FAQ: Bill 115 Remedy
Below you will find questions and answers that address how the recent ETFO Bill 115 remedy decision affects members of the Elementary Teachers’ Federation of Ontario (ETFO). To jump to a specific section of the FAQ, please click on the links in the top right. Members and former members can update their information with ETFO filling out an online form on etfo.ca.
ETFO will notify members and former members who are entitled to the remedy about their payment by email or mail by August 31, 2022. Please ensure your contact information is correct by filling out this form. More about the notification, objection and compensation process is below.
In September 2012, Ontario’s government passed unprecedented legislation called the Putting Students First Act (also referred to as Bill 115). Bill 115 imposed collective agreement strips on some education sector union members, including on ETFO members.
ETFO, the Ontario Secondary School Teachers’ Federation (OSSTF), Canadian Union of Public Employees (CUPE), Ontario Public Service Employees Union (OPSEU), and Unifor challenged Bill 115 at the Ontario Superior Court of Justice. They argued that Bill 115 interfered with collective bargaining between unions and school boards and, as a result, violated the Canadian Charter of Rights and Freedoms.
As part of an austerity push, the McGuinty government passed Bill 115, which imposed collective agreements on ETFO members, froze their pay, eliminated sick pay and sick pay banks and removed their ability to engage in full strike activity. The impact was not just on the economic circumstances of education workers, but on their associational rights, and the dignity, autonomy and equality that comes with the exercise of fundamental freedoms.
In a landmark decision released on April 20, 2016, Justice Thomas R. Lederer of the Ontario Superior Court of Justice agreed with ETFO and the other unions, and determined that Bill 115 substantially interfered with the unions’ collective bargaining rights contrary to Section 2(d) of the Charter of Rights and Freedoms.
Justice Lederer wrote that the Ontario government's process for collective bargaining was fundamentally flawed and that they overran the rights of the employees. Justice Lederer’s decision is available at etfo.ca.
Remedy is the means by which parties can obtain redress, or compensation by a court or through some other legal process (e.g., an arbitration hearing, a tribunal, etc.) once it has been determined that their rights have been violated. In this case, the court decided a remedy is required given the government’s violation of members’ collective bargaining rights.
Justice Lederer left it to the parties to determine a fair remedy. It was understood that, if the unions and the government could not agree on a remedy, then the matter could be referred back to the court.
No, each individual union had the ability to reach its own agreement with the government about what it considered was an appropriate remedy for the losses incurred and the impact on collective bargaining rights as the result of the imposition of Bill 115.
Yes. ETFO met with government representatives several times in an attempt to negotiate a fair Bill 115 remedy settlement between September 2016 and June 2017. ETFO also participated in a mediation that was unsuccessful. An agreement could not be reached so ETFO decided to refer the matter back to Justice Lederer for a decision on remedy.
When Bill 115 was passed on September 11, 2012, ETFO members didn’t just have their collective agreements stripped; their rights under the Charter were also violated by the Ontario government. ETFO worked over many months to negotiate a remedy from the government that would address both the strips to the collective agreement and the Charter violation. The government was unwilling to provide a remedy that ETFO felt would fairly address these issues. As a result, ETFO decided to have the matter determined by Justice Lederer.
ETFO determined its position regarding a fair Bill 115 remedy following input from local Presidents and Chief Negotiators at a special meeting on September 20, 2016. ETFO met with local Presidents and Chief Negotiators on several separate occasions to further explore this issue. ETFO last met with local Presidents and Chief Negotiators at a special meeting to discuss the Bill 115 remedy on May 4, 2017.
While ETFO was in discussions with the Crown on possible Bill 115 remedies, ETFO learned the government had been involved in secret talks with certain unions and other groups, and had negotiated a significant financial payout for them at least partly in connection to Bill 115. The organizations involved in these secret talks were not part of the Charter challenge and included the Ontario English Catholic Teachers' Association (OECTA).
OECTA claimed that the settlement was a remedy to grievances filed on behalf of members regarding salary grid advancement commencing September 1, 2014. Media have reported that OECTA members received $2,000 each. It is more accurate to calculate this amount as under $1,000; only about 40 per cent of their membership was eligible for payment.
ETFO saw this payment as monies for giving up their right to challenge Bill 115, but, more importantly, for the government’s misrepresentation on the status of grievances relating to grid movements in the 2014-2017 negotiations. Thus, ETFO challenged this settlement as part of an unfair labour practice complaint at the OLRB and is still waiting for a ruling.
Justice Lederer’s decision is that ETFO members did have their Charter rights violated and that, as a result, they are owed compensation in the form of damages. ETFO members were impacted in three ways: the imposition of one unpaid day; the delay of grid movement by 97 days for those who are still moving on the grid; and the unilateral changes to the sick leave program, including the cancellation of future retirement gratuities.
