector and announced its intention to enter into Provincial Discussion Table negotiations with them in order to obtain a number of significant changes to the terms and conditions of collective agreements in that sector, all of which were scheduled to expire on August 31, 2012.
  1. The history of these discussions leading to the introduction and passage of the events is fully outlined in the decision of Justice Thomas Lederer in OPSEU v Ontario, 2016 ONSC 2197(TAB 1).
  1. The Government had made it clear at the start of those discussions and throughout the spring and summer of 2012 that it was seeking to obtain significant savings as a result of these negotiations. One of the areas of savings was in respect of the grid structure and grid movement. The Government wanted agreements in place prior to the expiry of the collective agreements on August 31, 2012 in order to realize the savings for the entirety of the terms of the collective agreements and to not be bound by the continuation of terms and conditions of employment under the statutory “freeze” provisions under the Education Act and the Labour Relations Act.
  1. For its part, and as outlined in Justice Lederer’s decision, ETFO was not prepared to engage in negotiations with the Government under the terms and limitations identified in the meeting in February, 2012. Other education sector unions were prepared to engage in some preliminary and even substantive discussions with the Government
  1. The Ontario English Catholic Teachers’ Association (hereinafter “OECTA”) represents elementary and secondary teachers in the separate school system in Ontario under both the Education Act and Bill 122. On July 5, 2012, OECTA entered into an agreement with the Government of Ontario setting out terms and conditions of employment for teachers represented by OECTA for the period September 1, 2012 to August 31, 2014. That MOU is attached atTAB 2.
  1. There were a number of significant issues addressed in the OECTAMOU. Of most relevance for this application, aside from the fact of the agreement itself, is the delay until the 97th day of the school year commencing September 1, 2012 for movement on the teacher salary grid based on additional years of service (vertical movement) or additional qualifications (horizontal movement).
  1. ETFO was not, of course, a participant in those negotiations and only had knowledge of the terms as reflected in the MOU. Nonetheless, the delay in grid movement was of significant concern to ETFO and its teacher members.
  1. L’Association des enseignantes et des enseignantsfranco-ontariens (hereinafter “AEFO”) represents teachers employed in Ontario’s French-language, Catholic or public, elementary and secondary schools and in other French-language establishments in Ontario. AEFO has represented French-language teachers employed in French school boards in the province under both Bill 122 and previously under the Education Act.
  1. In total, AEFO represents approximately 10,500 members.
  1. On August 9, 2012, AEFO entered into an agreement with Ontario setting out terms and conditions of employment for teachers represented by AEFO for the period September 1, 2012 to August 31, 2014. The agreement was essentially similar to that reached by OECTA with the Government and was identical in respect of those provisions which delayed grid movement until the 97th day of the school year. The MOU between AEFO and the Government is attached at TAB 3.
  1. While other education sector unions engaged in some discussions with the Government over the summer of 2012, none of them reached MOUs with the Government. For its part, ETFO continued to refuse to participate in any of these negotiations, particularly under the conditions and limitations stipulated by the Government.
  1. On September 11, 2012, the Government of Ontario introduced (and subsequently enacted) the Putting Students First Act , generally referred to as Bill 115, which set out the terms under which collective agreements in the education sector were to be negotiated or, if negotiations failed, imposed on unions and non-unionized employees in the sector for the period September 1, 2012 to August 31, 2014.
  1. The terms of Bill 115 made specific reference to the OECTAMOU of July 5, 2012 and required that, inter alia, collective agreements negotiated prior to August 31, 2012 be “substantially similar” to that MOU or “substantively identical” to that MOU if concluded subsequent to August 31, 2012.
  1. ETFO was one of a number of education unions which commenced proceedings against the Government of Ontario claiming that the provisions of Bill 115 violated section 2(d) of the Charter of Rights and Freedoms, amongst others. All of these cases were consolidated and scheduled to proceed and be heard together.
  1. On January 2, 2013, the Government imposed collective agreements on all ETFO bargaining units by Order In Council and on all other unresolved local agreements in the sector in respect of the other education unions. The Order in Council and the applicable chart for ETFO bargaining units is attached at TAB 4.
  1. The Government repealed Bill 115 immediately after imposing the collective agreements referenced above.
  1. When Kathleen Wynne became the Premier of Ontario, she signalled a desire to see if some of the “difficulties” between the Government and the unions in the sector resulting from Bill 115 could be resolved or mitigated. Accordingly, ETFO engaged in further discussions andnegotiations with the Government and representatives of the Public District School Boards resulting in a Memorandum of Agreement which modified the collective agreements imposed under Bill 115 for the period September 1, 2012 to August 31, 2014. Attached at TAB 5 is a copy of that Memorandum.
  1. Significantly, for the purposes of these proceedings, the Memorandum did not modify the provisions of the imposed collective agreements on the issue of grid movement.

C.Negotiations Under Bill 122 for 2014-2017

  1. On April 8, 2014, the Government passed the School Boards Collective Negotiations Act (hereinafter “Bill 122”) which established a new process for negotiating collective agreements in the education sector. At its most basic, Bill 122 established that negotiations would take place both centrally and locally across the sector even though collective agreements would be on a board by board basis as was previously the case. Designated employee and employer bargaining agencies would negotiate the “central terms” for collective agreements which would be concluded and implemented and administered in each district school board and school authority. The terms of these collective agreements would include both the “central” items and the “local” items.
  1. The parties were required to agree or have determined at the Ontario Labour Relations Board what items were to be included in “central bargaining”. Again, this issue is not relevant for these proceedings since the matter of grid movement was agreed to be negotiated at the central bargaining table.
  1. The Government had participated in negotiations through a combination of informal mechanisms beginning with the 2004-2008 collective agreement with ETFO that was concluded in what became referred to as a “Framework Agreement”. In 2008-20012, the process became somewhat more formalized with the establishment of Provincial Discussion Tables (PDTs) that ultimately resulted in the negotiation of the central terms of collective agreements.
  1. Bill 122 formalized the role of the Government in bargaining in the education sector. For the first time, the Ontario Government was identified as a formal and necessary party to central bargaining and as a voluntary party to local bargaining. The Government was and remains bound by various provisions of the Labour Relations Act,including the duty to bargain in good faith and other provisions necessary to the exercise of rights under the Acts.
  2. ETFO was designated as the employee bargaining agency for all of its members, teachers and non-teachers in the Province. The employer bargaining agency for teachers is the Ontario Public School Boards Association (OPSBA). The employer bargaining agency for support workers, paraprofessionals and early childhood educators under Bill 122 is the Council of Trustees’ Associations.
  1. Entering into the Bill 122 negotiations for collective agreements commencing September 1, 2014, ETFO, OECTA, OSSTF, and AEFO all had the same issue with respect to whether the delay in grid movement, agreed to by OECTA and AEFO and imposed on OSSTF and ETFO would continue under the “statutory freeze” provisions of the Labour Relations Act until new collective agreements were concluded. In addition, all the education sector unions had the common objective to remove the delay in grid movement effective at the start of the 2014-2015 school year.
  1. ETFO had also filed a number of grievances claiming that there should be no delay in grid movement effective September 1, 2014, that any restriction on such movement was limited only to the period September 1, 2012 to August 31, 2014. However, ETFO and the local school boards had agreed to hold these grievances in abeyance pending the conclusion of the hearing of theCharter challenge to Bill 115 referenced above.
  1. ETFO was also aware that a grievance filed by AEFO on the issue of the grid movement delay in 2014-15 had been dismissed by Arbitrator Carolyn Rowan in May, 2015. Arbitrator Rowan concluded that:

“It is clear, based on the very terms of the MOU and the history of negotiations, that a return to the previous salary grid upon the expiry of the collective agreement is not what was envisaged.”

Arbitrator Rowan’s Award is found at TAB 6.

  1. In the Bill 122 negotiations, on August 25, 2015, OECTAand its employer bargaining agency, the Ontario Catholic School Trustees’ Association (hereinafter “OCSTA”), reached an agreement on central terms and conditions.The Memorandum of Settlement provided in paragraph 14 that:
  • September 1, 2015
  • Restoration of grid movement
  • Provisions in collective agreements between OECTA and English-language separate school boards which delay movement through and across salary grids in accordance with experience and qualifications until the 97th day of the school year shall be deemed to be null and void and thereafter shall not form part of those collective agreements. (Emphasis Added).
  1. It would appear that the plain language of the Memorandum of Settlement contemplated that the parties had agreed to a date for the restoration of grid movement and that the delay in grid movement would be null and void after September 1, 2015.
  1. The Memorandum also made reference to the continuation of certain “local grievances” as follows:

16. Any grievance submitted prior to the ratification of the memorandum of local terms, whether or not it raises an issue within the scope of matters to be included within central bargaining shall continue to be processed in accordance with the 2012-14 collective agreement.

  1. Significantly, this provision did not identify the nature of any of those local grievances, did not suggest that the local grievances addressed the issue of grid movement and appeared only to be a procedural provision enabling the continuation of local grievances notwithstanding that the terms of the issues identified in the local grievance might now be part of the “central terms” and therefore covered by a different grievance process.
  1. There was nothing in this provision which would suggest that it would modify or otherwise allow for arbitration decisions which would run counter to the express agreement of the parties i.e., the agreement for the date of the restoration of the grid movement.
  1. As noted below, similar language was included in the AEFO agreement under Bill 122.
  1. The Memorandum of Settlement with OECTA and OCSTA (excluding the Appendices) is found at TAB7.
  1. The Ontario Secondary School Teachers’ Federation (“OSSTF”) which represents secondary teachers in the public school boards under Bill 122 and previously under the Education Act was the designated employee bargaining agent for those teachers under Bill 122. OSSTF had also filed a number of grievances in respect of grid movement for the 2014-15 school year.
  1. OSSTF reached an agreement with the Government and OPSBA on the central terms of the collective agreements for 2014-17 on August 20, 2015, before OECTA. As part of that settlement, the parties did not reference their outstanding grievances at all but simply agreed that:
  • September 1, 2015
  • Restoration of Grid Movement
  1. The OSSTF Memorandum is attached at TAB 8, without Appendices.
  1. ETFO is advised that, having reached an agreement as to when the delay in grid movement would be removed, i.e., September 1, 2015, OSSTF withdrew all of their outstanding grievances on the issue.
  1. AEFO similarly reached an agreement with the Government and the Conseil des associations d’employeurs (CAE) on the central terms of the collective agreement for 2014-17 on September 16, 2015. This settlement (attached, without appendices, at TAB 9) did, however, make explicit reference to AEFO’s outstanding grievances:

17. Any grievance filed prior to the ratification of the local memorandum of settlement, whether it raises a question at the central level or not, shall continue to be handled in accordance with the 2012-2014 collective agreement.

