Education Law. Education Law. News PROVINCE-WIDE BARGAINING: HAS ITS TIME COME? Spring Introduction IN THIS ISSUE

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1 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 1 Education Law News Spring 2005 Borden Ladner Gervais LLP Lawyers Patent & Trade-mark Agents Education Law IN THIS ISSUE p.1 PROVINCE-WIDE BARGAINING: HAS ITS TIME COME? Robert W. Weir p.11 SERVING IMMIGRANT AND REFUGEE CHILDREN IN THE WAKE OF THE TSUNAMI DISASTER: CHALLENGES FOR SCHOOL BOARDS Michele Warner p.16 ONTARIO HUMAN RIGHTS COMMISSION: SCHOOL BOARDS NOT RESPONSIBLE FOR PROVIDING IBI THERAPY TO AUTISTIC STUDENTS Melanie Warner p.18 BLG Education Law Group PROVINCE-WIDE BARGAINING: HAS ITS TIME COME? Introduction In Canada, most provinces engage in some form of provincewide bargaining in the school board sector. Only Alberta, Manitoba and Ontario engage in purely local bargaining. That is, bargaining in which individual school boards undertake bargaining with teachers unions on all issues. The remaining provinces and territories engage in either purely provincial bargaining or a hybrid of local and provincial bargaining. Until the 1960s, some form of local bargaining was the model for teachers and school boards throughout Canada. In some provinces, such as New Brunswick, this led to dramatic disparities in wages and other benefits. Teachers in urban areas, which had a much richer tax base, were better compensated than teachers in poorer, rural areas. In some cases, the difference in wages was as much as 40%. Inevitably, these discrepancies and the impact that they had on education in rural areas became a political issue. In 1966, the New Brunswick government removed the fiscal independence of local school boards in order to more evenly distribute funding for education. At the same time, the New Brunswick government introduced a system of province-wide bargaining that is still largely in place today. Parallels with recent changes in Ontario should be obvious. As provincial governments move to centralize control over education spending and eliminate or curtail taxing powers of school boards, C A L G A R Y M O N T R É A L O T T A W A T O R O N T O V A N C O U V E R W A T E R L O O R E G I O N

2 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 2 BThe Ontario government has progressively reduced the matters that can be bargained. some form of province-wide bargaining also emerges. In addition to control over funding, the Ontario government has progressively reduced the matters that can be bargained. These areas include class size, teaching time, teacher performance appraisals and the duties of teachers. In a paper delivered at the 1999 CAPSLE Conference, union-side labour lawyer Elizabeth Shilton wrote: It is arguable, and I believe that at least some participants on both sides of the bargaining table would advance this argument, that in Bill 160 the Ontario government cynically constructed a law designed to appear responsive to the desire of local parties in education labour relations to maintain the locus of bargaining at the local level, but which in fact operates to rob local participants of any effective role in decision-making on the allimportant question of the allocation of resources. These same local participants who lobbied to continue a system of board-based local collective bargaining may well find themselves reconciled, in the next round of reforms, to the introduction of provincial bargaining. 1 [emphasis in original] As well, something very much approaching a provincial wage grid has emerged in recent years. As an example, almost all public and Roman Catholic school boards in the Greater Toronto Area have an A4 maximum as of August 31, 2004 of $76,000. The boards that do not have an A4 maximum of $76,000 are not far behind that figure. For school boards outside the GTA, the A4 maximum tended to be below $76,000 on August 31, 2004 but, again, not by a significant amount. Because the funding formula seeks to treat all school boards in an identical manner, the reality that has emerged in recent rounds of bargaining is that there is already something approaching a provincial wage grid for teachers in Ontario. In Ontario, because collective agreements with teachers were "lined-up" to expire on August 31, 2004 there was a sense in the education community that the Tory government intended to introduce a system of province-wide bargaining at that time. The change in provincial government has cast some doubt as to whether the province has the appetite or the interest to take on the issue, an issue that would likely be vigorously opposed by teachers and their unions. Collective agreements, in theory, should be still lined up. Subsection (3) of the Education Act provides that every subsequent collective agreement shall provide for a term of three years. Agreements presently being negotiated 1 E.J. Shilton, After Bill 160: Some Reflections on the Future of Education Collective Bargaining in Ontario 1999 CAPLSE Conference, Toronto. 2 Education Law Spring 2005

