Opening Statement

Friday 8 February 2013


There are blizzard conditions in Toronto with traffic all but ground to a halt. Still, the ever faithful ETFO OLRB hearings continue downtown on University Avenue. I will be updating you here at home on my blog today, so stay tuned and keep checking back from time to time to keep up to speed, and allow me to do so also ... whew! These hearings can be long!

The big blizzard! Is this it? Are we all doomed? Not down at the OLRB today!

Backgrounder: Trillium Lakeland + the Upper Canada  DSB has lodged a complaint against ETFO for allegedly "directing" its members to continue WTR [Work to Rule] after their contract was imposed by the provincial government under Bill 115. Originally it was based upon an office memo and a stewards email, and the way they were worded. Now? God only knows. 

Board legal council, one Michael Hines [MH] has been inexplicably pulling out newspaper articles, studies + everything but the kitchen sink to try to prove a lack of extracurriculars isn't great for the students, not a part of the complaint, even ETFO of course agrees.

Wednesday MH wasted Session 6 of the hearing rambling on rather incoherently, insisting he be heard, even though his arguments seemingly had nothing to do with the memos or any point of law relevant to the case.  Then there was his mystery reference to the "secret button on a man's pants" which has befuddled all of us. If you know what he is referring to please let me know.

I will be recording today's info as quickly as I reasonably can then come back later to fix it up so its more presentable. 

Approx 9:45: We join ETFO' Communications Director Lisa Mastrobuono on Twitter. If you want to follow her directly for moment to moment coverage, Lisa's hashtag is #ETFO. Then you can check back here later and find a summative record for the day. OK? Let's go ....

It seems MH is a sailor today. He is going to "navigate" Chair Bernard Fishbein [BF]  through the legislative history ETFO has previously presented pertaining to the complaint. Does this mean he will actually be talking about the case today?!? Ships ahoy Matey!

Oooops! It's back to men's pants. He is talking about a "little button" today. Unclear if it is the same as the "secret buttton" from last day.  It is used with a belt + suspenders, I would assume to hold his pants up ... oh good lord! He's not going to take his pants off to show us is he?!?! He explains the little button is the normal activities of the school board. Not if your or their pants are down buddy. Hmm. What about the secret button. That sounds more mysterious. Please do tell.

The "secret button"? Maybe Tom from Finland knows?

Last night I checked all my pants and couldn't find any secret buttons. Nada! I think I'd have noticed by now anyway eh? So I Googled it. Closest I could get was something about a male leather fetish, tight pants and some buxom muscleman named "Tom from Finland". At this point I gave up my search .Whew!  Maybe the secret button is something Finnish?!? Dunno. 

Tom from Finland doesn't seem to be lucky in love. He doesn't have a girlfriend or wife. He's was stuck always just hanging out with the guys at the gym + the sauna. He has a job as a motorcycle policeman or something like that, for which he carries a big baton ...

Whoa! I think I see! Great Mary Mother of Jesus! Listen! I'm a good Catholic boy. This is definitely not my purview! Maybe I better go say a prayer ... ;-)

OK! OK! You want to know about Hines ....

MH starts to review the history of education legislation, which ETFO has referred to in previous sessions of the hearing, leading from individual teacher contracts to collective bargaining under under Bill 160 

MH refers to Bill 100 + speaks to sections of the labour act related to education. During the Harris years there were a number of reports that reviewed the regulative options for dealing with teacher WTR and EC's [extracurriculars].

Premier Harris: Goon but not forgotten!

The chair, ETFO and board rep all start sharing laughs about the contradictions + peculiarities of education legislation during the Harris years.

There is a long awkward silence as the chair reads out loud the legislation MH is referring to.

MH reviews Section 264 of the Education Act from during the Harris years, including the language to make make extracurriculars a mandatory duty for all teachers. I remember this well! I was going to start up a "Go home right after school club". Seriously. That's how bad things got! MH now points out, this legislation was never passed. [?!]

HG points out that Regulation 298 also defined the duties of a teacher.

The chair is finding it confusing following Hines labyrinth of legislation and regulations from during the Harris years. Who wouldn't? Why is MH charting his boat trip through the choppy waters of the Harris years anyway????

Both the chair and the school board counsel look to ETFO lawyer Howard Rosenblatt [HR] to explain what MH is talking about, which he gladly does. The Chair politely asks MH to continue to the next stage of his argument now that the first part has been cleared up.

MH reviews an April 2001 Ministers Advisory group report on "coinstructional [?] activities" and legislation. The activities were not to be used as  "inappropriate bargaining tactics. He then points out the report also said EC's were to be voluntary.

The chair is confused. Aren't we all!? He points out MH has been adding words to the report. The chair can't see the relevance of any of this report or legislative history to the school board's complaint about the supposed "directive" bulletin + email in question at the hearings. Quite frankly dear reader, the issue here is whether ETFO "directed" their members to WTR after the contract was in place or not. If so, it was an illegal strike. Duh.

