British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association 2012 BCCA 326
Arbitration - The hearing - Evidence - Burden of proof
The British Columbia Teachers’ Federation (the union) and the employer agreed to a process whereby certain of the over 1,600 grievances would be resolved as representative grievances. The union appealed from the May 18, 2011 decision of arbitrator Dorsey. The union took issue with the manner in which the arbitrator assigned the burden of proof in grievances alleging breach of the class size and composition standards created by ss. 76.1(2.2) and (2.3) of the School Act. It also appealed the arbitrator’s related decision to create a formula (“the Rule of 33”). If a class exceeding the School Act class organization standards did not exceed 33, the arbitrator accorded presumptive deference to the opinions of the principal and superintendent that the class was “appropriate for student learning”. He ruled that the burden was on the teacher, the grievor, to rebut the presumption of deference.
The British Columbia Court of Appeal, on the standard of review of correctness, allowed the appeal and set aside the arbitrator’s decision, subject to the parties’ agreement not to disturb the outcome of grievances that predated September 2010. While the use of the Rule of 33 “may enhance the efficiency of dealing with the unwieldy volume of grievances … the formula was an impermissible modification of the statutory scheme.” The appeal was “unique due to the representative nature of the arbitration and the large number of grievances, settled and unsettled, that stand to be affected.”