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I N D E X
CHRONOLOGY OF EVENTS RELEVANT TO THE APPEAL . . . . . . . . . . . . . . . . . . . . . . . . i
OPENING STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
PART 1 - STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Response to Appellant’s Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Response re Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Decision of the Trial Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Teachers' Working Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Collective Bargaining Before 2002 and PEFCA . . . . . . . . . . . . . . . . . . . . . . 7Collective Bargaining After 2002 and PEFCA . . . . . . . . . . . . . . . . . . . . . . . . 8Government Strategy Prior to BCTF #1 on April 13, 2011 . . . . . . . . . . . . . . 9Government Strategy After BCTF #1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Settlement Discussions Following BCTF #1 . . . . . . . . . . . . . . . . . . . . . . . . 11Government Provoking a Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Enactment of the EIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PART 2 - ISSUES ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PART 3 - ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16The Trial Judge's Determination of the Additional Remedies Flowing from BCTF #1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Preliminary Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Response re remedy resulting from the BCTF #1 declaration of invalidity . 17Response re appellant’s assertion that the trial judge wrongfully assumed
supervisory jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Response re interpretation of the trial judge's order . . . . . . . . . . . . . . . . . . 23Response re functus officio argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Response re the appellant's argument that the trial judge failed to apply
judicial restraint in her decision regarding Charter remedies . . . . . . 25Conclusion re Bill 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Response re Trial Judge's Decision Regarding the BCTF Challenge to Bill 22 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Response re the appellant's "Consultation" Argument . . . . . . . . . . . . . . . . . . . . . . 28Trial judge’s conclusion regarding settlement discussions . . . . . . . . . . . . . 28Response to the appellant's argument on consultation . . . . . . . . . . . . . . . . 30
Judicial deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Pre-legislative consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Wagner Act model of collective bargaining . . . . . . . . . . . . . . . . . . . 35Elevating collective agreement terms to a constitutional level of
protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Indirect employer of teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Conclusion re appellant's "consultation" argument . . . . . . . . . . . . . 38
Response re the findings of bad faith bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . 38The trial judge applied the correct test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38No palpable and overriding error in findings of fact . . . . . . . . . . . . . . . . . . . 39
Conclusion re bad faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Response re Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Pressing and substantial objective and rational connection . . . . . . . . . . . . 44Minimal impairment test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Response re Remedies in Bill 22 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Section 52(1) remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Response re section 24(1) argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
PART 4 - NATURE OF ORDER SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
LIST OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
i
CHRONOLOGY OF EVENTS RELEVANT TO THE APPEAL
Date Description
1987 Through amendments to the Industrial Relations Act, R.S.B.C. 1979,c. 212, and the School Act, R.S.B.C. 1979, c. 375, teachers for thefirst time gained statutory recognition of their right to engage in fullcollective bargaining.
1987-1993 First period of collective bargaining between local teachers'associations and school boards. Numerous collective agreementswere reached between individual school boards and local teachers'unions during this time period. These collective agreementscontained provisions regarding class size, class composition,staffing levels of non-enrolling teachers and hours of work, althoughthese provisions varied from school district to school district.
June 1993 The Report of the Korbin Commission was released, recommendingchanges to the structure of public sector bargaining.
July 27, 1993 Public Sector Employers Act, S.B.C. 1993, c. 65 [now R.S.B.C.1996, c. 384] ("PSEA") enacted, establishing PSEC and mandatingthat employers' associations be established for six public sectoremployers.
June 10, 1994 Public Education Labour Relations Act, S.B.C. 1994 c. 21 [nowR.S.B.C. 1996, c. 382] ("PELRA") enacted, establishing anddesignating the British Columbia Public School Employer'sAssociation ("BCPSEA") as the employers' association for schoolboards and as bargaining agent. The British Columbia Teachers’Federation (“BCTF”) was designated as the bargaining agent forpublic school teachers. The legislation continued in force theexisting collective agreement provisions.
April 28, 1996 The Education and Health Collective Bargaining Assistance Act,S.B.C. 1996, c. 1, enacted, allowing for means by which a mediatorcould impose a collective agreement on the parties.
June 17, 1996 BCPSEA and BCTF concluded the Transitional CollectiveAgreement in May 1996, with an effective date of June 17, 1996,and expiring on June 30, 1998. BCPSEA on behalf of schooldistricts and the BCTF on behalf of teachers agreed to continue theexisting language in the previous collective agreements exceptwhere amended. This included the language concerning theWorking Conditions.
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April 17, 1998 The government and BCTF reached an Agreement in Committee("AIC") including a K-3 Memorandum of Agreement. It provided fora rollover of other terms of previous local agreement languagebargained between 1988-1994.
May 4, 1998 BCPSEA, BCTF and the government sign Article A.1, agreeing tocontinue all of the provisions of the Transitional CollectiveAgreement, unless amended or modified.
June 30, 1998 The Transitional Collective Agreement expired.
July 30, 1998 When BCPSEA failed to ratify a collective agreement, the PublicEducation Collective Agreement Act, S.B.C. 1998, c. 41, is enacted,imposing a collective agreement on the parties for the term July 1,1998 to June 30, 2001. The collective agreement carried forwardthe terms of the Transitional Collective Agreement, as well as theterms of the AIC and the K-3 Memorandum of Agreement and alsocontained a number of provisions bargained by the parties in therecent collective bargaining.
June 1999 BCPSEA and BCTF bargained LOU #3, adding certain commonprovincial language in the 1998-2001 Collective Agreement dealingwith non-enrolling / ESL ratios.
June 2000 BCPSEA and BCTF bargained LOU #5 revising the ESL ratios in the1998-2001 Collective Agreement.
February 2001 BCPSEA and BCTF signed the 2001 K-3 Memorandum ofAgreement amending the terms of the class size provisions,including the K-3 Memorandum of Agreement incorporated in the1998-2001 Collective Agreement.
May 10, 2001 A new provincial government was elected.
June 30, 2001 The Collective Agreement constituted under the Public EducationCollective Agreement Act expires.
August 16, 2001 The Skills Development and Labour Statutes Amendment Act, 2001,S.B.C. 2001, c. 33, was enacted to amend the Labour RelationsCode, R.S.B.C. 1996, c. 244, to include K-12 education as anessential service.
2001 BCTF and BCPSEA commenced collective bargaining in March2001. BCPSEA was also consulting with the new government onpotential legislative changes that could reduce the scope ofcollective bargaining.
January 27, 2002 Bill 27, the Education Services Collective Agreement Act, S.B.C.2002, c. 1 ("ESCAA") was enacted.
January 28, 2002 Bill 28, the Public Education Flexibility and Choice Act, S.B.C. 2002,c. 3 ("PEFCA") was enacted.
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May 30, 2002 BCTF filed a constitutional challenge alleging that teachers' Charter-protected rights had been violated with the passage of Bill 27 andBill 28 ["Bill 28 Action"].
August 30, 2002 Arbitrator Rice issues his decision deleting extensive provisions inthe collective agreement, pursuant to s. 27.1 of the School Act,which was added by s. 9 of PEFCA.
January 22, 2004 Shaw J. quashed Arbitrator's Rice's decision in British ColumbiaTeachers' Federation v. British Columbia Employers' Association,2004 BCSC 86.
April 29, 2004 Bill 19, the Education Services Collective Agreement AmendmentAct, 2004, S.B.C. 2004, c. 16 ("Amendment Act"), was enacted,effectively restoring Arbitrator Rice's decision by deleting all sectionsof the collective agreement that had been deleted by Arbitrator Rice.
June 30, 2004 Collective agreement imposed by ESCAA expires.
October 7, 2005 Teachers' Collective Agreement Act, S.B.C. 2005, c. 27, enacted,deeming the continuation of the collective agreement imposed byESCAA.
May 18, 2006 Bill 33, the Education (Learning Enhancement) Statutes AmendmentAct, 2006, S.B.C. 2006, c. 21 enacted.
June 2006 BCTF and BCPSEA conclude a 5-year collective agreement, whichcontinued all of the provisions of the collective agreement imposedby ESCAA, and extended by the Teachers' Collective AgreementAct, except where amended or modified by the parties.
June 8, 2007 Supreme Court of Canada judgment in Health Services andSupport-Facilities Subsector Bargaining Assn. v. British Columbia,2007 SCC 27.
January 2008 Post- Health Services settlements reached between the healthservices employers' bargaining agent and the affected health sectorunions by mid-contract amendments to the collective agreements. Aseparate settlement of the outstanding issues resulting from HealthServices was reached between government and the affected healthsector unions and government subsequently repealed theunconstitutional provisions.
2009 Government developed a mandate which it gave to public sectorbargaining agents, known as Mandate 2010. One aspect ofMandate 2010, known as the "net zero mandate", prevented publicsector employers from agreeing to any changes to collectiveagreements that would result in a net increase in costs togovernment.
November 2010 Summary trial of BCTF's constitutional challenge [Bill 28 Action].
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March 2011 -February 2012
Collective bargaining between BCPSEA and BCTF to whichMandate 2010 applied. Government additionally asked BCPSEA toachieve concessions from BCTF in favour of greater managementrights.
April 13, 2011 The Bill 28 Decision is rendered declaring ss. 8 and 15 of PEFCAand s. 5 of the Amendment Act unconstitutional and invalid, butsuspends the declaration of invalidity for twelve months to allow thegovernment time to address the repercussions of the decision:BCTF v. B.C., 2011 BCSC 469 ["BCTF #1"].
May - November2011
Government and BCTF have settlement discussions about therepercussions of the Bill 28 Decision. No settlement is reached.
June 30, 2011 2006 Collective Agreement expires.
September 2011 Collective bargaining continues between BCTF and BCPSEA. BCTF commence phase 1 of job action, withdrawing some non-essential services.
October 12, 2011 BCTF's clarification application dismissed: British ColumbiaTeachers' Federation v. British Columbia, 2011 BCSC 1372.
February 28, 2012 Bill 22, the Education Improvement Act, S.B.C. 2012, c. 3 ("EIA" or"Bill 22"), is introduced in the legislature.
March 15, 2012 The EIA is enacted, with certain provisions at issue (ss. 8, 13, 24)not being brought into force until April 14, 2012.
March 28, 2012 Government appoints Dr. Charles Jago as mediator in respect ofcollective bargaining between the BCTF and BCPSEA with themediator's terms legislatively limited by s. 6(1) of the EIA.
April 14, 2012 Sections 8, 13 and 24 if the EIA come into force. The LearningImprovement Fund Regulation, B.C. Reg. 53/2012 comes into force.
June 18, 2012 BCTF filed an application for further remedies in the Bill 28 Action.
June 26, 2012 The BCTF and BCPSEA sign a Memorandum of Agreement whichcarried forward the 2006 Collective Agreement except whereamended or modified by the parties.
June 27, 2012 BCTF filed a constitutional challenge alleging that teachers' Charter-protected rights had been violated with the passage of Bill 22 ["Bill22 Action"].
June 29, 2012 BCTF members ratify the Memorandum of Agreement.
July 1, 2012 The Class Size Compensation Regulation, B.C. Reg. 52/2012 isbrought into force.
August 15, 2012 Province files an application to strike the BCTF's application forfurther remedies in the Bill 28 Action.
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September -November 2013
Trial of the Bill 22 Action and hearing of the BCTF's application forfurther remedies and the Province's application to strike.
January 27, 2014 Trial judge renders decision in the Bill 28 additional remediesapplication declaring that the laws declared unconstitutional in theBill 28 Action were invalid from the date of their enactment. The trialjudge determines that this is a sufficient remedy, with theconsequences of the Court's declaration to be dealt with atarbitration.
Trial judge renders decision in the Bill 22 Action declaring ss. 8, 13and 24 of the EIA unconstitutional and invalid from the date theycame into force and awarding the BCTF $2 million in section 24Charter damages.
(British Columbia Teachers' Federation v. British Columbia, 2014BCSC 121 ["BCTF #2"])
February 4, 2014 Province files notice of appeal.
February 26, 2014 Harris J.A. orders the stay of two terms of the orders in the Bill 22Action pending the resolution of the appeal.
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OPENING STATEMENT
In late January 2002, the government enacted legislation that prohibited collective
bargaining on working conditions of fundamental importance to teachers and resulted in the
deletion of hundreds of freely bargained terms of the teachers’ collective agreement.
On April 13, 2011, Madam Justice Griffin held that the challenged legislation contravened
s. 2(d) of the Charter and was not saved by s. 1 (BCTF #1). In addition to declaring the
legislation unconstitutional, the Court suspended the declaration of invalidity for a period of
twelve months to allow the government time to address the repercussions of the decision.
The Court reserved jurisdiction to permit the BCTF to argue any additional remedies.
Following the decision, the government entered into settlement discussions with the BCTF.
No settlement was reached and on April 14, 2012, after the suspension of the declaration of
invalidity expired, the government proclaimed the Education Improvement Act (“EIA”), which
purported to repeal and immediately reinstate the constitutionally invalid legislation.
The trial judge heard the remedial issues arising from BCTF #1 concurrently with the
subsequent challenge by teachers to the duplicative provisions in the EIA (BCTF #2). The
trial judge held that the government had not passed corrective legislation during the period
of suspension and, as a legal consequence, the unconstitutional legislation was invalid from
the date it was enacted. In BCTF #2, the trial judge held that the duplicative provisions in the
EIA were invalid and awarded s. 24(1) Charter damages against the appellant because it
had re-enacted a broad prohibition on bargaining it knew to be constitutionally invalid.