MH adds the report also claimed terminating an employees on a 3 month sick leave would be discriminatory. There is silence.

11:15 Exasperated, the chair calls a 15 minute break.

11:30 The hearing resumes. If it wasn't still in the morning I might think BF had snuck out for a little nip to steady his nerves and forgot to come back. No kidding. Maybe he should send MH out to find Mike Harris if he is so important to this hearing? Then everybody could have a looooong break!

Toronto blizzard conditions: 18 centimetres of snow have fallen with more on the way. Last time that happened I seem to recall the Canadian Armed Forces being sent in to rescue us. It's hard living in Toronto. Yup. There is one traffic kerfuffle on the news with 80 cars tied up over a fender bender.Good lord. What will it be like by the time this hearing ends?!? Downtown Bagdad if it snowed?!?

Hines [MH] insists that whether EC's are voluntary is irrelevant. True. Who's side is this guy on? I hope the boards didn't pay too much for him...Then again maybe not! Serves them right! 

MH claims it's the "concerted effort" that's the thing. Aah? He must be a fan of Pepys's journals? That's nice. I have a little abbreviated pocket copy that I carry around with me sometimes for if I get stuck on the subway.

MH is referring to the old long forgotten 2001 Ministry special advisory report again. This guy sure knows his stuff. He could get a senior position at our board administrative offices if lawyering doesn't pan out ...

For crying out loud! Hines pulls out a sheet with columns to compare all the education bills over the past 20 years or so. He wants to review it to explain whatever. Lisa tweets the chair doesn't look too pleased. Hines continues with elaborate detail about the various education bills. Lisa says it like he is filibustering. What's he filibustering for though?

Hines starts to dictate to the chair what he wants him to include in his report. "Much time was taken by both councils to describe to me the evolution .... " Both councils?!?  HB should object!

Hines continues "... of its statuary definition, and I find no clear and unequivocal message to be drawn from the fact that ... express reference to constructional activities were removed from the definition of strike in 2009." [?]

ETFO will now have a chance to rebuff Mr. Hine's "argument". ETFO's rebuttal is for the usual OLRB course of action to be taken with this case.  End of argument!

Board council insists HB must be able to rebut ETFO's rebuttal.

Chair BF compares the "argument" to a game of "ping pong" between legal councils. It's hard to keep track of the arguments and the issues.

Hines begins to quote a labour law book from E. Shilton [Oooh! E. Shilton!!!?] Apparently it's not clear whether it's necessary for any "legislative amendments" for BF to do whatever it is MH is getting at.The OLRB's "historically comprehensive approach" ... takes into consideration the wide range of strike actions including WTR ... " I would suppose MH is trying to tell BF the law, or the rather precedents he's brought, could result in a different decision based upon historical precedent ... I really don't know how else to interpret it. Sort of reminds me of a high school mock trial on a bad day. Did anybody ask to see this guy's credentials before he entered the room. This is sooooooooooo bad. Hopefully the chair can see through him and will put a stop to this absurd nonsense.

Approx 1:00 pm Chair FB adjourns for lunch.

Who's paying the cash cow for this awful waste of time?!? What school cuts will follow?

How much is this filibustering costing everyone? The Upper Canada board director, super + board chair spend $1200 a day to stay in Toronto for each day of the hearings, now into day 7. That would not include legal costs for good ol' MH and the 3 other lawyers with him. I know the Metro 7 + the local units were having a problem with the cost during this week's OECTA MOU OLRB [see Tuesday report]. I believe the lawyers each range from at least between $10-20,000 a day! I don't think the board's travel costs are included here either. I don't believe this article accounts for nearly the real total cost. See: OLRB $$$

BTW take a heart attack pill and read yesterday's Toronto Star account of MH's hi jinks and comment about ETFO! They bought it hook, line + sinker! See: Toronto Star on MH

It's times like these that it is so important to have alternate news services like Twitter + blogs. One really hopes we start to see a major paradigm shift in news communications away from the big corporate media biggies who fill folks minds with all this garbage, and control them accordingly.

Approx 2:10 pm: Hearing resumes with Chair Bernard Fishbein presiding. Board lawyer MH continues ... Wonder how the news will cover this today? Will he end up being a legislative expert?

Hines [DH] comments seem very confusing. Is he claiming anything that is not direct instruction at school constitutes a voluntary activity?

Chair asks MH to provide an example of one of the alleged activities he is concerned about.

Dogs like breakfast too!