3 Lshould all expire on August 31, 2007 and 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 3 the window of opportunity to move to another model of bargaining will again be open. Pros and Cons of Province-Wide Bargaining 1. Pros a. Reduces Whipsawing The most frequently cited benefit to province-wide bargaining is the elimination of so-called whipsawing or leapfrogging. The Report of the Industrial Inquiry Commission into the Bargaining Patterns in the Construction Industry in Ontario 2 provides valuable background as to why this industry moved to a system of province-wide bargaining. The Construction Labour Relations Association of Ontario in 1976 described the problem this way: The impact that one settlement has on other areas of the province cannot be overemphasized. Although they have been warned of the whipsaw effect, time after time, when negotiations get down to the crunch, local (employer) bargaining committees revert to the every man for himself philosophy. Any local bargaining committee which thinks it can negotiate in isolation is out of touch with reality. Every agreement affects scores of negotiations still underway around the province. Even though a bargaining unit may contain as few as a dozen tradesmen, there are thousands of others affected by every action of that unit who are not present at that particular table. Contractors who are not present at that particular table eventually have to agree to the same settlement or an even higher settlement for labour peace. Under this theory, parties are able to bargain matters and issues that are important to the parties rather than those issues that have been determined due to outside influences. The whipsaw effect is also experienced with other employee groups in the school board, whose expectations will inevitably be heightened by other settlements. Provincial bargaining addresses this concern and also stops school boards from G competing against one another for good teachers by driving up wages. 2 Ontario Ministry of Labour, The Report of the Industrial Inquiry Commission into the Bargaining Patterns in the Construction Industry in Ontario D.E. Franks, May For school boards in the City of Toronto, the whipsaw effect is doubly problematic because it is the outlying school boards in Peel and York County who are leading the way in terms of salary. These school boards Spring 2005 Education Law 3

4 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 4 can offer teachers a high salary and a lower cost of living. In addition, these boards tend to have larger and newer schools, further reducing their overall costs. School boards in the City of Toronto have little choice but to match these increases. Provincial bargaining, according to this view, levels the playing field between the parties. Negotiating teams are equal in terms of expertise and any monetary advantage provincial unions have to withstand strikes is eliminated. BTaxpayer groups have suggested that one of the major benefits of province-wide bargaining is that it reduces the overall costs of negotiating collective agreements. b. Addresses an Imbalance in Bargaining Power In 1996, then Minister of Education, John Snobelen, appointed Leon Paroian to review school boards /teachers collective negotiations in Ontario. The resulting report (the Paroian Report 3 ) recommended against a model of province-wide bargaining. The Paroian Report adapted a middle ground and suggested that a system of regional bargaining, in which employer groups banded together on a regional basis to negotiate with teachers, would best serve the interests of all parties. According to the Paroian Report, the biggest drawback to local bargaining is that it permits teachers unions to take advantage of an imbalance in bargaining power. In the view of the Paroian Report, provincial unions have more expertise and are more experienced than school boards at negotiations. The Report refers to the use of "professional negotiators" and asserts that this provides the unions with an advantage over smaller, local school boards. c. Province-wide Bargaining Reduces Administrative Costs and Costs Within the Collective Agreement Taxpayer groups, amongst others, have suggested that one of the major benefits to a system of province-wide bargaining is that it reduces the overall costs of negotiating collective agreements. At the very least, these groups say that provincial bargaining saves administrative costs in the negotiation of collective agreements. Fewer staff on both sides of the table are required to negotiate these agreements. In addition, some proponents of provincial bargaining point to savings in areas within the collective agreement namely, benefits and wages. In theory, cost savings can then be put back into classroom spending. It is worth noting that the Paroian Report dismissed the notion that provincial bargaining would achieve any cost savings. The Report provides:... there is no evidence that provincial or province-wide 3 Review of the School Boards Teachers Collective Negotiations in Ontario, October 30, 1996, online < 4 Education Law Spring 2005

