Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: BC Teachers’ Federation vs the Province of B.C. (Part 3)

In the final part of the series, Kelowna lawyer details where the battle has led

In part one of this three part series, we began looking at the squabble between the B.C. Teachers’ Federation (BCTF) and the B.C. government.

In part two, the B.C. Supreme Court made rulings which the province of B.C. then appealed.

READ MORE: Understanding BC Teachers’ Federation vs the Province of B.C.

READ MORE: BC Teachers’ Federation vs the Province of B.C. (Part 2)

In this third and final part, we take a look at where the fight has led to currently.

Some believe that class sizes in Okanagan schools are rigidly limited to a certain number of students: 20 in kindergarten, 22 in Grades 1-3, 28 in intermediate split classes, 30 in certain other classes, and so on. This is only partially correct.

Some believe that the courts specifically endorsed these class sizes or certain collective agreement terms. This is not correct.

As discussed in part two, confusion ensued after the Supreme Court of Canada’s 2016 decision in the British Columbia teachers’ case. In the various court proceedings, at no level of court did any parent’s group participate.

The courts did not have the benefit of hearing submissions from parents or students. While the province and teachers participated, their interests do not completely align with students’ interests.

To address the confusion and restore certain previous collective agreement terms, the British Columbia Public School Employers’ Association (BCPSEA), the provincial Ministry of Education and the British Columbia Teachers’ Federation (BCTF) negotiated a Memorandum of Agreement (MOA). The MOA became effective on September 1, 2017.

The MOA permits base class size guidelines in collective agreements to be exceeded in certain circumstances. For example, if a particular school district’s collective agreement has superior language, that language applies.

In SD 23, base class size guidelines can be exceeded by 10 per cent before any staffing assistance must be provided.

The MOA also states that the restored language “shall not result in a student being denied access to a school, educational program, course, or inclusive learning environment unless this decision is based on an assessment of the student’s individual needs and abilities.”

So, class sizes can be exceeded to ensure such access.

Even in school districts without superior language, and in circumstances that do not involve otherwise denying access, the MOA allows base class sizes to be exceeded if the school district has made “best efforts” to “achieve full compliance with the collective agreement provisions on class size and composition.”

The obligation to make best efforts is on school districts. Neither parents nor children bear the brunt of these obligations.

Examples of best efforts include-re-examining how space is used within a school and across schools, using temporary classrooms, examining school boundaries, filling vacant positions, and renegotiating the terms of existing rental contracts that restrict a school district’s ability to fully comply with the restored language regarding class size and composition.

So, parents might soon be saying good bye to school-based after-school programs. Strong Start programs have historically been a unique exception.

Best efforts also include reorganizing classes even if it results in smaller classes. For example, rather than having three classes of 22 students and 14 children on a wait list, the school district may well find itself adding a fourth class, resulting in 20 children per class.

There are exceptions to the best efforts requirement. These include compelling family issues, teacher recruitment challenges, and student safety. Additional students are permitted in a class in these cases.

A school district that fails or refuses to carefully structure its classes to meet the requirements of both the collective agreement and the MOA risks teacher grievances, or complaints and possible litigation from parents displeased with their children being caught in the cross-fire.

While we all admire teachers and the important work that they do, their rights ought never to prevail over those of children.

The recent phenomenon of wait listing students, while also renting out school space for non-educational uses, and failing or refusing to accommodate student demand for educational programs as required by the MOA must be immediately reconsidered by any school district in which this occurs.

We can only hope that all involved remain mindful that the best interests of students ought never be compromised in this ongoing dispute.

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