- May 12, 2021
- Non-IA Decisions of Interest
This decision relates to the B.C. Teachers’ Federation’s most recent attempt to seek a declaration that new legislation seeking to again limit its collective bargaining rights was unconstitutional. This decision follows the Court’s 2011 declaration that previous legislation interfering with teachers’ collective bargaining rights was a breach of s. 2(d) of the Canadian Charter of Rights and Freedoms which guarantees freedom of association. That previous legislation deleted collective agreement terms and prohibited collective bargaining concerning a range of working conditions. At that time, the Court gave the BC Government 12 months to address the repercussions of its decision.
After the twelve months expired, the BC Government enacted nearly identical new legislation which again was challenged by the teachers. The question before the Court in this decision is whether there is something different about the new legislation that makes the new legislation constitutional when the previous identical legislation was not. The BC Government argued that there are two facts which distinguish the new legislation from the old legislation:
- The BC Government had a “good faith” consultation with the Teacher’s Federation after the court’s first decision, which the Government argued insulated the government from a constitutional challenge.
- The BC Government argued that the second piece of legislation differed from the first piece of legislation in that it was time limited.
The Federation’s application was allowed by the Court. The Court held that the discussions between the BC Government and the Federation did not cure the unconstitutionality of the legislation or immunize the subsequent duplicative legislation from further constitutional challenge. The Court found that the discussions were not undertaken in good faith, as the BC Government utilized a strategy designed to provoke a strike in order to gain political support for imposition of the legislation upon the Federation. The Court further found that the time limited aspect of the legislation did not provide a basis for distinguishing the new legislation from the previous findings of unconstitutionality. The new legislation substantially interfered with teachers’ s. 2(d) Charter rights, which protected a freedom to associate to make representations to their employer and to have the employer consider those representations in good faith. The impugned provisions were not saved by s. 1 of the Charter, as the harmful effects were adversely disproportionate to the legislative objectives. In the result, ss. 8, 13, and 24 of the Education Improvement Act were struck down with the effect that deleted terms in the teachers’ collective agreement were restored retroactively and were a permitted subject for future bargaining. In addition, the BC Government’s conduct in effectively extending unconstitutional prohibitions on collective bargaining justified an award of damages pursuant to s. 24(1) of the Charter. The Federation was awarded $2 million in damages. The remaining impugned conduct by the BC Government was determined not to be unconstitutional, as it was within the scope of the Government’s role and responsibility in establishing fiscal and policy parameters around collective bargaining with the Federation.