5 Lbargaining is more cost-effective 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 5 than local or regional bargaining. Indeed, it may be more costly because of substantial travel costs for the parties and the need for extended release from teaching duties for teachers during the protracted negotiations." It should also be noted that in a twotiered system, there are effectively two rounds of negotiations. Costs are incurred in both rounds and, in jurisdictions such as British Columbia, time and money is expended at the provincial table determining what the local issues are going to involve. Perhaps more credible is the notion that provincial bargaining reduces costs within the collective agreement. The costs, for example, of providing benefits within a smaller organization may be dispersed and reduced across a larger group of employees. It seems reasonable that some cost savings would be achieved in the area of benefits and wages. d. Permits Teachers to Bargain with the Party Controlling the Revenue and Expenditures As mentioned above, the evolution of province-wide bargaining in those provinces that engage in the practice seems to coincide with a centralization of control over education by the provincial government. From a bargaining point of view, the process becomes very problematic where employee groups are not in a position to make concessions and employers are not in a position to increase monetary offers. Such a scenario quickly leads to impasse. Prior to Bill 160, of course, school boards had the ability to raise funds through local taxation. Now, under the current funding formula, only the provincial government has control over taxes. Again, from a bargaining perspective, school boards have very little flexibility to adjust monetary positions at the table. One assumes that this was a critical factor for the Alberta Teachers Association when it passed a resolution endorsing provincial bargaining in A report prepared in advance of an earlier resolution provided: The reform of the education system over the past five years has virtually eliminated the taxing powers of school boards and has curtailed their administrative capacity by limiting the financing of that function. Under these circumstances, negotiating committees have begun to hear the argument that their employing school jurisdictions are not capable of negotiating because of the limits placed on their revenueraising and spending powers. At the same time, the differentials in teacher working conditions are GSpring 2005 Education Law 5

6 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 6 BOne theory posited in favour of province-wide bargaining is that it reduces the number of strikes. growing because more and more decisions about them are made at the school level. One approach to this message is to accept it and to redirect bargaining effort to the provincial government level where the power lies to raise revenue and to make expenditure decisions. The objective of this redirection is to bring the Government of Alberta to the bargaining table either unaccompanied by school boards or with them as minor partners on the employer side of the table... The message of such a campaign, whether intended or not, would be that school trustees have lost their capacity to act autonomously... 4 It is not difficult to apply this same rationale in Ontario. e. Reduces the Number of Strikes and Lockouts One theory posited in favour of provincewide bargaining is that it reduces the number of strikes. The rationale for this position is that teachers unions are less likely to resort to strikes because the cost of supporting all the teachers in a province with strike pay is prohibitive. Similarly, the province is reluctant to lockout teachers because of the political fallout of such a practice. In the construction industry, the impact of province-wide strikes was felt to be offset by the fact that parties were not "likely to take such a drastic step without careful consideration. 5 In Ontario, this may be dubious reasoning. Teachers have shown themselves willing to engage in province-wide strikes in the recent past. From the government s point of view, any job action taken by teachers does not necessarily have a negative political impact. Any government would have to weigh the impact of a strike or lockout. Regardless of whether provincial bargaining would actually serve to reduce the number of strikes and lockouts, it is clear that the impact of any such action would be much more significant because it would be felt across the province. In provinces where there is provincial bargaining, there is often a corresponding limit on the right to strike. In British Columbia in 2001, the provincial government curtailed the ability of teachers to strike. Teachers are no longer entitled to withdraw those services that are considered to be essential services. In Nova Scotia, a two-tiered system, the Teachers Collective Bargaining Act does not permit work stoppages related to local issues. Teachers 4 Report on Resolution 182A/97: A Single Collective Agreement for All Alberta Teachers, Alberta Teachers Association, August Supra, note 2 at p Education Law Spring 2005

