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S.M. 2002, c. 8

Bill 14, 3rd Session, 37th Legislature

THE PUBLIC SCHOOLS MODERNIZATION ACT (PUBLIC SCHOOLS ACT AMENDED)


 

(Assented to July 17, 2002)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P250 amended

1           The Public Schools Act is amended by this Act.

2           Subsection 2(2) is amended

(a) in clause (a), by striking out "the matters described in clauses 9(7.2)(a) and (b)" and substituting "its establishment and provide for the matters described in clauses 9(6.2)(a) to (d)"; and

(b) in clause (b), by striking out "clauses 9(7.3)(a) and (b)" and substituting "clauses 9(6.2)(b) and (c)".

3(1)        Subsection 3(1) is replaced with the following:

Incorporation

3(1)        Every school board is a body corporate under the name "The            School Division", or "The School District of            ".

3(2)        Subsection 3(2) is repealed.

4           Section 4.1 is amended

(a) in clause (1)(b),

(i) in subclause (i), by striking out "and number",

(ii) in the English version of subclause (iii), by striking out ", if any,", and

(iii) in subclause (iv), by striking out "or to be elected at large"; and

(b) by repealing subsection (3).

5           Section 5 is replaced with the following:

Requests — transfer of land or amalgamation

5           The secretary of the board of reference must arrange for the board to hold a hearing under section 9 if he or she receives a written request from

(a) a person who owns a parcel of land requesting that it be transferred from one school division or school district to another, or if it is not in a school division or school district that it be added to one;

(b) the council of a band, as defined in the Indian Act (Canada), requesting that reserve land that is in a school division or school district be removed;

(c) the minister requesting that land be transferred from one school division or school district to another, or that land that is not in a school division or school district be added to an existing school division or school district; or

(d) two or more school divisions or school districts requesting jointly that they be amalgamated to form one or more new school divisions or school districts.

6           Section 6 is repealed.

7(1)        Subsection 9(3) is amended by striking out "Where a matter is referred to it under this Act or any other Act of the Legislature by way of appeal or otherwise, the board of reference " and substituting "If a request is made or a matter is referred to the board of reference under this Act or another Act, the board".

7(2)        Subsection 9(4) is amended by adding "and" at the end of clause (d), by striking out "and" at the end of clause (e) and by repealing clause (f).

7(3)        The following is added after subsection 9(5):

Limitations on board transferring land

9(5.1)      The board of reference may make an award in respect of a request under clause 5(a), (b) or (c) only if the board is satisfied that the transfer, addition or removal of land

(a) is for an educational purpose;

(b) does not result in transferring rights, property, debts, obligations, liabilities or employees to a new school division or school district without the consent of the affected school divisions and school districts; and

(c) does not have a materially detrimental impact on the ability of either of the affected school divisions or school districts to meet the educational needs of pupils within their boundaries or area.

7(4)        Subsection 9(6) is replaced with the following:

Award of the board

9(6)         After a hearing, the board of reference must,

(a) if the matter was referred to it under section 5, determine if the request should be granted in whole or in part, or be rejected; and

(b) if the matter was referred to it under subsection 24(3) or 58(1), establish for the purpose of the next regular election

(i) the wards into which the division is to be divided for electoral purposes, and the boundaries of each ward,

(ii) the total number of trustees, which must not be fewer than five or more than nine, and

(iii) the number of trustees to be elected in each ward.

Content of award — land

9(6.1)      An award of the board under clause 5(a), (b) or (c) must

(a) specify the territory being transferred, added or removed and establish the boundaries or area of the affected school divisions and school districts; and

(b) give any other orders and directions that may be necessary to dispose of the matter.

