Friday, February 28, 2014

Appeal Court of BC Stay of 2014 BCSC 121 - BCTF v BC and where this all may be headed

On Wednesday David Harris of the Appeal Court of BC gave the province a stay on implementing the Supreme Court of BC ruling 2014 BCSC 121 and extended the publication ban on the summary argumenta of the BCTF lawyers which means it will be even longer before we might see anything.  It is a problem for the public that we do not get access to what was said in the courts in in front of Susan Griffin at the Supreme Court of BC.  We are in a limbo that does no one any good.    The whole thing has already been in the courts too long.

We are now left without the public information needed to understand why Susan Griffin ruled as she did in British Columbia Teachers’ Federation v. British Columbia, 2014 BCSC 121.  We have the BCTF and the province both claiming things without public facts to back them up.   The only neutral public information we have are the findings of fact by the judge.   She is the one that heard both sides and comes to the conclusions in the decisions from evidence, including the cabinet documents, and the arguments from both sides.   All I can do is assume that she made a decision that is based on the facts presented to her.  Until we have other public evidence, her words are the only ones that we can work with.

I can see the point of the Appeal Court of BC granting the stay to the province if the appeal is heard this year, the continuation of the status quo for several more months is not going to mean the end of the world for anyone but that assumes this will all come to end within the next six or seven months.  Let us say the BC government substantively losses at the Appeal Court of BC, what then?   I suspect given the track record of the government it will be appealed to the Supreme Court of Canada which will likely mean a further delay in all of this.  An additional delay in implementing the ruling shifts the "irreparable harm" from the government onto the teachers.  I think the Appeal Court of BC should have considered that the province did not implement the 2011 ruling and is likely to appeal the Appeal Court of BC decision if they lose which means the "irreparable harm" does fall on the teachers.

In the original decision, British Columbia Teachers’ Federation v. British Columbia, 2011 BCSC 469, the judge gave the province a year to implement the ruling.   The government did not choose to use that time to do so and forced the whole thing back into the courts which is the reason for the decision of January 27th of this year.   This should have been settled by April 13th 2012, instead it was back in the courts and will remain in the courts for at least some more months.

If the government is prudent it will be using this time to make a plan for implementing the ruling, but I am losing faith that this is likely to happen because of the toxic relationship between the government and the BCTF.   I have to wonder if the government is using the courts as a way to delay dealing with the teachers and use the dispute to their political advantage.

If the case is heard in the Appeal Court in the fall a decision is likely in January or February of 2015.  A further appeal to the Supreme Court of Canada will add several more years to this.  I would be surprised to see a Supreme Court of Canada decision released before early 2017.  It means that it will have been six years at that point since the original 2011 ruling in favour of the BCTF.  

If this really is the path that will be followed we will likely see the BCTF become a major focus of the 2017 BC election.     Could this then become the 2017 election issue?  Is this the issue the Liberals will try to use to keep the NDP out of power?

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