7 Lare only permitted to strike over provincial 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 7 issues. 2. Cons a. Loss of Local Control By far the most frequently cited downside to province-wide bargaining is a loss of local control. The Paroian Report, as an example, provides: Presenters at the hearing suggested that the advantage of local bargaining is that it offers the highest degree of tailoring collective to local situations and needs. Moreover, everyone in the process is from the same board and often the same community, and this provides for a more cooperative method of problem resolution.... Provincial bargaining removes the collective negotiations process furthest away from the parties and thus is least likely to be able to address local needs. 6 The loss of local input is a concern on both sides of the bargaining table. Teachers unions worry that they become unable to represent or even hear local concerns from their members. School boards also worry that local issues may be ignored at the table and left to fester and worsen. Other jurisdictions have, to some extent, addressed this problem by permitting bargaining on local issues. Provincial issues are generally those that involve monetary issues and critical working condition issues, such as class sizes and teaching time. In these two-tiered systems, issues deemed to be local often may not be bargained to impasse. At the same time, grouping monetary issues into a provincial category of issues ignores the fact that there is a large local component to monetary issues. For example, a reasonable argument can be made that teachers in the City of Toronto or in remote northern communities should be paid more. In the former case, higher wages offset the higher costs of living and, in the latter case, higher wages have traditionally been used by school boards to attract teachers to these areas. Provincial bargaining limits the ability of school boards to make these strategic decisions. All school boards are unique. Some school boards have smaller schools and higher school renewal needs. Some school boards want to operate parenting centres and swimming pools. A move to provincial bargaining will further erode the control that local school boards have with respect 6 Supra, note 3 at p.10. GSpring 2005 Education Law 7

8 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 8 BThere are significant logistical problems involved in moving from over 100 local collective agreements to one or two provincewide agreements. to spending priorities. These boards will effectively be stuck with the wages and benefits negotiated at the provincial level. These provincial decisions will have a direct impact on the ability of these school boards to spend money in other priority areas without incurring deficits. Having said the above, however, it is worth noting that one of the major criticisms expressed of pre-province-wide bargaining was that, although bargaining appeared to be local, in actual fact it was not. The Report of the Industrial Inquiry into Bargaining Patterns in the Construction industry in Ontario noted the following: In any particular locality bargaining in that locality is often unable to respond to local conditions because of pressures from other localities. Thus, the size of a settlement in a neighbouring locality may be a more important pressure at the bargaining table than the fact that there is little construction activity in the locality where bargaining is taking place. 7 The reality of bargaining is that whipsawing and outside influences inevitably impact on local bargaining relationships. b. Transitional Problems There is inevitably a period of instability and uncertainty when a new system of bargaining is put in place. The Paroian Report, for example, cites problems experienced in British Columbia following the introduction of province-wide bargaining in 1996: The Province of British Columbia developed a model based on an employers government panel comprised of thirteen members. Nine were appointed from the school boards across the province, and four were appointed by the government. The goal is to bring about a collective agreement applicable to all employees. Approximately 200 issues had to be resolved. After two years, and the expenditure of $2.7 million, about twelve issues have been resolved. 8 Obviously, there are significant logistical problems involved in moving from over 100 local collective agreements to one or two province-wide agreements. As well, teachers will often perceive or experience a loss in salary and/or benefits. This is because a province-wide agreement cannot simply adopt the most generous terms and conditions of employment from existing 8 Supra, note 3 at p Education Law Spring 2005

