Canada: Labour Board Rules That Elementary Teachers’ Union Engaged In an Unlawful Strike

In a landmark decision, the Ontario Labour Relations Board held that the Elementary Teachers' Federation of Ontario engaged in an illegal strike when it counseled its members to not participate in voluntary extracurricular activities.

In a decision, released on April 11, 2013, Bernard Fishbein, the Chair of the Labour Board, ruled  that the withdrawal in combination or in concert of participation in extracurricular activities constituted a strike within the meaning of the Education Act.

This decision could prevent future use of the type of concerted work-to-rule campaign that cancelled extracurricular activities for most of the 2012/2013 school year for 1.3 million students in the province's public English-language schools.

Mr. Fishbein also held that notwithstanding the fact that on March 26, 2013, well after the hearing had concluded, the Elementary Teachers' Federation of Ontario (ETFO) withdrew its "advice" to members not to participate in extracurricular activities, there was still a labour relations purpose to issuing the decision and it was not moot.

The Issues Before The Labour Board

The Trillium Lakelands District School Board in cottage country and the Upper Canada District School Board in eastern Ontario had sought a cease-and-desist order again bulletins issued by ETFO in January 2013 that advised members to stop doing anything other than teach the required 300 minutes a day to protest the imposition of contracts under Bill 115, the Putting Students First Act, 2012.

The submissions from the school boards contained e-mails from leaders of ETFO instructing their members not to collect milk and pizza money, attend field trips, supervise sports practices and games, participate in the chess club, distribute school newsletters and attend report-card workshops. Some of the e-mails from local officials to members of the local were quite explicit. For example, "In accordance with the ETFO Executive motion, members should not participate in voluntary/extra-curricular activities...These are voluntary activities and members should not participate in them – full  stop."

The lawyers for ETFO argued that their members were neither coerced or compelled to stop voluntary activities and that their union leaders only offered advice.

The Labour Board pointed out that under section 81 of the Labour Relations Act,no trade union shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union shall "counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike".

However these ETFO communications are characterized, Mr. Fishbein said that no one can credibly maintain or dispute, at a minimum, that ETFO, it's officers, officials or agents "supported" or "encouraged" this activity. The question before the Labour Board was whether the activity amounted to a strike.

Was ETFO Encouraging a "Strike"?

Mr. Fishbein ruled that the collective withdrawal of extracurricular activities fell under the definition   of strike set out in the Education Act even though the activities are unpaid and voluntary. He stated: "Not only does the plain and clear wording of the [Education Act] easily include these activities but I think, if only from both the labour relations purpose and perspective, this is the far better interpretation, particularly, in the education sector with its long history and expectations about the delivery of these types of activities".

While teachers are subject to the ordinary mechanics of the Labour Relations Act strike-lockout regime, they are governed by their own unique definition of "strike" found in section 277.2(4) of the Education Act. It provides:

" 'strike' includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering  with,

  1. the normal activities of a board or its employees,
  2. the operation or functioning of one or more of a board's schools or of one or more of the programs in one or more schools of a board, or
  3. the performance of the duties of teachers set out in the Act or the regulations under it,

including any withdrawal of services or work to rule by teachers acting in combination or in concert and in accordance with a common understanding."

Mr. Fishbein stated that the plain wording of  the statute appears to support the position of the school boards. Mr. Fishbein noted that the activities in question include inter-school or intramural sports teams that have routinely occurred for many years at most, if not virtually all, of the boards' schools – as well as chess clubs, art clubs, bands and choir. He said that by encouraging members to no longer perform any of these activities, ETFO is, at a minimum, "interfering" with either the operation of a school or a program in a school.

Mr. Fishbein also ruled that ETFO was interfering in the normal activities of a board as these activities have been routinely offered for long periods of time.

This decision sets an important precedent for future education sector labour disputes. It will certainly have an impact on any future teacher's union that wishes to counsel or advise their members to collectively withdraw from similar types of volunteer activities. However, the ruling does not prevent individual teachers from choosing not to coach a sports team or supervise the choir after school hours.

The decision also confirms that although the Government repealed the Putting Students First Act, 2012 on January 23, 2013, the collective agreements imposed by that legislation continue to exist and operate.

Legal counsel for ETFO took the position that in light of the repeal of Putting Students First Act, 2012, that all collective agreements established under Bill 115 now cease to exist. Mr. Fishbein rejected ETFO's arguments that the collective agreements do not survive the repeal of Bill 115. He pointed out that the answer lies in section 51(1) of the Legislation Act, 2006.

It provides:

"The repeal of an Act or the revocation of a regulation does not,

  1. affect the previous operation of the repealed or revoked Act or regulation;
  2. affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or  regulation."

In this regard, the Labour Board held that the collective agreements imposed under the Putting Students First Act, 2012 and its regulations remain in effect until August 31, 2014, although the Act and the regulations themselves are no longer in force.

Even though negotiations between the government and ETFO appeared promising at the time Mr. Fishbein wrote his decision, he ruled that it was still necessary to issue the decision due to the school board's fear of a recurrence.

Mr. Fishbein said that he felt he still needed to make a ruling because of uncertain legal status  of the after-school boycott. Mr. Fishbein asserted that this issue "has bedevilled teacher labour relations in the province and others for decades." He stated "ETFO has not asserted that it will not resort to this conduct again." Mr. Fishbein concluded that he was not convinced there is no labour relations purpose to issuing this decision.

On April 10, 2013, ETFO President Sam Hammond said that his members would honour the ruling although the union has said that it intends to challenge it on the grounds that the Education  Act definition of strike restricts a teacher's right  to freedom of association under the Canadian Charter of Rights and Freedoms.1

Mr. Hammond stated: "You can't legislate goodwill. There is no other profession where people are expected to perform hours and hours of volunteer service each week, and then are castigated for making personal decisions to put their principles, their families and their own welfare first".2

The Education Minister Liz Sandals said that the government is reviewing the decision but her focus is on its ongoing discussions with ETFO and rebuilding relationships across the sector.3

The Challenge for School Administrators

For principals and vice-principals in the province, the challenge will be to ensure the continuity of education and the effective operation of their schools. Many public elementary and secondary teachers have returned to extracurricular activities, but some have chosen not to. It is recognized that individual teachers continue to have the right not to participate in these voluntary after-school activities.

Ensuring proper supervision and support of students involved in extracurricular activities and communication with parents about the status of these activities continue to be key considerations during this period of transition.

In meeting with school staff in these challenging times, school administrations should:

  • ensure that teachers and other staff perform required duties and responsibilities;
  • strive to be sensitive, discreet and understanding in dealing with individual staff issues;
  • focus on supporting the school program and student learning;
  • communicate with school staff with clarity; and
  • be professional in providing leadership in the school community.

Principals and vice-principals no doubt recognize that labour relations can create stress and tension in a school environment. School administrators should be aware that with some local issues,  there may be larger political motivations at play. In these circumstances, it is important to put these issues into perspective.

In this period of transition, as most of the extracurricular activities return to Ontario's  public schools, it is important to be patient and calm in supporting the school program. It is recommended that principals and vice-principals continue to build strong relationships with their school staff and union representatives. Where possible, it is recommended that the parties work in a collaborative and inclusive manner to resolve potential areas of disagreement. The focus on all parties should be to continue to support student achievement and ensuring a positive learning experience for all students.


1 Louise Brown and Kristin Rushowy, "Landmark ruling bars teachers unions' after-school boycotts", The Toronto Star (April 12, 2013), p. A1.

2 Ibid.

3 Ibid.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions