LABOUR RELATIONS CODE (Section 84 Appointment) ARBITRATION AWARD BRITISH COLUMBIA TEACHERS’ FEDERATION UNION BRITISH COLUMBIA PUBLIC SCHOOL EMPLOYERS’ ASSOCIATION EMPLOYER (Grades 4 to 12 Class Size and Composition - 2006-07 and 2007-08 School Years) ______________________________________________________________________ Arbitration Board: James E. Dorsey, Q.C. Representing the Union: Craig D. Bavis, John Rogers, Q.C., Carmela Allevato, Stephanie Drake and George Popp Representing the Employer: Judith C. Anderson, Brian Chutter andStephanie Tassin Date of Decision: August21, 2009 JamesE.Dorsey,Q.C.•3380RedfernPlace,NorthVancouver,B.C.V7N3W1•Tel604-980-7225•[email protected]• www.labour-arbitrators.bc.ca/james-dorsey 1 HearingLocations: Nanaimo, Victoria, Terrace, Sparwood, Kamloops, Merritt, Surrey and Vancouver HearingDates: Qualicum Beach Middle School November 24- 28, 2008; February 27 - 28; March 2; April 14 - 15, 2009 Claremont Secondary School December 15- 19, 2008; March 5 - 6; March 9 - 10, 2009 Thornhill Elementary School February 9- 11; June 16 - 20, 2009 Frank J.Mitchell Elementary School May 4 - 6, 2009 Merritt Central Elementary School May 7 - 8; June 8- 9, 2009 Guildford Park SecondarySchool May 11 - 15; May 25 - 27; May 30; June 13, 2009 Hastings Community Elementary School June 10 - 12; July 2 - 4, 2009 Final Submissions July 13 - 17, 2009 . Contents 1. Grievances, Decisions and Representative Nature of the Evidence 3 1.1 Grievances Consolidated after Preliminary Objections Dismissed..........................5 1.2 Disclosure and Privacy Protection of Students’ Personal Information.....................5 1.3 Scope of 2007-08Grievance –Deltaand Coquitlam Ruled Excluded.....................6 1.4 Evidence on Representative Classes and SecondSemester Ruling.......................8 1.5 Three Employer Claims of Prejudice.....................................................................10 2. Background to Class Size and Composition Disputes (1970- 2002) 14 2.1 School Facilities Designand AverageInstructional Space Capacities..................14 2.2 Teacher Rally and Government Reduction of Pupil-Teacher Ratio (1970s)..........16 2.3 Royal Commission, Class Size and Special Needs Learners (1980s)...................20 2.4 Negotiating and Arbitrating Class Size and Composition (1990s).........................24 2.5 Class Size and Composition Deletedfrom Collective Agreement (2002)..............31 3. StatutoryInterpretation and Evidence of Legislative Facts and History 34 3.1 Modern Approach toStatutory Interpretation........................................................34 3.2 Evidence of Legislative Facts andLegislative History...........................................37 4. Legislated Maximum Primary Class Sizes and Class Size Averages 39 4.1 Public Education Flexibility andChoice Act- Bill 28 (January 2002).....................39 4.2 Commission Report onTeacher Collective Bargaining (December 2004).............43 4.3 Class Size Legislation Enforceable at Arbitration(February 2005)........................44 4.4 Four Threshold Issues Decided on 2002-03Grievance (January 2006)...............46 4.5 LegislatedCollective Agreement, Strike and Settlement (October 2005)..............47 4.6 Learning Roundtable–Efforts toAchieve Consensus..........................................48 4.7 NewClass Size Averages and Standards–Bill 33(June2006)...........................50 4.8 Statutory Reviewof New Class Size Averages and Standards (2008)..................62 5. Integration of Students with Special Needs and Individual Education Plans 64 5.1 Placement inthe“Most Enabling Learning Environment”......................................65 5.2 Support Services Accessible to all Students.........................................................66 5.3 Funding Support Services for Students with Special Needs.................................67 5.4 Identification and Assessment of Students with Special Needs............................70 5.5 Individual Education Plans (IEPs).........................................................................71 2 5.6 Adapting and Modifying the Regular Curriculum...................................................73 5.7 Evaluating Learning forStudent with Special Needs.............................................74 5.8 ReportingProgressfor Students with Special Needs............................................75 5.9 Principals’ Responsibility for Placement and Program Implementation.................75 5.10 Responsibilities of Teachers andTeachers’ Assistants.........................................76 6. Annual School Organization, Timetabling, Supports and Specific Classes 77 6.1 School Organization Cycle–Januaryto September.............................................77 6.2 Secondary Timetabling.........................................................................................81 6.3 Combined Grades or Split Classes.......................................................................84 6.4 Workshop, Home Economics andScience Classes..............................................85 6.5 Lower and Under Achieving Students and Courses Designedfor Them...............86 7. Class Size and Composition Threshold Requiring September Consultation 87 7.1 “class” Requiring Consultation..............................................................................89 7.2 Teacher Re-arranged Classes..............................................................................92 7.3 “students with anindividual education plan”..........................................................93 