Wednesday, February 5, 2014

BC Government to appeal the recent BCTF ruling.

I guess it was inevitable that the BC government would appeal British Columbia Teachers’ Federation v. British Columbia, 2014 BCSC 121, but I think the government is making a big mistake in doing so.   

This case is some ways messier than most people seem to think.   The messiness comes about because of how the government dealt with the decision in British Columbia Teachers’ Federation v. British Columbia, 2011 BCSC 469.  BCSC 469 said Bill 28 was not constitutional and the government had a year to fix it.  Instead of dealing with the substance of what was considered unconstitutional, the government enacted Bill 22 (Education Improvement Act, S.B.C. 2012) which was substantially the same as the previous law that the court declared unconstitutional.   This makes the case messy because it is not really about the merits of the issue at hand - should teachers be allowed to negotiate working conditions like class size or not - but more about the actions of the government not dealing with the substance of the 2011 decision.

This paragraph in the conclusion is very relevant:
[678]     The parties have been unable to point me to any other case where the present process has occurred: where legislation that was ruled unconstitutional because it interfered with rights guaranteed under the Charter was re-enacted in substantially the same form and the government argued that the unconstitutionality was fixed or ameliorated by the fact of the government having “consulted” with the affected party and, or, by the fact that the government made one part of the legislation temporary.  
For the government to appeal the decision they need to argue the judge made an error in law but as far as I can see this decision closely follows the recent precedence as set out in 2011 BCSC 469, 2007 SCC 27 (Health Services), and 2011 SCC 20 (Fraser) and does not break any new legal ground.  It is not as if this issue has not been argued at the Supreme Court of Canada.   With 2014 BCSC 121 effectively being a reargument of 2011 BCSC 469, the chances there is a substantive reason for appeal that could succeed is very low.

Yes, there is almost always some form of argument that could be made for an appeal, but that does not mean the argument is a good one or that it has any chance of success.  

Just appealing the decision does not change the fact that 2014 BCSC 121 is now the law of the land.   If they appeal or not the government has to adhere to this decision now.   The government would have to seek an injunction to avoid dealing with the results of the decision.  Based on the latest court decision I somehow doubt the province could get an injunction to set aside the decision until the appeal is heard.

The government can no longer rely on either of the previous laws because the BC Supreme Court has declared them no longer to be in effect.  In 2011 the courts gave the government a year to fix the law.  This time the court gave the government no time to enact changes and just declared them invalid.   The wording in the conclusion of 2014 BCSC 121 makes it hard for the government to argue they have a good reason for an injunction.

The appeal is not going to do anything to save the government money and in fact will cost the government money for the cost of the lawyers and very likely the costs of the lawyers for the BCTF.

The appeal is not going to do anything to improve the relationship between the BCTF and the government, though on the other hand I somehow doubt anything could be done to improve that relationship.

The one thing I do not understand in this whole process is why the government tried this approach at all.   Much easier would have been to allow it all to come to the negotiating table and take a hard line on the issues.  Just because the teachers have right to negotiate class sizes does not mean they have a right  to any outcome.   There is no reason the government (or I should say their proxy in the form of the BC PSEA) could not come to the table and start from a point of much larger classes as long as they are willing to negotiate in good faith which is what the decision says.
[679]     The outcome of this case means that teachers have once again had their right to collectively bargain over their working conditions restored.  They have had certain language returned to their collective agreement retroactively.  This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining. 
[680]     The government remains free to give guidance to the employer association in collective bargaining as to any fiscal and policy parameters of collective bargaining.  However, there needs to be room for movement within those parameters to allow the workers to have meaningful influence over their employer.
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