Both at trial and in this appeal, the central position of the appellant has been that freedom of
association only protects the right for workers to be “consulted” prior to the passage of
legislation, even if that legislation significantly interferes with workers’ ability to collectively
pursue common goals with their employer. The appellant says that by meeting with teachers
and discussing settlement of remedy following BCTF #1, it could simply continue the
unconstitutional provisions under the guise of new legislation. This simplistic position is
wrong. It is not supported by the decisions in Health Services and Fraser.
The decision under appeal did not mandate a Wagner Act legislative model or
constitutionalize collective agreement terms. Instead, the trial judge correctly rejected the
appellant’s position and interpreted s. 2(d) as a meaningful right to the process of collective
bargaining, following the purposive analysis prescribed by the Supreme Court of Canada.
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PART 1 - STATEMENT OF FACTS
Response to Appellant’s Overview
1. Rule 22 of the Court of Appeal Rules and Form 10 require that parties set out a
Statement of Facts which "must consist of a concise statement of the history of the
proceedings and the facts of a case." Instead, under the heading "Overview", the appellant
makes a political statement with a blatant in terrorem argument as to the alleged
consequences of the trial judge's decision. Further, the appellant attempts to revive
asserted facts and argument which were rejected by the Court as unfounded in BCTF #1,
which was not appealed by the government (Appellant's Factum (“AF”), paras. 1-13).
2. We will demonstrate in detail in this factum the inaccuracy of the appellant's
assertions of both fact and law, as well as their assertions as to the consequences of the
trial judge's decisions. However, given the approach of the appellant, we consider it
necessary to respond at the outset to the appellant’s “overview” and briefly describe for this
Court the context and history of BCTF #1 and BCTF #2 and the issues in dispute.
3. This appeal is not about government's ability to legislate collective agreement terms
that a union views as unfavourable (AF, para. 1). This appeal is about fundamental
freedoms and teachers' rights protected by s. 2(d) of the Canadian Charter of Rights and
Freedoms. In Health Services the Supreme Court of Canada found that legislation which
repudiated employment terms in a collective agreement reached by parties in collective
bargaining, and which prohibited collective bargaining in the future, interfered with collective
bargaining and s. 2(d) Charter rights (Health Services, para. 113). Consistent with Health
Services, the trial judge came to the same conclusion in BCTF #1 (para. 189).
4. The appellant's argument is illustrative of a fundamental difference between the
parties as to the nature of the constitutional right to freedom of association identified in
Health Services and BCTF #1. The appellant's position is that it is entitled to prohibit
collective bargaining on fundamental workplace issues and unilaterally remove hundreds of
freely bargained collective agreement provisions important to teachers. If that legislation is
found to be unconstitutional, government's only obligation is to "consult" with teachers as to
why it intends to continue the legislative provisions declared constitutionally invalid. The
government is then entitled to "repeal" the constitutionally invalid legislation at the same time
as it passes legislation duplicating the constitutionally invalid provisions. If that duplicative
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legislation is found to be constitutionally invalid, the only remedy available to the trial judge
is to order further "consultation". Presumably, this "process" can be repeated ad infinitem,
or at least until the teachers of British Columbia recognize that the Charter provides
meaningless protection to their right to engage in collective bargaining.
5. The fatal flaw in the appellant's argument is that it considers that Health Services
merely requires a process of government consultation prior to passing legislation that
substantially interferes with teachers’ ability to collectively influence their terms and
conditions of employment. To support its interpretation, the appellant repeatedly
mischaracterizes the trial judge's conclusions and ignores the unappealed legal and factual
findings of the trial judge in BCTF #1. Consequently, it is imperative to understand the
nature of the proceedings in BCTF #2 and how the trial judge conducted the correct
constitutional analysis.
6. In January 2002, the government passed legislation which eliminated hundreds of
provisions from teacher collective agreements concerning class size, class composition,
levels of non-enrolling teachers and hours of work. The BCTF challenged that legislation.
After a lengthy summary trial, the trial judge found that certain provisions in the challenged
legislation were unconstitutional and infringed s. 2(d), and were not saved by s. 1. In
reaching her conclusions the trial judge applied the constitutional analysis set out in Health
Services which consists of the following test:
(a) does the legislation interfere with collective bargaining (BCTF #1, paras. 188-
277); and
(b) was the interference substantial (BCTF #1, paras. 278-295)?
7. Madam Justice Griffin (the "trial judge") found that the government's legislation
regarding what she described as the "Working Conditions" (i.e., hours of work, class size,
class composition and non-enrolling levels) clearly infringed s. 2(d) of the Charter, but that
the provisions deleted pursuant to other legislation did not amount to substantial
interference with teachers’ ability to engage in collective bargaining (BCTF #1, para. 316).
The trial judge found that the Working Conditions provisions were not saved by s. 1 but
provided a period of 12 months "to allow the government time to address the repercussions
of this decision" (BCTF #1, para. 382). To the extent that the legislation was
unconstitutional, the trial judge ordered that teachers' had reserved their right to argue any
3
additional remedies and could seek a further hearing in that regard (BCTF #1, para. 383,
Appeal Record ("AR") p. 390).
8. The government failed to pass corrective legislation during the period of suspension
and as a consequence, the trial judge held in BCTF #2 that the declarations of invalidity
were effective the date of the legislation. This was a straightforward application of
constitutional law which was not challenged by the government before the trial judge. In
fact, the government expressly contemplated that if it failed to pass legislation during the
period of suspension the consequence would be that the clauses were restored effective the
date of the legislation and the issue of whether the language had been breached would be a
matter for an arbitrator. The trial judge rejected the government's argument that it is only if
government deletes provisions of a collective agreement and prohibits collective bargaining
that there is substantial interference with s. 2(d) rights. The trial judge correctly identified
that in Health Services the Supreme Court of Canada considered whether the legislation
invalidated, nullified or repudiated past negotiated terms and thereby undermined past
processes of collective bargaining (BCTF #2, para. 433-434).
9. The government was of the view that it only need enter into the settlement
discussions in order to legislatively continue the constitutionally invalid legislation. That
clearly would have the effect of significantly undermining the fundamental constitutional
rights which protect Canadian citizens against unconstitutional actions by the state.
10. Despite the fact that in Health Services the Supreme Court of Canada expressly
stated that governments were not required to consult prior to passing legislation, the
appellant says that Health Services stands for the proposition that governments are required
to consult with unions before passing legislation which substantially interferes with s. 2(d)
rights. The appellant also argues that if it does "consult" with unions, even if it occurs in the
form of settlement discussions of a previous action, then government is entitled to eliminate
collective bargaining rights and the terms of collective agreements at will. The BCTF will
demonstrate that the government's position that the issue is conduct rather than the content
of legislation has no foundation in law.
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Response re Factual Background
11. In January 2002, in the midst of collective bargaining between the BCTF and
BCPSEA, the government enacted Bill 27, the Education Services Collective Agreement
Act, S.B.C. 2002, c. 1 ("ESCAA"), and Bill 28, the Public Education Flexibility and Choice
Act, S.B.C. 2002, c. 3 ("PEFCA").
12. Section 8 of PEFCA voided hundreds of terms of teachers' collective agreement
dealing with class size, class composition (the number of students with special needs
integrated per class), ratios of non-enrolling teachers to students (teachers not assigned to
classrooms), processes to support successful inclusion of students with special needs and
work load (the "Working Conditions"), and prohibited any future collective bargaining on
Working Conditions. The Working Conditions provisions had previously been negotiated by
the BCTF and its local associations, and their employers. Section 15 of PEFCA voided all
collective agreement terms that restricted a school board's power to "establish, vary, extend
or amend" teachers' hours of work.
13. In 2004, the decision of Arbitrator Rice deleting the provisions of the collective
agreement that PEFCA had voided was overturned on judicial review (BCTF v. BCPSEA,
2004 BCSC 86). The government did not appeal that decision, but in response enacted the
Education Services Collective Agreement Amendment Act, 2004, S.B.C. 2004, c. 16
("Amendment Act"), which legislatively restored the decision of Arbitrator Rice and deleted
extensive provisions of the collective agreement that dealt with Working Conditions (s. 5).
14. On April 13, 2011, the trial judge concluded that the Province of British Columbia
infringed teachers' freedom of association guaranteed by s. 2(d) of the Charter and declared
ss. 8, 9 and 15 of PEFCA and s. 5 of the Amendment Act unconstitutional and invalid (BCTF
#1). The trial judge concluded that s. 4 of ESCAA, which deleted whole local collective
agreements, did not infringe s. 2(d) of the Charter.
15. The trial judge suspended the "declaration of invalidity for a period of twelve months
to allow the government time to address the repercussions" of BCTF #1 (BCTF #1, para.
382, AR p. 390). Government failed to pass corrective legislation during the period of the
suspension of the declaration of invalidity.
16. Contrary to the appellant's assertions in its factum at paragraph 6, this appeal does
not arise out of the April 13, 2011 judgment in BCTF #1. Neither the BCTF nor the
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government appealed BCTF #1. In the hearing of the present action, both parties agreed
that findings of fact from BCTF #1 applied in the proceeding challenging the Education
Improvement Act, S.B.C. 2012, c. 3 ("EIA" or "Bill 22") (BCTF #2, para. 111, AR p. 184).
Despite taking this position at trial, the appellant now repeatedly asserts that the trial judge
erred in findings in BCTF #2 that were in fact unappealed factual and legal findings from
BCTF #1.
17. Although the EIA purported to repeal the provisions declared unconstitutional in
BCTF #1, government immediately re-enacted those provisions in precisely the same
language. The EIA continued the unconstitutional prohibition on collective bargaining of
important Working Conditions (EIA, s. 13) for a further 14 months and re-deleted the
Working Conditions provisions in the collective agreement in perpetuity (EIA, ss. 8, 24)
(BCTF #2, paras. 2, 12).
A. The Decision of the Trial Judge
18. The decision under appeal is with respect to two proceedings before the trial judge,
heard concurrently over fourteen days of viva voce evidence and five days of oral argument.
The two proceedings were: (i) the teachers' application for additional remedies in BCTF #1
and the appellant's corresponding application to strike the teachers' application, and (ii) the
trial regarding the constitutionality of the EIA (BCTF #2, para. 639).
(i) The BCTF's application for additional remedies in BCTF #1
19. The government failed to enact legislation during the twelve month period in which
the trial judge suspended the declaration of invalidity in BCTF #1 (EIA, s. 26; BCTF #2,
para. 566). As a result, the trial judge applied established law that the declaration of
invalidity applies retroactively (BCTF #2, paras. 552-565).
20. The trial judge did not award a s. 24(1) Charter remedy because she concluded that
striking down the unconstitutional legislation by operation of law provided an effective
remedy in BCTF #1 (BCTF #2, paras. 605-607).
21. With respect to the appellant's application to strike the teachers' application for
further remedies, the trial judge expressly stated that she was not assuming a supervisory
role (BCTF #2, para. 649).
6
(ii) Trial judge's decision on the BCTF challenge to the provisions of the EIA
22. The trial judge applied Health Services and concluded that where government
passes legislation and, as in this case, is not the employer, government's pre-legislation
consultation is not relevant to whether the legislation substantially interferes with s. 2(d)
rights, but could be relevant to the s. 1 Charter analysis (BCTF #2, paras. 72-93).
23. In the event that the trial judge was wrong, she determined that if government could
rely on the settlement discussions as saving legislation from violating s. 2(d) rights, the pre-
legislative consultation process had to be akin to a process of good faith negotiation
between employer and employee association (BCTF #2, paras. 94-96). Contrary to the
repeated assertion in the appellant’s factum, the trial judge never held that s. 2(d) protects
Wagner Act collective bargaining. She concluded that, as conceded by the government, the
settlement discussions were not collective bargaining (BCTF #2, para. 178). Consistent with
how government viewed the discussions, the trial judge concluded that the discussions
between government and the BCTF were best characterized as settlement discussions
aimed at settling the outstanding issues arising from the repercussions of BCTF #1 and
teachers' outstanding claim for damages (BCTF #2, paras. 134, 179-180).
24. The trial judge nevertheless made extensive findings of fact regarding government's
discussions with BCTF in response to the appellant's argument that the settlement
discussions were relevant to the question of whether the EIA substantially interfered with
teachers' s.2(d) rights (BCTF #2, paras. 182-400, AR pp. 198-241). The trial judge found
that government's discussions with the BCTF did not amount to good faith bargaining
because "[t]he government did not engage in meaningful dialogue, listen to the employees'
representations, avoid unnecessary delay, or make a reasonable effort to reach agreement"
(BCTF #2, para. 398).
25. The trial judge then determined whether the one change in the duplicative provisions
- s. 13, the time limit on the legislative prohibition of collective bargaining on Working
Conditions - saved the otherwise invalid provisions from being unconstitutional (BCTF #2,
paras. 401-425, 457-463). The trial judge held that the 14 month unilateral extension of the
prohibition of collective bargaining was not justified (BCTF #2, paras. 425, 447, 569) and
that the time-limited prohibition did not change the analysis about the widespread deletion of
hundreds of provisions on Working Conditions in the collective agreement because the right
7
to collectively bargain was still undermined (BCTF #2, paras. 426-463). The trial judge held
that the duplicative provisions were contrary to s. 2(d) of the Charter and not saved by s. 1
(BCTF #2, para. 567).