Content of award — amalgamation

9(6.2)      An award of the board under clause 5(d) that forms a new school division or school district by amalgamating school divisions or school districts, or both,

(a) must specify the name of the division or district formed, and specify the effective date of its formation and the incorporation of its school board;

(b) must establish its boundaries or area;

(c) must establish

(i) the wards into which it is to be divided for electoral purposes, and the boundaries of each ward,

(ii) the total number of trustees, which must not be fewer than five or more than nine, and

(iii) the number of trustees to be elected in each ward;

(d) must, pending the next regular election,

(i) provide for the first election of trustees, including providing for the appointment of a returning officer and other election officials, and making all other arrangements for the election of trustees in accordance with section 6 of The Local Authorities Election Act, or

(ii) establish an interim school board, including providing for any matter specified in subclauses 12.2(b)(i) to (v);

(e) must dissolve the school boards of the divisions and districts that participated in the amalgamation;

(f) may make provision for the transfer of rights and property, debts, obligations and liabilities, and employees;

(g) may fix the costs of the hearing, and specify the persons by whom they are payable; and

(h) may give any other orders and directions that may be necessary to dispose of the matter.

7(5)        Subsection 9(7) is replaced with the following:

Award is final

9(7)        An award of the board of reference is final and has effect in accordance with its terms. But this subsection does not preclude an application to the Court of Queen's Bench for judicial review respecting the award.

7(6)        Subsection 9(7.1) is amended by striking out "subsections (7.2) and (7.3)" and substituting "clauses (6)(b), (6.1)(a) and (6.2)(a) to (e)";

7(7)        Subsections 9(7.2) and (7.3) are repealed.

7(8)        Subsection 9(8) is replaced with the following:

Board not to make award for specified period

9(8)        Despite section 5 and subsection 9(3), the board must not hold a hearing or make an award in respect of

(a) a matter that is the same as or similar to a matter referred to it under clause 5(a) or (b) in the preceding three years; or

(b) the boundaries, area or any territory of a school division or school district, in the first three years after it is amalgamated, formed or continued by regulation under section 7.

Circumstances when restriction does not apply

9(8.1)      Subsection (8) does not apply to a request made by

(a) the minister under clause 5(c); or

(b) two or more school divisions or school districts under clause 5(d).

7(9)        Subsection 9(9) is repealed.

7(10)       Subsection 9(10) is amended by adding "and" at the end of clause (c), by striking out "and" at the end of clause (d) and by repealing clause (e).

8           The following is added after section 9.2:

Validation of Manitoba Regulation No. 61/02

9.3         The School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02, made by the minister and confirmed by the Lieutenant Governor in Council in the School Districts Amalgamation (2002) Confirmation Regulation, Manitoba Regulation  63/02, in accordance with section 7 is validated and declared to have been lawfully made, and everything done pursuant to that regulation is validated and declared to have been lawfully done.

9(1)        Subsection 12(3) is amended by striking out "under section 5 or 13" and substituting " by an award or order of the board of reference or by a regulation made under section 12.2,".

9(2)        Subsection 12(4) is amended by striking out "under section 5 or 13" and substituting " by an award or order of the board of reference or by a regulation made under section 12.2,".

10          The following is added after section 12:

IMPLEMENTATION OF SCHOOL DIVISION AND SCHOOL DISTRICT AMALGAMATIONS

Definitions

12.1(1)     In this section and in sections 12.2 and 12.3,

"former division" means a school division or school district that, by a regulation made under section 7,

(a) has been amalgamated with one or more school divisions or school districts to form a new division, or

(b) has had all its territory amalgamated with two or more new divisions; (« ancienne division »)

"new division" means a school division or school district that, by a regulation made under section 7,

(a) is formed as a result of the amalgamation of two or more former divisions, or

(b) is continued with an enlarged territory as a result of being amalgamated with

(i) one or more former divisions, or

(ii) parts of the territory of one or more former divisions. (« nouvelle division »)

Interpretation

12.1(2)      In subsection (1), "school division" or "school district" includes, if the context requires, the school board of the school division or school district.

Subsequent regulations

12.2(1)     After making a regulation under section 7, the minister may make a subsequent regulation or regulations that include provisions

(a) specifying the effective date of the formation of a new division and the incorporation of its school board;

(b) establishing, pending the next regular election, an interim school board for a new division, including

(i) deeming the interim board of the new division to be the successor of the school boards of the former divisions,

(ii) establishing the number of trustees on the interim board, which number may be greater than nine,

(iii) establishing the eligibility and residency qualifications applicable to trustees serving on the interim board,

(iv) providing for the appointment of trustees to the interim board of the new division, and

(v) dissolving the school board of a former division;

(c) that the minister considers necessary or advisable respecting transitional matters, including

(i) preventing disruption in the education of pupils as a result of the formation, continuation, amalgamation, or dissolution of one or more new or former divisions,

(ii) varying or altering a new or former division's fiscal year and the timing and scope of its financial reporting and audits required under this Act for the fiscal year of amalgamation and the next,

(iii) for the purpose of transferring employees under section 12.3, specifying an effective date for determining which school building is the primary workplace of a teacher or other employee, and

(iv) establishing a date before which new divisions must file an agreement under section 12.3; and

(d) respecting any other matter that the minister considers necessary or advisable in connection with the formation, continuation, amalgamation, or dissolution of one or more new or former divisions.

