Canada: Education Reform: Assessing The Impact Of Nova Scotia's Education Reform Act

Last Updated: March 20 2018
Article by Robert (Bob) W. Murray, Anna Loparco, Christina Porretta and Dina I. Awad

Nova Scotia's Omnibus Bill 72 - the Education Reform Act, SNS 2018, c. 1 - received Royal Assent on March 9, 2018. The legislation is based on recommendations in the government commissioned Glaze Report entitled "Raise the Bar: A Coherent and Responsive Education Administration System for Nova Scotia". The Education Reform Act introduces broad and sweeping changes to the province's education system through:

  • The creation of a new Education Act for English-language schools, which will come into force on April 1, 2018. Francophone schools, as represented by the Conseil Scolaire Acadien Provincial, continue to be governed by the present Education Act, renamed as the Education (CSAP) Act.
  • The creation of a Public School Administrators Employment Relations Act, which will come into force on August 1, 2018.
  • Extensive amendments to the Teachers' Collective Bargaining Act, the Teachers' Provincial Agreement and collective agreements with school boards.

Some of the most important changes that will result from these enactments include:

  • School boards have been dissolved and are now considered "education entities
  • The Minister of Education is now the "Minister of Education and Early Childhood Development".
  • School Board Superintendents will become "Regional Executive Directors" employed by the Department of Education. Among other things, they will report annually to the Minister of Education and Early Childhood Development on the performance of the students and schools.
  • A new definition has been created for "managers", separating them from teachers as defined in the Education Act. Managers include teachers employed by an education entity or the Minister of Education and Early Childhood Development who hold a position with greater supervisory responsibility than a department head, including principals, vice-principals, and other persons employed in managerial positions.
  • Managers who are part of the Nova Scotia Teachers' Union (the "Union") prior to August 1, 2018, cease to be members on that date for the purpose of the Teachers' Collective Bargaining Act.
  • A new administrators association representing principals, vice-principals and other senior supervisors comes into effect on August 1, 2018 that will pay dues to the Union but will not have the right to unionize, take job action or file formal grievances. However, the Union is required to allow managers to participate in its benefit plans or services.
  • Beginning in February 2019, the administrators association will be able to consider every two years whether to remain affiliated with the Union.
  • Notwithstanding any professional agreement, a manager may perform the duties of a teacher. Individuals may also cease to be managers and become teachers and return to the Union.
  • Increases to the fines applicable to the Union and employers, including for a contravention of Labour Board Orders (from $10,000 to $100,000), declaring or causing an illegal lockout or strike ($10,000 per day), or breaching the Teachers' Collective Bargaining Act (from $10,000 to $100,000).
  • The creation of a Provincial Advisory Council on Education, comprising 12 diverse members, in addition to the Chairs of the Council on Mi'kmaq Education, the Council on African-Canadian Education, and the Conseil scolaire acadien provincial.

These changes will be rolled out over the next six months, and will affect nearly every facet of Nova Scotia's educational system, particularly regarding the scope of the Union. Under the Education Reform Act, the Minister of Education and Early Childhood Development is required to consult with the Union on recommendations in the Glaze Report related to teaching achievement, teaching excellence and professionalism on or before June 30, 2018.

Analysis

While Nova Scotia's Education Reform Act applies only to the education system in Nova Scotia, the passage of this Bill may have significant consequences for education leadership and governance in multiple provinces. Other provinces have recently explored the possibility of restructuring or eliminating publicly elected school boards in recent years, such as New Brunswick and Saskatchewan, but the process and reformed structure in Nova Scotia is groundbreaking in terms of the breadth of reform taking place at one time. Notable areas of interest that should be observed in other provinces include:

  1. The impact the reforms of Nova Scotia will have on public and government perceptions of school board governance and publicly elected trustees.
  2. The role constitutional linguistic rights played in determining the structure of governance and the continued existence for Conseil Scolaire Acadien Provincial. We note that these constitutional intricacies may have relevance for both Francophone and Catholic school boards in those provinces where French-language and Catholic education are publicly funded, described in detail below.
  3. The removal of administrators from the Nova Scotia Teachers' Union and the restructuring of education sector contracts and future collective bargaining.

Francophone rights

Minority language educational rights are provided for in section 23 of the Charter, which applies to several Canadian provinces. Courts have held that these rights include exclusive powers of management and control vested in representative parents such that they can manage and control the educational facilities in which their children are taught. There is a strong argument that removing the right holder's ability to elect trustees is a prejudicial violation of his/her right to management and control of the schools. This is particularly so where Francophone student numbers are high. As such, we believe that the removal of Francophone trustees would be a violation of s. 23 of the Charter.

Separate school rights

At the time of confederation, Catholic schools in the Maritime provinces were recognized but were provided no constitutional protection. Thus, the current amendments in Nova Scotia may not be constitutionally prohibited.

In Alberta, Courts have held that the constitutional guarantee for publically funded separate school education includes the right to the exclusive management and control of the administration of Catholic schools, which is exercised through the election of school board trustees.

According to constitutional scholar Peter W. Hogg, if it were possible for a province to appoint managers in lieu of the elected trustees of the denominational schools, then the schools' character could be destroyed. (Peter W. Hogg, Constitutional Law of Canada, 5th ed. Supp. (Toronto: Thomson Reuters Canada Limited, 2017). Operating an advisory council via government appointees removes the ability of the board as delegates of the Catholic minority to operate their school system. This would be a denial of all the rights and privileges protected in s 93 of the Constitution and "unquestionably prejudicial" (Moose Jaw School District No. 1 et al v Attorney General of Saskatchewan and Saskatchewan Teachers' Federation, [1974] 2 WWR 27, 41 DLR (3d) 732 (SKQB) (appeal allowed on basis of amendment of offending provision).

We will continue monitoring the implementation of these reforms, and potential further changes to come.

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