26. With respect to s. 13 of the EIA, which prohibited collective bargaining for an
additional 14 months beyond the end of the suspension of declaration, thereby unilaterally
continuing an unconstitutional law, the trial judge awarded $2 million dollars ($66 per
teacher) as a s. 24(1) Charter remedy.
B. Teachers' Working Conditions
27. As established in BCTF #1, Working Conditions are important issues to teachers that
they have been trying to influence since they first began to form associations . Local
teacher associations and the BCTF have continued to collectively bargain Working
Conditions since teachers first gained the right to engage in collective bargaining in 1987.
Teachers have made "trade-offs" by accepting less favourable terms relating to salary and
benefits in order to achieve desired results on Working Conditions during collective
bargaining (BCTF #1, paras. 67-68, 300).
C. Collective Bargaining Before 2002 and PEFCA
28. After the 1993 Report of the Korbin Commission, government created a two-tiered
scheme for bargaining and enacted Public Education Labour Relations Act, S.B.C. 1994, c.
21 ("PELRA"), which continued the provisions of local agreements until the parties
concluded a provincial agreement The rollover of the local agreements constituted the
1993-1994 Collective Agreement.
29. In 1996, the BCTF and BCPSEA entered into a freely negotiated collective
agreement by concluding the Transitional Collective Agreement ("TCA") which provided for
the rollover of existing language in the 1993-1994 collective agreement (BCTF #1, paras.
94-96). The appellant remarks at paragraph 22 of its factum that the rollover of existing
language was without prejudice. This was not argued by the appellant in BCTF #1 or BCTF
#2 and is not supported by the appellant's reference to s. 2(e) of the TCA or the affidavits
filed in BCTF #1 (Appellant's Appeal Book ("AAB") pp. 39-47). The trial judge's
unchallenged finding is that the TCA was a freely negotiated collective agreement whereby
the parties agreed to continue the Working Conditions provisions in full force and effect.
8
30. In 1998, the BCTF and BCPSEA were negotiating a collective agreement and both
sought the direct involvement of government. Subsequently, government and the BCTF
negotiated an Agreement in Committee (the "AIC") which included a Memorandum of
Agreement dealing with class size and composition for K-3 (the "K-3 Memorandum") (BCTF
#1, para. 99). When BCPSEA did not ratify the AIC, the government enacted the Public
Education Collective Agreement Act, S.B.C. 1998, c. 41 ("PECAA"). This established a
collective agreement which included a number of new provisions agreed to in collective
bargaining between BCPSEA and the BCTF, continued previous collective agreement terms
which were not modified by the K-3 Memorandum, and also included the AIC and the K-3
Memorandum. This constituted the 1998-2001 Collective Agreement. The consequence
was that the 1998-2001 Collective Agreement continued most of the terms previously
negotiated by the parties in prior collective bargaining (BCTF #1, para. 103-107).
31. PECAA provided the parties with the ability to negotiate amendments to the AIC and
the K-3 Memorandum. The BCTF and BCPSEA entered into those negotiations to address
BCPSEA's concerns regarding flexibility. The parties amended the language on non-
enrolling/ESL ratios, and on February 7, 2001 negotiated the 2001 K-3 Memorandum to
replace the previous K-3 Memorandum that was set to expire on June 30, 2001. This new
2001 K-3 Memorandum, which is expressly included in the 1998-2001 Collective
Agreement, included a number of new provisions that addressed BCPSEA's need for
flexibility in the application of class size maximums (BCTF #1, paras. 115-118). The
unchallenged finding of the trial judge was that the 1998-2001 Collective Agreement,
including the 2001 K-3 Memorandum, were negotiated through the employees' exercise of
freedom of association (BCTF #1, para. 210).
D. Collective Bargaining After 2002 and PEFCA
32. On January 27, 2002, government enacted ESCAA, which deemed a collective
agreement for the time period of July 1, 2001 to June 30, 2004. Combined with the
enactment of PEFCA on January 28, 2002, teachers no longer had the ability to bargain or
include any provisions in the collective agreement relating to Working Conditions. In 2004,
government enacted the Amendment Act deleting terms from the collective agreement
regarding Working Conditions retroactive to July 1, 2002, and beyond (BCTF #2, para. 125).
9
33. In 2004, government enacted the Teachers' Collective Agreement Act, S.B.C. 2006,
c. 27, which deemed the continuation of the collective agreement imposed by ESCAA until
June 30, 2006.
34. On June 30, 2006, the BCTF and BCPSEA concluded a collective agreement for the
time period of July 1, 2006 to June 30, 2011 (BCTF #2, para. 136). As with previous
collective agreements, the parties agreed that the provisions of the previous collective
agreement were included in the 2006-2011 Collective Agreement except where a term or
condition had been amended or modified (BCTF #2, paras. 144-147). Teachers continued
to be prohibited from including or bargaining provisions regarding Working Conditions in the
2006-2011 Collective Agreement. Prior to the trial judge issuing the decision of BCTF #1 on
April 13, 2011, the BCTF and BCPSEA commenced the next round of collective bargaining.
E. Government Strategy Prior to BCTF #1 on April 13, 2011
35. In October 2010, well before collective bargaining between BCTF and BCPSEA
commenced in March 2011, at the highest level of the Public Sector Employer's Council
("PSEC") and the Ministry of Education jointly identified a list of deletions or concessions
they required to significant and important provisions in the collective agreement, including
evaluation, compensation, professional development, post and fill, layoff and recall.
Government intended to impose these amendments through a legislated collective
agreement (BCTF #2, para. 379, AR p. 237; Respondent's Transcript Extract Book ("RTEB")
pp. 373-375, 770-771; Respondent's Appeal Book ("RAB") p. 507). The Ministry of
Education then provided a list to BCPSEA directing it to pursue those concessions in
collective bargaining (BCTF #2, para. 379, AR p. 237; RTEB pp. 771-775; RAB pp. 516-520,
1648).
36.
10
F. Government Strategy After BCTF #1
37. The trial judge issued BCTF #1 on April 13, 2011.
38.
39.
40. Both the government and BCPSEA took and maintained the position that as a result
of the suspension of the declaration of invalidity, the BCTF was not legally entitled to
bargain Working Conditions during this round of collective bargaining (RTEB p. 31).
41.
42.
11
G. Settlement Discussions Following BCTF #1
43. For BCTF #2, the parties entered a consensual agreed statement of facts and
chronology as an exhibit detailing primarily with the settlement discussions between
government and the BCTF addressing the repercussions of BCTF #1 (AAB pp. 273 - 950).
44. The trial judge's fully canvassed considerations of the settlement discussions and
findings of fact are at paragraphs 184-313, 329-400 of BCTF #2. The appellant has not
asserted any challenge to the trial judge's factual findings on the settlement discussions
except for the trial judge's conclusion that there was no "true will" on the government side of
the table to reach an agreement in the settlement discussions (BCTF #2, para. 391, AR p.
240; AF paras. 138-150).
45. We agree with the appellant that it is unnecessary to provide a detailed summary of
the settlement discussions (AF para. 56). The settlement discussions ultimately failed
without the parties reaching an agreement. However, given the appellant's incorrect
position that all it had to do was enter into these settlement discussions with teachers prior
to enacting legislation in order to comply with BCTF #1 and Health Services (AF para. 40),
we will set out specific important facts.
46.
47. The appellant emphasizes the teachers' refusal to accept government's proposal to
combine collective bargaining with the settlement discussions (AF paras. 45-47, 118). The
appellant ignores that teachers and BCPSEA were already engaged in collective bargaining
and that government refused to allow bargaining on Working Conditions in either process
(BCTF #2, paras. 339-340, AR p. 230; RAB pp. 318-321; RTEB pp. 113-114).
12
48. Government's objective was to put teachers in a "box" by getting them to agree to a
process in the discussions and agree to government's policy objectives (BCTF #2, para.
361, AR p. 234; RAB pp. 555; AAB pp. 318-321, 357-364, 417-426, 480-494, 1353; ATEB,
pp. 422-425). Government’s policy objectives were the same as those presented for
enacting PEFCA, ESCAA and the Amendment Act and relied on by government in BCTF #1
(BCTF #2, paras. 213, 361, AR pp. 204, 234; ATEB p. 301).
49. Peter Drescher, a retired deputy superintendent of the Surrey School District, made
an unduly alarmist presentation on behalf of government attempting to illustrate the
implications of restoring the Working Conditions provisions on the Surrey School District
based on current funding levels. Mr. Drescher's presentation was based on the same myths
and unsubstantiated hearsay relied on by government in BCTF #1 (BCTF #2, paras. 229-
251, 306, AR pp. 207-211, 221-222; BCTF #1, paras. 128-130, 146, AR p. 334-335, 339;
AAB pp. 480-536; ATEB pp. 671-674; RTEB pp. 675, 679, 696-730, 748-753).
50. Teachers asked legitimate and reasonable questions during government’s
presentations on its policy objectives (BCTF #2, paras. 349, 352-353, AR pp. 232-233;
RTEB pp. 436-447, 750-753).
51. Government's settlement proposal that introduced a Class Organization Fund (the
"COF"), which was later imposed by s. 18 of the EIA as the Learning Improvement Fund
(the "LIF")), addressed only the Working Condition of class composition (i.e., not class size
or other working conditions) and was kept outside of collective bargaining (BCTF #2, paras.
256-257, 259, 262, 271, AR pp. 212-214; AAB pp. 557-558,569-574). Government's varied
settlement proposal on October 27, 2011 was virtually identical to its first except that it
contained a limited right to the grievance procedure dealing with the method of allocation of
COF. The COF was controlled completely by employers, and there was no obligation to
utilize any of the funds to retain teachers (BCTF #2, para. 284, AR p.217; AAB pp. 690-698).
52. Government's proposals did not address teachers' ability to collectively bargain
Working Conditions, the return of the deleted provisions or the stability of funding. The role
of the BCTF was virtually non-existent (BCTF #2, para. 274, 285, 288-289, AR p. 215-218;
AAB pp. 557-558, 569-574).
53. Government's settlement proposals required that teachers agree to broad and
comprehensive releases of all their claims arising from BCTF #1 and certain outstanding
13
grievances relating to class size maximums that did not arise from BCTF #1 (BCTF #2,
para. 273, AR p. 215; AAB pp. 557-558, 569-574, 690-698).
54. The appellant's assertion (AF para. 46) that teachers never changed their position in
settlement discussions from its first proposal is not consistent with the evidence and the trial
judge's unchallenged findings of fact. While teachers did not change their view that BCTF #1
affirmed teachers' entitlement to bargain Working Conditions (BCTF #2, paras. 202-203,
251, 252, 255, AR pp. 202, 211-212; ATEB pp. 24-25), teachers proposed changes to the
deleted collective agreement language, were prepared to bargain limits and ratios, invited a
counter-proposal from government and on several occasions stated they were willing to
explore costing. The government clearly stated that the issue was not cost but management
rights (BCTF #2, paras. 292, 307-308, 311, AR pp. 219, 222-223; AAB, pp. 604-637, 725-
731, 806-819, 823-828; RTEB pp. 107-112).
55. Government never discussed with teachers the possibility of a process such as
independent mediation or the appointment of an Industrial Inquiry Commission to assist the
BCTF and BCPSEA in reaching an agreement (BCTF #2, paras. 483-486, AR pp. 256-257).
There was no evidence that government considered these options or any other alternatives
beyond legislating the duplicative provisions.
H. Government Provoking a Strike
56.
57.
58.
14
I. Enactment of the EIA
(i) Extending the prohibition on bargaining and deleting collective agreement provisions
59. Consistent with the strategy it had planned since the decision in BCTF #1,
government enacted the EIA to legislate a collective agreement and continue the
unconstitutional duplicative provisions.
60. Government extended the prohibition on collective bargaining of Working Conditions
for a further 14 months, but determined that it would not return any of the language,
because it wanted to force teachers to bargain from a "clean slate" and to trade off salary
increases for class size reductions and vice versa (BCTF #2, paras. 421, 547-550, AR pp.
245, 265-266; RAB pp. 620, 625, 1744, 1755; RTEB pp. 620-622).
61. Section 8 of the EIA again deleted hundreds of collective agreement provisions
retroactively after it was found to be unconstitutional in BCTF #1.
(ii) Learning Improvement Fund Regulation, Class Size and Compensation and Mediator
62. Sections 18 and 22 of the EIA provided for the issuance of the Learning
Improvement Fund Regulation, B.C. Reg. 53/2012 and Class Size Compensation
Regulation, B.C. Reg. 52/2012 (the "EIA Regulations"). The appellant never relied on LIF or
the EIA Regulations as processes to replace collective bargaining, but as separate elements
of its education policy agenda (BCTF #2, para. 501, AR p. 259; RTEB pp. 1267-1268, 1270-
1271).
63. Part 1 of the EIA prohibited any strike or lockout and required the appointment of a
mediator to assist the BCTF and BCPSEA in concluding a new collective agreement.
Section 6 set out the mediator's narrow terms of reference that followed the objectives of
government's bargaining strategy to seek concessions from teachers (BCTF #2, para. 537,
AR p. 264; ATEB p. 558). The BCTF and BCPSEA concluded a collective agreement on
June 26, 2012, with the assistance of the mediator, Dr. Charles Jago (BCTF #2, para. 540,
AR p. 264).
