A provision in the collective agreement between the Simcoe County District School Board (the “Board”) and ETFO was negotiated in 2009 so as to provide that no kindergarten class would exceed 23 students. 

Following the negotiation of this language, the Ministry of Education (the “Ministry”) announced the phasing-in of full day kindergarten, with classes to be staffed by a certified teacher and an early childhood educator (“ECE”).  In proceeding with this initiative, the Ministry stated it expected these full day kindergarten classes to have an average class size of 26 students and made it clear it would be making funding available on this basis.

In anticipation of the Board’s establishing kindergarten classes in line with Ministry expectations, ETFO filed a grievance alleging a violation of the negotiated class-size restriction of 23 students.  The Board proceeded to organize its kindergarten classes in line with Ministry expectations, with some classes having more than 23 students.

The Board argued that the negotiated class size provisions ought to be interpreted in light of the context in place at the time the parties were engaged in collective bargaining; namely, half-day kindergarten, not the as-yet-unannounced full day classes. As such, the Board argued that the restrictive language applied only to half day staffing.  In the alternative, the Board argued that the presence of the ECE in each class brought the teachers’ workload in line with the collective agreement. 

The arbitrator rejected the Board’s arguments.

In finding for ETFO, the arbitrator ruled that the parties’ intention regarding kindergarten class size limits was clearly expressed and ought not to be defeated as a result of the full day initiative or the presence of the ECE in each classroom.  The arbitrator interpreted the word “kindergarten” as applying equally to both full day and half day kindergarten.

In addressing the Board’s argument around teachers’ workload, the arbitrator concluded that class size was but one facet of a teacher’s workload and that the language at issue dealt only with class size.  In leaving the matter of remedy to the parties, the arbitrator noted:

In any event, the parties agreed…to limits on this one dimension of workload.  They did not agree that the provision’s objectives could be satisfied by other means.  It may be that the overall difference in workload between ELP full time kindergarten and half time kindergarten, if it can be measured, is a pertinent consideration in determining a remedy for a breach of class size limits…

In rejecting the Board’s arguments, the arbitrator noted that collective bargaining is typically conducted with a view to governing a future period in which circumstances may change which may, in turn, have significant implications not contemplated by the agreed upon language.  In the arbitrator’s view, this was one such situation.