A prominent BC Government supporter wrote last week that, by vote of 7-2, Canada’s high court effectively handed “the Liberals ass on a plate.”

Indeed, Chief Justice Beverley McLachlin and Supreme Court of Canada colleagues concluded a legal process that should trouble every citizen. Not just that, in setting public education policy, an elected provincial government government behaved like a tin pot dictatorship but that four British Columbia Appeal Court judges believed they could ignore clear precedents established by the nation’s Supreme Court.

In 2014, I talked in Victoria with a senior government member. To my suggestion that the harsh judgement of Justice Griffin would be a public education game changer, he responded that it would not because BC’s Court of Appeal would throw out her decision.

“It’s going to the Supreme Court of Canada though. The first ruling will be reinstated but that’ll take years.”

The Supreme Court has not yet published reasons for judgement but Chief Justice Beverley McLachlin declared the the majority of the Court would allow the [BC Teachers’ Federation] appeal, substantially for the reasons of Justice Donald.

It is therefore worth paying close attention to Donald’s judgement in the BC Court of Appeal. It begins on page 81. Following are excerpts with some legal case references deleted. Mr. Justice Ian Donald is a long serving judge. He was called to the bar in 1969 and appointed to the Supreme Court after 20 years. In 1994, he was elevated to the Court of Appeal. His arguments within the 2015 judgement are intelligent and avoid twisted logic that his colleagues used to make their now discredited majority ruling in 2015.

[276] …In my opinion, an appropriately deferential approach to the trial judge’s findings of fact, along with an application of the constitutional test as set out by the Supreme Court of Canada …inexorably leads to the conclusion that the trial judge’s finding that the passage of Bill 22 was unconstitutional must be upheld.

[277] …The Supreme Court of Canada has made clear that s. 2(d) …is a bulwark that protects the ability of employees to pursue workplace goals collectively…

[278] This error has led my colleagues to disregard key findings of fact made by the trial judge – findings that colour and characterize the lengthy history of the dispute between the Province and the British Columbia Teachers’ Federation (“BCTF”). These findings of fact were made by a trial judge with particular knowledge of the relationship between the parties. Between the original Bill 28 Decision (2011 BCSC 469) and its follow-up, the Bill 22 Decision (the case under appeal, 2014 BCSC 121), the trial judge had the benefit of 29 days of evidence and submissions pertaining to this dispute over a period of more than three years, not to mention additional time spent on applications, etc. The appellate function is not to substitute the findings and inferences made by a judge who has had the full benefit of the trial process with an appeal division’s own opinions of the facts, unless the trial judge has made such palpable and overriding errors of fact that the conclusion cannot stand. As I will explain, I disagree that the trial judge made any palpable and overriding errors of fact.

[279] …the Supreme Court of Canada has now held that employees are entitled to constitutional protection for not only collective representation, but independent representation selected by the employees. As well, employees have a constitutionally protected right to strike in order to protect an approximately equal bargaining position with their employer. Most importantly, the Court has reiterated and emphasized that at the centre of s. 2(d) is a Charter-protected balance between employees and employer that will allow for meaningful collective bargaining.

[281] …the Province unconstitutionally interfered with the BCTF’s s. 2(d) rights by making collective bargaining an ostensibly futile act…

[283] The freedom of association protected under s. 2(d) of the Charter in the labour relations context is the right of employees to associate in pursuit of workplace goals and to a meaningful process within which to achieve these goals. This freedom is breached if government legislation or actions substantially interfere with collective bargaining in purpose or effect in such a way that does not respect a process of good faith consultation.

[284] …Collective bargaining is protected in the sense that substantial interference with past, present, or future attempts at collective bargaining can render employees’ collective representatives effectively feckless, and thus negate the employees’ right to meaningful freedom of association. Actions by government that reduce employees’ negotiating power with respect to the employer can satisfy this standard of substantial interference…

[285] The act of associating for the purpose of collective bargaining can also be rendered futile by unilateral nullification of previous agreements, because it discourages collective bargaining in the future by rendering all previous efforts nugatory…

[286] Associational activity can also be rendered futile by the government through bad faith negotiation or the refusal to consider submissions. As recently emphasized by the Supreme Court of Canada in SFL at para. 29, “a meaningful process under s. 2(d) must include, at a minimum, employees’ rights … to make collective representations to the employer, and to have those representations considered in good faith” [emphasis added]. Of course, imposing absolute barriers to collective bargaining, or prohibiting collective bargaining entirely, also makes associational activity essentially futile… Laws or government action that make it impossible to achieve collective goals have the effect of limiting freedom of association, by making it pointless.”

[287] …If the government, prior to unilaterally changing terms of employment, gives a union the opportunity to meaningfully influence the changes made, on bargaining terms of approximate equality, it will likely lead to a finding that the union was not rendered feckless and the employees’ attempts at associating to pursue workplace goals were not pointless or futile. Thus, the employees’ freedom of association would likely not therefore be breached.

[313] The dispute between the parties underlying both this appeal and the Bill 28 Decision can be traced back to before the passage of Bill 28, 13 years ago. It is important to stress that this case is not an examination of a single isolated government action, nor is this case an examination of the effects of a single statute. Rather, this case is the culmination of at least 13 years of systemic and institutionalized negation of the BCTF’s s. 2(d) right to associate collectively to achieve important workplace goals.

