In a decision delivered April 30, 2015, the B.C. Court of Appeal overturned a trial decision that had found the B.C. government had violated the B.C. Teachers Federation’s  (BCTF) constitutional rights to collective bargaining. The decision concluded that the government had consulted adequately with the teachers and was able to pass legislation removing certain class size and composition (e.g. the number of students with ESL or learning disabilities) from bargaining in the public interest.  B.C. taxpayers will be relieved to know that hundreds of millions in damages that the trial judge would have awarded will no longer have to be paid. For the time being, at least.

This decision may be the last major round (for now) in a constitutional litigation saga between the B.C. public sector unions and the government.  The B.C. government first lost a case involving health care workers in the Supreme Court of Canada which reversed precedent and held that abrupt legislative abolition of collective agreement rights without prior consultation could violate the constitutional right to “freedom of association”. The BCTF then won a decision at the trial level in 2011 holding that the similar removal of the rights of BCTF under an existing collective agreement to determine class size and composition and to bargain these issues in future was also unconstitutional. The trial judge gave the government 12 months to address this breach, setting the scene for further bargaining and, ultimately revised legislated limits on such bargaining with the BCTF in 2012.

Although the government reached an agreement with BCTF on all other terms in this round of bargaining, the BCTF objected to the continued, if modified scope of, legislated removal of the sensitive topic of class size and composition from bargaining on constitutional grounds and won at trial. The government appealed.

In highly critical reasons for judgment, the Court of Appeal overturned the trial judge’s conclusions finding:

  1. Where a government substantively consults an affected union before legislating such limits on bargaining, that precludes a finding of breach of freedom of association. The Court noted that the freedom of association does not provide de facto constitutional protection for rights acquired through prior bargaining;
  2. Collectively bargained rights are not constitutionally protected, no matter how sincerely the BCTF believed them to be vital to teachers and students alike. Rather freedom of association in the labour context protects basic rights to organize and pursue collective goals—processes not outcomes;
  3. The implied constitutional obligation on governments to consult/bargain in good faith when removing bargained rights only requires a subjectively honest attempt to reach an agreement on the part of the government.  Both parties are entitled to engage in “hard bargaining” to get the outcome they determine is in their interests, as the Court noted the BCTF had done;
  4. The trial judge had erred in essentially relying on her personal views as to the merits of the government (and by necessary implication BCTF’s) bargaining positions and strategies over the class size and composition issues to find “bad faith” conduct by the government.  This approach was inconsistent with the procedural nature of the duty to consult/bargain in good faith in such contexts established by the Supreme Court of Canada and, indeed, with the limited role of the non-elected courts on such fundamentally political topics under the Charter.

As a result, the current legal framework on class size and composition was upheld, the law implementing it was saved and the award of damages that would have been in the range of $500M was set aside.

The Court of Appeal decision was not unanimous, and in a lengthy and vocal dissent, Mr. Justice Donald pointedly declared that the majority was “in error” in its interpretation of jurisprudence and as a result, had ignored key facts. The dissent said in part:

... [T]he 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.

The BCTF has already announced it will seek leave to appeal and commentators are asking whether the Supreme Court of Canada will be willing to take on yet another labour constitutional rights case (after delivering several recent rulings in this area) to define the scope of the duty to consult, or deny leave. The latter outcome would make the B.C. Court of Appeal’s decision the last word, at least for now, on the scope of governments’ obligation to consult in good faith when legislating away union rights.