John Rogers, BCTF lawyer, “So your objective as government was to increase the pressure on teachers to have them go out on a full-scale strike?”Paul Straszak, BC Government negotiator, “Yes. I’ll say that’s correct.”
On November 10, Canada’s highest court reinstated Madam Justice Griffin’s 2014 judgement that found BC had bargained with teachers in bad faith and breached the Canadian Charter of Rights and Freedoms. She awarded BCTF $2 million in damages.
This high court action should conclude a dispute that has gone on since 2002 but, as long as British Columbia’s government follows the circular pattern described by this article’s title, it will not. Contempt for teachers is only one aspect of BC Liberal antipathy for public education.
The Supreme Court of Canada issued its November decision immediately following a short hearing. This is unusual. In 2005 through 2015, 89% of SCOC decisions were reserved for periods that averaged four to eight months. An immediate ruling from the bench indicates an unequivocal position by the court majority.
The high-court judges did though have considerable time to examine this case. The Teachers’ Federation filed a comprehensive application for leave to appeal in June 2015. Seeking to end the process, British Columbia made a lengthy response in August of last year.
Leave to appeal was granted by the high court in January. In the ten months following, countless pages were submitted by the two sides and by six provinces and other groups seeking intervenor status.
Part of BC’s response involved a limitation of public access to documentary evidence. The sealing order means citizens cannot examine all of the documents considered by the courts. However, redactions may have protected Christy Clark’s government from additional political embarrassment.
It remains to be seen if there will be any material enhancement of education in BC. Under both Campbell and Clark, BC Liberals have had more interest in degrading public schools than in improving the system.
Journalist Katie Hyslop examined education funding issues in an article at The Tyee. She noted that BC has been spending below the national average per pupil and that, as a proportion of GDP, funding has dropped 25 per cent since BC Liberals formed government.
Christy Clark’s Government rewards private power producers and fossil fuel companies with cash and tax expenditures worth almost $2 billion a year. At the same time, schools lack operating funds and must charge fees to students despite a 2006 court ruling that prohibits charging students for educational essentials.
Individual course fees paid by most parents are almost nothing compared to costs incurred by some people. I talked recently with a mother forced to move her 11-year-old son out of the public system because it could not deal with his neurodevelopmental disorder. At more than $2,200 a month, his private schooling impoverishes the family and deprives them of life anywhere near normal. The mother worries about the boy’s future and how the family can survive the financial crisis. This is but one example of many.
I will probably write more on this subject when the SCoC reasons for judgement are published but I think it is worth reflecting on trial judge Susan Griffin’s powerful findings from more than two years ago.
The following was first published in June 2014.
Reasons for Judgment, Madam Justice S. Griffin, January 2014 :
The hearing before this Court follows on the Court’s declaration on April 13, 2011 that legislation interfering with teachers’ collective bargaining rights was unconstitutional as a breach of s. 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association.
The legislation at issue deleted collective agreement terms and prohibited collective bargaining having to do with a range of working conditions, many having to do with class size and composition and the number of supports provided in classes to students with special needs.
The freedom of workers to associate has long been recognized internationally and in Canada as an important aspect of a fair and democratic society. Collective action by workers helps protect individuals from unfairness in one of the most fundamental aspects of their lives, their employment.
Normally the result after legislation is determined by a court to be unconstitutional is that it is struck down. This is part of Canada’s democratic structure, which requires that governments must act legally, within the supreme law of the country, the Constitution.
Here this result was suspended for twelve months to give the government time to address the repercussions of the decision.
The government did not appeal.
After the twelve months expired, the government enacted virtually identical legislation in Bill 22, with the duplicative provisions coming into force on April 14, 2012.
The over-arching question, then, is whether there is something new that makes the new legislation constitutional when the previous legislation was not.
The government argues there are two new facts that make the new legislation constitutional.
First, the government argues that its “good faith consultation” with the union after the first court decision declaring legislation to be unconstitutional, essentially immunized the subsequent duplicative legislation from a similar constitutional challenge. This Court concludes otherwise. The government discussions with the union did not cure the unconstitutionality of the legislation.
The Court has concluded that the government did not negotiate in good faith with the union after the Bill 28 Decision. One of the problems was that the government representatives were pre-occupied by another strategy. Their strategy was to put such pressure on the union that it would provoke a strike by the union. The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union.
The second argument by the government is that the new legislation has a critical difference from the otherwise identical legislation found to be unconstitutional, and that is that one of the two branches of the legislation was time limited.
There were two branches to the Bill 28 legislation previously declared unconstitutional. One was a deletion of existing terms in the collective agreement and a prohibition on including terms in the collective agreement in the future regarding these working conditions. The second was a prohibition on collective bargaining over certain working conditions.
The government argues that there is a crucial difference between the Bill 22 package of legislation and the earlier legislation declared unconstitutional, in that in Bill 22 it temporally limited the second branch of the legislation: the continued prohibition on collective bargaining about the working conditions terms was extended until the end of June 2013 and then repealed.
However, in Bill 22 the government re-enacted legislation identical to that first branch of what was previously declared unconstitutional, namely, the deletion and prohibition of hundreds of collective agreement terms on working conditions.