9 Lagreements. The costs of such an approach 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 9 would be prohibitive. Another good example of a transitional issue is in the area of elementary preparation time. Since preparation time is effectively a monetary issue in education bargaining, it would make sense to deem it a provincial issue in a province-wide bargaining scheme. At present, elementary preparation time varies widely throughout the province. Some teachers have up to 200 minutes per week and others as little as 140 or 150. It is difficult to see those teachers with 200 minutes willingly reducing that number but, in a provincial bargaining scheme, it will be necessary for such a reduction to take place. Again, the highest common denominator approach is simply not affordable. c. Bargaining Becomes Political The Paroian Report warns that provincewide bargaining runs the risk of becoming "political". The report is unclear as to what is meant by this or how something that is "political" on a provincial level is different or worse than a system that is "political" on a local school board or local union level. Perhaps it is simply a matter of scale. That is, the more control exercised over negotiations at a provincial level, the more likely it will be for a provincial politician to use the negotiations to score political points or curry favour with his or her constituents. In any event, this problem can likely be diffused to some extent by acknowledging that the role of the provincial government is not to micromanage school boards but to provide policy and direction, and demand accountability from those who manage the system. As noted above, most systems of province-wide bargaining do not involve the provincial government directly but an organization or association of employers. d. Provincial Bargaining is Slow Some critics of provincial bargaining note that it tends to be a slow process, especially during the transitional period. They cite the difficulty that the parties have in understanding the real interests of their constituents. e. Job Actions are Province-Wide As discussed above, the idea that province-wide bargaining will lead to fewer strikes has been posited as a positive outcome of the model. Even if this is the G case, no system of bargaining, except those that eliminate strikes and lockouts altogether, will ever eliminate job action entirely. The reality is that strikes and lockouts in a province-wide system may occur. Spring 2005 Education Law 9

10 4923EducLawNewsSpring'05 3/4/05 12:26 PM Page 10 BAdvocates of province-wide bargaining suggest that it breaks down the imbalance of power that teachers unions enjoy. Conclusion Generally, it is the case that provincial governments and school boards or employers associations favour a system of province-wide or regional bargaining and teachers or employees oppose such systems. It is easy to see that unions benefit from the practice of whipsawing. In the education sector, where teachers are represented by large province-wide unions, these unions can very effectively achieve substantial gains for their members by playing school boards off one another. Where school boards complain about this practice, or advocate for province-wide bargaining to address it, teachers unions will point out with some legitimacy, that school boards only have themselves to blame for giving into the practice. As demonstrated in Alberta, however, teachers are not always universally opposed to the notion of province-wide bargaining and may come around to the idea or, as Elizabeth Shilton suggests, become reconciled to the idea of it after years of centralization of education policy and funding. Even if a consensus could be built or the political will exerted to move towards province-wide bargaining, the precise form that such an approach would take would still have to be resolved. As we point out, the Paroian Report has already called for a system of regional bargaining. Advocates of this system suggest that it breaks down the imbalance of power that teachers unions enjoy and permits more local school board representation at the table. At the same time, such an approach will not eliminate the possibility of whipsawing or leapfrogging. Certainly, unions will continue to seek to gain the benefit of this practice in a system of regional bargaining. It is doubtful whether the mechanics of such a system could be resolved prior to the end of the current round of bargaining. At this stage, it is also unclear whether the provincial government has the interest to address the issue. Robert W. Weir Tel: (416) rweir@blgcanada.com 10 Education Law Spring 2005

11 LSERVING IMMIGRANT AND REFUGEE CHILDREN IN THE WAKE OF THE TSUNAMI DISASTER: CHALLENGES FOR SCHOOL BOARDS 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 11 Introduction The world s most powerful earthquake in more than 40 years struck deep under the Indian Ocean on December 26, 2004, triggering massive tsunamis that obliterated cities and seaside towns throughout South and Southeast Asia. Nearly two months later, the death toll for the region stands at almost 300,000. More than a million people have been displaced or left homeless by the disaster. Children have lost or been separated from their parents, and it is estimated that thousands of them may be orphans. Initially, the overwhelming concern of humanitarian and government agencies was rescue and basic survival. However, as the full scope of the crisis emerged, other needs and priorities assumed prominence. Identifying children who have been separated from their parents, uniting them with family members where possible, and attending to the needs of orphans has become the focus of several agencies. Within Canada, government and social agencies were swamped with enquiries from anxious relatives of those who had been affected by the overseas disaster. Citizenship and Immigration Canada responded with a campaign to more expeditiously bring family members together. Of particular interest to school boards are the measures which will see large numbers of children from affected areas entering Canada within a relatively short time. Changes to Immigration and Adoption Procedures Under the Immigration and Refugee Protection Act, Canadian citizens and permanent residents can sponsor their grandchildren who are orphaned and under G brothers, sisters, nieces, nephews or the age of 18, as members of the Family Class. These orphans may be sponsored and come to Canada as family members without being adopted. On January 3, 2005, then Federal Immigration Minister Spring 2005 Education Law 11

