Appeal court sides with Port Alberni teacher in class composition case

The B.C. Court of Appeal has unanimously overturned an arbitrators dismissal of a Port Alberni teacher’s grievance over class size and composition, and has sent the matter back to arbitration.

The decision by the three-member judges’ panel was announced on Wednesday.

Alberni District Teachers’ Union president Ken Zydyk wasn’t available for comment.

But the B.C. Teachers Federation responded to the ruling.

“This is an extremely important decision because it means that the legal obligation to ensure a class is appropriate for student learning continues beyond September 30,” BCTF President Susan Lambert noted in a release.

“We’re gratified that the Court of Appeal has upheld our position that teachers have the right to grieve unacceptable class-size and composition.”

According to the decision’s factual background, the case has its roots in 2008 at Maquinna Elementary School.

Grade 5 teacher Kathleen Battand had to teach four students who required individual education programs (IEP’s) – one more student than proposed under Bill 33.

In a meeting with the school’s principal, Battand expressed concerns about the impact of adding a fourth IEP student on her class preparation time.

The principal proposed adding an educational aide who would work with Battand’s class, and signed a statement with superintendent Cam Pinkerton deeming the class appropriate for student learning.

The education aide was subsequently absent several times that year. The school board was required to supply a replacement aide, and Battand requested it, but none was available.

Battand filed a grievance alleging that the failure to provide a replacement aide violated the terms and conditions of her employment.

The ADTU also argued that the principal deemed the class appropriate to teach on the basis that an aide would be provided, but that not providing one undermined the claim.

Arbitrator James Dorsey dismissed the grievance though, saying that the grievance procedure was available only for grievances arising under the collective agreement, and not for any alleged breaches of an agreement between a teacher and a school.

The appeal judges panel however disagreed with Doresy’s decision, saying that he never determined whether Battand’s class was appropriate for learning in the opinions of the principal and superintendent when Battand raised the issue of the aide’s absence.

Consultation and reporting requirements occur in September and October.

But the requirement that the principal and superintendent be of the opinion that the class organization is appropriate for student learning applies beyond the start of the school year, Justice Harvey Groberman noted.

“The ongoing nature of the obligation is underlined by s. 76.1(2.4), which provides that s. 76.1(2.3) applies after the date on which the superintendent’s report is signed.”

The panel also agreed with the ADTU that not providing a learning aide affected the provision of education in Battand’s class.

“…the principal and superintendent were required, when the situation came to their attention, to consider whether the organization of Ms. Battand’s class continued to be appropriate for student learning,” Groberman noted.

“If they were of the opinion that it did not continue to be so, the school board had a responsibility to make whatever changes were necessary to bring the class back into compliance with s. 76.1(2.3).”

School District 70 superintendent Cam Pinkerton wasn’t available for comment.

But the B.C. Public School Employers’ Association said that it is reviewing the decision and will comment in the coming days.

reporter@albernivalleynews.com

Read the decision here.

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