15
64. The trial judge concluded that these provisions and the EIA Regulations did not
violate teachers' s. 2(d) Charter rights. Teachers do not cross-appeal that finding (BCTF #2,
paras. 503, 514, AR pp. 260-261). However, the trial judge recognized that the EIA
Regulations, the narrow terms of mediation and Mandate 2010 came close to cumulatively
interfering with teachers' s. 2(d) Charter rights given the evidence that government tried to
provoke a full-scale withdrawal of work and undermine the influence of the BCTF (BCTF #2,
paras. 547-550).
PART 2 - ISSUES ON APPEAL
Appeal of the Remedy Ordered by the Trial Judge Resulting from the Bill 28 Decision
65. The trial judge correctly concluded that the government failed to pass legislation
dealing with the repercussions of the decision within the period of suspension. The
uncontested legal consequence was that the declaration of invalidity was effective the date
of the passage of Bill 28. The trial judge's conclusion was that the consequences of her
ruling should be dealt with by the parties to the collective agreement in the arbitration
process. This ruling was within her jurisdiction to make.
Appeal of the Constitutionality of the EIA
66. The BCTF says:
(a) The trial judge correctly applied the Health Services and Fraser decisions in
determining that s. 2(d) protected the process of collective bargaining and not
the process of settlement discussions entered into by the government with the
BCTF following BCTF #1.
(b) If the trial judge erred in concluding that the settlement discussions were
irrelevant to the determination of whether the EIA infringed the s. 2(d) rights of
teachers, she correctly applied the test from Health Services and at no time,
either expressly or by inference, determined that the Wagner Act model must
apply to those settlement discussions.
(c) The trial judge correctly determined that the government's conduct in the
settlement discussions amounted to bad faith.
16
(d) The trial judge correctly held that the government, in legislatively deleting
hundreds of freely bargained collective agreement terms following their
restoration, infringed s. 2(d).
(e) The trial judge correctly determined that the continued prohibition on collective
bargaining infringed s. 2(d).
(f) The trial judge correctly determined that the legislation infringing s. 2(d) was
not saved by s. 1.
67. The trial judge applied the relevant factors in awarding s. 24(1) damages as a result
of the government's intentional failure to restore bargaining rights under s. 13 of the EIA,
despite government's awareness that this right was required by BCTF #1. The damages
award is based on a measured and reasoned analysis. The appellant has provided no basis
for this Court to alter the trial judge's ruling, especially given the high measure of deference
owed to the trial judge on this matter.
68. Although the appellant asserts that all but one of the alleged reviewable errors are
errors of law reviewable on the standard of correctness, the appeal is replete with factual
assertions which challenge the findings of the trial judge, both in BCTF #1 and BCTF #2.
PART 3 - ARGUMENT
The Trial Judge's Determination of the Additional Remedies Flowing from BCTF #1
69. The trial judge held that the legal consequence of the government's failure to pass
corrective legislation during the period of suspension was that the impugned Bill 28
legislation was unconstitutional from the date of its enactment. She held that the
appropriate forum to determine the consequences of that determination was arbitration
pursuant to the collective agreement. Although restored by the operation of law, she
clarified that this was a sufficient appropriate remedy. As a consequence, she declined to
order the monetary damages sought by the BCTF.
A. Preliminary Comments
70. It is submitted that there are three fundamental flaws in the appellant's approach to
issues of remedy. These are:
17
(a) Despite the fact that the trial judge made separate determinations as to
remedy flowing from the separate actions, the appellant conflates the
remedial decisions in its appeal (see for example AF para 170).
(b) The appellant fails to acknowledge, let alone address, the finding of the trial
judge that the government did not pass remedial legislation during the period
of suspension of the declaration of invalidity. This was a significant legal
finding, which was not contested during the trial. The legal consequences of
this failure was understood by the government prior to the passage of the EIA,
and included the government's expectation that there would be significant
consequences, including retroactive application of the declaration of invalidity,
if the government failed to pass remedial corrective legislation during the
period of suspension.
(c) The appellant fails to acknowledge that the trial judge expressly stated that
she was not supervising the appellant's response to BCTF #1. The trial judge
only considered the settlement discussions for the purpose of determining the
constitutionality of the EIA based on the appellant's argument that the
discussions were relevant.
B. Response re remedy resulting from the BCTF #1 declaration of invalidity
71. The trial judge's ruling on the remedy flowing from the declaration of invalidity in
BCTF #1 is set out at paragraphs 551 to 565 and 594 to 607 of BCTF #2. The trial judge
held that the legal consequence of the government's failure to pass corrective legislation
during the period of suspension of invalidity was that the declaration of invalidity applied
retroactively to the date of the passage of Bill 28, and that the consequence was that the
deleted clauses were restored effective July 1, 2012. The trial judge determined that the
appropriate process for determining the remedies flowing from this ruling was the arbitration
process under the collective agreement. She declined to award the global monetary
damages sought by teachers.
72. Although not articulated in this fashion, it appears that the appellant asserts three
grounds for challenge to the relief ordered by the trial judge. These are:
(a) The trial judge assumed de facto supervisory jurisdiction over her order.
18
(b) The trial judge's order in BCTF #1 which stated "And this Court Orders that
the Plaintiffs have leave to seek a further hearing to argue any additional
remedies", should have been interpreted by the trial judge to limit any remedy
to monetary damages.
(c) The trial judge was functus to consider the government's failure to pass
corrective legislation during the period of suspension established by her order.
73. Given the appellant's failure to even acknowledge the basis of the trial judge's
remedial order in BCTF #1, we will address the background to that order, as well as the
legal principles on which it is founded.
74. When the teachers initially brought a separate application to have the trial judge
determine the remedies arising from BCTF #1, both parties accepted the trial judge's
suggestion that, given that the evidence and issues could be intertwined, the Bill 28
remedies application and the Bill 22 trial would proceed concurrently.
75. Contrary to the appellant's argument at paragraph 170 of its factum that "[i]t is
impossible to view the decision...as anything other than the de facto assumption of
supervisory jurisdiction by the trial judge", the trial judge carefully divided her analysis
regarding the two proceedings. The trial judge expressly stated that she accepted the
appellant's argument that she was not entitled to take on a supervisory role with respect to
the subsequent EIA and agreed with the appellant that any challenge to the subsequent
legislation was required to be a fresh challenge:
In granting the government a one year suspension of the declaration ofinvalidity in the Bill 28 Action, the Court was not taking on a supervisory rolewith respect to subsequent legislation. I agree with the government that anychallenge to the subsequent legislation was required to be a fresh challenge.For this reason I conclude that the appropriate proceeding for the declarationsconcerning the unconstitutionality of the Bill 22 Duplicative Provisions is theBill 22 Action
BCTF #2, para. 649, AR p. 284.
76. Although the appellant refers to the trial judge's order "suspending the declaration of
invalidity for a period of 12 months to allow the government time to address the
repercussions of this decision", the appellant nowhere in its appeal acknowledges that it
failed to enact legislation during the period of suspension. The trial judge's decision on this
issue is set out at paragraphs 560 to 565 of BCTF #2:
19
A suspension of a declaration of invalidity is a legal paradox, in that a lawwhich is invalid from its start is nonetheless considered alive for a brief period,out of deference to the legislature so that the legislature has time to react tothe repercussions of the invalidity: see Schachter, at 715-717.
It is obviously presumed and hoped that when there is a suspension of adeclaration of invalidity of a law, the legislature will react lawfully, inaccordance with the Constitution.
Applying the usual constitutional principles to the Court’s declaration in the Bill28 Decision, after the twelve months suspension period expired from the dateof the Bill 28 Decision, the unconstitutional legislation was then invalid fromthe date of its enactment.
The twelve months expired at midnight on April 12, 2012.
This means that as of April 13, 2012, the laws declared unconstitutional in theBill 28 Decision were no longer in effect from the date of their enactment. Forclarity, an additional declaration to this effect is made in the Bill 28 Action aspart of the application by the BCTF for additional remedies in that action.
The result is that as of April 13, 2012, the BCTF had the right to engage incollective bargaining over the Working Conditions; it also means that as ofJuly 2002 the Working Conditions clauses were returned to the collectiveagreement between the BCTF and BCPSEA. All, of course, later subject tothe provisions of Bill 22 being brought into force the next day and this Court’sfindings regarding the constitutionality of those provisions
BCTF #2, paras. 560-565, AR p. 268.
77.
78.
79. However, between February 26, and the introduction of Bill 22 on February 28,
government altered its position and now concluded that: “corrective legislation must be in
force by April 14, 2012” (RAB p. 628).
20
80. Government introduced no evidence as to why this long-held legal advice changed.
In discovery, the government's explanation was less than illuminating (RTEB pp. 267-268).
However, the section notes for Bill 22 contain this statement:
“Most of the provisions that are a direct response to the Bill 27/28 decision arebeing re-enacted on April 14, 2012, the date upon which the judgment comesinto effect.”
RAB p. 617.
81. There was no obligation for the government to wait until the last possible date to pass
corrective legislation. Indeed, the position of the respondent was that this was clearly an
attempt to maximize the term of the period of suspension in order to permit avoidance of the
terms of the collective agreement. The government did not dispute that this was its strategy,
but instead argued that the government was entitled to act in this manner because of the
trial judge's order. However, if the government engages in this tactic, which it is submitted is
contrary to the purpose of a judicial suspension of a declaration of invalidity, or for any other
reason fails to act within the period of suspension, it must accept the consequences which it
had previously identified and recognized.
82. The intention of the government to maximize the period of suspension is easily
demonstrated by the fact that Bill 22 was introduced on February 28, 2012 and received
Royal Assent on March 15, 2012. However, the provisions which the government stated
addressed the unconstitutional provisions were not effective until April 14, 2012.
83. It was not disputed before the trial judge that the period of suspension expired prior
to April 14, 2012, nor is this challenged on appeal. Indeed, the consequences of the failure
to repeal or amend invalid legislation until after the expiration of the suspension of invalidity
was beyond dispute before the trial judge.
84. In Canada (AG) v. Hislop, 2007 SCC 10, at paragraphs 91-92, the Supreme Court of
Canada stated:
By suspending the declaration of invalidity, the Court allows the constitutionalinfirmity to continue temporarily so that the legislature can fix the problem. Inother words, the Court extends the life of a law which, on the Blackstonianview, never existed.
21
Although if the legislature fails to comply with the Court's order withinthe period of suspension, the Court's declaration would applyretroactively, the purpose of a suspended declaration of invalidity can be tofacilitate the legislature's function in crafting a prospective remedy (emphasisadded).
85. Hogg states the law as follows:
A suspended declaration of invalidity is not to be confused with a prospectiveruling. A suspended declaration of invalidity is delayed in coming intoforce, but if and when it comes into force it has the normal retroactiveeffect of a court order. It operates to invalidate the unconstitutionalstatute from the time of its enactment. Of course, a suspended declarationof invalidity will not come into force at all; if during the period of suspensionthe competent legislative body enacts corrective legislation that replaces theunconstitutional statute with one that is constitutional.
Peter W. Hogg, Constitutional Law of Canada, 5th ed., supplemented(Toronto: Carswell, 2007) at p. 40-11 (emphasis added); see also RAB p. 85.
86. In Hislop, the Supreme Court of Canada stated that the purpose of a temporary
suspension is to provide the Legislature with “the opportunity to enact something in place of
the unconstitutional legislation” (para. 90). In this case, government failed to enact
something in place of the unconstitutional legislation during the twelve months in which the
declaration of invalidity was suspended.
87. Before the trial judge, the appellant's response to the teachers' argument was that
this was an "overly technical argument" because the government's view was that as result of
s. 24 of the EIA, and its retroactive application, there were no legal or practical
consequences of the Province's failure to enact legislation during the period of suspension"
(RAB pp. 1793-1794, paras. 13 and 225-226). The teachers' response was that the
government could not by statute restrict a constitutional remedy.
88. Although the appellant now argues that the trial judge's ruling "over looked" the
considerations listed in Hislop, before the trial judge it did not argue that these
considerations should apply and instead relied upon the argument set out in the previous
paragraph.
89.
22
90. Despite this, the appellant now argues that the trial judge's finding that the legal
consequence was that the legislation was constitutionally invalid from 2002, "has the effect
of imposing terms into two collective agreements (in 2006 and 2012) that were voluntarily
concluded and ratified by the BCTF membership in school districts. Whether or not the
deleted clauses may have been viewed as the product of free collective bargaining when Bill
28 was enacted in January 2002, they were decidedly not freely bargained in 2006 or 2012"
(AF para. 181).
91. In BCTF #1, the government aggressively pursued the argument that the deleted
clauses were not the product of free collective bargaining when Bill 28 was enacted in
January 2002. The trial judge, after review of all the evidence and argument, determined
that in fact the clauses were the product of collective bargaining, and it is not now open for
the appellant to challenge that finding.
92. Further, there was no bargaining in 2006 or 2012 concerning the Working Conditions
reflected in the deleted clauses. That was because the unconstitutional legislation of the
government prohibited such bargaining. In 2012, this prohibition continued despite the fact
that the government had expressly recognized that the trial judge's decision in BCTF#1
constitutionally required that those issues be the subject of collective bargaining.
