In British Columbia Teachers’ Federation v. British Columbia (“BCTF“) the British Columbia Court of Appeal (“BCCA“) decided that legislation that cancelled terms in a collective agreement, for the benefit of achieving education policy objectives, did not infringe the Canadian Charter of Rights and Freedoms. Practically speaking, BCTF demonstrates that legislators can impose narrow, reasonable restrictions over what can be negotiated at the bargaining table without breaching the Charter‘s freedom of association. Needless to say, this is a welcome development for public sector employers and legislatures who seek to impose reasonable limitations on the collective bargaining process.
Many commentators have argued that the BCTF decision is a surprisingly narrow application of the Supreme Court of Canada’s recent “labour trilogy” which clearly established more rigorous constitutional protections for the collective bargaining process in Canada. In fact, BCTF achieves a delicate balance that was carefully crafted by the Supreme Court of Canada in the new labour trilogy — a balance between:
- protecting a meaningful process to advance collective aspirations,
- maintaining an openness to various models of association, and
- avoiding judicial interference with particular bargaining outcomes.
The historical background to this case is complex. The key points are as follows:
- The B.C. government passed legislation on two occasions which voided certain terms of the collective agreement between the British Columbia Teachers’ Federation (the “Teachers“) and the British Columbia Public School Employers’ Association (the “Employers’ Association”), and prohibited the negotiation of similar terms in collective bargaining.
- The terms at issue touched on issues of educational policy, including class size and composition, staffing levels and student-to-teacher ratios, minimum numbers of teachers, and case loads.
- The initial legislation (“Bill 28“) was successfully challenged by the Teachers as an unjustified breach of the Charter-protected freedom of association. The trial judge declared the legislation to be unconstitutional, but suspended the declaration for one year to allow the government time to address the repercussions of this decision.
- Over the following year, the Teachers participated in discussions with the B.C. government concerning the issues raised under the apparently unconstitutional legislation. Separately, the Teachers collectively bargained with the Employers’ Association.
- On April 14, 2012, the B.C. government passed new legislation (“Bill 22”) that was very similar to the legislation that had been declared unconstitutional. Bill 22, unlike Bill 28, restricted collective bargaining for a temporary period of only fourteen months. At the same time, the government also passed regulations to provide additional funds for classroom resources and to compensate for potentially larger class sizes with extra preparation time, pay, professional development allowances or allowances for classroom supplies an equipment.
- In response to Bill 22, the Teachers’ commenced a new Charter challenge, and succeeded on similar grounds. The focus of the trial judge’s decision was on whether the government’s consultations with the Teachers before the enactment of Bill 22 could “save” legislation that was “duplicative” of Bill 28 and, therefore, inherently unconstitutional. She ultimately concluded that the government consultations were irrelevant because only an employer could engage in collective bargaining with a union such as the Teachers. The trial judge also determined that the government had not engaged with the Teachers in good faith.
The British Columbia Court of Appeal’s Decision
The BCCA overruled the trial judge’s decision. In their view, the case was not about “saving” an unconstitutional law, but rather about whether there was a breach of the Teachers’ freedom to associate in the first place. In particular, the BCCA focused on the issue of whether Bill 22 substantially interfered with the Teachers’ right to participate in a meaningful process by which they could make collective representations about workplace goals (and have those representations considered in good faith).
The most interesting aspect of the BCCA’s decision is the significance it places on pre-legislative consultations. According to the BCCA, the fact that the Employers’ Association did not directly participate in pre-legislative consultations did not render those consultations irrelevant. The Charteranalysis must remain open to various models of association and collective representation, and the B.C. government’s consultations with the Teachers were found to be an important part of the context in which the constitutionality of Bill 22 must be assessed.
The BCCA concluded that the B.C. government listened to the Teachers’ collective representations in good faith and was prepared to modify its plans, if not its objectives, in response to compelling objections. This was sufficient for the purposes of the Charter analysis, and it was inappropriate for the court to generally assess the parties’ motives, or the particular outcomes of the consultation and collective bargaining processes.
In sum, Bill 22 interfered with associational activity by reducing the scope of what could be negotiated at the bargaining table, but the interference was not a “substantial” infringement of the employees’ freedom of association.
To fully appreciate the significance of BCTF, context is key. The restrictions that Bill 22 imposed upon collective bargaining were more than just restrictions relating to working conditions; they were restrictions imposed for the purposes of furthering specific education policy objectives. Those restrictions were imposed following several rounds of consultation between the B.C. government and the Teachers, and the Teachers were given a genuine opportunity to make collective representations regarding those restrictions. The existence of a forum for meaningful discussion and debate, whether within or incidental to the collective bargaining framework, is at the heart of the Charter-protected freedom of association, and such a forum was achieved in BCTF.
Above all, BCTF is a reminder that, although the new labour trilogy has expanded the scope of the constitutional protections applicable to the collective bargaining process, those protections are limited. To breach the Charter, legislation limiting the scope of the collective bargaining process must amount to a substantial interference which is unlikely to occur when the restrictions target narrow, reasonable objectives (concerning, for example, class size or student-to-teacher ratios) as opposed to denying employees the right to associate with the union of their choice, or preventing them from taking lawful job action to exert economic pressure over their employer.