12 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 12 BAlready struggling under limited budgets, schools will have to work creatively to find ways of accommodating the increased enrolment. Judy Sgro announced that the existing Family Class applications of people seriously and personally affected by the disaster, who have immediate family members in Canada, would be expedited. In addition, Citizenship and Immigration Canada is waiving new application processing fees and the Right of Permanent Resident fee for persons who have been and continue to be seriously and personally affected by the disaster. Coinciding with these changes at the federal level are changes to the processing of adoptions at the provincial level. Ontario s Ministry of Children and Youth Services has recently cancelled fees on all international adoptions, which could make it easier to bring children who were affected by the tsunamis to Canada. As of January 13, 2005 people are no longer required to pay $460 for the international adoption of relatives, or $925 for the international adoption of non-relatives. It should be noted, however, that prospective adoptive parents must still follow the extensive procedures in the province s Intercountry Adoption Act, which are designed to protect the rights and best interests of children. Taken together, these measures are likely to result in an influx of newcomers to Canada. Rough estimates to date indicate that up to 2,000 families with 2,500 school-aged children will be arriving in the Toronto area alone. The provincial and federal governments have already begun to assess the anticipated needs of these newcomers and the adequacy of settlement and other services to meet their needs. Providers of housing, health, employment and education services and programs have been notified of the need for readiness. The influx of students poses unique challenges for school boards. Whether through sponsorship, adoption or other means, children from countries most affected by the tsunami will be arriving at the doors of schools across the country imminently. Schools already serving communities of immigrants from Indonesia, Sri Lanka, southern India, Thailand, Malaysia, the Maldives, Bangladesh, Burma, Mauritius, Somalia, Kenya, Seychelles, and Tanzania can expect a disproportionate number of these children, as they settle with family members in those areas. Already struggling under limited budgets and with strained resources, schools will have to work expeditiously and creatively to find ways of accommodating the increased enrolment. Suggestions for coping with the influx of immigrants and refugees, and for obtaining the resources to meet their needs, include the following: 12 Education Law Spring 2005

13 L 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 13 Reviewing the services that were required and associated costs incurred in similar situations in the past; Establishing committees to research what resources will be required to serve the incoming students and their families: Involving staff, parents, and community members in discussions Consulting community agencies that provide services to new immigrants Seeking information and updates from relevant government departments Planning for both the short-term and long-term ramifications of the expected influx Considering program and facility requirements that the school board is able to provide and fund on its own; A Reminder About the Admission of Children to School who are in Canada Unlawfully By and large, children arriving in the wake of the tsunami disaster will be in the country lawfully, having complied with the provisions of the Immigration and Refugee Protection Act. However, there are rare occasions when schools encounter children and families who do not appear to have followed the proper procedures for entering into or remaining in Canada lawfully. For example, a family may arrive in Canada as temporary residents in the visitor class, and stay in Canada beyond the period allowed on the visitor record or passport (usually six months from the date of arrival in Canada) without renewing the documentation. Because the family s visitor status has been lost, the family could be considered to be living unlawfully in Canada, according to the Immigration and Discussing concerns with local politicians, and lobbying government for funding and human resources; Setting up partnerships with community agencies and cultural groups to help administer and run programs in schools that schools are unable to provide and fund on their own. Refugee Protection Act. In Ontario, children in these education. This results from the addition Gof circumstances cannot be denied an section 49.1 to the Education Act in Section 49.1 reads as follows: A person who is otherwise entitled to be admitted to a school Spring 2005 Education Law 13