7.4 “theteacher of that class”.....................................................................................96 8. Principle-Teacher Consultation - Context, Content and Outcomes 98 8.1 Union Submissions...............................................................................................98 8.2 Employer Submissions.......................................................................................100 8.3 Overviewand Context for Meaningful, Professional Dialogue.............................102 8.4 Paid Release Time andStaff Representative Attendance...................................112 8.5 Information andProfessional Dialogue...............................................................113 8.6 Outcomesfrom Consultation..............................................................................116 9. Dual Opinions Appropriate to Exceed Thirty and Three Class Standard 118 9.1 Union Submissions.............................................................................................119 9.2 Employer Submissions.......................................................................................125 9.3 Combined Principal andSuperintendent Opinions..............................................130 10.Onus of Proof and EvidentiaryBurden 136 10.1 Unionand Employer Submissions......................................................................137 10.2 Discussion, Analysis and Decision......................................................................139 11.Representative Classes in Dispute - Discussion, Analysis and Decisions 145 11.1 Consultation Disputes.........................................................................................145 11.2 Principal and Superintendent Opinions on Disputed Classes..............................152 11.3 Summary of Disputed Classes forWhichGrievance Allowed.............................167 Appendix 1: 2006-07 Grievance –546 Classes in 28 Schools in 6 Districts 168 Appendix 2: 2007-08 Grievance –1,122 Classes in 129 Schools in 16 Districts 169 Appendix 3: Ministry of Education Designated Special Needs Categories 172 Appendix 4: Representative Schoolsand Grieved Classes 174 4.1 Frank J. Mitchell Elementary School (SDNo. 5 –Southeast Kootney)...............174 4.2 Merritt Central Elementary School (SD No. 58–Nicola-Similkameen) ...............197 4.3 Thornhill Elementary School (SD No. 82 –CoastMountains).............................212 4.4 Hastings CommunityElementary School (SD No. 39 –Vancouver)....................229 4.5 Qualicum BeachMiddle School (SD No. 69–Qualicum)....................................248 4.6 Claremont Secondary School (SD No. 63–Saanich).........................................273 4.7 GuildfordPark Secondary School (SD No. 36–Surrey).....................................325 Endnotes- Statute and Decision Citations and Other Source References 348 3 1. Grievances,Decisions and Representative Nature of the Evidence [1] In the public school Kindergarten to Grade 12system, the size and composition of the group of students in a class is a significant factor in the working and learning conditions of teachers and students. Thenumber of classes that must be organized is a significantcost driver for local boards of education funded by the provincial government. [2] This arbitration is about class size and composition in Grades 4-12 in public schools in British Columbia for the first two school years there were legislated size and compositionstandards forthese classes. [3] One backdropto this dispute is litigation challenging the decision to delete class size and composition standards from the collective agreement; to prohibitclass size and compositionstandard making through collective bargaining;and to enact a uniform provincial standard that isless or more constraining on class size and composition organizationthan the various standards previously negotiated in school districts. Another isthe potential demands interpretations of the legislation might place on public funds rationedin annual provincial budgetsamong public education and other public purposes. [4] The union grievesthat in the 2006-07 and 2007-08 school yearssome boards of education organized some classes contrary to the requirements of section 76.1 and other sections of theSchool Act1,enacted in 2002by the Public Education Flexibility and Choice Act2 andamended in 2006 by the Education (Learning Enhancement) Statutes Amendment Act 2006.3 Section 76.1 states: Class Size (1) A board must ensure that the average size of its classes, in the aggregate, does not exceed (a) forkindergarten, 19students, (b) forgrades 1to 3, 21 students, (c) forgrades 4to 7, 28 students, and (d) forgrades 8to 12, 30 students. (2) Despite subsection (1), a board must ensure that the size of any primary grades class in any school in its school district does not exceed (a) forkindergarten, 22students, and (b) forgrades 1to 3, 24 students. (2.1) Despite subsection (1) but subject to subsection (2.4), a board must ensure that the size of any class for any of grades 4 to 7 in any school in its school district does not exceed 30students unless 4 (a) in the opinions of the superintendent of schools for the school district and the principal of the school, the organization of the class is appropriatefor student learning, and (b) the principal of the school has obtained the consent of the teacher of that class. (2.2) Despite subsection (1) but subject to subsection (2.4), a board must ensure that the size of any class for any of grades 8 to 12 in any