DH claims he doesn't know. It's  a "dog's breakfast". Well at least a dog doesn't wear pants with buttons eh? MH says there are too many "unanticipated consequences". Geez! He's lucky somebody didn't just follow him outside to see what he's smoking at lunch + call the police so everybody can go friggin' home. Probably some kind of cheap bush weed. That would be my guess. Maybe it's sold out back of the offices in the alleyway? Somewhere like that downtown! Definitely bad drugs. Bad! Bad!

DH: rambles on about the government removing the definition of co-instructional in the existing legislation. He accuses HG of  wanting something or other answered "his way"? It's not clear what. He reviews statements made by MPP's Sandals + Witmer cited by ETFO earlier in the hearing. He is saying they are irrelevant. He asks the chair if it's clear "what is going on here?"

Some folks claim there are a whole fleet of flying saucers hiding behind the dark side of the moon. We never really know whats going on these days do we? No we don't!  Maybe, just maybe MH is onto something new here that we need to know about after all??? Does the chair get it?!?

Chair: "No." 

MH is arguing against an argument made by ETFO, something about "common law" . It's not important in the case, according to Hines. I wonder, if he thinks if ETFO teachers aren't married but just living together, then when it comes to extracurriculars you ...... no, no. That can't be it. Hmmm.

At the very least we might ascertain MH knows little to nothing about education let alone even labour law. Here's some free advice for ETFO: Shhhh! Say nothing!!! Give him enough rope to can hang himself. For God's sake kick the chair out from beneath him if need be to speed things up. Get going home! It's still snowing outside. It's a blizzard!!!

MH is telling the chair to ignore what ETFO has said about decisions in the past. It "... doesn't mean what you think.". He claims the OLRB has made decisions in the past about different cases and determined legislation "on it's face"  without considering legislative history! ... "on it's face " ...?1?

Chair asks if he is being told to preclude being guided by legislative history when rendering his decision?

I take back that part about hanging himself -maybe he's about to shoot himself in the foot?

Hines: "Yes."


Hines then starts to retract his unequivocal "yes" by saying there may be circumstances where it could be useful ...

Ho boy! Another lawyer for the board steps in to earn his $10,000 for the day or whatever. He is John-Paul  Alexandrowicz [JP] of Hicks Morley. He basically explains that ETFO is using a narrow definition of a teacher's duties to mean EC's are voluntary because it's not classroom teaching. He is now reviewing a past arbitration case: Ottawa Carelton DSB verses OSSTF. The arbitrator's decision was to define teaching duties more broadly. You can find the case here, to read for yourself: Past case reference

Hines is back! He calls HR a "Martian". Wow! Maybe the flying saucers behind the moon are from Mars????? Hines used that reference Friday, and it is quoted in the Toronto Star Article too.

Hines notes a narrow definition of teaching allows teachers to withdraw from extracurriculars anytime. He claims the situation is different in BC [British Columbia] because of their definition of a teachers duties, waving a brief in the air.

Chair tells MH he will be blunt.  It's hard for him to put any faith in a one page decision from BC without any context.

Hines has another hissy fit like on Friday. He's not sure if the chair understands what he's been trying to achieve in reviewing all these exhausting cases over the past few hearings. "We say voluntary/ mandatory doesn't mater."

Hines: it's sufficient if ETFO "simply encouraged" it's teachers to withdraw from participating voluntary activities. He pulls out the ETFO bulletin and a steward's email upon which the school board case was originally based and insists they "council unlawful labour practice"

Chair asks Hines if he needs 5 more minutes to present his case?

Hines: " ... more then that ... "

The Chair, + the council for ETFO + the boards get together to decide how long they will need next Tuesday to continue.

Chair sets the next hearing for Tuesday Feb. 12th from 1 pm up until 6:30.

My dear readers, do you know how much this nonsense must be costing everybody? Course I guess Hines is getting paid for it. Maybe he isn't being as stupid as he seems?! Unbelievable ...

Maybe everybody will throw snowball's at him when they get outside. I swear to God ...

OH No! It's not over yet!!! 

Hines is arguing that the Charter of Rights and Freedoms does not apply to the school boards WTR case! He says the chair he cannot address this. The language of the Education Act is ambiguous. He starts referring to case law. A Bell ExpressVu case shows the government can violate the charter if it's supported by other parts of the charter. He's an Constitutional expert now!

ETFO's Steve Barrett [SB] says both sides agree with that.

The Canadian Charter of Rights and Freedoms Section 1 is now being rolled out; " ... reasonable limits ... demonstrably justified ... " etc.

I suppose everybody is going to start marching around the hearing room now with the Charter held high singing O Canada? That would be more fun than this. I was at a rowdy pub once  before a Bruce Springsteen concert where somebody had a banner with the "Boss" on it, and that's what everybody did. I mean singing Bruce Springsteen songs of course. Not that O Canada isn't nice  ... but so is Born to Run, Tenth Avenue Freeze Out, anything from the Darkness on the Edge of Town or The River albums too. Born in the USA is vastly over rated. I think so. The Rising was all right but I lost interest after that.