14 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 14 BThe Ministry of Education s position is that no child should be excluded from school merely because of the immigration status of themselves or their parents. and who is less than eighteen years of age shall not be refused admission because the person or the person s parent or guardian is unlawfully in Canada. This section means that the admission criteria that are to be applied to children who are in Canada unlawfully, or whose parents are here unlawfully, should be no different from the criteria applied to any other child seeking admission to a school under the jurisdiction of a school board. This was confirmed in Policy Memorandum No. 136 issued by the Ontario Ministry of Education on December 3, The purpose of the memorandum, entitled Clarification of Section 49.1 of the Education Act: Education of Persons Unlawfully in Canada, is to provide assistance to school boards in applying section The Ontario Ministry of Education s position is that no child should be excluded from school merely because of the immigration status of themselves or their parents. Accordingly, the memorandum advises that the inability to produce any of the following documents does not justify the refusal of admission: a work permit or social insurance number health documentation that is different from that required of all other children other documentation not required of other children seeking admission to school. In addition, Citizenship and Immigration Canada has confirmed that school boards are not required by any federal legislation to refer families without immigration status or documentation to a local office to obtain such documents before their child is admitted to school. School boards may, however, have the authority to refuse admission to these students on other grounds. There are many reasons under the Education Act why a child may not qualify to be admitted to school, and these apply to all children equally regardless of their immigration status. In addition, where children of other countries are admitted to school in Ontario, the school has the authority to make inquiries to determine whether payment of a fee is warranted. proof of immigration status or application for legal immigration status 14 Education Law Spring 2005

15 LConclusion 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 15 In the immediate aftermath of the tsunami, school boards across Canada responded with a variety of fundraising promptly and positively. Dealing with the long-term consequences of the tsunami here at home, including the new influx of students, will require both advance planning and sustained effort. campaigns to support the relief efforts. Contributions of time and money in helping to alleviate the suffering of those affected by the unprecedented catastrophe have been astounding. Through such actions, school Michele Warner Student-at-Law Borden Ladner Gervais LLP staff and students have demonstrated a collective ability to respond to emergencies GSpring 2005 Education Law 15

16 4923EducLawNewsSpring'05 3/4/05 12:27 PM Page 16 ONTARIO HUMAN RIGHTS COMMISSION: SCHOOL BOARDS NOT RESPONSIBLE FOR PROVIDING IBI THERAPY TO AUTISTIC STUDENTS BThe Commission held that IBI Therapy falls under the jurisdiction of the Ministries of Health and Long Term Care, Education, and Community, Family and Children s Services, and not under the jurisdiction of school boards. On February 1, 2005, the Ontario Human Rights Commission (the Commission ) released its decision with respect to a number of autism-related human rights complaints brought by parents against school boards. These parents of autistic children had alleged that school boards have a duty to accommodate their children s needs by providing Intensive Behavioural Integration Therapy ( IBI Therapy ) in the classroom. The Commission has decided not to refer the complaints to the Human Rights Tribunal of Ontario (the Tribunal ) for a public hearing. By way of background, IBI Therapy is a structured, rigorous, and labour-intensive treatment for children with autism. IBI Therapy uses applied behavioural analysis techniques to improve behaviour associated with impairments in the areas of socialization and communication skills. These techniques are based on the principles of behavioural psychology. Each IBI Therapy programme is individually designed and very labour intensive (a programme can require up to 40 hours of intensive programming per week with a well-trained instructor under close clinical supervision). IBI Therapy is also very expensive: it can cost up to $50, per year per child. Currently, the Ontario government does not fund IBI Therapy after the age of six. The various schools boards had argued, in response to the human rights complaints, that IBI Therapy is a medical therapy or treatment which must be delivered by trained therapists. Furthermore, because it is not a special education program or plan, IBI Therapy falls outside the jurisdiction of the school boards. In its February 1, 2005 decision, the Commission agreed with the school boards, and held that IBI Therapy falls under the jurisdiction of the Ministries of Health and Long Term Care, Education, and 16 Education Law Spring 2005

