Education law: a look ahead

A new school year brings many new developments for Ontario’s schools and school boards. At the same time, ongoing collective bargaining in the province’s public education sector brings the possibility of labour disruptions affecting schools and their students in the months ahead.

In this update, the KPMG Law team highlights some of the new and ongoing developments that will be impacting Ontario’s schools and school boards during the 2023-2024 school year.

Central collective agreement terms for Ontario’s public school educators officially expired on August 31, 2022. This means a new round of central collective bargaining is currently taking place between: (i) representatives of the province’s public school boards; (ii) unions representing educators; and (iii) the Ontario Crown.

As of the time of this publication, unions representing Ontario educators have indicated that they will likely call strike votes in Fall 2023.¹ Some educators’ unions have also filed applications before the Ontario Labour Relations Board, alleging that the Ontario Crown has failed to meet its collective bargaining obligations.²

If the differences between the parties remain unresolved and educators vote in support of strike action, then the 2023-2024 school year may see Ontario schools once again impacted by job actions and disruptions such as the rolling strikes that were organized by education labour unions during the 2019-2020 school year.

Recently-issued directions from the Ontario Ministry of Education now require each of the province’s public school boards to develop and implement (i) a three-year mental health and addictions strategy; and (ii) a one-year action plan to be submitted to the Ministry by June 30 of each year starting with 2024.

According to the Ministry’s Policy/Program Memorandum 169 (Student Mental Health), school boards will be required to “implement ministry-approved, teacher-led and culturally responsive mental health literacy learning modules for students in Grades 7 and 8 that respect the individual and diverse needs of students and ensure consistency in mental health literacy learning across the province”.³

These modules would be incorporated into the existing Physical Education curriculum expectations for the Province’s Grade 7 and grade 8 students. Additionally, every school board’s Mental Health Leader will be responsible for working with school board staff and community mental health partners to facilitate students’ access to mental health supports in accordance with these new directions from the Ministry. School boards will also be expected to track and report data related to their mental health strategies and efforts to the Ministry on an annual basis.

These new requirements call for increased focus on proactive approaches to student mental health by calling on school boards to frame mental health programming as part of a long-term strategy. As the 2023-2024 school year commences, Ontario school boards are well-advised to engage with stakeholders – including mental health workers, parents, and community resources – to inform the long-term strategies to be articulated and submitted to the Ministry at the end of this school year and school years that follow.

The office of the Information and Privacy Commissioner of Ontario (the “IPC”) recently announced the release of lesson plans designed for students in grade 2 through grade 8. The lesson plans stem from the IPC’s commitment to education on the importance of privacy and strategic focus on initiatives to promote digital literacy and awareness of digital rights among young people.

Topics addressed in the lesson plans include privacy rights, digital literacy, and online safety, starting from the basics of “what is privacy?” and progressing to lessons that address more complex topics such as personal privacy strategies and considering how personal actions may affect the privacy of others. The full slate of lesson plans are now publicly available on the IPC’s website.⁴

Notably, the IPC’s lesson plans dovetail with the Ministry of Education’s directions in Policy/Program Memorandum 151 (Professional Activity Days Devoted to Provincial Education Priorities), which encourage classroom lessons on cybersecurity and online privacy to support healthy digital and online habits for students.⁵

Educators throughout Ontario are therefore well-advised to give the IPC’s new lesson plans close consideration when developing classroom content for the year ahead. As the presence of online technology – including social media such as Facebook and education-focused platforms like Prodigy – continues to grow as part of the modern student experience, teaching students how to understand and manage information privacy grows increasingly important as a component of basic literacy in a modern online world.

Addressing employee misconduct can be particularly challenging for employers when rapid and escalating responses on social media and a politically-charged issue are involved.

This was recently illustrated in an Ontario arbitration decision addressing a grievance by a teacher who was terminated in the aftermath of an altercation that occurred at a coffee shop in 2021.⁶ The teacher was not wearing a mask when she entered the shop during work hours, though a masking requirement was in effect at the coffee shop at the time. What followed included a verbal and physical altercation between the teacher and another patron. A portion of that incident was filmed and posted to social media, where views and user responses grew and characterized the teacher as an ‘anti-masker’. An arbitrator agreed that the teacher’s off-duty conduct warranted concern and discipline from the employer, but also found that punishment in the form of termination was excessive in the circumstances. The arbitrator concluded that any such discipline must be based on “an examination and assessment of the grievor’s conduct, not her beliefs”.

In cases where employee misconduct warrants discipline, it’s important for employers to take the time needed to make a sustainable decision and to resist the pressure to take action on timelines driven by third-party outlets such as social media. This arbitration result is an important reminder to employers that while employee misconduct may take on a life of its own when social media is involved; an employer’s disciplinary actions must take the measures necessary to correct misconduct rather than punish employees’ actual or perceived beliefs. Where the distinction between employee conduct and beliefs is a fine line, an investigation or legal advice may be necessary to gather the necessary facts and assess the sort of disciplinary and corrective measures that are appropriate.

Erin’s Law (Child Sexual Abuse Prevention and Reporting), 2020, also known as “Bill 123”, was put forward for first reading in the Ontario Legislature on June 6, 2023. This new Ontario legislation is based on similar laws that have been introduced and passed in multiple American States. The law is named after a survivor of multiple incidents of childhood sexual abuse that was perpetrated by a neighbour and then by a cousin, both of whom threatened her into silence that she did not break until years later. Erin’s Law would amend Ontario’s Education Act as of September 2024 to require that each of the province’s school boards establish policies to provide pupils with age-appropriate resources for recognizing childhood sexual abuse and reporting it to a trusted adult. If passed, Erin’s Law will require schools and school boards to carefully review their existing processes and policies to ensure that pupils, teachers and staff, parents and guardians have appropriate resources to enable reporting of such abuse.

The Education Law Team at KPMG Law regularly provides workshops and advises schools and school boards on matters of compliance, policy development, labour relations, and privacy law. To connect with our team, please contact Lisa Cabel and Maciej Lipinski.