Bruce is the Boss? MH? No!

Gee! Look at all that snow that keeps falling outside Mike!

Not that one gets bored of O Canada, but it's just not that kind of song eh? You don't hear it very much except at hockey games + in the morning at school. Remember when it used to play it at the movie theatre? Everybody would stand up, take of their hats, put their hand over their heart and sing. Everybody! Nowadays? Bah. Too busy on their cellphones.

At least we dropped God Save the Queen from the morning announcements. Mike Harris still wanted everybody to sing it in the mornings for reasons unknown. That's the last I remember of that.

You know Jimi Hendrix recorded the Star Spangled Banner, + God Save the Queen but did he ever play O Canada? I think not!

It`s just not fair, but maybe if Hendrix had lived longer he might have? Then of course there`s always the Maple Leaf Forever. It had it`s moments too. A good patriotic marching band song. I have not heard that in ages.

MH is still babbling along about the Charter. Lisa says ETFO hasn`t been able to get 100 words in all day. Intentional. I hope the chair isn`t fooled by this buffoonery.

I think if I was at the hearing right now I`d get up out of my seat, all officiously like. I`d walk up to MH. I`d look like I knew what I was doing and it was rather important. I`d tap him on the shoulder, and cupping my hand while I speak quietly ask if he knows Tom from Finland. Then ETFO might get a chance to talk a bit!

 Afterwards I`d apologize politely to the chair with a nod of my head and go sit back down. Maybe I could've finally found out for sure what the "secret button" business is all about. Then again, there are somethings one really doesn`t need, or even want to know. Still MH sure has pricked everbody`s interest with that one. Next time somebody mentions the secret button, then I could nod knowingly. Or maybe just ignore them. Depends. 

It`s 5:10 now. I suppose everybody at the hearing will be looking at their watch and coughing. It`s a good way to give the hint to stop. Lisa tweets that MH says he is "almost finished." Aren`t we all!

Hines say if the chair accepts ETFO`s charter arguments he s giving ETFO a "free pass". He doesn`t say where too but I don`t think anyone cares. FB looks at his watch, notes it`s 6:00.
The hearing is done for the day! 

I will try to get down to the hearing on Tuesday. I need to see this for myself.

See my Tuesday coverage: The Next Hearing Report!

Safe driving!

Comment Bar below:


Anonymous said...

OSSTF Political Action Conference cancelled due to snow. What a lucky break as they don't have to face an angry mob of teacher activists. Donations to be made to the Liberal leadership candidates in lieu of. OECTA roles out "We Speak For Children" campaign. Makes sense as they clearly don't speak for their members. OECTA PAC features panel of Liberal speakers debating how to regain the progressive agenda. Should be easy now that McWyneety is in charge. Its back to business for teachers unions.

Kulture Kult Ink said...

Ha ha ha! Hmmm. I wasn't invited/ did not even know about the OECTA PAC seminar this year though have been at them all since they first started back before the 2003 election. It will be interesting to hear if anyone spoke up? Probably not ....

Anonymous said...

OECTA brought in the guy from Innovative polling to brainwash (i mean address) PAC members. Remember Innovative? Their poll put the Liberals in first and was run the by the Star. It used a sample of just 440 households in Toronto. (maybe they just polled Wynne's riding for all we know) I guess that's the only expert OECTA could find to support their faux reality. The noose tightens.

Anonymous said...

I am very confused why it is costing this Board so much money are the members involved not volunteering their services and time? These actions are taking place outside of the classroom are they not extra curricular? Their Lawyers are on retainer is that not a salery?

Anonymous said...

I also googled "secret button on a man's pants" and got two results. I haven't seen such a low number of results and both come from this blog. There is a kind of legal database of court and arbitration decisions in Canada - maybe I can find it there.

Anonymous said...

Thank you for taking all of Lisa's tweets and dressing them up the way you do. I am very highly entertained by your dialogue. I follow the tweets all day to be kept informed, and then thoroughly enjoy the added humour in the evening! Well done! Love your site.
An ETFO member from Director Dad's board

Anonymous said...

The OECTA PAC seminar went ahead in defiance to the snowstorm. There were 3 pollsters (PC- Greg Lyle, Liberal - Pollara, NDP - Vector); None were particularly good. The panel made up of Stanford, Yalnizyan, Coyne, Ecker was outstanding (especially Yalnizyan). Janet Ecker and Jim Stanford gave kudos to OECTA's bargaining stategy on the MOU. Yalnizyan ripped apart Bill 115, the attack on collective bargaining rights, and the stripping of teacher collective agreements.

The social media guy was stranded at the airport by weather. Michelle Despault gave a good presentation on corporate branding. The GR Dept gave an update on Ontario politics.

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