[318] …Despite the fact that the Court had now ruled that the government’s legislative agenda of 2002 in regard to the health sector was unconstitutional, the Province made no efforts to repeal or amend the analogous and largely equivalent legislation imposed on teachers. Instead, the BCTF was forced to continue litigating the now substantially suspect legislation. Following a lengthy trial process, Bill 28 was also declared unconstitutional in 2011, by the same trial judge in this case: see the Bill 28 Decision.

[319] For the nine years between 2002 and 2011, the BCTF was denied the previously obtained Working Conditions and was prevented from negotiating for their reinstatement. Any collective bargaining that occurred during this period could only be on terms that the Province allowed the other parties to discuss. Teachers that desired improvement or alterations to the Working Conditions found that their own union was rendered ineffectual and unable to represent their interests.

[320] Finally, in 2011, teachers obtained a judicial declaration in the Bill 28 Decision that the Province could not shut the door to collective bargaining, and instead must respect the teachers’ right to associate and bargain collectively. The trial judge delayed the effect of her judgment by a year in order to give the parties time to reach a settlement on the effect of the judgment and to give the Province time to pass revised, constitutionally compliant legislation.

[322] In essence, the Province was informing the union that it intended to keep the door shut on the subject of Working Conditions, but it would allow the union to have input on exactly what kind of door would be used.

[325] The Supreme Court of Canada has gone to great lengths to emphasize the importance of deference to the trial judge when it comes to determinations of fact or questions of mixed fact and law. An appeal is not an opportunity for a de novo hearing or an attempt to roll the dice again with potentially more sympathetic judges. As quoted by the Court, “[t]he appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.”

[338] …A government, in contrast to private sector employers, is elected to serve all of society’s stakeholders, including labour…

[339] …the government always has the power to unilaterally resolve impasse through legislation, or force workers to end a strike through constitutionally compliant back-to-work legislation. This is a huge power imbalance that fundamentally alters the calculus of how negotiations unfold.

[340] …The government could declare all further compromise in any context to be untenable, pass whatever it wants, and spend all “consultation periods” repeatedly saying “sorry, this is as far as we can go”. This would make a mockery of the concept of collective bargaining. An impasse created by the Province through the adoption of unwavering, unreasonable positions and a lack of good faith is not a legitimate impasse…

[348] In summary, the constitutional test for bad faith on the part of government should be expressed in the same language used by the Supreme Court of Canada in Health Services and Fraser. Parties are required to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground.

[350] The trial judge gave numerous examples of the bad faith displayed by the Province in its engagement with the BCTF…

[351] According to the trial judge, the Province came into these negotiations with its mind made up and a strategy in place. The Province intended to re-enact equivalent legislation to what was struck down in the Bill 28 Decision. Any disagreement or negotiation on the part of the union was futile; the die was cast.

[352] This characterization of events is evidenced by two related findings of fact by the trial judge. First, the Province’s stated position was predicated on false assumptions. Second, the Province spent large portions of the consultation period refusing to consider the union’s position. In my opinion, the trial judge’s finding that the Province negotiated in bad faith can be upheld on these facts alone.

[354] …The Province continued to assert throughout the consultation period its “policy position” that the Working Conditions did not grant the needed flexibility. This was a seemingly unwavering position, and it appeared impossible to convince the Province otherwise. The union repeatedly asked for an explanation why the Working Conditions could not meet the flexibility needs of the Province, but was repeatedly rebuffed…

[359] The trial judge’s finding that the Province continued to push false premises and unfounded claims is closely linked to the trial judge’s finding that the Province failed to consider any alternative proposals…

[361] The trial judge recounts in her reasons how the BCTF “correctly perceived” that the government representatives had not even read the Working Conditions terms in the collective agreement, and thus spent much of the “consultation period” attempting to get the Province to listen.

[370] …In summary, the trial judge found that the government representatives “did not engage in meaningful dialogue, listen to the employees’ representations, avoid unnecessary delay, or make a reasonable effort to reach agreement, all factors assessing good faith consultation.”

[372] The trial judge found as a fact that the Province began the consultation process with the BCTF with its mind made up. It intended to re-enact the same provisions already found to be unconstitutional in the Bill 28 Decision. The Province’s stated purpose for doing so was already found by the trial judge to be unfounded and based on myth and hearsay. For a substantial portion of the consultation period, the Province refused to answer the BCTF’s requests for the Province to explain its position, nor did the Province even read the substantive content of the BCTF’s proposal…

[375] First, the Province did not give the BCTF a meaningful opportunity to make representations. To be a meaningful opportunity, the Province must have considered the BCTF’s representations in good faith, which it did not do. Second, the trial judge gave full consideration to the Province’s policy objectives in her infringement analysis… I am confident that the Province is able to pursue its policy goals while respecting the fundamental freedoms protected by the Charter. Third, the Province cannot rely on a claim that the parties were at an impasse when Bill 22 was passed, because as I explained, a legitimate impasse can only occur if the Province had been negotiating in good faith…

[385] …After 13 years of fighting and continual disregard by the Province, it would be reasonable for the teachers to question whether they would ever get the Working Conditions reinstated. This, essentially, is why the Province’s actions were so damaging to the union’s s. 2(d) rights and why they seemed to render the teachers’ attempts to associate and collectively bargain futile in regard to the Working Conditions.