Canada: Arbitrator Rules Boards Not Required To Schedule ECEs To Be Present For Full Length Of Instructional Day

In a decision under the central dispute process released on October 13, 2017, arbitrator Russell Goodfellow ruled that the Education Act (the "Act") and its regulations do not require school boards to schedule early childhood educators ("ECEs") to be present in a full day kindergarten ("FDK") classroom for the full length of the "instructional program" in each school day.

The Goodfellow decision departs from a prior award that arose from a local grievance involving the Windsor-Essex Catholic District School Board. In that case, arbitrator Surdykowski held that "the ECE must be in the classroom (or teaching area) with the teacher for every minute of every instructional day" and that "ECE breaks [could not] be scheduled or taken during instructional time..." The Surdykowski decision is the subject of a judicial review; however, that judicial review was adjourned pending the disposition of the central grievance by arbitrator Goodfellow.

Unlike the Surdykowski decision, the Goodfellow decision arose from the central dispute resolution process set out in the School Boards Collective Bargaining Act, 2014, and so will directly impact all 29 Catholic school boards represented by the Ontario Catholic School Trustees' Association ("OCSTA"). Further, as an interpretation of the Education Act and not a specific collective agreement, the decision may have an effect on the other 43 school boards in the province of Ontario.


The Ontario English Catholic Teachers' Association ("OECTA") initiated a central grievance in relation to the FDK program. Under the central dispute resolution process in the collective agreement, the Crown is also a party to the proceeding.

The Education Act was amended in 2010 to require boards to phase in full-day kindergarten from 2011 to 2015. One of the requirements of the phase-in of FDK was that at least one position in each junior kindergarten ("JK") and kindergarten ("K") class of 16 students or more was to be designated as requiring a properly qualified ECE in addition to the teacher assigned to teach. The FDK program would also provide for 300 minutes of instructional time per day.

Some school boards, including the Ottawa Catholic District School Board (the "Board") from which the central grievance arose, were scheduling ECEs' contractual breaks during instructional time, leaving the teacher to supervise the students alone for up to 60 minutes per day. During students' recess and lunch breaks, the ECE would supervise the students.

OECTA grieved this scheduling practice, arguing that the Act, regulations, and certain policies, guidelines, and contextual materials required both the teacher and the ECE to be present in the classroom for the entire 300 minutes of instructional time.

OECTA took the position that the scheduling practice was precluded by the Act and regulations. OCSTA and the Crown took the position that the scheduling practice was lawful. BLG represented OCSTA in this hearing.

Submissions of the Parties

OECTA's primary argument was that in reading the Act, regulations, and additional materials in context, it was apparent that that ECE-teacher team was the "functional equivalent" of the teacher acting alone in an older grade. OECTA argued that this "functional equivalence" meant that the Board was not truly providing the required 300 minutes of "instruction" if either the teacher or ECE were not present in the classroom for any part of the 300 minutes. Put another way, OECTA's position was that the statutory obligation to deliver a 300-minute FDK instructional program requires school boards to schedule both a teacher and an ECE to be present in the classroom for the full 300 minutes. Drawing from case law that established a teacher must be present in an older grade for classroom time to count as instruction, OECTA argued that the same standard should apply to the ECE-teacher team.

In response, OCSTA argued that there had been no breach of the Act or its regulations. Rather, the Act confirms that in an FDK classroom, teachers are required to instruct, while ECEs are required to co-operate and co-ordinate with teachers with respect to various classroom matters. OCSTA's position is summarized as follows:

The plain and ordinary meaning of the words in the Education Act is clear, not ambiguous, and does not preclude the practice of scheduling ECE breaks during instructional time, without a replacement ECE. The Board's duty is simply to appoint an ECE to a designated position in a JK or K class. The ECE's duty is to co-operate and co-ordinate with teachers with respect to various classroom matters, but does not require the ECE to be in the classroom at all times during the instructional day or tied to the hip of the teacher. Further, the presence of the ECE does not detract from the teacher's duty to instruct and thus is not required for purposes of the Board's duty to provide the minimum period of the instructional program.