  1. The AEFO Memorandum also set out the parties’ agreement with respect to grid movement as follows:
  • September 1, 2015
  • Restoration of grid movement for qualifications and experience
  • The provisions of the collective agreements between the AEFO and the French-language Catholic and public schools which defer salary grid movement based on qualifications and experience until the 97th day of the school year shall be deemed void, expired and not to form part of these collective agreements.
  1. Given that AEFO had already lost its grievance related to grid movement before Arbitrator Rowan, it could not have been contemplated that the reference to the continuation of local grievances would cover grievances related to grid movement, particularly in light of the specific agreement on that issue in all teacher collective agreements.

D.ETFO Negotiations on Grid Movement

  1. ETFO had been kept apprised of the progress of the negotiations with OSSTF, AEFO and OECTA and knew that the other unions had agreed to the restoration of the grid as of September 1, 2015. As noted, ETFO was also aware of the Rowan arbitration decision but was not specifically aware of the grievances filed by OSSTF or OECTA on this issue.
  1. The Government and OPSBA, from the outset of negotiations, had specifically emphasized to the ETFO negotiators, that the financial structure and the financial provisions to be paid to all of the teacher affiliates would be substantially identical. At no time was it suggested that the other unions and, more specifically OECTA, could proceed with any grievances related to grid advancement having agreed that the grid movement as at the beginning of the school year would be effective September 1, 2015.
  1. Indeed, the only issue raised during bargaining was whether ETFO would withdraw all outstanding grievances related to the delay of grid movement if an agreement was reached, as it had been with OSSTF and OECTA, that the delay in grid movement would be removed September 1, 2015.It is also worth remembering that, by the time that ETFO had concluded the Memorandum, the 2014-15 school year had passed. No mention was made to the status of other union’s grievances related to grid advancement. For example, during the September 3, 2015 round of bargaining, the Crown proposed:

12. The ETFO agrees to withdraw all outstanding grievances related to the allocation of sick leave, and to the delay of grid movement to the 97th day, as set out in the Memorandum of Understanding dated June 12, 2013.

  1. ETFO did not respond to this proposal, which the Crown continued to put forward on September 9 and 11, as well as on October 6, 2015.
  1. On October 9, 2015, the Crown proposed the following change of language:

15. Effective September 1, 2015, provisions or deemed provisions if any in collective agreements between ETFO and District School Boards which delay movement through and across salary grids in accordance with experience and qualification until the 97th day of the school year or thereafter as applicable shall be deemed null and void and shall not form part of these collective agreements. ETFO grievances with respect to the 97th day delay are hereby settled.

  1. Again, ETFO did not respond to this language.
  1. Thus, no mention was made during the several days of negotiation that any other union could proceed with grievances related to grid advancement. A copy of the bargaining proposals related to outstanding grievances concerning grid movement is attached at TAB10.
  1. As is reflected above, there was very little exchange between the parties on the issue of grid movement, given the agreement reached by all of the other affiliates to restore the grids effective September 1, 2015 and the Government’s emphasis on no additional funding for any affiliate. As has been emphasized, ETFO did not understand, was not informed, and had no reason to believe that any other affiliate could continue with grievances related to grid movement for the 2014-2015 school year or that there was any possibility that those affiliates could receive any money in respect of a remedy for the delay of grid movement for any period prior to September 1, 2015.
  1. Put differently, ETFO agreed in good faith that it would settle the grievances on their understanding that this was the basis for the restoration of grid movement agreement to all of the other parties. More specifically, ETFO would not have agreed to settle any of the grievances related to grid movement had it known that any of the other affiliates would proceed with any of their grievances on the issue.
  1. The ETFO Memorandum dated November 2, 2015 is attached at TAB 11. The issue of grid movement is addressed in paragraph 14 which contains the same language as agreed upon with OSSTF i.e.,:
  • September 1, 2015
  • Restoration of grid movement retroactive to that date.
  1. The settlement also contains the same language as OECTA in paragraph 15 exceptwith reference to grievances being settled:

15. Effective September 1, 2015, provisions or deemed provisions if any in collective agreements between ETFO and District School Boards which delay movement through and across salary grids in accordance with experience and qualifications until the 97th day of the school year or thereafter as applicable shall be deemed null and void and shall not form part of these collective agreements. ETFO grievances with respect to the 97th day delay are hereby settled.