It may be a tad premature for the B.C. government to pop the champagne bottles to celebrate its recent huge win in its long-running feud with the B.C. Teachers Federation.
While the B.C. Court of Appeal delivered a devastating setback to the union, there is a good chance the highest court in the country will hear the case and perhaps even render a different verdict.
The strongly worded appellate court ruling demolished the earlier judgment of B.C. Supreme Court Justice Susan Griffin, faulting her for all kinds of legal errors. But it wasn’t an unanimous ruling, as one justice — Ian Donald — wrote a lengthy dissenting opinion.
That lone dissent may be enough for the Supreme Court of Canada to agree with the BCTF’s request for an appeal. That, and the high court’s recent interest in cases that involve collective bargaining issues.
And that is what this fight between the government and the union is all about: bargaining rights, and how far they extend.
A key point is this: once something is put into a government’s collective agreement with a public sector union, is it there forever if the union refuses to take it out?
That, in a nutshell, is where this long-running dispute originates. More than a decade ago, the B.C. Liberals removed language in its contract with the BCTF that determined class size limits and therefore how many teachers needed to be hired.
The language had been put there by the previous NDP government, and the BC Liberals government felt it should not be bound by what it considered to be a rigid, expensive system that didn’t work properly and was provided by the previous government as a gift for a union ally.
The union sued and won. The government tried a different tack, and brought in legislation aiming at fixing the problem, but Justice Griffin ruled it to be insincere and phony, and therefore a case of bad faith bargaining.
She ordered the old, stripped-out language to be restored to the contract (which came with a cost of at least $300 million a year), and the government had no choice but to appeal such an expensive ruling.
The Court of Appeal tossed Griffin’s judgment to the curb, and concluded the government had indeed bargained in good faith. It also ruled that applying the retroactivity of that old contract language would not only be enormously expensive, but would also violate the provincial legislature’s constitutional responsibility when it came to allocating public resources (in other words, tax dollars).
Now, the question may well be: if the Supreme Court of Canada hears the case, will it back the appellate judges, or will it agree with Griffin’s take on things?
The high court has recently made several rulings that significantly expand the scope of collective bargaining rights. It ruled the RCMP had a right to unionize, and it struck down a Saskatchewan law that restricted the right to strike.
And don’t forget that several years ago the court overturned a B.C. Court of Appeal judgment and ruled the Hospital Employees Union did indeed have its constitutional rights violated by the B.C. government’s decision to rip up parts of its collective agreement.
The HEU case and the BCTF case both involve collective agreements and the issue of constitutional protection for bargaining rights. Given how the high court handled the first one, I wouldn’t rule out the BCTF’s chance for ultimate victory just yet (and don’t forget the Supreme Court of Canada also recently overturned the B.C. Court of Appeal’s decision on aboriginal title).
But it could be two years before the Supreme Court of Canada rules on this, assuming it agrees to hear the case at all.
In the meantime, don’t look for peace to be restored to the province’s education system. While the BCTF has been sent reeling, it will be school trustees who will now move onto the front lines as they deal with funding issues with the provincial government.
A Vancouver Sun survey has pegged the total funding “shortfall” for school board budgets at $73 million and counting. There appears to be little chance for many school boards to avoid layoffs of teachers, maintenance staff and administrators.
The Court of Appeal ruling may have taken the wind out of the BCTF’s sails, but things will be far from smooth sailing in the education system for quite a while to come. It’s no time for champagne toasts.
Keith Baldrey is chief political reporter for Global BC. He can be reached via email at [email protected].
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