school in its school district does not exceed 30students unless (a) in the opinions of the superintendent of schools for the school district and the principal of the school, the organization of the class is appropriatefor student learning, and (b) the principal of the school has consulted with the teacher of that class. (2.3) Despite subsections (1) to (2.2) but subject to subsection (2.4), a board must ensure that any class in any school in its school district does not havemorethan3 students with an individual education plan unless (a) in the opinions of the superintendent of schools for the school district and the principal of the school, the organization of the class is appropriatefor student learning, and (b) the principal of the school has consulted with the teacher of that class. (2.4) Subsections (2.1) to (2.3) apply to a board, in relation to a school year, after the date under section 76.3 (5) on the report that the board submits totheminister under section 76.3(10) for that school year. (3) TheLieutenantGovernor in Council may, byregulation, (a) establish the methods to be used by a board for determining average class size in the aggregate, including, without limitation, methods of providingfor students withspecial needs, (b) exclude any type of class, course, program, school or student from the determination of averageclass size in the aggregate, (c) set dates by which determinations must be made under this section, (d) define terms used in this section for the purposes of a regulation under this section, (e) require boards to prepare, submit to the minister and make publicly available, in the form and manner specified by the Lieutenant Governor in Council, for each school district and each school within the schooldistrict, (i) reports respecting class size, and (ii) plans respecting allocation of resources, services and staff in order tocomply with subsection(1), (f) specify matters that must be considered by a board in preparing a plan under paragraph (e) (ii) and the information required to be included in reports or plans under paragraph(e), and (g) require a board to establish, in respect of plans and reports under paragraph (e), a process of consultation with parents of students attending school inthe school district. 5 (4) The limits and requirements of subsections (1) and (2) do not apply for the purposes of the2001-2002 schoolyear. (5) In this section, "student with an individual education plan" means a student for whom an individual education plan must be designed under the Individual Education Plan Order, Ministerial Order 638/95, but does not include astudent who has exceptionalgifts or talents. 1.1 Grievances Consolidated after Preliminary Objections Dismissed [5] In September 2008, the employer’s preliminary objections to the grievances for eachof the two school yearswere heard and dismissed.4 By agreement afterthat decision, the two grievances were consolidated for hearing and final decision. The grievances include an allegation one board of education exceeded an aggregate class size average. By agreement that difference is not part of this phase of the arbitration. 1.2 Disclosure andPrivacy Protection ofStudents’Personal Information [6] To facilitate an expeditious process and protect the privacy of students’ personal information, I made the following orderon November 17, 2008: The British Columbia Public School Employers’ Association (“employer”) is required to disclose to the British Columbia Teachers’ Federation (“union”) now and throughout the hearing several documents from schools and district offices of boards of education. Some of the documents, such as individual education plans and progress reports, containpersonalstudent information. By agreement of the employer and union, individual students are not to be named or identified in any preliminary, interim or final decision and personal student information will not be referred to in any decision in a manner that will enable a student tobe identified. I hereby order the employer and the boards of education for which it is the accredited bargaining agent to disclose to the union all documents potentially relevant to the arbitration of these grievances on the following conditions applicable to any documents containing personalstudent information: 1. The union will keep confidential personal student information disclosed by the employer and only copy documents containing personal student information or disclose personal student information to the extent necessary for the preparation and presentation of these grievances at arbitration and any review, appeal or other proceeding before the Labour Relations Board or the courts arising from this arbitration; 2. The union will not use personal student information disclosed by the employer pursuant to this order for any reason other than the preparation and presentation of these grievances at arbitration and any review, appeal or other proceeding before the Labour Relations Board or the courts arising from this arbitration; 3. At the conclusion of this arbitration or any review, appeal or other proceeding before the Labour Relations Board or the courts arising from this arbitration, the union will return to the employer all documents received from the 6 employer that contain personal student information and destroy all copies of any documents that contain personal student information. 4. The employer will confirm for the union that it has received from the union all original copies of documents disclosed bythe employer that contain personal student information. 