93. We also emphasize that, as was found in BCTF #1, when teachers were entitled to
bargain these workplace issues, the collective agreement language was neither altered or
maintained. The conclusion of the trial judge was that the consideration of what may have
been bargained if the government had not breached the Charter was basically a wash:
Collective bargaining between the BCTF and BCPSEA occurred in the 2002to 2011 timeframe, and whatever gains, set-backs or trade-offs were madewould have been while the BCTF had its hands tied in being unable to bargainover the Working Conditions. But just as it is possible that this disadvantagedmembers of the union, it is possible that the union made other bargaininggains during this period.
BCTF #2, at para. 603, AR p. 276.
23
94. The appellant also ignores the trial judge's finding that for each renewal of the
collective agreement, the parties expressly agreed to continue language which had not been
expressly altered by the parties.
C. Response re appellant’s assertion that the trial judge wrongfully assumedsupervisory jurisdiction
95. This argument is made despite, as noted, the trial judge's express statement that she
would not assume supervisory jurisdiction in considering the EIA and its provisions in
determining the remedy for the declaration of invalidity in BCTF #1.
96. Contrary to paragraph 170 of the appellant's factum, the trial judge did not find the
government's response in the period of suspension to be inadequate to address the
repercussions of BCTF #1. What she found is that the government did not address the
unconstitutional legislation during the period of suspension of the declaration of invalidity.
This finding did not turn on the settlement discussions of the parties following BCTF #1—it
was a legal consequence following from the government's failure to pass corrective
legislation.
D. Response re interpretation of the trial judge's order
97. The appellant argues that the trial judge was prohibited from the terms of her order
from ruling on the retroactive application of the declaration of invalidity. The court order,
which was drafted by counsel for the appellant, states "And this Court Orders that the
Plaintiffs have leave to seek a further hearing to argue any additional remedies" (RAB p.
141) . Despite this broad wording, the appellant asserts the order is to be interpreted to
mean "a further hearing to argue "damages"." This argument is made despite the fact that
the trial judge expressly ruled that the remedial term in her order "is very general and is not
defined in scope" (AAB, p. 132 at para. 7).
98. It is our submission that exchanges between counsel are not an appropriate means
to determine the meaning of a trial judge's order, and that this is especially the case where,
as here, the trial judge has expressly stated the meaning of her order. However, if the Court
determines these exchanges are to be considered, we identify the following documents:
RAB pp. 81-84, AAB p. 153.
99. In any event, it is not correct to say that the issue of retroactivity was not before the
Court in BCTF #1. Section 5 of ESCAA provided that "Despite any decision of court to the
24
contrary made before or after the coming into force of this section", the deleted Working
Conditions must not be considered part of the collective agreement on or after July 1, 2002.
The clear consequence of the trial judge's ruling in BCTF #1 that this provision was
unconstitutional is that the Court had jurisdiction to rule on the restoration of the terms of the
collective agreement which were unconstitutionally deleted by the government.
E. Response re functus officio argument
100. In the Doucet-Boudreau decision of the Supreme Court of Canada, both the majority
and the minority agreed that a superior court's powers to craft Charter remedies may not be
constrained by statutory or common law limits (Doucet-Boudreau v. Nova Scotia (Minister of
Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, Majority at para. 51;
Minority at para. 105).
101. The majority expressly stated that:
[T]he functus doctrine has no application where the trial judge does notpurport to alter a final judgment.
Doucet-Boudreau, para. 76.
102. As noted, the teachers came to the Court pursuant to the trial judge's order which
reserved the right of the trial judge to determine "any additional remedies". The trial judge
declined to award damages for the unconstitutional legislation contained in Bill 28.
Ironically, on the appellant's analysis, the trial judge would have been entitled to award the
damages sought by teachers, but not to award the precise remedy contemplated by the
government if it did not enact remedial legislation during the period of suspension.
However, the reason why the trial judge did not award monetary damages was because she
found the return of the Working Conditions provisions to the BCTF and BCPSEA collective
agreement was a sufficient remedy (BCTF #2, paras. 594-607, AR pp. 274-277).
103. In any event, in our submission there is no legal significance to the appellant’s
functus argument. Unless the trial judge was not entitled to consider the failure of the
government to pass remedial legislation during the period of suspension at all, even if the
appellant is correct, the BCTF would presumably have been able to raise that issue in its
challenge to the EIA. Since the trial judge struck down the duplicative provisions in the EIA,
this would have made no difference in the analysis and conclusions of the trial judge and the
consequence would still have been a declaration of retroactive invalidity to 2002.
25
F. Response re the appellant's argument that the trial judge failed to applyjudicial restraint in her decision regarding Charter remedies
104. The appellant relies upon the Supreme Court of Canada decision in Hislop to support
its argument that the trial judge should have denied the retroactive remedy. In making this
argument the appellant ignores the express determination in Hislop that the retroactive
application of a declaration of invalidity occurs as a matter of law if the government does not
act to pass corrective legislation during the period of the suspension of invalidity.
105. It is inaccurate to assert, as the appellant does at paragraph 185 of its factum, that
"at trial the BCTF estimated the retroactive liability to amount to billions of dollars." While
such figures may have been contained in specific documents, that was not a figure put
forward in legal argument. As noted by the trial judge, teachers sought a global award of
damages and the only figures cited were those based on estimates provided by the
government.
106. It is submitted that the Court should ignore the assertion at paragraph 185 of the
appellant’s factum that the trial judge's decision on remedy should be overturned because of
the alleged "lengthy delay between the enactment of PEFCA and the Amendment Act and
the summary trial in BCTF #1 [which] was entirely a function of the unilateral decision of the
BCTF not to pursue the action until Health Services was resolved." This argument was not
made to the trial judge in either the BCTF #1 or BCTF #2 proceedings, and there was no
suggestion that the delay was not the result of a mutually acceptable process. As the trial
judge observed, the challenge in BCTF #1 "waited on the sidelines while the Health
Services case wound its way through the courts" (BCTF #1, para 7, AR p. 301).
107. Furthermore, the trial judge's determination that teachers would be able to bring
labour relations grievances if the restored collective agreement terms were violated in the
past (BCTF #2, para 607) is consistent with authorities such as the decision of the Supreme
Court of Canada in Weber, where the Supreme Court of Canada held that matters arising
out of the collective agreement context should be decided at arbitration (Weber v. Ontario
26
Hydro, [1995] 2 S.C.R. 929).
108. In order to determine the remedies flowing from the retroactive application of the
collective agreement, an arbitrator would be required to interpret the collective agreement.
A mutually agreed to arbitrator would be more likely to have the knowledge and experience
in applying collective agreement principles. In addition, BCPSEA is entitled to raise any
objections available to it.
109. Indeed, following the decision of the trial judge, a provincial grievance was filed by
the BCTF with respect to the hours of work provisions unconstitutionally voided by PEFCA.
An arbitrator is agreed to and dates have been set for the Spring of 2015 to deal with a
number of preliminary objections by BCPSEA. A hearing on the merits is scheduled to
begin in June 2015.
110. In summary, the trial judge's conclusion that the consequence of the failure to pass
corrective legislation during the period of suspension resulted in the retroactive application
of the declaration of invalidity was not only consistent with the legal authorities, but that
result was expressly anticipated by the government since at least May 2011.
G. Conclusion re Bill 28
111. The trial judge's determination as to the retroactive return of the Working Conditions
clauses was balanced and considered (BCTF #2, paras. 604-605, AR p. 276). This was not
an order for an additional remedy but a declaration as to the effect of the expiry of the
suspension of the declaration of invalidity without government curing the breach found in
BCTF #1.
112. In all the circumstances of the case, including the legal principles and the
expectations of the government, the trial judge correctly held that the impugned provisions
were restored to the collective agreement as of April 13, 2012 and the BCTF had the right to
engage in collective bargaining on these subject matters. The trial judge then determined
the impact the provisions of the EIA had on this conclusion.
Response re Trial Judge's Decision Regarding the BCTF Challenge to Bill 22 Action
113. The trial judge held that sections 8,13, and 24 of the EIA (which the trial judge refers
to as the "duplicative provisions") continue to be constitutionally invalid and that the
27
settlement discussions had no relevance to that analysis. In the event that she was wrong
on the latter point, the trial judge discussed whether the parties' settlement discussions prior
to the enactment of Bill 22 saved the Bill 22 duplicative provisions. She also considered
whether the time limit in the collective bargaining prohibition in Bill 22 changed the analysis
of the constitutionality of the duplicative provisions. Lastly, the trial judge considered
whether section 1 saved the Bill 22 duplicative provisions from a finding of
unconstitutionality.
114. The primary finding of the trial judge was that the mere purported repeal of
unconstitutional legislation replaced by the continuation of that same constitutionally invalid
legislation did not meet the government's legal obligations under the Charter.
115. The trial judge's reasoning is consistent with this Court's ruling in Reference re
Election Act (B.C.), 2012 BCCA 394. In that case, the government responded to the
previous declaration of constitutional invalidity of its legislation limiting pre-election spending
by reducing the time limits but by continuing the restrictive definition which had been held to
be unconstitutional. Although there had been no suspension of invalidity, the Attorney
General argued that the amendments remedied the constitutional deficiencies identified by
the Court of Appeal (Reference re Election Act (B.C.), para. 28). This Court struck down the
legislation on the basis that the existing legislation had been held to be unconstitutional:
Given that, insofar as they limit political expression in the pre-campaignperiod, this Court has held the 2008 amendments to be constitutionally invalidprincipally because of the overbreadth of the definition of election advertising,it is difficult to see on what basis the current amendments could be said to beconstitutionally sound in respect to the same period when they containessentially the same definition
Reference re Election Act (B.C.), para. 37.
116. We also rely upon the principles of issue estoppel and res judicata. In BCTF #1, the
trial judge determined that the legislation purportedly repealed but, in fact continued, was
constitutionally invalid. These doctrines preclude government from now arguing that the
provisions are constitutionally valid.
28
Response re the appellant's "Consultation" Argument
A. Trial judge’s conclusion regarding settlement discussions
117. The appellant frames its “consultation” argument in simplistic terms: the judgments in
Health Services and BCTF #1 hold that s. 2(d) protects only a process and, in coming to that
conclusion, state (but do not emphasize) that the intrusive legislation was passed without
“consulting” with the affected unions. From this, the appellant argues that a meaningful
process was offered through post BCTF #1 settlement discussions, which the appellant
refers to as "consultations”. Consequently, there was no substantial interference with
freedom of association (AF paras. 113-121 & 128).
118. In Health Services, the Supreme Court of Canada made several references to
consultation when delineating the scope of the s. 2(d) right. After reviewing these
references, the trial judge noted that, “by stating the test this way for all types of government
conduct, the Court in Health Services raised the possibility that pre-legislative consultation
might be relevant in determining whether subsequent legislation itself substantially interferes
with collective bargaining” (BCTF #2, para. 55, see also paras. 53-54, AR pp. 169-170).
119. However, rather than simply reading those statements in isolation, as the appellant
urges, the trial judge carefully analyzed Health Services and Fraser and came to the
following conclusion regarding what our highest Court meant: where the government is
acting as legislator, not as an employer, pre-legislative consultation is not relevant to the
question of whether or not legislation substantially interferes with s. 2(d) (BCTF #2, paras.
168 – 181, AR pp. 196-198).
120. The trial judge based her conclusion on a number of key observations. She noted
that once the Supreme Court of Canada had articulated the statements of general principle
and began to analyze the government legislation at issue, the Court did not refer to any pre-
legislation consultation process or lack thereof. Instead, the Court examined whether the
content of the legislation preserved a process of good faith bargaining and consultation
(BCTF #2, para. 61, AR pp. 173-174).
121. The trial judge noted that the majority in Health Services only mentioned pre-
legislative consultation as being relevant to the s.1 analysis. This presumably was a
response by the majority to Deschamps J., who in her partially dissenting judgment had
29
taken issue with the majority’s statements on consultation. In Deschamps J.’s view, the
legislature is not obliged to consult prior to legislating (Health Services, para 179).
122. The majority in Health Services responded at paragraph 157 as follows:
Legislators are not bound to consult with affected parties before passinglegislation. On the other hand, it may be useful to consider, in the course ofthe s. 1 justification analysis, whether the government considered otheroptions or engaged consultation with the affected parties, in choosing to adoptits preferred approach.
123. The BC Court of Appeal recently referred to the same principle, holding that there is
generally no obligation on governments "to consult upon the content of impending
legislation" (Federal Government Dockyard Trades and Labour Council v. Canada (Attorney
General), 2013 BCCA 371, para. 57).
124. It is submitted that the appellant confuses this legal principle. The government
asserts that the process referred to in Health Services is the process of legislating, and that
the government is bound to consult with unions prior to passing legislation which interferes
with collective bargaining. It is submitted that the recognized principle of law that legislators
are not required to consult reinforces the conclusion of the trial judge that the references to
consultation in the jurisprudence are directed at negotiations between employers and
employees, not at pre-legislative consultation.
125. The trial judge also observed that in the subsequent decision in Fraser, the Supreme
Court of Canada did not mention consultation prior to legislation as a factor in assessing the
s. 2(d) right. Instead, the Court examined whether the legislation itself provided a process
that satisfies the constitutional requirement (BCTF #2, paras. 64, 66-67, AR pp. 174-175).