17 LCommunity, Family and Children s 4923EducLawNewsSpring'05 3/4/05 12:27 PM Page 17 Services, and not under the jurisdiction of school boards. The Commission referenced Policy/Program Memorandum No. 81 ( PPM81 ), entitled Provisions of Health Support Services in School Settings, which provides that responsibility for ensuring the provision of health support services is shared amongst these three Ministries. PPM81 also states that school board responsibilities are generally limited to the administration of oral medication, lifting and positioning, assistance with mobility, feeding and toileting, general maintenance exercises, and speech correction, remediation and habilitation programs. The Commission also held that IBI Therapy requires a clinical setting, and therefore is not appropriate in the classroom. support, and long waiting lists for a government program. Without financial support from the government, some parents have paid for the treatment costs themselves, or stopped the therapy altogether. These cases have not yet been heard by the Tribunal. The complainants in the various human rights cases against school boards have the right to request that the Commission reconsider its decision of February 1, However, they must do so within 15 calendar days of date the decision was mailed. It is not yet known whether the complainants have exercised, or intend to exercise, this right. In the meantime, school boards can take comfort knowing that their responsibilities for dealing with autistic children have been more clearly defined by the Commission. Although this decision will be disappointing to many parents of autistic children, the issue of government funding for IBI Therapy is still a live issue at the Commission. In March 2004, the Melanie Warner Tel: (416) mwarner@blgcanada.com Commission referred 121 autism-related complaints against various Ontario Ministries to the Tribunal. These complaints are based on challenges to restrictive eligibility criteria for funding GSpring 2005 Education Law 17

18 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 18 BBorden Ladner Gervais Education Law Group Leaders include: Toronto Office Eric M. Roher, National Leader Calgary Office Julio N. Arboleda Montréal Office Jean-René Ranger Ottawa Office Graham Clarke Vancouver Office Clive S. Bird Education Law Spring 2005

19 LThis newsletter is prepared as a service for our clients and other persons dealing with 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 19 education law. It is not intended to be a complete statement of the law or an opinion on the subject. Although we endeavour to ensure its accuracy, no one should act upon it without a thorough examination of the law after the facts of a specific situation are considered. No part of this publication may be reproduced without prior written permission of Borden Ladner Gervais LLP. This newsletter has been sent to you courtesy of Borden Ladner Gervais LLP. We respect your privacy, and wish to point out that our privacy policy relative to newsletters may be found at If you have received this newsletter in error, or if you do not wish to receive further newsletters, you may ask to have your contact information removed from our mailing lists by phoning BLG-LAW1 or by ing subscriptions@blgcanada.com Borden Ladner Gervais LLP GSpring 2005 Education Law 19

20 4923EducLawNewsSpring'05 3/1/05 1:08 PM Page 20 B L Borden Ladner Gervais LLP Lawyers Patent & Trade-mark Agents Calgary 1000 Canterra Tower 400 Third Avenue S.W. Calgary, Alberta, Canada T2P 4H2 tel.: (403) fax: (403) Montréal 1000 de La Gauchetière Street West Suite 900, Montréal, Québec, Canada H3B 5H4 tel.: (514) fax: (514) Ottawa World Exchange Plaza 100 Queen St., Suite 1100 Ottawa, Ontario, Canada K1P 1J9 tel: (613) legal fax: (613) IP fax: (613) Toronto Scotia Plaza, 40 King Street West Toronto, Ontario, Canada M5H 3Y4 tel.: (416) fax: (416) V ancouver 1200 Waterfront Centre 200 Burrard Street, P.O. Box Vancouver, British Columbia, Canada V7X 1T2 tel.: (604) fax: (604) G Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership W aterloo Region 508 Riverbend Drive, Suite 303 Kitchener, Ontario, Canada N2K 3S2 tel: (519) fax: