Arbitrator Rejects Union Challenge to Inclusive Education Class Sizes

A significant labour relations decision has emerged for school boards operating inclusive education programs. In Avon Maitland District School Board v Ontario Secondary School Teachers’ Federation, Arbitrator Robert Herman upheld a board’s right to maintain standard class size limits in mainstream courses, even when enrolling students who may not achieve full course credit. 

Transition from Segregated to Integrated Programming 

For a number of years, the Avon Maitland District School Board (the Board) has been fundamentally restructuring its special education program delivery. In around 2012, the Board moved away from the traditional segregated classroom model governed by Ontario Regulation 298 to the Education Act. These “Self-Contained Classes” had operated under restrictive enrolment formulas for decades — e.g. a maximum of six students in a class for pupils with autism spectrum disorders, a maximum of 10 students in a class for pupils with “development disabilities”, etc. — based on categorical exceptionalities. 

The Board’s integration strategy began with grade 9 students previously destined for segregated classrooms due to identified exceptionalities in elementary years. Ministry policy stipulates that curriculum expectations can be modified and provide such students with accommodations such that they may or may not earn full credit. Due to this, a crucial element of the process involved identifying certain students as candidates for full, partial credit (0.5), or non-credit status in specific mainstream courses. This determination occurred through the mandatory Individual Education Plan (IEP) development and assessment process, which must be completed within 30 school days of the commencement of each semester. 

Importantly, while student exceptionalities were typically documented from the elementary years, a student’s anticipated credit achievement in a particular mainstream course would only be determined after the initial IEP assessment process concluded early on in each semester. 

The Federation’s Contractual Challenge 

The Ontario Secondary School Teacher’s Federation (OSSTF) argued that a mainstream class containing students earning less than full credit constituted a “multi-level class” under Article 25.01(c) of the parties’ collective agreement, thereby triggering reduced enrolment caps based on those established in Ontario Regulation 298. This interpretation would dramatically alter staffing ratios — for example, a mainstream applied course normally capped at 25 students would drop to a cap of 10 with the inclusion of a single student with a “development disability” receiving less than full credit. 

OSSTF’s interpretation rested on the premise that teachers were effectively delivering multiple curricula within a single classroom — the standard course content for credit-seeking students and modified programming for those earning less than full credit. OSSTF supported this position by highlighting increased teacher workload and stress levels, based on a seasoned teacher’s evidence regarding his experience teaching such a class. The evidence included that there were 13 students with IEPs in a class of 25 students and it was accepted by the arbitrator that all students in the class were taught in a less than optimal manner due in part to the number of IEP students in the class.  

The Board’s Counter-Position 

The Board argued against a multi-level characterization on the basis that contemporary pedagogy requires individualized instruction for all students regardless of individual learning needs. The Board referenced the Ministry of Education’s “Learning For All” framework as establishing differentiated instruction within a classroom as standard practice, not an exceptional circumstance warranting reduced class sizes. 

Crucially, the Board emphasized that Article 25.01(a) of the collective agreement established maximums based on course types (e.g. Academic, Applied, Open) rather than student characteristics. The Board also highlighted the temporal impossibility of the OSSTF’s interpretation — classes would suddenly “transform” mid-semester when the credit status was finalized for students with IEPs, potentially requiring immediate reorganization up to four weeks into instruction. 

Arbitrator’s Reasoning 

Arbitrator Herman’s decision turned on contractual interpretation rather than educational philosophy. He determined that the “levels” that give meaning to the “multi-level class” provision of the collective agreement refer to the labeled types of courses listed in Article 25.01(a). Accordingly, a student who is being taught a modified curriculum for less than full credit is not taking a different “level” of the class.  

The arbitrator explicitly noted the operational chaos that would result from OSSTF’s approach: 

“Classes would likely have to be split into two, so that each is consistent in size with the reduced maximum size …, additional classrooms would have to be found and additional teachers found and potentially hired.” 

He also identified a fundamental timing conflict — the collective agreement’s deadlines for implementing maximum class sizes (October 15 and February 28) preceded the completion of many IEP reviews, making OSSTF’s interpretation practically unworkable. 

While acknowledging that inclusive programming created additional work demands, Arbitrator Herman distinguished between workload concerns and contractual interpretation, stating that the central question was whether students received instruction at different “levels”, not whether teachers expended greater effort. 

Key Takeaways for the Education Sector 

This decision establishes important precedents beyond the specific collective agreement language at issue. The decision suggests arbitrators will consider operational feasibility when interpreting education sector agreements, particularly where interpretations would create mid-semester disruptions.  

The arbitrator’s treatment of workload arguments indicates that evolving pedagogical expectations — including differentiated instruction and inclusive programming — will not automatically be considered collective agreement violations requiring specific contractual relief. Such concerns may be better addressed through future bargaining rather than grievance procedures. 

For boards implementing or considering inclusive education models, the decision provides support for maintaining standard staffing ratios while integrating special education students into mainstream programming. Ultimately, however, the ability of such an approach to withstand legal scrutiny will depend heavily on the specific contractual language governing class sizes and multi-level instruction in individual collective agreements.  

The ruling also underscores the importance of clear operational timelines and procedures when implementing significant programming changes that may intersect with collective agreement obligations.