Time for making subsequent regulations

12.2(2)      The power to make regulations under subsection (1) may only be exercised on or before August 1, 2003.

Amalgamation —  one new division

12.3(1)     If, as a result of a regulation made under section 7, all the territory of a former division is amalgamated and forms a single new division, all the rights and property, all the debts, obligations and liabilities and all the employees of the former division are transferred to the new division.

Amalgamation — two or more divisions

12.3(2)     If, as a result of a regulation made under section 7, parts of the territory of a former division are transferred to and form part of two or more new divisions, the new divisions must make every reasonable effort to reach an agreement regarding the fair and equitable allocation between them of the rights and property, debts, obligations and liabilities, and employees of the former division.

Agreement to be filed with the minister

12.3(3)     An agreement reached under this section must be filed with the minister.

If no agreement reached

12.3(4)     If the new divisions

(a) fail to file an agreement under this section before the date prescribed under subclause 12.2(c)(iv); or

(b) report to the minister that there is a dispute between them about the content of an agreement they entered into under this section;

the minister must appoint an arbitrator to set the terms of the agreement or settle the dispute.

Arbitrator to file report

12.3(5)     Within 60 days after being appointed, the arbitrator must

(a) inquire into the matter or dispute between the new divisions;

(b) hear the matter or dispute; and

(c) file a report with the minister that

(i) sets the terms of the agreement or settles the dispute, and

(ii) apportions the cost of the arbitration between the new divisions in any manner that the arbitrator considers fair.

Report binding

12.3(6)     The arbitrator's report is final and binding on the new divisions.

Content of agreement or arbitration report

12.3(7)     An agreement or arbitrator's report under this section

(a) must provide that if, as a result of a regulation made under section 7, a school building or school site becomes located in a new division,

(i) the furnishings, equipment, teaching materials and other property located in or used in connection with that school building or site, and

(ii) the teachers and other employees of the former division whose primary workplace is that school building,

are transferred to the new division;

(b) must provide for the designation of a new division as the employer for each employee not provided for in clause (a);

(c) may provide for any employee who was providing services to more than one school on the effective date of the agreement or the arbitrator's report to continue to provide those services to schools in more than one new division on a cost-shared basis between those divisions;

(d) must provide for the transfer of all other rights and property, debts, obligations and liabilities, and employees of a former division to a new division; and

(e) must establish the date when the agreement or arbitrator's report takes effect.

Determination of "primary workplace"

12.3(8)     For the purpose of subclause (7)(a)(ii), a school building is the primary workplace

(a) of a teacher, if the teacher teaches at that school building more than 50% of the time; and

(b) of an employee who is not a teacher, if the employee works at that school building more than 50% of the time.

No change in conditions for employees

12.3(9)     An employee who is transferred to a new division under this section and who is not represented by a bargaining agent at the time of the transfer or after is deemed to be employed by, and his or her employment contract assigned to, the new division without any loss of the rights, privileges and obligations conferred upon or enjoyed by the employee before he or she was transferred.

Duties and responsibilities may be modified

12.3(10)    Despite subsection (9), a new division may change the duties, responsibilities and title of an employee described in that subsection, and if the change is reasonably required as a result of a regulation passed under section 7, it does not amount to the constructive dismissal of the employee.

No compensation

12.3(11)    Except as provided in an agreement or an arbitrator's report under this section, no compensation or damages are payable in connection with a regulation made under section 7 or a transfer under this section.

Effect of transfer re: rights and property etc.

