Introduction

Until 1998, principals and vice-principals were statutory members of the professional associations designated under the Teaching Profession Act, By-Law I. That is, principals and vice-principals were statutory members of AEFO, OECTA, or the predecessors of ETFO and OSSTF, depending on the school to which the principal or vice-principal was assigned. The terms and conditions of principals’ and vice-principals’ employment were negotiated within the same collective bargaining process and were contained within the same collective agreement as those of teachers.

As many readers will recall, the Harris Conservatives’ 1998 education law reforms included the reorganization of the teachers’ collective bargaining regime, and the exclusion of principals and vice-principals from that regime. Shortly thereafter, in 2001, the same Harris Conservatives legislated a mandatory teacher performance appraisal program and defined the principal’s role and responsibilities therein. Those included, and still include, a duty to recommend the dismissal of a teacher as the penultimate step in the process. Government policy since the late 1990s has been to place school management in the hands of principals, and to provide them a role within the school board management team.

As members of the Ontario College of Teachers, also established in 1998, principals and vice-principals are considered “teachers” for the purposes of the Education Act, except Part X.1 (the teachers’ collective bargaining regime). The collective bargaining regime under the Ontario Labour Relations Act is not available to principals and vice-principals, as they are specifically excluded from the operation of that statute by its section 3(f). Even if there were no specific exclusion, principals and perhaps vice-principals would be excluded by reason of their managerial functions and their confidential capacities in matters relating to labour relations.

As a result of these events, since 1998 the employment of Ontario principals and vice-principals has been considered, from a legal perspective, to be governed by individual contracts of employment. Many school boards adopted policies which provided standardized terms and conditions of employment for principals and vice-principals, in the same way they had done in the past for senior administration. Many school boards consulted with representatives of a voluntary association of principals and vice-principals in preparing those policies. In general, and despite the existence of such policies, the school board separately employ each individual principal and viceprincipal. Therefore, in the case of a dispute between the principal or viceprincipal and the school board, the individual principal or vice-principal have access to the courts for legal redress.

A question has been buzzing in the province of late, following the release by the Supreme Court of Canada of its decision in BC Health Services and, more recently, the release by the Ontario Court of Appeal of its decision in Fraser v. Ontario. That question is: Do principals’ associations now have the right to negotiate collectively on behalf of Ontario principals? Many associations of principals and vice-principals assert such a right and, in addition, assert that individual school boards are legally obliged to recognize such a right.

School boards faced with such claims ought to examine them carefully. It is true that the Supreme Court of Canada has recognized that section 2 of the Canadian Charter of Rights and Freedoms protects “the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining”. It is also true that the Ontario Court of Appeal, in the Fraser decision, elaborated on this right and held that, in order for this right to provide meaningful protection for agricultural workers, it must be accompanied by a right to exclusive representation selected democratically, a duty to bargain in good faith and a dispute resolution process.

When faced with these claims, school boards must be aware of two important caveats:

The first caveat is, that the Courts in the above-noted decisions and, in particular, the Fraser case, are talking about statutory rights. In other words, the Court in Fraser ruled that the legislature must enact legislation to provide a meaningful collective bargaining regime to protect agricultural workers, and the legislation must include exclusivity, majoritarianism, good faith bargaining and a dispute resolution process. There is no suggestion in Fraser that individual employers must give effect to these rights. Indeed, school boards are not able to confer exclusive bargaining rights on a voluntary association of principals and vice-principals; this must be done by statute and is a pre-requisite to an association entering any agreement that would be legally binding on all principals and vice-principals. There must also be a legislative basis for the establishment of an appropriate bargaining unit, for the manner in which the bargaining agent is chosen, for resolving disputes which arise during bargaining or at impasse, including the right to strike. Therefore, it is suggested that principals’ associations ought to assert their claims, not towards the individual school boards but rather to the Ontario government.

The second caveat is that there is an important legal issue that must be considered before anyone concludes that principals and vice-principals are entitled to a constitutionally protected collective bargaining regime. Section 1 of the Charter provides that: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Therefore, if a principal or a vice-principal were to take legal action against the government for its failure to provide a statutory collective bargaining regime, the government may have a valid defence based on section 1 of the Charter: that excluding management personnel from a collective bargaining regime is reasonable in a free and democratic society. We would predict that such a defence would be rooted in the strong tradition, in Canada and internationally, which considers the exercise of managerial responsibility to be inconsistent with collective bargaining. This is not the place to consider the facts and the arguments that would inform this debate. We bring forward this caveat only to make the point that collective bargaining for principals and viceprincipals is far from a “fait accompli”.