Number 7 – May, 2006
| Number 7 – May, 2006 |
Government Education Bill Softens Approach to New Teachers and Increases Government’s Regulation-Making PowerIn early May, the Ontario Government’s Standing Committee on Social Policy held public hearings into Bill 78, the Education Statute Law Amendment Act (Student Performance), 2006. In general, the Bill relaxes the approach to the induction and appraisal of new teachers that had been taken by the previous Conservative government. However, once the Bill is passed, a number of matters previously set out by statute will be left to be prescribed by government regulation. Bill 78 will do the following:
New Teacher Induction Program Bill 78 will repeal the qualifying test requirement for new teachers introduced into the Education Act by the former Conservative government and replace it with a program for the induction of “new teachers”. “New teachers” are generally considered to be teachers who are in their first 24 months in the profession and who have not yet successfully completed the new teacher induction program by obtaining two satisfactory performance appraisals. School boards are to establish new teacher induction programs which include an orientation for new teachers, mentoring, professional development and training; and any other elements that the government prescribes by regulation. New teachers must undergo the new teacher induction program for the first 12 months during which he or she teaches for a board, and for a second 12 month period if the teacher does not successfully complete the program in the first 12 month period. As soon as possible after a new teacher begins to teach at a school, the principal assigned to that school is to determine which elements of the new teacher induction program are appropriate for the teacher and the principal is to inform the teacher of this determination. For teachers who were previously assigned to a different school, the principal is to take into account any elements of the program that the teacher participated in at the previous school and the results of the teacher’s performance appraisals at the previous school. The principal’s determination is subject to revision at any time in light of circumstances relating to the teacher’s development and the teacher must be informed of any revisions. The government may also require by regulation that new teachers or particular classes of new teachers complete certain elements of the new teacher induction program. Every new teacher will be subject to the elements of the program that the principal has determined are appropriate and any elements prescribed by regulation for the teacher or class of teachers to which s/he belongs. A new teacher must receive two satisfactory ratings (not necessarily consecutive) in performance appraisals by the time the teacher’s 24 month new teaching period ends, subject to any extension provided by government regulation.
Bill 78 sets out a new performance appraisal scheme for New Teachers which relaxes some parts of the scheme mandated by the current Education Act as follows:
Class Size and Teaching Time The Bill proposes to replace the Education Act provisions setting out maximum class sizes and minimum teaching time with provisions authorizing the government to make regulations regarding these two issues. Professional Activity Days Bill 78 will repeal the maximum of four professional activity days provided in the Education Act and leave the number of PA days to be addressed by the Minister of Education by regulation. According to the Minister of Education’s backgrounder to Bill 78, the government intends to add two additional PA days by regulation, bringing the total to 6 days per year and the government will have the authority to determine the purpose of the PA days by regulation. Changes to College of Teachers Upon its coming into force, Bill 78 will make a number of amendments to the Ontario College of Teachers Act, 1996 to change the number, duties and term of office of members of the Council, to provide Council with the power to make regulations in regards to certain matters such as conflicts of interest, and to provide for the establishment of a Public Interest Committee. Now that public hearings on the Bill have ended, the Committee will report
to the legislature on proposed amendments to Bill 78. Following this,
the Bill will undergo Third and final reading before being passed. Addressing the Labour Relations Consequences of Health Care IntegrationBy Elizabeth McIntyre and Jo-Anne Pickel In the past few months, much public and media attention has been paid to the provincial government’s current round of health care restructuring leading up to the proclamation of the Local Health System Integration Act (Bill 36) on March 30, 2006. Much less attention has been paid to the substantial labour relations consequences that will flow from this restructuring and how the Act addresses this impact. Bill 36 sets out the framework for the government’s restructuring of the delivery of health services including the powers to be exercised by the Local Health Integration Networks (LHINs). The LHINs have been given the mandate to transfer or merge services, to coordinate interactions and create partnerships between health service providers. The Minister of Health is also granted extensive powers to order health service providers to amalgamate, transfer their operations to other entities, or even to crease operating or wind up their services altogether. The extensive integration of health services contemplated by Bill 36 has the potential to be very disruptive to labour relations in the health sector in Ontario. In many cases, workers will move from one employer to another as health services are integrated either by the LHINs, the government, or through voluntary agreements between health service providers. As health services and the workers who perform those services