126. In light of her reading of the judgments in Health Services and Fraser, the trial judge
found that it would be “hard to envision many situations” where pre-legislative consultation
by government would “save” legislation that substantially interfered with s. 2(d) rights (BCTF
#2, para. 79, AR p. 177).1 The trial judge did find that “government pre-legislation
1 However, where the government is acting in its capacity as employer it would be “possibleto imagine” situations where negotiations would be collective bargaining or akin tocollective bargaining and could be relevant (although not conclusive) to the question ofwhether the employees’ associational rights have been interfered with in a substantialmanner (BCTF #2, paras. 79-80, AR pp. 177-178).
30
consultation could be relevant to the s. 1 Charter analysis and the question of whether or not
the government considered other solutions” (BCTF # 2, at para. 81, AR p. 81).
127. The trial judge found the appellant’s argument that post-judgment settlement
discussions somehow remedied unconstitutional legislation to be based on its “unusual”
interpretation of Health Services and Fraser. The trial judge articulated the appellant’s
position this way:
…it is even harder to imagine a situation where legislation is found to beunconstitutional as amounting to substantial interference with s. 2(d) rights,but then this unconstitutionality could be “cured” by the government“consulting” with the union after the fact of the legislation. This is essentiallythe unusual position the government takes in this case.
BCTF #2, para. 91, AR p. 180.
128. Applying Supreme Court of Canada jurisprudence, the trial judge found that s. 2(d)
ensures a process that gives employees the opportunity to achieve workplace goals (Health
Services, paras. 19, 89 and 129; and Fraser, paras. 2, 32, 37, 46, 98 and 117). As the trial
judge recognized, if all governments must do is engage in pre-legislative discussions
regarding their policy objectives, there would be no opportunity for employees to achieve
workplace goals. This was demonstrated in the present case where the government
“consulted” with the union by telling its representatives its “policy objectives” and never
deviating from its original position (BCTF #2, para. 313, AR pp. 223-224).
B. Response to the appellant's argument on consultation
129. The appellant argues that the provisions in the EIA are constitutional even though
the legislation repeats, in identical form, the provisions from 2002 that the trial judge found
to be unconstitutional in BCTF #1. This is based on its view that it need only “consult” prior
to government passing legislation eliminating fundamental associational rights protected by
the Charter. The position of the BCTF is that this interpretation of s. 2(d) of the Charter is
manifestly in error.
130. In BCTF#2, the trial judge rejected the appellant’s argument that the “fact and
content” of consultation was determinative of whether the EIA violated s. 2(d) of the Charter
(BCTF #2, paras. 72-93, AR pp. 176-180). The trial judge applied Supreme Court of
Canada jurisprudence, finding that the exclusive focus of s. 2(d) is on the content of the
31
legislation, not the manner in which legislation is enacted, and that governments need not
consult prior to passing legislation.
131. The respondents submit that the trial judge was correct to reject the appellant’s
argument. Supreme Court of Canada jurisprudence, both in principle and application, is
consistent with the decision of the trial judge. However, given the emphasis placed on its
consultation argument by the government, both before the trial judge and on appeal, we will
respond to this argument in greater detail than is perhaps necessary.
132. If the appellant’s argument were accepted, this would provide governments with
license to override any collective agreement provisions regardless of context, such as how
invasive the content of the legislation is on the collective rights of employees. No
consideration would be given to the process that led to the adoption of the collective
agreement terms, or to what sacrifices and/or tradeoffs were made to achieve their inclusion
in the collective agreement. As long as “consultation” preceded the deletions, governments
could eliminate collective agreements in their entirety. If the courts invalidate the legislation
for lack of good faith consultations, the only remedy would be further consultations.
Presumably this “process” could be repeated until those whose rights are affected recognize
that the Charter protection is meaningless. Such illusory rights are not what our highest
Court has said flows from the protection of collective bargaining in s. 2(d).
133. Such an interpretation would not be acceptable when interpreting other Charter
rights. We do not accept that other freedoms – such as freedom of expression and freedom
of religion – can be restricted as long as the citizens affected are “consulted” first. We would
not accept that legislation could prohibit free speech so long as the government first
“consulted” with those who intended to speak. For example, if the government restricted the
right of environmentalists to make public speeches, the fact of whether or not the
government had consulted with their organizations prior to legislating those restrictions
would be constitutionally irrelevant in determining whether the legislation violated s. 2(b).
134. In its factum, the appellant attempts to justify its position on consultation by arguing
that the trial judge wrongly:
(i) failed to recognize the principle of judicial deference to legislatures;
(ii) concluded that the settlement discussions were irrelevant to the issue
of whether the EIA infringed s. 2(d) of the Charter (AF paras. 90, 110);
32
(iii) found that s. 2(d) entrenches a Wagner Act model of collective
bargaining (AF paras. 90, 110);
(iv) elevated collective agreement terms to a constitutional level of
protection (AF para. 123); and
(v) failed to consider that government is the “indirect employer” of
teachers (AF paras 114-115).
135. The appellant's first and second arguments are contrary to the Health Services and
Fraser decisions, as well as general Charter jurisprudence. The appellant's third and fourth
arguments are based on a misreading of BCTF #2. The fifth argument is unsupported by the
facts and contrary to one of the key positions taken by the appellant in BCTF #1.
(i) Judicial deference
136. The appellant argues that the trial judge failed to recognize the principle of judicial
deference to legislatures. The response to this argument is contained in Health Services.
When responding to the argument that courts should exercise judicial restraint in the area of
labour relations, the majority stated:
This argument ... takes an overbroad view of judicial deference. It may well beappropriate for judges to defer to legislatures on policy matters expressed inparticular laws. But to declare a judicial "no go" zone for an entire right on theground that it may involve the courts in policy matters is to push deference toofar. Policy itself should reflect Charter rights and values.
Health Services, para. 26.
137. This approach to judicial deference was confirmed in Fraser (paras 79 and 81).
138. The appellant’s argument that pre-legislative consultation is sufficient would result in
a judicial “no go” zone. It would allow the governments to ignore fundamental constitutional
rights and freedoms as long as they notified citizens and “consulted” with them prior to
eliminating their rights. This is totally inconsistent with a broad and purposive interpretation
of s. 2(d) and is inconsistent with the way other fundamental freedoms have been protected
by our highest Court.
(ii) Pre-legislative consultation
139. The appellant argues that the manner in which the EIA was enacted (i.e. pre-
legislative settlement discussions) preserved good faith “consultation” and that is all that is
33
required to meet the s. 2(d) test. This argument is without foundation in the jurisprudence
and confuses pre-legislative consultation with the associational right to collective bargaining.
Furthermore, this argument ignores clear statements from the Supreme Court of Canada
with respect to the requirement to preserve good faith negotiation and consultation in the
context of s. 2(d). The majority in Fraser rejected the concept that s. 2(d) protects a
particular form of collective bargaining, but the constant theme is protection of collective
bargaining – not pre-legislative consultation.
140. Similarly, the majority in Health Services, when applying the s. 2(d) test, framed the
issue as “whether [the impugned legislative] provisions preserve the processes of collective
bargaining” (Health Services, para. 13). The majority held that “provisions of the Act” (not
the pre-legislative conduct) must “preserve the process of good faith consultation
fundamental to collective bargaining. That is the bottom line” (Health Services, para. 107
[emphasis added]). Also, when the majority concluded that the interference with collective
bargaining over matters pertaining to contracting out, layoff and bumping constituted
substantial interference with the s. 2(d) right, the majority exclusively focussed on how the
legislative provisions affected the rights of employees to engage in collective bargaining.
141. Despite the appellant’s claim that the settlement discussions are determinative, when
applying the s. 2(d) test, the Court in Health Services did not mention "consultation", but
instead focused “squarely and exclusively on how the provisions affect the process of good
faith bargaining and consultation” (Health Services, para. 133). The majority determined
that the legislative provisions interfered “significantly with the ability of those bound by them
to engage in the associational activity of collective bargaining” (Health Services, para. 133).
Even when recognizing that government was “facing a situation of exigency,” the Court
stated, “ the difficulty, however, is that the measures adopted by the government constitute
a virtual denial of the s. 2(d) right to a process of good faith bargaining and consultation”
(Health Services, para. 135 [emphasis added]).
142. The majority in Fraser confirmed that the focus is on the impact on collective
bargaining, present and future. When explaining the ruling in Health Services, the majority
stated:
... The claimants had a right to pursue workplace goals and collectivebargaining activities related to those goals. The government employer passedlegislation and took actions that rendered the meaningful pursuit of these
34
goals impossible and effectively nullified the right to associate of itsemployees. This constituted a limit on the exercise of s. 2(d), and was thusunconstitutional unless justified under s. 1 of the Charter.
The majority of the Court in Health Services affirmed that bargaining activitiesprotected by s. 2(d) in the labour relations context include good faithbargaining on important workplace issues (para. 94; see also paras. 93, 130and 135). This is not limited to a mere right to make representations to one'semployer, but requires the employer to engage in a process of considerationand discussion to have them considered by the employer. In this sense,collective bargaining is protected by s. 2(d)...
Fraser, paras. 38 & 40.
143. To the extent the Supreme Court of Canada examined government’s conduct, the
focus was on the content of the legislation and how it affected collective bargaining, not on
the process leading up to the legislation.
144. The appellant’s argument on consultation ignores the explicit statements in Health
Services that, in order to survive s. 2(d) scrutiny, government conduct must preserve the
process of collective bargaining between employers and employees. As the trial judge
recognized, the references to consultation by the Supreme Court of Canada is aimed at
labour relations negotiations. It did not refer to the appellant’s action as legislator, except
under s. 1.
145. That it is the employer’s duty to bargain in good faith with its employees was
confirmed in Fraser. Writing for the majority, Chief Justice McLachlin and Justice LeBel held
that s. 2(d) protects a right to collective bargaining, which includes “a process of
engagement that permits employee associations to make representations to employers,
which employers must consider and discuss in good faith” (Fraser, para. 2).
146. The Fraser majority did not adopt the interpretation of s. 2(d) being urged upon this
Court by the appellant. Rather, good faith negotiations and consultation in Fraser is
collective bargaining (Fraser, para 50).
147. As noted above, when the Supreme Court of Canada considered whether there had
been any consultation prior to the passage of the legislation, it did so as part of the s. 1
inquiry and not as part of the s. 2(d) analysis (Health Services, paras. 156-59).
148. Lastly, the trial judge was correct that the judgment in Fraser made no reference to
consultation (BCTF #2, paras 65-67, AR pp. 174-175).
35
149. The Supreme Court of Canada in Fraser carefully examined the legislation before it
to determine if it met the s. 2(d) test. Although Fraser emphasized good faith negotiations, it
noted that the majority in Health Services defined good faith negotiations as collective
bargaining (Fraser, para. 50). Neither the majority, concurring, nor the dissenting judgments
in Fraser made any reference to pre-legislative consultation. In articulating the scope of s.
2(d) the Court did not suggest that independent weight should be given to the legislative
process by which a right is eliminated or significantly affected. The entire focus in Fraser
was on the content of the legislation.
150. Again, Health Services and Fraser do not support the appellant’s interpretation of s.
2(d). What the appellant now says is a fundamental and determinative principle was not
even raised as a possibility by the Supreme Court of Canada.
(iii) Wagner Act model of collective bargaining
151. The appellant argues that the trial judge was in error by holding that s. 2(d) of the
Charter constitutionally entrenches the Wagner Act model of collective bargaining. The trial
judge made no such ruling, and the appellant has pointed to no passage where this alleged
error was made by the trial judge. Indeed, contrary to the assertions of the appellant, the
trial judge explicitly stated “that the protection of s. 2(d) does not require the state to respect
exclusively a traditional model of collective bargaining, referred to as the ‘Wagner’ model”
(BCTF #2, para. 26, AR p. 159).
152. Health Services and Fraser stand for the proposition that the s. 2(d) right protects
associational collective activity in furtherance of workplace goals. In other words, it protects
collective bargaining, but not necessarily a Wagner Act model. The trial judge properly
applied the test in Health Services.
153. The majority in Health Services did find that “[c]onsideration of the duty to negotiate
in good faith which lies at the heart of collective bargaining may shed light on what
constitutes improper interference with collective bargaining rights” (para. 98).
154. The appellant does not articulate how the trial judge strays beyond the Health
Services test apart from asserting that the trial judge found bad faith in the failure of the
appellant to restore the collective agreement terms. This misstates the reasons of the trial
judge. The trial judge finds bad faith not because the government failed to restore the terms,
but because it did not have an open mind about the issues (BCTF #2, para. 331, AR p. 229).
36
(iv) Elevating collective agreement terms to a constitutional level of protection
155. The appellant argues that because the trial judge found that the duplicative
provisions contravened s. 2(d), the “result is undeniably to constitutionalize collective
agreement terms” (para. 123). This is clearly not the case. The appellant misstates the trial
judge’s decision and ignores the findings in Health Services that the legislative removal of
collective agreement terms can infringe s. 2(d) rights:
…. Laws or state actions that prevent or deny meaningful discussion andconsultation about working conditions between employees and their employermay substantially interfere with the activity of collective bargaining, as maylaws that unilaterally nullify significant negotiated terms in existing collectiveagreements.
Health Services, para. 96.
156. In both Health Services and BCTF #1, some collective agreement provisions were
protected whereas others were not. The findings in Health Services established that
removing collective agreement terms is not unconstitutional per se. Deletions may violate s.