12.3(12)    On the effective date of the formation or continuation of a new division, or on the effective date of an agreement or arbitrator's report under this section,

(a) the rights and property and debts, obligations and liabilities transferred vest in and belong to the new division, and the former division ceases to have any jurisdiction or interest in them; and

(b) the rights and obligations of a party to an agreement with the former division are not affected

(i) by a change in the name of the former division or the new division, or

(ii) by reason only that the former division is not identical in any other way to the new division.

11          Clause 14(3)(a) is amended by striking out "and number".

12          Subsection 21.2(1) is amended by striking out", number".

13(1)       Clause 21.3(a) is replaced with the following:

(a) sections 4.1 and 5;

13(2)       Clause 21.3(c) is amended by striking out "(6) to (12)" and substituting "(5.1) to (12)".

14          Section 24 is replaced with the following:

Number of trustees

24(1)       Except as provided in sections 17 and 21.4, a school board must have not fewer than five or more than nine trustees.

Establishing the size of school board

24(2)       The number of trustees to be elected for a school division or school district is the number prescribed

(a) in the regulation forming the school division or school district;

(b) in an award of the board of reference; or

(c) in a by-law of the school board passed and approved in accordance with section 57.

Referral to board of reference

24(3)       If a school board has fewer than five or more than nine trustees, the minister may refer the matter to the board of reference, and the board shall deal with the referral as provided for in section 9.

15          Subsection 57(1) is amended

(a) in clause (c), by striking out "11" and substituting "nine"; and

(b) by repealing clause (d).

16          The following is added after section 174:

Definition: "administrative costs"

174.1(1)    In this section, "administrative costs" means the administrative costs of operating a school division or school district that are prescribed by the minister.

Control of administrative cost

174.1(2)    The minister may by regulation

(a) prescribe administrative costs for the purpose of this section;

(b) establish reporting requirements for administrative costs budgeted or incurred by school divisions and school districts; and

(c) set limits on administrative costs.

Limits may be different

174.1(3)    A regulation under subsection (2) may set different limits for different school divisions and school districts.

Withholding of support

174.1(4)    If in any year the administrative costs of a school division or school district exceed the prescribed limits, an amount not greater than the excess may be withheld from any operational support payable to the school division or school district.

17          Subsection 178(1) is replaced with the following:

Budget consultations

178(1)      A school board shall not approve its annual budget until it has

(a) consulted each school advisory council, local school committee or school committee in the school division or school district; and

(b) presented its proposed budget at an open meeting of the board and heard from persons present wishing to make submissions regarding it.

Notice of meeting

178(1.1)    At least 14 days before the open meeting at which its proposed budget will be presented, a school board must provide public notice of the meeting.

18          The following is added after subsection 181(2):

Differential in support levy determined by April 15

181(3)      Despite subsection (2), in each year ending before January 1, 2006, the determination of the number of mills differential shall be made on or before April 15 rather than March 15.

19          Section 183 is amended by renumbering it as subsection 183(1) and the following is added as subsection 183(2):

Statement by April 15

183(2)      Despite subsection (1), in each year ending before January 1, 2006, the finance board shall send the statement required under subsection (1) to each municipality on or before April 15 rather than March 15.

20          Sections 251 to 257 are repealed.

TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS

Definition: "former Act"

21(1)       In this section, "former Act" means The Public Schools Act as it read immediately before the coming into force of this section.

Regulation unaffected by award, order or decision

21(2)       If any matter has been referred or a request has been made to the board of reference under subsection 5(1) of the former Act relating in any way to the amalgamation, formation or continuation of school divisions or school districts under the School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02,

(a) the board may not hear the matter or request or make an award;

(b) any award made and filed as a regulation is of no force or effect as of the day of filing; and

(c) any decision by a court on appeal from an award of the board specified in clause (b) is of no force and effect as of the day of the decision.

Application

21(3)       Subsection (2) does not apply to

(a) an award of the board of reference made before January 1, 2002; or

(b) a written request referred to the board of reference by the minister under subsection 5(1) of the former Act, if the minister received the request obligating him or her to do so on or before March 1, 2002.

Definition: "amalgamated division"

22(1)       In this section and in section 23, "amalgamated division" means a school division formed or continued under The School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02.

