Balancing Inclusive Education and Workplace Safety
Introduction
Inclusive education is a foundational principle in Canadian public schooling. Equally fundamental is the right of employees to work in an environment that is healthy, safe, and free from violence. When these two pillars collide, the legal and practical tensions can be significant.
In the case of New Brunswick Teachers’ Federation v New Brunswick, 2024 CanLII 124417, Adjudicator Trisha Perry examined the implications of balancing inclusive education with employees’ right to a healthy, safe, positive, and violence-free working environment. The case illustrates the limits of inclusive education when staff safety is repeatedly compromised and highlights the responsibilities of school districts to take proactive, reasonable steps to protect employees.
Facts
The case centres on a middle school student with severe and complex developmental disabilities, whose behaviour resulted in more than 100 violent incident reports and approximately 95 additional misconduct reports over approximately two school years. Staff were routinely struck, kicked, bitten, threatened, sexually touched, and verbally abused. This resulted in significant psychological and physical injuries, including PTSD.
Multiple staff members filed right‑to‑refuse‑unsafe‑work declarations. Some required medical leaves, counselling, and treatment for injuries. Staff members expressed concerns for their own safety and the safety of other students who regularly witnessed the verbal and physical violence.
The New Brunswick Teachers’ Federation filed a policy grievance alleging that the Employer failed to meet its obligations under the Collective Agreement, the Occupational Health and Safety Act, Policy 703 (Positive Learning and Working Environment), and Policy AD‑2708 (Prevention of Workplace Violence).
The Employer’s position was that the fault lay with the Principal for not adequately following the student’s plan.
Issues
The adjudicator identified the issues as follows:
- Whether the Employer failed to enforce the safety policies and the Occupational Health and Safety Act, in violation of the Collective Agreement, and
- If so, what remedies are appropriate?
Legal Framework
Inclusive education in New Brunswick is governed by the Education Act and Policy 322. Together, they establish inclusive placement as the default, requiring that students with exceptionalities learn in common environments whenever practicable. However, inclusive placement is not absolute; the Act expressly allows alternative arrangements where a student’s needs cannot reasonably be met or where doing so would undermine safety.
The New Brunswick Occupational Health and Safety Act imposes a strict duty on employers to “take every reasonable precaution” to ensure employee safety. Policy 703 and Policy AD‑2708 reinforce these obligations. Under Regulation 91-191 (Occupational Health and Safety Act), violence includes actual or attempted physical force or threatening behaviour regardless of intent.
Findings
The adjudicator acknowledged that while it is impossible to eliminate every workplace risk, the Employer must take every reasonable precaution to minimize harm. She also recognized that there are some inherent risks, but that these should not be passively accepted without implementing appropriate mitigation measures.
The adjudicator found that the Employer could have taken additional steps to prevent or reduce the harm suffered by employees, such as:
- Ensuring the middle school was informed of the risks the student posed at the time of transfer;
- Earlier consideration of a partial day plan and specialized training;
- Early and additional resources;
- Earlier intervention if the district was concerned that the plan was not being implemented properly;
- Earlier consideration of a complex case designation; and
- Exploring its power to deliver programs and services to the student in their home or other setting.
Crucially, the adjudicator held that a risk becomes unreasonable when it outweighs the social value of the activity. Although inclusive education holds high societal value, in this case the student was unable to meaningfully participate in learning or skill development. The extreme and ongoing harm to staff outweighed the limited educational benefit to the student.
Therefore, it was found that the Employer breached its obligations under the Occupational Health and Safety Act, the safety policies, and the Collective Agreement.
Remedy
Although this was a policy grievance, the adjudicator awarded individual remedies to the Principal and Resource Teacher. She found that, absent specific language in the Collective Agreement, there is no presumption that individuals cannot recover damages under policy grievances.
The Principal, who retired two years earlier than planned due to the toll of the situation, was awarded special damages for loss of income.
Both the Principal and the Resource Teacher were awarded general damages for mental distress, as well as aggravated damages as a result of the Employer’s mishandling of the matter.
Takeaways
Absent specific language in the Collective Agreement, there is no presumption that individuals cannot recover damages under policy grievances.
Inclusive education is not absolute. Safety obligations are non-negotiable, and school districts must balance inclusion with their duty to protect employees.
A risk of harm will be unreasonable if it outweighs the social value of the activity – the greater the societal benefit, the more risk may be deemed acceptable.
Proactive intervention is essential. Delays in providing resources, training, or alternative programming can amount to a breach of employer obligations.
* Note that the Employer has applied for judicial review of this decision, challenging the reasonableness of the special damages awarded to the Principal and the aggravated damages awarded to the Resource Teacher and the Principal.
This article originally appeared in the Canadian Association for the Practical Study of Law in Education’s (CAPSLE) December newsletter and is republished with permission.