2(d) depending on the effect that nullifying terms has on the collective bargaining process
that led to their inclusion and/or the effect that their removal has on future negotiations. If
legislation is challenged, a court must undertake a contextual analysis to determine if their
elimination significantly undermines past and/or future freedom of association.
157. In BCTF #1, whole local agreements were deleted and this was found not to violate
s. 2(d) because it did not substantially interfere with the process of collective bargaining
(BCTF #1, paras 309-316, AR pp. 373-374) . However, the deletion of hundreds of Working
Conditions clauses did violate the Charter. The appellant did not challenge the trial judge's
interpretation of the law regarding the removal of contractual terms (AF para. 40).
158. As found by the trial judge in both BCTF #1 and BCTF #2, whether a government
can remove collective agreement terms without violating s. 2(d) depends on whether the
removal constitutes a substantial interference with freedom of association.
159. This Court in Dockyard Workers, when examining legislative interference with
collective bargaining, confirmed that the test is based on the breadth of the legislation and
whether the legislation permits collective bargaining in the future. This reasoning is
consistent with Health Services, where the majority found that the legislative nullification of
37
concluded collective agreement terms, even without a prohibition on future bargaining, was
contrary to s. 2(d) (Health Services, para. 126).
160. It is the breadth and scope of the legislation, not merely the fact that the legislation
alters collective agreement terms, which will determine whether legislation is contrary to s.
2(d). This does not “constitutionalize” collective agreement terms or, as the trial judge
recognized, does not entrench them in perpetuity (BCTF #2, para 482).
(v) Indirect employer of teachers
161. In BCTF #1, the government strenuously and successfully argued that it was not the
employer or the bargaining agent for the process of collective bargaining. This position was
a significant foundation of the appellant's argument in that case. First, the purpose was to
support the government’s argument that because the 1998-2001 Collective Agreement had
been imposed by legislation, the impugned provisions could not amount to interference with
collective bargaining (BCTF #1, para. 198).
162. Second, the government emphasized it was not the bargaining agent in order to
distance itself from allegations that collective bargaining had occurred in bad faith (BCTF #2,
paras. 165-167, AR pp. 195-196; AAB p. 66, para. 3.1; RAB p. 51-54). As the trial judge
held, in the settlement discussions following BCTF #1 the government representatives
consistently maintained that they did not represent the employer, and that their discussions
were separate from collective bargaining between BCTF and BCPSEA (BCTF #2, paras.
157, 163 & 167, AR pp. 194-196; RTEB p. 371-372).
163. The appellant now attempts to overcome its earlier position by stating that the
references to the employer in Health Services were intended to encompass the government
as the “indirect” employer (AF, para. 114). The appellant asserts that there is a “co-
management model” of public service bargaining in B.C. so that the government can
maintain “control over public sector collective bargaining commitments” (AF para. 115).
164. Apart from the appellant’s repeated assertions that it was not the employer and the
unchallenged findings in BCTF #1, there is a fundamental contradiction in the appellant’s
new argument, even if we accept a “co-management” model of labour relations in the public
sector. The appellant states that it tried to combine the settlement discussions with the
discussions with the employer at the bargaining table, but the BCTF refused. If the
appellant was the “indirect” employer, there would be no need to combine the tables.
38
165. In any event, combining the settlement discussions with those at the bargaining table
would not “permit changes to the collective agreement language” as the appellant asserts
(AF para. 45). The legislation, which had not been repealed, did not permit amendments to
the collective agreement that in any way resembled the legislatively removed provisions.
Further, government maintained throughout the settlement discussions that it would not
allow collective bargaining with respect to Working Conditions.
C. Conclusion re appellant's "consultation" argument
166. Properly read, Health Services and Fraser establish that pre-legislative consultation
may be considered within the s. 1 justification. Settlement discussions cannot be used to
exonerate the government for re-enacting legislation that has been found to substantially
interfere with the associational rights of employees under s. 2(d) of the Charter. The
settlement discussions were for the purpose of resolving the issues arising from BCTF #1
and were irrelevant to the question of whether there had been a substantial interference with
associational rights as determined in BCTF #2.
Response re the findings of bad faith bargaining
167. The appellant's appeal on this ground alleges two errors by the trial judge:
(a) the trial judge made an error in law by basing her decision "on an incorrect
statement of the model of associational activity required under s. 2(d)"; and
(b) the trial judge's conclusions of fact were based on her decision that the
government had bargained in bad faith were based on a material palpable
and overriding error of fact (AF paras. 129 - 150).
A. The trial judge applied the correct test
168. The appellant asserts that the trial judge erred in law in applying a Wagner Act model
to the settlement discussions following BCTF #1. As noted above, there is no foundation for
this assertion, and the appellant has cited no passage where this alleged legal error was
made by the trial judge.
169. The trial judge reviewed both Health Services and Fraser on the issue of what
constituted bargaining in good faith (BCTF #2, paras. 97-104, AR pp. 181-183). The trial
judge then applied the factors identified in those decisions and concluded that the
government had not met the test established by the Supreme Court of Canada:
39
I conclude that the government approach to its discussions with the BCTFregarding the repercussions of the Bill 28 Decision did not amount toconsultation in good faith in the sense that would ameliorate the subsequentlegislative violation of s. 2(d) rights by way of Bill 22, so as to make thelegislative interference any less substantial.
The government representatives did not engage in meaningful dialogue, listento the employees' representations, avoid unnecessary delay, or make areasonable effort to reach agreement, all factors is assessing good faithconsultation: Fraser, at paras. 40-41. I therefore conclude that the process bywhich Bill 22 was implemented did not respect the duty to consult andnegotiate in good faith.
BCTF #2, paras. 397-398, AR p. 241.
170. We emphasize that the trial judge's findings about the standard of good faith
negotiations are made only as an alternative to her conclusion that "when the government
has passed a law it is entitled to justify the law based on s. 1 of the Charter, not by showing
that it has engaged in a pre-legislative consultation process" (BCTF #2, para. 90, AR p.
180).
171. Although the appellant says that the collective bargaining model of good faith should
not apply, we note that this was precisely that standard which the appellant intended to meet
by entering into the settlement discussions with teachers (AAB p. 1354).
B. No palpable and overriding error in findings of fact
172. It is trite law that the findings of fact of the trial judge are entitled to a deferential
standard of review by this Court. The Court will only intervene if “the judge has made a
manifest error, has ignored conclusive or relevant evidence, has misunderstood the
evidence, or has drawn erroneous conclusions from it” (Toneguzzo-Norvell v. Burnaby
Hospital, [1994] 1 S.C.R. 114, para. 13).
173. The significant policy reasons behind this approach to appellate review are
articulated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002]
2 S.C.R. 235. After a review of the policy considerations, the Court summarized that the
autonomy and integrity of the trial process must be preserved by exercising deference
towards the trial court's findings of fact (Housen, para. 11).
174. The appellate approach of deference extends to the inferences drawn by the trial
judge from the evidence, the weight assigned to that evidence, and questions of mixed fact
40
and law (Housen, paras. 23, 27). In our submission, the appellant's third ground of review
and its s. 1 argument primarily allege errors of fact or errors of mixed fact and law.
175. The trial judge's summary of her evidentiary conclusion in considering the factors
established by the Supreme Court of Canada on bad faith are set out at paragraphs 329 -
400 in BCTF #2. The evidence before the trial judge was based not only on the viva voce
evidence given at trial, but also almost 600 documents entered into evidence, much of which
was entered by agreement of the parties.
176. With one exception, the appellant does not specifically assert that the trial judge's
findings are based on a palpable and overriding error. However, a number of the errors of
law alleged by the appellant are more properly characterized as challenges to the findings of
fact by the trial judge. For example, the appellant asserts that the trial judge erred in
criticizing “government's failure to immediately restore collective bargaining rights following
BCTF #1" (AF, para 135). That assertion mischaracterizes the trial judge’s decision and
attempts to avoid a direct challenge to the trial judge’s finding of facts.
177. The trial judge found that the appellant understood from the time BCTF #1 was
issued that its obligation was to recognize the right of teachers to bargain these fundamental
workplace issues. However, in the settlement discussions, the government never proposed
a return of the right to collectively bargain over Working Conditions and then legislatively
extended the unconstitutional prohibition on bargaining for a further 14 months (BCTF #2,
para. 262, see also para. 274, 282, 288 and 422-423, AR pp. 213, 215, 216, 218, 245).
178. That is, although government understood that a significant repercussion of BCTF #1
was that bargaining rights be restored, at no time was it prepared to discuss that restoration
with teachers in the settlement discussions. If the appellant is correct that the consequence
of Health Services is that it is required to negotiate with teachers as to how it intends to
address the repercussions, and it intended to restore teachers’ bargaining rights, then at a
minimum it was surely required to engage in negotiations or consultations with teachers as
to how that would be achieved. However, the appellant did not intend to recognize that right
despite BCTF #1, and instead continued the prohibition.
179. The appellant is correct that it was legally entitled to delay action during the
suspended declaration. However, the appellant is hardly in a position to assert that it
engaged in good faith negotiations when at no time did it indicate that it was prepared to
41
discuss the restoration of a fundamental Charter right or, if it was, how it proposed to do so.
These circumstances were exacerbated by the fact that government subsequently used its
delay to extend the prohibition on that bargaining.
180. The trial judge made a clear and correct finding of fact on this point:
I have concluded on the evidence that the reason that the government did notreturn the right to collective bargain over the Working Conditions earlier, isthat it wanted to use the threat of not restoring these rights as part of itsnegotiating leverage over the union, in the post-Bill 28 discussions.
BCTF #2, at para 421
181.
That assertion is without foundation.
182.
The trial judge's conclusions regarding the government strategy are
set out at paragraphs 379 - 389 of BCTF #2. While the appellant does not challenge any
other factual finding, in light of the appellant’s argument, we will review the evidence before
the trial judge and the trial judge’s findings.
183.
184.
42
185.
186.
The
identification of government's strategic requirements occurred at a meeting between Mr.
Straszak and senior representatives from the Premier's office. This included the goal of
timing a teachers' strike with its intended legislation to achieve a "social license to legislate”
because it would be harder to justify the intended controversial legislation without “a full-
scale strike" (ATEB pp. 436-427; RAB p. 569).
187.
188.
43
189.
190.
191. The appellant states that "the very purpose of a strike or lockout of resolving labour
disputes is to exert economic pressure on the parties that will promote settlement" (AF para.
141). We agree. However, government did not direct BCPSEA to engage in a lockout.
44
C. Conclusion re bad faith
192. It is important to emphasize that the trial judge in this case was best positioned to
make the findings of fact underlying the conclusion that the settlement discussions were not
conducted in good faith. The trial judge carefully reviewed the documents and was the
adjudicator present for the testimony of Mr. Straszak.
193. The appellant had the benefit of BCTF #1 and therefore a heightened obligation to
redress the infirmities of the impugned legislation. It did the opposite. Not only did it not
discuss and address the problems identified by the trial judge, it thought it could simply tell
teachers its "policy" objectives" and then enact identical legislation. Such intransigence is
not the foundation of a "meaningful process".
Response re Section 1
194. It is noteworthy that the appellant's s. 1 argument on appeal significantly exceeds its
s. 1 argument at trial. At trial the argument on s. 1 consisted of four paragraphs (RAB pp.
1795-1796, paras. 291-294).
195. The appellant's complete s. 1 justification argument in BCTF #2 was follows.
There are two important points of distinction between the Bill 28 Decision andthe challenge to the Education Improvement Act: government did consult withthe BCTF (extensively) before the enactment of the Act, and the Act restorescollective bargaining rights. To the extent that such issues are relevant only atthe s.1 stage of the analysis, an assertion the Province disputes, thelegislation is minimally impairing in light of the consultation in combination withthe restoration of bargaining rights
RAB p. 1796, para. 294.
A. Pressing and substantial objective and rational connection
196. The appellant asserts that the trial judge erred in finding that the appellant failed to
establish that its policy objectives behind the EIA were pressing and substantial and the
impugned legislation was rationally connected to these objects. The appellant essentially
argues that the previous findings in BCTF #1 relieved it of the obligation to meet this part of
the s. 1 test in BCTF #2. Further, the appellant argues that it was entitled to ignore the
findings of the trial judge that the impugned Bill 28 provisions were unconstitutional and not
saved by s. 1.
45
197. In BCTF #1, the trial judge found that the government’s pressing and substantial
objective was to provide flexibility to school boards to manage class size and composition
and that the legislation was rationally connected to this objective because the government
had been presented with “stories” by BCPSEA. The trial judge found that these stories were
not supported by evidence (BCTF #1, para. 146, AR p. 339) and that many of the terms of
the pre-2002 collective agreement already provided for flexibility and choice (BCTF #1,
paras. 128-130, 378, AR pp. 334-335, 389). However, despite finding these stories and
assertions of BCPSEA were unfounded, the fact that the government unwittingly believed
them was sufficient for the trial judge to find a pressing and substantial objective and rational
connection to that objective (BCTF #1, paras. 338-339 and 343, AR pp. 380-381).
