By Jack H. Berryman
Scarcely anyone noticed when Ontario's final Board of Reference quietly concluded its deliberations in the spring of this year, but it was a significant event in the history of the province's teaching profession.
Introduced in 1938 and removed from Ontario's education landscape 60 years later by Bill 160, the original purpose of the Board of Reference concept was to provide a simple, clear procedure to resolve a difference of opinion regarding the dismissal of a permanent teacher, or the termination of a contract by a permanent teacher or a school board.
There was a time in Ontario when all or most teachers were hired with no contract or job security. A teacher's tenure could be terminated at any time with one calendar month's notice. Before 1938, the only recourse for dismissed teachers was to sue for wrongful dismissal. Regardless of the outcome before the courts, employment as a teacher with the school board was at an end. However, with the adoption of the Teachers' Board of Reference Act, 1938, teachers were given the right of reinstatement if it was determined that they were treated unfairly.
These Boards of Reference were needed at least until 1975, when the School Boards and Teachers Collective Negotiations Act (Bill 100) set out, for the first time, ground rules for orderly collective bargaining between teachers and school boards, and provided for the collective agreement to form part of a teacher's contract. Although the Department of Education had issued a recommended standard form of contract with tenure protection in it in 1931, the contract did not become obligatory until 1943. Teachers' contracts, which were instituted as a protection from arbitrary and capricious dismissal and which provided teachers with access to recourse in the event of dismissal, were also eliminated by Bill 160.
Before Bill 100, Boards of Reference were the only statutory vehicle for dispute resolution concerning dismissal of teachers or termination of contracts that existed within the education community. The adoption of Bill 100, however, offered teachers and school boards the possibility of an additional internal statutory vehicle for dispute resolution the grievance-arbitration process.
By the early 1990s, the number of applications for a Board of Reference had declined significantly, as most teachers chose to pursue their contractual disagreements via the grievance-arbitration process. It became clear that the Board of Reference process was no longer needed. Bill 160 repealed Bill 100, and required school boards and teachers to negotiate and to resolve their employment disagreements in accordance with the Labour Relations Act.
Boards of arbitration get their authority from the terms of the collective agreement and from applicable legislation. They have jurisdiction to consider matters relating to the interpretation, application, administration, or violation of a collective agreement. Courts will overthrow a decision of a board of arbitration that is patently unreasonable.
There is considerable Canadian jurisprudence highlighting the importance of teachers performing their duties properly. Courts have great respect for teachers and the duties they perform. Indeed, they view the role of teachers in educating children to be second in importance only to that of parents, and they have established high standards for teachers.
School boards are responsible for determining how well teachers in their employ are performing their duties. The legacy of Boards of Reference is the recognition that an effective process, which addresses formative evaluation and summative evaluation, must be firmly in place so that such an important determination can be properly made.
The essential purpose of formative evaluation is to provide for the improvement and professional development of teachers. Formative evaluation is positive and should be the main type of evaluation. The intended effects are professional growth, more effective teaching and improved student learning. On the other hand, evaluation designed to provide a documentary record which justifies an adverse employment decision is termed summative evaluation. Teachers whose formative evaluation is unsatisfactory are usually required to participate in a summative evaluation process.
Over the years, certain essentials have become legally recognized as being integral parts of any evaluation process. At the core of the process are fundamental fairness and reasonableness, as well as procedures which yield a documentary record substantial enough to justify an employment decision. The evidence must be clear, cogent and convincing before an adverse employment decision is made. The standards of evaluation are to be reasonably related to what teachers are expected to do, and the procedures guiding the evaluation process are to be clearly articulated and properly followed.
Teachers must be accorded all the necessary elements of due process protection before an adverse employment decision is made. In this regard, Regulation 298 made under the Education Act requires a principal to recommend to the school board the demotion or dismissal of a teacher whose work or attitude is unsatisfactory only after warning the teacher in writing, giving the teacher assistance, and allowing the teacher a reasonable time to improve. However, teachers who have seriously violated their duties can be immediately discharged.
Specification of strengths and deficiencies, consistent with recognized job-related evaluative criteria, together with reasonable opportunities for remediation and periodic re-evaluations, supports the fundamental fairness of the evaluation process. Post-observation conferences, during which strengths and deficiencies are detailed and suggestions for remediation are offered, enhance the view that the evaluation process is fair. Teachers are to receive copies of all written evaluations of them and be given the opportunity to discuss the results with appropriate officials.
Change is inevitable, especially in education. Gone are Boards of Reference, standard forms of contract and Bill 100. On the horizon is the government’s new teacher testing program and the changes it will bring. Regardless of the evaluation process that will be eventually adopted and implemented, its hallmarks should continue to be fairness and reasonableness. The future, then, would be linked to the past and to the protections that teachers expect after 60 years experience with Boards of Reference, contract arbitration and jurisprudence.
The Supreme Court of Canada, in Kane v. Board of Governors of the University of British Columbia (1980), stated that "a high standard of justice is required when the right to continue in one's profession or employment is at stake." Teachers who meet the high standards of the profession are to be commended. Their importance to Canadian society cannot be overstated. Every effort should therefore be made to support them as they create safe, stimulating learning environments where students can experience success and acceptance.
Jack H. Berryman is an education officer in the Legal Services Branch of the Ministry of Education. He managed the ministry’s Board of Reference process for the last 15 years.