OCSTA also emphasized that in the absence of a statutory prohibition otherwise, school boards were free to schedule ECE breaks at times that were pedagogically supported. It may be preferable, for example, to schedule an ECE break during quiet time, rather than during lunch time or recess when students are busy learning through exploratory play. Although ECEs and teachers work as a team, the ECE-teacher team is not the "functional equivalent" of a teacher in an older grade.

The Crown's submissions complemented those of OCSTA. The Crown asserted that OECTA was reading unsupported requirements into the Act regarding the implementation of the FDK program. The Crown also confirmed that the intention of the legislative amendments that introduced the FDK program was to provide school boards with as much flexibility as possible with respect to its implementation. OECTA's rigid interpretation was not consistent with that intent.

Decision and Analysis

Arbitrator Goodfellow "agree[d] with the OCSTA that there is nothing [in the legislation] that suggests that the Board would be in violation of its duty to provide a minimum period of instruction simply because the ECE was taking a break without a replacement." In this regard, the arbitrator ruled that the grievance was dismissed.

As the party asserting a legislative requirement or prohibition, OECTA bore the onus of proving it — but, in the arbitrator's view, had failed to do so. The arbitrator held that the requirement asserted by OECTA is not set out expressly in the Act or regulations. Arbitrator Goodfellow stated:

Recognizing that delivery of the 300-minute instructional program requires the constant scheduled presence of 'teachers', I cannot find the same to be true for ECEs. The Act does not say it, the Regulations do not say it, it does not appear in any policy or guideline, and it is not a feature of any of the materials to which OECTA refers as "context", even assuming I was able to consider them.

He further dismissed OECTA's "functional equivalence" argument, concluding as follows:

..."functional equivalence" is a theory, described as an inference, chasing a result, that is nowhere provided for. What is needed is not "functional equivalence" but legal equivalence — something that would convey a clear legislative intent that ECEs and teachers are to be treated the same in respect of school boards' 300 minute "instructional program" obligations, and that something is not there.

Arbitrator Goodfellow held that school boards are required to deliver a 300-minute instructional program on each school day at all grade levels, now including JK and K. He stated that delivery of the "instructional program" at other grade levels has been recognized as requiring the continuous scheduled presence of a "teacher". That requirement, however, is tied to the status, qualifications and duties and responsibilities of a "teacher", which include the duty to "teach", to provide "instruction" and to "carry out...the instructional program assigned to the teacher by the principal".

Arbitrator Goodfellow pointed out that these are not the duties of an ECE. He stated that the ECE duties, though important, are different. "They are defined as 'cooperating' and 'coordinating' with the 'teacher' with respect to certain matters, which include 'providing education', but which do not include 'teaching', 'instruction' or, indeed, carrying out the 'instructional program'".

He concluded that not only are ECEs not teachers, the two together do not add up to a "teacher" or stand in the shoes of a teacher for the purpose of the 300-minute instructional program.

The arbitrator ruled that the obligations that apply to school boards in respect of teachers and the instructional program have not been made to apply to ECEs and the instructional program. He held that "ECEs and teachers are different statutory creatures with different duties and responsibilities."

He found that teachers are statutorily responsible for instruction while ECEs are not. "In the context of the FDK program, there is simply a new category of educational professional on the scene with whom the teacher is required to coordinate and cooperate, and vice versa, in delivering the new educational product."


As a central grievance award, based on interpretation of the Act and regulations, rather than a specific collective agreement, the Goodfellow decision and its reasons may have an impact on school boards throughout the province.

Depending on a school board's individual circumstances — such as whether FDK classes have students of mixed ages, operate bilingually, schedule recess on a staggered basis, or whether adequate replacement supervision is readily available, ECE breaks may be scheduled at a time that is pedagogically and operationally appropriate, provided such breaks are consistent with relevant collective agreements.

We understand that OECTA has made the determination to have this decision judicially reviewed. We will continue to monitor this matter and provide updates as the issue unfolds in Divisional Court.

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
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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