are moved from one service provider to another, questions will arise as to the status of bargaining rights and collective agreement terms and conditions. A key concern for all parties involved in these integrations will be the determination of terms and conditions of employment for workers being transferred including seniority, wages, pension and benefit entitlements. The 1990s round of health care restructuring which principally involved hospitals triggered difficult labour relations issues. However, the current round will raise issues of even greater complexity as services will be transferred between different types of health service providers with very dissimilar terms and conditions of employment and very different employment benefit levels. Furthermore, while most hospitals were bound by similar collective agreements with recognized hospital unions, many of the employers involved in this round of restructuring will be smaller and inexperienced with collective amendments to the Public Sector Labour Relations Transition Act (PSLRTA) and also through provisions requiring the development of human resource adjustment plans for certain integrations. Public Sector Collective Bargaining Act (PSLRTA) Introduced in 1997 as a transitional statute during the last round of public sector restructuring, PSLRTA established a framework for ensuring successor rights and the continuation of collective agreements following a restructuring. The statute also provides a process for resolving the first post-restructuring collective agreement. Bill 36 amends PSLRTA to make it permanent legislation that will cover sector restructuring going forward. In addition, the bill expands PSLRTA’s scope of application to cover a wider range of restructuring initiatives within the health sector, including partial integrations between health service providers. While PSLRTA does facilitate the resolution of labour issues following a restructuring initiative, that does not meant that these issues are easily resolved. Disputes under PSLRTA generally must be settled by litigation before the Ontario Labour Relations Board and this litigation can often be protracted and costly for all parties. Human Resource Adjustment Plans In addition to making amendments to PSLRTA, Bill 36 requires the development of human resource adjustment plans in certain circumstances. The bill requires health service providers who are ordered to integrate their services either by a LHIN or by the Minister to develop human resource adjustment plans to manage the labour relations consequences of the integration. Human resource adjustment plans were developed in the last round of health care restructuring to minimize the negative impact on employees. These plans were negotiated between unions and hospitals and typically addressed issues such as: terms and conditions of employment including wages, employment benefits, and pensions; protocols for employee transfers; and job security measures to minimize layoffs. The plans typically also established a committee and process for monitoring the adjustment plans and for resolving disputes relating to their implementation. The requirement in Bill 36 that parties develop human resources adjustment plans will assist in facilitating the labour relations problems that will inevitably accompany the myriad and potentially far-reaching integrations that will take place under the legislation. However, the impact of this requirement will be limited in at least two respects. First, it only applies to integrations ordered by a LHIN or by the Health Minister, and not to voluntary integrations between health service providers or other entities. Second, Bill 36 does not require that the human resource adjustment plans be negotiated with the relevant unions or representatives of non-unionized employees. As a result, the human resource adjustment planning required under Bill 36 - while helpful - is unlikely to fully resolve the significant employment-related disruptions caused by the restructuring carried out under the legislation. Taken together, these two features of Bill 36 will provide the tools for addressing the employment-related disruptions and dislocations arising from the current round of restructuring in the health sector. While a great deal of litigation before the Ontario Labour Relations Board will be necessary to sort out the rights of various parties under PSLRTA, the development of successful negotiation of human resource adjustment plans may reduce the need for protracted and expensive litigation, as well as the attendant uncertainty for all those involved. Teacher Justified in Seeking Peace Bond against ParentA recent decision of the Toronto Small Claims Court provides some comfort and support to teachers who face harassing parents. McKenna v. Boland (April 28, 2006, court file no: TO 81578/03) involved a claim made by a parent that the teacher, Ms Boland, had “maliciously prosecuted” him. By way of background, Ms Boland had had unpleasant encounters with the parent, Mr. McKenna, in the past. When she was teaching his son, he stormed out of a parent-teacher interview that she was conducting. At the end of that school year, Mr. McKenna insisted with the school that Ms Boland have no contact with his son whatsoever. The following year, there was an incident which led Ms Boland to seek a peace bond. Ms Boland had taken a ball from a student who was bouncing it in the hallway. Unbeknownst to Ms Boland, the ball actually belonged to Mr. McKenna’s son. Mr. McKenna appeared at Ms Boland’s classroom door after hours, without checking in first with the office. Ms Boland was alone and Mr. McKenna knocked loudly at her door, then loomed in her doorway, demanding that she return the ball. When she stepped out of the office, he followed her closely down the hall. She eventually fled to the principal’s office. Mr. McKenna was a large, intimidating and loud person and Ms Boland was frightened. After this incident, Mr. McKenna tried to report Ms Boland to the police for assault because, he claimed, she tried to shut her classroom door on his foot (when he put his foot in the door to prevent her from closing it), and because she swiped at him with some papers she was holding (when he was in her space and pointing his fingers in her face). The police would not lay assault charges. The principal sent a warning letter to Mr. McKenna under the Safe Schools Act advising him to have no contact with Ms Boland. Ms Boland also decided to apply for a peace bond so that Mr. McKenna would be precluded from having any contact with her, whether in the school or off school premises. However, Ms Boland was unsuccessful in obtaining a peace bond. The judge at the peace bond proceedings thought she did not have sufficient grounds to fear for her safety. He made comments to suggest that Ms Boland had sought the peace bond, not to protect herself, but to “teach [Mr. McKenna] a lesson”. However, the judge hearing the claim for malicious prosecution disagreed. He found that Mr. McKenna had not met two of the requirements for proving malicious prosecution, and specifically: (1) that the peace bond proceedings had been brought in the absence of reasonable and probable cause; and (2) that the peace bond proceedings were brought out of malice. The judge said that Ms Boland “was justified in proceeding for the peace bond”. Her “motivation was consistent with the desire for whatever protection a peace bond can offer because she feared the plaintiff”. He disagreed with the peace bond judge that Ms Boland was motivated to teach Mr. McKenna a lesson. Rather, he thought that Mr. McKenna was intimidating and that Ms Boland was truly scared. Mr. McKenna argued at trial that he had complied with the warning letter sent by the school and there was no reason to take the further step of seeking the peace bond. The trial judge also disagreed with this argument, saying that Ms Boland was justified in seeking the further protection of the peace bond. Mr. McKenna had also argued that Ms Boland only brought the peace bond proceedings some time after the incident, and after she learned that he had reported her to the police. In other words, she sought the peace bond to strike back at Mr. McKenna. The trial judge rejected this argument, too, saying that Ms Boland had only waited two weeks, which was not an undue delay, and that she had used the time to consult with the school, her union and a police officer about her options. In this decision, in spite of the earlier comments of the judge at the
peace bond proceeding, the trial judge affirmed the teacher’s rights
in the face of a harassing parent. This was a parent who was clearly aggressive
and intimidating and had caused previous problems, not only to this teacher,
but to other staff and the principal. The trial judge recognized that
a teacher can and should be able to take steps to protect herself from
this type of parent. Moreover, she is not limited to the actions taken
by a principal on her behalf. Here, she properly consulted with her bargaining
agent, as well as with a police officer, and was perfectly justified in
taking the further, independent step of seeking legal protection through
a peace bond. This decision should provide encouragement to other teachers
who feel they have limited options in the face of a harassing parent. New Recommendations for Changes to the Regulated Health Professions Act by the Health Professions Regulatory Advisory CommitteeBy Mia London On May 19, 2006, the Health Professions Regulatory Advisory Committee (“HPRAC”) publicly released its recommendations for changes to the Regulated Health Professions Act. It presented these recommendations to the Minister of Health at the end of April. The recommendations include a number of substantive changes to college structures, processes, and ultimately protections for members. The effect on regulated health professionals will be significant and concerning in a number of respects. Some of these recommendations are summarized below:
The HPRAC report recommends regulating six new professions through the RHPA: pharmacy technicians, homeopthy, naturopathy, kinesiologists, psychotherapists, and hearing instrument practitioners. In addition, there are recommendations dealing with registration requirements, governance, and a review of controlled acts and scopes of practice. HPRAC has invited comments to these recommendations. We will continue to keep you updated as this process of amending the RHPA unfolds. Update for Professionals Archives | Cavalluzzo website | Human Rights Update We welcome your comments. If you have comments about the newsletter, we would value receiving them, or to unsubscribe to this newsletter, please send a reply e-mail with UNSUBSCRIBE in the subject or send an e-mail to the Editor, Brian Hanulik, at updateforprofessionals@cavalluzzo.com. To add yourself to the newsletter mailing list, please send an email to majordomo@cavalluzzo.com with the word SUBSCRIBE in the subject line. To find out more information about the firm and its lawyers and the scope of our practice generally, visit our web site at www.cavalluzzo.com. If you have specific questions regarding the regulated professions, you may contact Elizabeth McIntyre at 416.964.5501 or at emcintyre@cavalluzzo.com. Providing this information does not constitute individualized legal advice, and does not establish any form of lawyer-client relationship with our firm or with any of our lawyers. Readers should not rely on or take any action based on this information; professional advice should be obtained. While we strive for accuracy, mistakes are possible and there may be errors and omissions. We disclaim any liability for such errors and omissions. Copyright 2006 © Cavalluzzo
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