198. In BCTF #2, the facts were different. In our submission, the trial judge was correct in
concluding that the government was not entitled to rely upon findings in a separate decision
(BCTF #1) to found its arguments as to its pressing and substantial objective and rational
connection of the EIA, even if the legislation merely duplicates that already found to be
unconstitutional (BCTF #2, paras. 475-476, AR pp. 254-255). In light of the findings of the
Court in BCTF #1, with which the appellant was clearly familiar, we submit that the trial
judge correctly found in BCTF #2 that the appellant could not simply rely on those same
unfounded stories as the foundation for the duplicative provisions in the EIA (BCTF #2,
paras. 235-237, AR p. 208).
199. The trial judge’s reasons for finding that the appellant failed to establish a pressing
and substantial objective or rational connection in BCTF #2, are succinctly set out in the
decision as follows:
The BCTF argues firstly that the government cannot rely on the findings in theBill 28 Decision as to the government having pressing and substantial policyobjectives and the legislation being rationally connected to those objections. This is not only because the government was unsuccessful in upholding thechallenged legislation. It is also because the Court in the Bill 28 Decisionrejected the assertion that the government policy objectives could not beaccomplished within the process of collective bargaining:
a) The Court found that the policy objectives of “flexibility” and “choice”could be accomplished within collective bargaining, and that manyterms of the collective agreement provided flexibility and choicealready (at para. 378).
b) The Court was critical of the government for not pursuing otherestablished labour solutions in the event of a collective bargaining
46
impasse which would preserve the employees’ freedom to associate toinfluence their Working Conditions (at para. 368).
c) The Court was critical of the government goal of taking importantWorking Conditions out of the collective bargaining process (at para.375).
I accept the BCTF argument that having learned the above results in the Bill28 Decision, the government is not able to rest on the same legislative goalsthat it had for Bill 28 as the basis for the Bill 22 Duplicative Provisions
BCTF #2, paras 475-476.
200. The trial judge also held that the appellant made it clear that it was not costs driving
the government's motivation in passing the legislation, but to increase management rights
(BCTF #2, para. 488, AR p. 257; AAB pp. 809-810, 812, 818-819). In Health Services, the
Supreme Court of Canada expressed skepticism as to whether the objective of cutting costs
or increasing management rights would be considered a pressing and substantial objective
(Health Services, para. 147).
201. One of the objectives of the delay in passing legislation to return the right of teachers
to engage in collective bargaining on fundamental workplace issues was to require teachers
to renegotiate the deleted clauses by sacrificing salary. It is submitted this is an improper
objective. As the trial judge found, it is no answer to say that teachers were permitted to
start bargaining from scratch in the future (BCTF #2, para. 444, AR pp. 249-250).
B. Minimal impairment test
202. Following BCTF #1, the government understood that the decision required it to
restore the right to engage in collective bargaining on fundamental workplace issues. It did
not do so. Instead, it chose to unilaterally extend the unconstitutional legislation for another
round of bargaining, without seeking a judicial extension of the suspension of the declaration
of invalidity.2 This was not minimally impairing.
203. The appellant asserts that in BCTF #1, at the minimal impairment stage, the trial
judge focussed on the lack of consultation with teachers and the breadth of the legislation in
prohibiting collective bargaining on fundamental issues. That is an inaccurate summary of
the trial judge's lengthy consideration of the minimal impairment test in BCTF #1 (BCTF #1,
at paras. 347-376, AR pp. 381-389).
2 For circumstances where the government properly applied for such an extension see Mortenv. British Columbia (Minister of Agriculture and Lands), 2010 BCSC 100, at paras. 28-35.
47
204. The appellant ignores significant findings of the trial judge in BCTF #2, arguing that
she focussed solely on whether the government's chosen means minimally impair the
outcome of collective bargaining. That is not correct. Firstly, the trial judge observed that
the government did not argue there were any circumstances of exigency following BCTF #1
and that any costs were not so large that the legislation was justified pursuant to s. 1 (BCTF
#2, paras. 470-473, AR p. 254).
205. What the trial judge did find was that there were a number of options open to
government following BCTF #1:
Had the government not extended the prohibition on collective bargaining,and had the government not re-deleted terms of the collective agreement,collectively bargaining could have dealt with any management-side desire tochange the substance of the Working Conditions clauses.
If collected bargaining resulted in an impasse (and we do not know that itwould) there are all sorts of tools available for resolving the impasse withoutinfringing collective bargaining rights, as mentioned in the Bill 28 Decision (atpara. 368), whether by mandatory arbitration, mediation, or otherwise
BCTF #2, paras. 482-483, AR p. 256.
206. This approach is consistent with the finding in Health Services that government has
to consider the available options and “search for a minimally impairing solution to the
problem the government sought to address” (paras. 150-161). There was no evidence to
suggest that the government considered any other alternatives in BCTF #2, other than
purporting to repeal the unconstitutional legislation and then immediately duplicating that
invalid legislation (BCTF #2, paras. 483-486, AR pp. 256-257).
207. After observing the various options available to government that were less intrusive,
the trial judge found:
The government did not choose to follow this path or anything similar. I do notsuggest that this was the only path open to the government. However, I dowish to point out that the government had conciliatory paths open to it whichwere far less intrusive on s. 2(d) rights
BCTF #2, para. 486, AR p. 257.
208. The trial judge also determined that the harmful effects of the legislation were
adversely disproportionate to any objectives of the legislation (BCTF #2, para. 490, AR p.
257). The government challenges that finding because government entered into settlement
discussions with teachers following BCTF #1, and unilaterally extended a prohibition on
48
collective bargaining that the government had accepted was unconstitutional. Simply put,
neither is an answer to the trial judge's conclusions.
Response re Remedies in Bill 22 Action
209. As established in the decision, the legal status of the unconstitutionally deleted
clauses was as follows:
The result is that as of April 13, 2012, the BCTF had the right to engage incollective bargaining over the Working Conditions; it also means that as ofJuly 2002 the Working Conditions clauses were returned to the collectiveagreement between the BCTF and BCPSEA
BCTF #2, at para. 565, AR p. 268.
210. The primary remedy of the trial judge was to provide a s. 52(1) constitutional remedy
of striking down the duplicative provisions in the EIA to the extent they remained in force.
211. As the trial judge correctly concluded:
This provides a remedy with respect to the provisions which re-deleted theWorking Conditions clauses from the collective agreement, namely ss. 8 and24 of the EIA. The result will be to return the Working Conditions clauses tothe collective agreement effective as of July 1, 2002, as already noted, and Ifind that whatever labour relations grievances and remedies flow from this willbe a sufficient remedy in respect of that piece of the legislation
BCTF #2, para. 610, AR p. 277.
A. Section 52(1) remedy
212. The appellant does not challenge the retroactive s. 52(1) remedy ordered by the trial
judge following the finding that the duplicative provisions in the EIA were unconstitutional.
B. Response re section 24(1) argument
213. The Supreme Court of Canada has expressly found that a judge's discretion to award
remedies pursuant to s. 24(1) of the Charter is virtually unfettered:
It is difficult to imagine language which could give the court a wider and lessfettered discretion. It is impossible to reduce this wide discretion to some sortof binding formula for general application in all cases, and it is not forappellate courts to pre-empt or cut down this wide discretion"
Doucet-Boudreau, at para 50.
214. The trial judge's basis for awarding section 24(1) damages is contained at paras.
611-637. We emphasize that the appellant does not address the trial judge’s reasoning in
49
its appeal, but instead relies on a single paragraph regarding the "immunity rule" (AF para.
160).
215. The trial judge considered a number of factors, including that the evidence
established "that the government knew, following the Bill 28 Decision, that the legislative
prohibition on bargaining over Working Conditions was unconstitutional, and so must have
known that continuing the prohibition was also unconstitutional (BCTF #2, para. 621, AR p.
279).
216. The trial judge was persuaded that the deterrence factor made an award of s. 24
damages just and appropriate (BCTF #2, paras. 624-625, AR pp. 279-280). This was based
on the factual finding that government had extended unconstitutional legislation in full
awareness that BCTF #1 required that the rights to collective bargaining be restored.
217. Thus, even without the obligation of an appellate court to approach a s. 24 remedy
with deference, it is submitted that the trial judge's reasoning is unassailable.
218. The alternative ground of appeal of the appellant is that the appellate court should
reduce the amount of damages because it is allegedly "unprecedented and inordinate" (AF
para. 161). Our first response to this argument is that for the appellate court to replace its
judgment as to the amount of damages could only result from a failure to respect the
comments of the Supreme Court of Canada in Doucet-Boudreau.
219. The appellant argues that the appropriate range for damages is between $5,000 and
$20,000 (AF, para 163). What the appellant fails to acknowledge is that in each case relied
upon for this range, the s. 24(1) award was to each individual affected by the Charter
breach. An award of $5,000 to each individual member of the BCTF would result in an
aggregate award of over $150 million.
220. In this case, the trial judge concluded that a s. 24(1) remedy should be awarded to
the BCTF as the representative of all of its members. One of the factors influencing that
decision was the administrative cost of having each teacher pursue an individual claim for
s. 24 damages. The trial judge determined that it would be consistent with “...the functions of
compensation, vindication, and deterrence, without being so large as to unduly take from the
public purse and other public programs” to award $2 million to the BCTF as the bargaining
agent. This would provide “some very small financial compensation” for each of the
teachers harmed by the unconstitutional act (BCTF #2, paras. 635-637, AR p. 282).
50
221. Despite the trial judge's express consideration of the impact of a damage award on
"the public purse and other public programs," the appellant unfairly asserts that the trial
judge "ignored concerns for good governance and unnecessarily diverted considerable
funds out of public programs and into the private hands of the BCTF" (AF para. 164).
222. Furthermore, although the appellant acknowledged at trial that the Charter right to
damages was an individual one, it accepted that the award of damages would be to the
BCTF (RTEB p.1267).
223. Finally, in considering the proportionality of the s. 24(1) damage award in the BCTF
#2, we submit it is instructive to review the government's view of the appropriate penalties
for teachers for breach of the EIA (s. 7(1 )). For example, if teachers did not immediately
return to work in protest against the continued denial of their constitutional rights to engage
in collective bargaining, the penalties considered appropriate by the government were $425
per day for each of the 30,000 individual teachers ($12,750,000 for teachers in total) and
$1,300,000 per day for the BCTF. That is, the amount considered appropriate by the
government as penalty for one day of with non-compliance by the BCTF and all of its
members was over $15 million. On that measure, if the $2 million award of damages to
teachers as a result of 14 months of non-compliance with the Charter was disproportionate
to the harm at all, it was disproportionately low.
PART 4 - NATURE OF ORDER SOUGHT
224. The Respondent seeks an order dismissing the appeal, with costs.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated: August 28, 2014
John Rogers, Q.C., Steven Rogers, Amanda Merritt, Diane MacDonald
51
LIST OF AUTHORITIES
Case Law Paragraph(s)
BCTF v. BCPSEA, 2004 BCSC 86 13
BCTF v. B.C., 2011 BCSC 469 1, 4-8, 14-16, 19, 27, 29-31, 37, 39, 49, 67-70, 91,93, 99, 103, 116-117,129, 135, 156-158, 161,193, 196-198, 203
Canada (AG) v. Hislop, 2007 SCC 10 84, 86, 88, 104
Doucet-Boudreau v. Nova Scotia (Minister of Education),2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63
100-101, 213, 218
Health Services and Support-Facilities Subsector BargainingAssn. v. British Columbia, 2007 SCC 27
3-8, 10, 22, 45, 66, 106,117-119, 121, 122, 124,126-128, 135, 136, 140-144, 147, 149-156, 159,163, 166, 169, 178, 200,206
Federal Government Dockyard Trades and Labour Council v.Canada (Attorney General), 2013 BCCA 371
123, 159
Ontario (Attorney General) v. Fraser, 2011 SCC 20 66, 119, 125-128, 135,137, 139, 142, 145-150,152, 166, 169
Reference re Election Act (B.C.), 2012 BCCA 394 115
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 107
Toneguzzo-Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114 172
Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 173-174
Morten v. British Columbia (Minister of Agriculture andLands), 2010 BCSC 100
202
Legislation Paragraph(s)
Canadian Charter of Rights and Freedoms, Part 1 of theConstitution Act, 1982, being Schedule B to the Canada Act1982 (U.K.), 1982, c. 11, ss. 1. 2. 24(1) and 52(1)
3-4, 7, 14, 20, 22-26, 64,93, 100, 114, 126, 129-136, 142, 151, 157, 166,170, 179, 213, 219, 222-223
Court of Appeal Rules, R. 22 1
52
Legislation Paragraph(s)
Education Improvement Act, S.B.C. 2012, c. 3 16-19, 24, 26, 51, 59, 61-64, 66-67, 70, 75, 87, 95,103, 112-113, 129, 130,134, 139, 196, 198, 210-212, 223
Education Services Collective Agreement Act, S.B.C. 2002,c. 1
11, 14, 32, 33, 48, 99
Education Services Collective Agreement Amendment Act,2004, S.B.C. 2004, c. 16
13, 14, 32, 48, 106
Public Education Collective Agreement Act, S.B.C. 1998, c.41
11-14, 32, 48, 106, 109
Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3 30
Public Education Labour Relations Act, S.B.C. 1994, c. 21 [now R.S.B.C. 1996, c. 382]
28
Teachers' Collective Agreement Act, S.B.C. 2006, c. 27 33
Commentary Paragraph(s)
Peter W. Hogg, Constitutional Law of Canada, 5th ed.,supplemented (Toronto: Carswell, 2007), p. 40-11
85