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Selected quotations from the BC Supreme Court Decision  

British Columbia Teachers’ Federation v. British Columbia, 2014 BCSC 121

  • The freedom of workers to associate has long been recognized internationally and in Canada as an important aspect of a fair and democratic society. Collective action by workers helps protect individuals from unfairness in one of the most fundamental aspects of their lives, their employment. [Summary, p.2]  
  • The Court has concluded that the government did not negotiate in good faith with the union after the Bill 28 Decision. One of the problems was that the government representatives were pre-occupied by another strategy. Their strategy was to put such pressure on the union that it would provoke a strike by the union. The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union. [Summary, p. 3]
  • When legislation is struck down as unconstitutional, it means it was never valid, from the date of its enactment. This means that the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining. [Summary, p.4]
  • Collective bargaining was seen as fulfilling an important social purpose, by providing a means to promote the common well-being. Collective bargaining is a means of providing equality in the workplace, diminishing the arbitrary power of the employer and allowing workers a means to protect themselves from unfair or unsafe work conditions. [para. 46]  
  • Just as it is hard to imagine a law that is otherwise an interference with a Charter right being found not to interfere because of pre-legislative consultation, it is even harder to imagine a situation where legislation is found to be unconstitutional 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 essentially the unusual position the government takes in this case. [para. 91]
  • As a matter of principle I am of the view that it would be rare that the government could rely on its “consultation” conduct after the fact of legislation declared invalid based on its breach of a s. 2(d) Charter right, to cure the unconstitutionality of the legislation, and to then pass virtually identical legislation. Such a process would encourage state actors to ignore s. 2(d) rights with impunity as there would be no practical consequences for a breach. [para. 92]  
  • But since the government insisted on starting from an extreme position, linking the two aspects of the unconstitutional legislation together, and insisting that all that was needed to fix the unconstitutional legislation was government consultation, the BCTF response position was rather predictable. If one side starts from an extreme position, it should not be surprised if the other side does not immediately compromise all that is important to it. [para. 356]  
  • From before collective bargaining began in 2011, the government expected that the round of collective bargaining would likely fail to result in an agreement between the BCTF and BCPSEA. This is because the collective bargaining mandates government had issued to BCPSEA, combined with a continued prohibition on negotiation Working Conditions, were predicted by the government to be so unacceptable to the BCTF. [para. 380] The government thus expected from even before collective bargaining began in March 2011 that it would lead to the BCTF calling a strike. [para. 381]
  • The government saw that the failure of the two negotiating tables could be a useful political opportunity for it. As early as June 2011, the government was considering a strategy of a combined legislative response to an expected teachers’ strike and to Bill 28. [para. 383]
  • The government thought that a teachers strike would give the government a political advantage in imposing legislation that the public might otherwise not support. It felt that the timing of legislation to deal with a teachers strike and failure of collective bargaining could fit conveniently with the timing of legislation to address the Bill 28 Decision repercussions. The government planned its strategy accordingly so that it could have one legislative initiative at the end of the one year suspension granted in the Bill 28 Decision. [para. 384]  
  • Rather than taking full strike action, instead the teachers withdrew some administrative, non-essential services, such as preparing report cards. Teachers continued to provide all teaching and classroom services. [para. 385]. When a full strike did not materialize, so important was a strike to the government strategy that in September 2011, Mr. Straszak planned a government strategy of increasing the pressure on the union so as to provoke a strike. [para. 386]  
  • Nevertheless, I find that Mr. Straszak’s key role in developing and pursuing this broader political agenda undermined the sincerity of Mr. Straszak’s search to reach a solution in his discussions with the union following the Bill 28 Decision. The broader political agenda and the perceived potential gain for government if negotiations with the BCTF failed distracted Mr. Straszak from a goal of providing a process that truly sought agreement or truly took into account the union’s views so as to allow it to influence working conditions of its members. Since Mr. Straszak saw significant political advantages to government if the discussions with the BCTF failed, it is not surprising that they did. [para. 389]  
  • But with Mr. Straszak for the government on one side of the table across from the union, knowing it could serve the government’s broader political goals if no agreement was reached, there was no equality of bargaining power. I find that there was no true will on the government side of the table to reach agreement in the discussions following Bill 28. [para. 391]
  • The government representatives did not engage in meaningful dialogue, listen to the employees’ representations, avoid unnecessary delay, or make a reasonable effort to reach agreement, all factors in assessing good faith consultation: Fraser, at paras. 40-41. I therefore conclude that the process by which Bill 22 was implemented did not respect the duty to consult and negotiate in good faith. [para. 398]
  • As already mentioned, the government expected collective bargaining to fail. This expectation existed even before collective bargaining commenced in the 2011 round, in large part because of the hard fiscal and policy positions the government was asking BCPSEA to take in bargaining with the union. [para. 417]
  • The government expected that the BCPSEA positions would be so difficult for the union to accept that the union would take strike action. [para. 418]
  • When the BCTF did not respond by calling a full strike the government followed Mr. Straszak’s recommended strategy to engage in pressure tactics to try to provoke a strike. [para. 419]
  • It is no answer to say the teachers were permitted to start bargaining from scratch in the future. This fails to recognize the hours of negotiations, the give and take, the resources and the research that went into the negotiation of so many collective agreement terms, many designed to respond to local conditions. The frustration and the sense that collective bargaining is ultimately a pointless exercise can only follow legislative interference with such a broad scale of negotiated terms. [para. 444]
  • As reviewed in the Bill 28 Decision at paras. 283-290, class size and composition issues greatly impact the quality of a teacher’s working conditions and job stress. The more students in a class and the more students with special needs integrated without adequate assistance, the more before and after class planning and preparation and in-class student management is required by the teacher and the less time there is available for actually teaching. [para. 458]  
  • If a teacher finds the rewarding aspect of teaching to be the connection with a child and the sense that the child is learning from the teacher’s efforts, which one hopes is the motivation for most teachers, then it is obvious that teacher job satisfaction will decrease dramatically the less opportunity there is to make this connection. Teacher job satisfaction will also decrease dramatically the less opportunity there is to influence these Working Conditions. [para. 459]
  • There is evidence that Rick Davis for the government was instrumental in developing the idea behind this regulation and that he saw it as serving a useful goal of driving a wedge between individual teachers and the BCTF. The regulation was seen as diminishing the influence of the union over its members. [para. 512]
  • The outcome of this case means that teachers have once again had their right to collectively bargain over their working conditions restored. They have had certain language returned to their collective agreement retroactively. This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining. [para. 679]
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