CSR | October 2017 | News
contacted and the teacher said
she would feel safe if the student
was removed from the class, so
the student was removed and
stayed in the principal's office for
the rest of the day.
The teacher arrived at the
school on the next school day,
Jan. 19, to find the regular EA
back at work. However, she was
surprised to see the student back
in her class. She called the prin-
cipal and said that even though
the regular EA was back, she still
didn't feel safe because she was
concerned about an unpredict-
able violent outburst. Though
the student hadn't done any-
thing violent that day, the teach-
er refused to work and remained
in the staff room for the whole
day. An Ontario Ministry of La-
bour health and safety inspector
arrived and determined there
was no reason for the teacher
to refuse work under the prov-
ince's Occupational Health and
Safety Act (OHSA). The teach-
er's union filed an appeal of the
inspector's decision.
The labour relations board
noted that a regulation under
the OHSA limited teachers'
right to refuse unsafe work be-
cause of their duty of care to
protect students, and "being a
teacher may mean that you put
your own life, health or safety
in danger in order to protect
your students." In addition, the
OHSA regulation didn't permit
teachers to transfer care of a
student to allow the teacher to
refuse work.
The board found that at the
time of the teacher's first work
refusal, the troublesome stu-
dent's health and safety was in
jeopardy because of his out-of-
control violent actions and emo-
tions. Even though the EA was
with him to try to prevent him
from hurting himself, the teach-
er couldn't refuse work and pass
the responsibility to the EA, said
the board.
As for the second work re-
fusal at the beginning of the next
school day, the board found that
the teacher had "a genuine and
honest concern about her safety
as a result of the student's violent
behaviour" and this concern was
reasonable based on the stu-
dent's previous behaviour and
the fact he had already injured
the teacher before. The board
also noted there is no require-
ment for there to be "imminent
danger" to refuse work, just a
genuine and reasonable belief
that the work is "likely to endan-
ger." Even though the EA wasn't
afraid of the student, the EA had
a different relationship with him
than the teacher and had not
been injured by him, the board
said.
The board noted that the
school and the TCDSB put
measures in place to address
the issues with the student, but
these didn't ensure the safety of
teachers and other students. In
addition, the teacher was put in
a difficult position has she had
believed the student had been
removed from her class perma-
nently but he was back in her
class the next school day without
anyone speaking with her about
it.
The board determined that
the teacher's first work re-
fusal was inappropriate but
the second one was legitimate.
However, since the teachers'
union made no suggestion of
any meaningful changes to the
TCDSB's safety plan, it found no
particular remedy was needed
other than better communica-
tion with the teacher and a dec-
laration that the TCDSB violated
the work refusal provision of the
OHSA with the teacher's second
work refusal.
For more information see:
• Toronto Elementary Catholic
Teachers v. Toronto Catholic
District School Board, 2017
CarswellOnt 9412 (Ont. Lab.
Rel. Bd.).
Teacher < pg. 5
No work refusal if student safety at risk
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