Amalgamated divisions to submit budgets

22(2)       In the fiscal year of amalgamation and the next fiscal year, an amalgamated division must

(a) submit its proposed annual budget, at the time and in the form and manner determined by the minister, for the minister's review; and

(b) revise its proposed annual budget as directed by the minister.

Revisions to be included in budget

22(3)       When the minister directs a revision under subsection (2), the school board of the amalgamated division must include that revision in its annual budget submitted under subsection 178(2).

Application of subsection 173.1(2)

22(4)       Subsection 173.1(2) applies, with necessary changes, if a school board of an amalgamated division fails or refuses to comply with a direction of the minister under this section.

Moratorium on school closures

23(1)       An amalgamated division must not close a school in the fiscal year of amalgamation or the next two years unless

(a) the school division or school district in which the school was located before amalgamation

(i) identified the school as a candidate for potential closing before November 1, 2001,

(ii) provided a report to the parents and residents in the area served by the school on the impacts of the potential closing, and

(iii) held an open meeting at which parents and residents in the area served by the school were given opportunity to comment on both the report and the potential closing; or

(b) the amalgamated division first obtains the approval of the minister.

Circumstances when minister may approve closure

23(2)       The minister may approve the closure of a school by an amalgamated division if he or she is satisfied the division has demonstrated that

(a) parents and residents in the area served by the school were provided a report on the impacts of the potential closing;

(b) public consultations were held with those parents and residents in respect of the report and the proposed closing;

(c) adequate notice of the proposed closing was given to the parents and residents; and

(d) there is a general consensus among the parents and residents that the school be closed.

Definitions

24(1)       In this section,

"agreement" means the settlement agreement between The Government of Manitoba and The Morris-Macdonald School Division No. 19, effective March 14, 2002; (« entente »)

"former Morris-Macdonald School Division" means The Morris-Macdonald School Division No. 19 as it was on January 1, 2002; (« ancienne Division scolaire Morris-Macdonald »)

"The Red River Valley School Division" means The Red River Valley School Division formed under the School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02. (« Division scolaire Vallée de la Rivière-Rouge »)

Mill rate: former Morris-Macdonald School Division

24(2)       For the purpose of discharging its obligations under the agreement, The Red River Valley School Division is not bound by subsection 186(6) in imposing a mill rate within the territory of the former Morris-Macdonald School Division.

Continuity in education

25(1)       Despite the formation of The River East Transcona School Division,

(a) until June 30, 2005, a child who was or would have been a resident pupil of the former Transcona-Springfield School Division No. 12 continues to have the same rights of access to schools which were located in that division as they had on June 30, 2002; and

(b) after June 30, 2005, a resident pupil of The Sunrise School Division who was enrolled in a school in the River East Transcona School Division under clause (a) will be deemed to have been enrolled in that school under the schools of choice policy, and the schools of choice policy applies in respect of that pupil.

Definitions

25(2)       For the purposes of subsection (1),

"The River East Transcona School Division" means The River East Transcona School Division formed under the School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02; (« Division scolaire River East Transcona »)

"schools of choice" means the schools of choice policy established under sections 58.3 and 58.4; (« politique sur le choix d'une école »)

"The Sunrise School Division" means The Sunrise School Division formed under the School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02; (« Division scolaire Sunrise »)

"Transcona-Springfield School Division No. 12" means The Transcona-Springfield School Division No. 12 under the School Divisions and Districts Establishment Regulation, Manitoba Regulation 109/93. (« Division scolaire de Transcona-Springfield no 12 »)

Municipal Assessment Act

26          The obligation of an assessor under subsection 13(6) of The Municipal Assessment Act to send written notice of an amendment to an assessment roll does not apply in the case of an amendment caused by the amalgamation or continuation of school divisions and school districts under the School Division and School District Amalgamation (2002) Regulation, Manitoba Regulation 61/02.

Consequential amendment, C.C.S.M. c. M225

27          The following is added after subsection 162(3) of The Municipal Act:

Increase in requisition only

162(3.1)    In each fiscal year ending before January 1, 2006, the requirement in clause (3)(a) to give notice and hold a public hearing does not apply if the increase in estimated revenue results solely from the municipality's requirement to levy and collect a requisition.

Coming into force

28          This Act comes into force on the day it receives royal assent.

 

 


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