As a settlement, an aggregate damage amount of $103,100,000 will be paid out by the government to eligible ETFO members affected by this violation. The amount each individual will receive will vary depending on their status during the two school years under which there was an imposed collective agreement, 2012-2013 and 2013-2014.
Justice Lederer weighed several factors, including the monetary impact on ETFO members of Bill 115, the amount of the settlements agreed to by other unions, and relevant case law. Justice Lederer specifically refused to factor in deterrence, and also declined to institute a remedy that would fully compensate ETFO members for their financial losses as, according to Lederer, even in the absence of Bill 115, ETFO may have ended up in a similar position as a result of the collective bargaining process. He felt that the new sick leave plan also provides some benefits to ETFO members, particularly given the younger demographic of ETFO.
When Justice Lederer issued his decision in April of 2016, ETFO engaged in a protracted negotiation process with the government to try to arrive at a fair remedy. Ultimately, the government refused to agree to a remedy that ETFO felt would be fair to the membership and in keeping with the egregious nature of the Charter violation. As a result, ETFO decided to submit the issue of remedy back to Justice Lederer. A process of mediation then unfolded over time, which was also unsuccessful as the government still would not agree to a fair remedy.
Eventually, the government and ETFO agreed to a process that would allow, ultimately, for Justice Lederer to issue a decision on remedy. This process included the filing of extensive written submissions and several meetings with Justice Lederer. Finally, through the decision of Justice Lederer, ETFO members have been awarded the fair remedy that they deserve.
Justice Lederer’s decision is final and fully binding on both parties. There is no expectation that the government can or will appeal this decision.
ETFO members may be eligible for financial compensation if they were a public elementary school board employee during either or both the 2012-2013 and 2013-2014 school years. Each individual member’s entitlement is based on the amount of time worked on a full-time equivalent (FTE) basis between September 1, 2012, and August 31, 2014. Members who worked a 1.0 full-time equivalent will be eligible for the estimated maximum entitlement of $1,606. Anything less that 1.0 FTE will be pro-rated downward.
For those working part-time, entitlements would be pro-rated based on FTE.
Entitlement to the award would be pro-rated for the period you were employed.
Yes. Members who were on a paid or unpaid leave under the provisions of a collective agreement or on a statutory leave such as maternity or parental leave at any point during either or both of those school years and shall include any leaves such as sick leave and long-term disability provision of the collective agreement or under the Workers’ Compensation Act.
In this case, if the leave is a board-approved leave, you would receive the maximum entitlement of $1606.
Yes, members who were on such a leave and in receipt of long-term disability benefits or benefits from the Workplace Safety and Insurance Board may have an entitlement.
All members who were employed with a school board as ETFO members in the 2012-2013 and/or 2013-2014 school years may be entitled to a share of the remedy.
Yes. If a member was on leave to work for their union for either one or both of those school years, there will be entitlement as long as their release is paid by ETFO.
Their share of the remedy is payable to their estate.
Yes. The remedy applies to all eligible ETFO members.
No. All those who were working as ETFO members are entitled, regardless of which board they were employed by. Their full entitlement would be paid by the school board for which they spent the most time with during the two years in question.
Under the award, you can’t receive more than the estimated maximum payment of $1,606 regardless of how you received your payment. Therefore, your entitlement under ETFO’s remedy would be reduced by the amount of the other union’s remedy payment so as not to exceed the $1,606. Accordingly, if your entitlement under the agreement is a payment of $200, but you have already received that amount (or more) under another agreement, you would not be eligible for a payment under the ETFO remedy.
Yes. LTO Teachers, DECEs, ESPs and PSPs are equivalent to permanent staff for the purposes of the remedy.
Daily OTs, DECEs, ESPs and PSPs who worked a total of 150 days over the two-year period of 2012-2013 to 2013-2014, with at least 50 days worked in each of the two years, would be eligible for a $200 payment under the ETFO remedy.
Those who were re-employed retired Teachers are not entitled to a remedy under the decision as they were not materially impacted with respect to gratuity, sick leave, grid movement delay, or the imposition of the unpaid day under Bill 115.
No. The $200 minimum is for members who would otherwise not have an entitlement.
No. The award is being paid out as damages and will not affect your Employment Insurance.
In some boards, a deferred salary leave (x/y) is outlined in the collective agreement. In others, it is outlined in a board policy. Either way, a deferred salary leave (x/y) is a board-approved leave and, as such, a member on a deferred salary leave would be eligible for remedy.
At this time, members and former members, including retirees, do not need to sign up to confirm eligibility for the remedy. Please ensure ETFO has your up-to-date contact information as important correspondence from ETFO will be mailed or emailed to eligible members and former members during July and August 2022.
You can update your contact information with ETFO online through the ETFO website. More information about eligibility confirmation will be sent in future remedy communication.
The estimated maximum amount an ETFO member can receive is $1,606. This amount will be reduced for members who were not working full time or were not employed by a school board for the full two-year period covered by the award.
For those who worked less than a 1.0 FTE during this time period, the maximum amount would be multiplied by their FTE. For example, if an individual worked a 0.8 FTE during those years, they would be entitled to 80 per cent of the total maximum amount.
For those who were not employed by a school board for the total amount of the two-year period, their entitlement would be reduced based on the period that they were not employed. For example, if they were employed full time for only one of the two years, they would receive half of the maximum amount.
The chart below provides some examples of entitlement:
|Description||2012-2013 FTE||2013-2014 FTE||Average FTE||Entitlement||Potential Damage Amount|
Worked one year and not the next
Full-time member on a pregnancy leave
pregnancy leave from a 1.0
parental leave from a 1.0
Member who worked part-time each year in question
Member who worked part-time each year in question
Member who worked part-time each year in question
Member who worked half a year and then a quarter of the next year
Member who worked a portion of each year
Full-time member, but on WSIB
from a 1.0 FTE
from a 1.0 FTE
Full-time member, but on long-term disability (LTD)
Daily occasional teachers who worked a total of 150 days over the two year period of 2012-2013 to 2013-2014 with at least 50 days worked in each of the two years.
Re-employed retired - no entitlement
It will take some time for the entitlements of over 64,198 ETFO members and former ETFO members to be determined, for those members to be notified, for the dispute process to take place, for the funds to be disbursed to school boards and for the school boards to pay out the funds to eligible members.
The original Ministry of Education memo outlined approximate timelines. These have been adjusted as follows
|The original Ministry of Education memo outlined approximate timelines. These have been adjusted as follows:|
By April 19, 2022
School boards submit employment data to the Ministry
By May 1, 2022
Ministry provides employment data to ETFO (90 days following the arbitral award)
By August 31, 2022
ETFO to notify members of their payment
September 30, 2022
Deadline for ETFO members to object to their payment determination
September 30, 2022
Deadline for ETFO to refer any dispute in member entitlement to arbitration (disputes to be addressed/resolved within 60 days of the objection deadline)
November 1, 2022
Deadline by which disputes are addressed/resolved
February 1, 2023
Crown to calculate the payment per eligible member and provide payment to school boards within 90 days of the steps completed above
April 1, 2023
School boards receive funding from the Ministry and issue payments to entitled ETFO members within 60 days of receipt of finalized data
Current and former ETFO members may receive correspondence from ETFO any time between now and August 31, 2022, either by email or Canada Post. This notice will include the eligible member’s personal entitlement to a payment, indicating the estimated dollar amount of the individual payment and the basis for its calculation.
The notice will also state that the recipient has until September 30, 2022, to object to the determinations set out in the notice, using ETFO’s Notice of Objection Form. Only complete and submit this form if:
If you fail to meet the September 30, 2022, objection deadline, your amount will be considered final, and no dispute will be allowed.
You have until September 30, 2022, to complete and submit a Notice of Objection Form. If you fail to meet this deadline, your amount will be considered final, and no dispute will be allowed. Compensation will be mailed by the district school board you last worked for to the last known home address that the school board has on file.
As the settlement is being paid out as damages, it is not subject to tax, statutory deductions or dues deductions. Please consult with your financial advisor to ensure it is reported accurately.
The remedy is an award for damages and not considered income for pension purposes. Once the remedy amount is determined, there should be no deductions (CPP, EI, pension contributions, union dues, tax, etc.)
The issue of how long it took to reach the settlement was considered by Justice Lederer in determining what he considered to be a fair remedy. As such, interest is included in the damage award.
ETFO and four other unions (OSSTF, CUPE, OPSEU, Unifor) challenged Bill 115 at the Ontario Superior Court of Justice. They successfully argued that Bill 115 interfered with collective bargaining between unions and school boards and, as a result, the Court found that the government had violated the Canadian Charter of Rights and Freedoms.
At the time of the decision, a specific remedy was not determined by the Court. Rather, each individual union had the ability to reach its own agreement with the government about an acceptable remedy for the losses incurred by their members as the result of the imposition of Bill 115. Thus, the remedy results for each union contain different components, making it difficult to make direct comparisons.
Looking at the overall remedy amounts, ETFO was awarded the highest sum of remedy, $103 million, to be distributed to all eligible ETFO members who were employed by an English public school board in Ontario in 2012-2013 and/or 2013-2014. Other unions received less overall funds and determined their own distribution methods. OPSEU received $2.75 million, CUPE received $56.7 million, and OSSTF’s settlement was $56.7 million.
Any remaining funds will be returned to the government.
Members and former members can update their information with ETFO filling out this online form.