5. The union will inform the employer the manner and time by which it will have destroyed all copies of any documents it retains in paper, electronic or other format that contain personal student information. 1.3 Scope of 2007-08 Grievance – Delta and Coquitlam Ruled Excluded [7] Through case management discussions and disclosure ofparticulars, the union identified theclasses in dispute for each of the 2006-07and 2007-08 school years. A difference arose over the inclusion of2007-08 school yearclasses in School District No. 37 (Delta) and School District No. 43 (Coquitlam). The rulingon January 30, 2009 excluding these classes was as follows: This is my decision on the employer’s objection to the inclusion of School Districts 37 (Delta) and 43 (Coquitlam) in the scope of the 2007-08 school year grievance. Before the September 24, 2008 decision dismissing the employer’s preliminary objection ([2008] B.C.C.A.A.A. No. 131 (QL)), the union had identified the school districts included in itsgrievances for the2006-07and 2007-08school years. The union listed 23 affected school districts in a June 13, 2008 schedule of particulars for the 2007-08 school year grievance. School District No. 37 (Delta) was listed as one of the 23 school districts, but, unlike the other school districts, no schools or category of class size or composition violations were listed. At the case management meeting on October 14, 2008, the union informed that School District No. 37 (Delta) was not included and there were 22, not 23, school districts affectedby the 2007-08 school year grievance. Arepresentative manner of proceeding with the arbitration and a schedule for disclosure of further particulars and documents was established. The union provided further particulars of each grievance on October 22nd. The particulars for the 2007-08 school year grievance included particulars for School District No. 37 (Delta). For the first time, the union identified School District No. 43 (Coquitlam) as included in the 2007-08 school year grievance, which had been initiated by letter dated November 5, 2007. The employer responded on October 23rd, objecting to the inclusion of these two school districts. On October 27th, the employer applied for an order excluding School Districts No. 43 (Coquitlam) and No. 37 (Delta) from the scope of the grievance. “School District No. 43 (Coquitlam) has never been included on any list prior to this last week. At the case management meeting School District No. 37 (Delta) was deletedfrom the list by the Union.” Theunion’s responseonOctober 27thwas as follows: 2007 - 2008 particulars At the, case management meeting, Mr. Popp was unaware of a few schools in School District 37 that were in violation and mistakenly 7 advised me that there were no violations. We apologize for the error. If you believe that you have been prejudiced by this error, please advise us of the natureof the prejudice. Upon further investigation and compilation of the particulars, it came to Mr. Popp's attention that School District 43 had been omitted from the list. Our understanding is that discussion occurred between the Local Association and S.D 43 such that S.D. 43 cannot claim that it was unaware that the Local Association objected to some of the class assignments as contrary to s. 76.1. If you believe that you have been prejudiced by this error, please advise us of the nature of the prejudice. Submissions on the employer’s application were made at the case management meeting onOctober 27th. The union advised School District No. 37 (Delta) was inadvertently omitted from previous particulars of the grievances. It is intended to be included in the 2007- 08 school year grievance with respect to four classes in three separate schools, but no district school was selected by the union as a representative school in this stage of the arbitration. School District No. 43 (Coquitlam) was inadvertently omitted from the grievances for both school years, but the union does not intend to includethis district in the 2006-07school year grievance. By October 27th, the union had limited the scope of the 2006-07 school year grievance to seven school districts – SDs 8 (Kootney Lake), 36 (Surrey), 39 (Vancouver), 53 (Okanagan Similkameen), 62 (Sooke), 67 (Okanagan-Skaha) and 70(Alberni). The union had limited the scope of the 2007-08 school year grievance to eighteen school districts – SDs 5 (Southeast Kootney), 8 (Kootney Lake), 20 (Kootney-Columbia), 28 (Quesnel), 36 (Surrey), 37 (Delta), 39 (Vancouver), 43 (Coquitlam), 44 (North Vancouver),58 (Nicola-Similkameen), 61 (Greater Victoria), 62 (Sooke), 63 (Saanich), 68 (Nanaimo-Ladysmith), 69 (Qualicum), 70 (Alberni), 73(Kamloops/Thompson) and 82(Coast Mountains). The union’s first notice on October 22nd to the employer that School District No. 43 (Coquitlam) was included in the 2007-08 school year grievance was a year after the commencement of the grievance and after the decision on the employer’s preliminary objections. Despite the absence of any evidence of actual prejudice to the employer and School District No. 43 (Coquitlam), this is a period of delay for which it can be presumed the employer and School District No. 43 (Coquitlam) have been prejudiced and would be unfairly disadvantaged if the union were permittedto broadenthe scopeof thegrievance toinclude School District No. 43(Coquitlam). Therefore, I order that thescope of the 2007-08 school year grievance does not include alleged violations by School District No. 43 (Coquitlam). School District No. 37 (Delta) was not included in the 2006-07 school year class grievance and is not sought to be included by the union. The union’s initial particulars of the 2007-08 school year grievance on June 13, 2008 listed school districts, the schools in each district where the union alleged there was a violation and identified the category of violation alleged at each school. No schools and no categories were listed for School District No. 37 (Delta). These particulars formed part of the evidence in the preliminary objection hearing in September 2008. 8 The union inadvertently omitted the particulars for School District No. 37 (Delta) in June 2008 and erroneously informed the employer that School District No. 37 (Delta) was not included in the 2007-08 school year grievance in October. Then the union informed the employer it intended to include four classes in three separate schools within the scope of the grievance. Although there was no intention to mislead and the errors were innocent, I find the potential prejudice to the employer and School District No. 37 (Delta) of including it within the scope of the 2007-08 school year grievance outweighs the potential loss to the union and its members inthefour affected classes. Therefore, I order that the scope of the 2007-08 school year grievance does not include alleged violations by School District No. 37 (Delta). [8] For each of the two school years, the union relied on a complaint driven system to identify classes for inclusion in its provincial grievances. Classes were identified by teachers, school staff representatives and local union presidents. The union did not determine, and does not admit,that similar classesthat have not been grieved were in compliance with theSchool Act. Particulars of thetwo grievances are summarized in Appendices 1 and 2.  2006-07 school year - 546classes in 28 schools in 6 school districts  2007-08 school year – 1,122 classes in 129 schools in 16 school districts For the 2007-08 school year,the following is a comparison of the number of classes grieved, excluding School District No. 37 (Delta) and No. 43 (Coquitlam),to the number of provincial classes. 2007-08 Schools Total Classes ≥31Students ≥4 IEP Students Province 1,458 68,693 3,179 10,313 Grieved 129 1,122 345 883 The total classes included in the grievance (1,122) is less than the sum of the classes withthirty-one or more students orfour or more students withan individual education plan (1,228) because there are 107 classes in which the union states there are both thirty-one or more students and four or more studentswith anindividual education plan. 1.4 Evidence on Representative Classes andSecond Semester Ruling [9] The uniongave particulars of elevensecond semester classes at two secondary schools in School District No. 82 (Coast Mountains) in the 2007-08 school year. During the hearing, the unionsought to include second semester classesat Claremont Secondary Schoolin School District No. 63 (Saanich). The ruling on December 15, 2008 upholding the employer’s objection was as follows: 9 The method adopted to address the many schools and classes covered by the grievances was to have the union select schools that would represent thevarious issues raised by the grievances and provide particulars to the employer. Wehad worked deliberately and diligently to identify the scope of these proceedings and to balance the need for a fair hearing with an efficient and time limited proceeding. The issue of the nature and extent of consultation for second semester classes was not identified. It is clearly an important issue. There are likely other important issues that will be identified. However, the importance of the issue to one or both parties has not been the criteria defining the scope of this round of hearings. The criterion is the particulars meticulously identified before we commenced hearings in November. I rule that this issue is not to be addressed inthis hearing and noevidence with respect toit is tobe adduced. [10] The union selectedfive representative schools in five school districts– two elementaryschools, one middle school and two secondary schools. The employer could have chosen an equal number, but limited its selection to twoelementary schools in two school districtsbecause of some unique events related to the organization of classes at the two elementary schools selected by the union. The five schools selected by the union are:  Frank J. Mitchell Elementary School (K-7) – S.D. No. 5 (Southeast Kootenay)  Thornhill Elementary School (Grades 4-7) – S.D. No. 82 (Coast Mountains)  Qualicum Beach Middle School (Grades 6-8) – S.D. No. 69 (Qualicum)  Claremont Secondary School (Grades 9-12) – S.D. No. 63 (Saanich)  Guildford Park Secondary School (Grades 8-12) – S.D. No. 36 (Surrey) The two selected by the employer are:  Hastings Community Elementary School (K-7) - S.D. No. 39 (Vancouver)  Merritt Central Elementary School (K-6) - S.D. No. 58 (Nicola-Similkameen) Through document disclosure and further investigation, the union and employer reduced the number of disputed classes in the seven representative schools to be examined in this phase of the arbitration. [11] The union and employer agree the representative schools and classes, which have a variety of missions and purposes, English as Second Language programs, immigrant settlement patterns, Aboriginal children populations, curricula, support and remediation programs and special education needs, have been truly a representative cross-section of the Grades 4 to 12 schools and classes across the province. The