The Court concludes that there is no basis for distinguishing the new legislation from the previous findings of this Court. The new duplicative legislation substantially interferes with the s. 2(d) Charter rights of teachers, which protects their freedom to associate to make representations to their employer and have the employer consider them in good faith.
As a result, the Court finds the duplicative legislation in Bill 22 to be unconstitutional, namely s. 8, part of s. 13, and s. 24, set out in Appendix A. The unconstitutional provisions that have not already expired, ss. 8 and 24, are struck down.
When legislation is struck down as unconstitutional, it means it was never valid, from the date of its enactment. This means that the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining.
Striking down the unconstitutional legislation will have implications for teachers and their employers but both sides will have interests in resolving these implications through collective bargaining and the tools already existing to resolve labour disputes.
The Court has also concluded that it is appropriate and just to award damages against the government pursuant to s. 24(1) of the Charter. This is in order to provide an effective remedy in relation to the government’s unlawful action in extending the unconstitutional prohibitions on collective bargaining to the end of June 2013. The government must pay the BCTF damages of $2 million…
In The Court of Appeal for British Columbia, February 2014, acting in Chambers, Mr. Justice Harris stayed Justice Griffin’s judgment, pending an appeal. Harris did not consider the merits of the province’s appeal.
From the beginning of its dispute with teachers, Liberal government actions showed contempt for equity. In the first year of its first term, according to Justice Griffin, while the BCTF and BC Public School Employers (BCPSEA) negotiated, the ministry of education was consulting with BCPSEA “on potential legislative changes that could reduce the scope of collective bargaining. BCTF was not consulted about the potential legislation.”
When negotiations failed, as they were almost bound to do with conflicting action behind the scenes, the BC Liberal government passed Bills 27 & 28. BCTF began a legal challenge in May 2002.
Bill 28 required the appointment of an arbitrator to review the collective agreement, determine what provisions had to be removed, and then remove them. After the first three arbitrators resigned, the fourth arbitrator dismissed BCTF objections and deleted extensive provisions in the collective agreement. Soon after, the Supreme Court quashed the arbitrator’s decision. Within a year, federal Liberals made the fourth arbitrator, lawyer Eric Rice, a judge of the BC Supreme Court.
In 2004, Liberals passed the Amendment Act, which effectively restored the arbitrator’s decision by deleting all sections of the collective agreement the arbitrator had deleted. The fight has continued ever since, with delay after delay, precipitated by government tactics.
In 2011, Justice Griffin wrote extensive reasons for judgment in which she ruled provincial legislation to be unconstitutional interference with teachers’ rights. The court declaration was suspended for a year to allow the government time to address the repercussions of this decision. Their response was to pass another law that was essentially the same.
That resulted in a new court case and another trial like the one that ended in 2011. Surprising absolutely no one, the subsequent case was decided in favour of the BCTF, as noted above.
Millions of dollars have been spent on this dispute. Yet, nothing is resolved after 12 years. One side has endless financial resources and aims to ensure court processes move at a pace that would make a tired snail impatient. Government prefers the status quo; conflict with teachers serves its anti-labour philosophy and Liberals calculate it helps them politically.
In addition to paying squadrons of lawyers, Liberals employ spin masters and social media trolls tasked with demonizing the very profession that may matter most to the success of future generations.
The Supreme Court of Canada should act to stop governments from stalling single issues in an endless circle of delay, legislation, litigation and re-legislation. In a column, Andrew Coyne described a similar situation before Canada’s Supreme Court:
– The prostitution bill. The Supreme Court having tossed out the old laws as a violation of prostitutes’ constitutional right not to be beaten or murdered (I paraphrase), it was expected the government would opt for the “Nordic model,” criminalizing the purchase of sex rather than the sale, as a replacement — a contentious but tenable response to the Court’s decision. It was not expected it would, in effect, fling the ruling back in the Court’s face. Not content with leaving the impugned provisions, but for a few cosmetic changes, essentially intact, the government imposed new restrictions, for example banning prostitutes from advertising: not just in violation of the Constitution, it would seem, but in defiance of it. The bill is written as if calculated to provoke another confrontation with the Court, ideally in time for the next election.
Inappropriate actions when elected officials respond to court declarations are startling. In these cases, attitudes of extreme arrogance convince politicians they are above rules that apply to others. David Owen, a British ex-cabinet minister trained in psychiatry, described symptoms of hubris syndrome:
• A narcissistic propensity to see one’s world primarily as an arena in which to exercise power and seek glory
• A disproportionate concern with image and presentation
• A messianic manner
• Excessive confidence in own judgment and contempt for advice
• Exaggerated self-belief, bordering on omnipotence
• A belief that one is accountable solely to history or god
• Loss of contact with reality; often associated with progressive isolation
• Restlessness, recklessness and impulsiveness
Owen admits that while in the theatre of national politics, he suffered a tendency to hubris and believes the syndrome affects many modern leaders. In most activities, particularly private life, checks and balances constrain our behaviour. If we live outside generally accepted rules of conduct, there are prices to pay. Literally, there’s a heavy price to pay if you are on the losing end of successive legal actions. Christy Clark and Stephen Harper are not so constrained.