A B.C. Supreme Court judge ruled yesterday that the B.C. government knowingly violated Section 2(d) of the Charter [freedom of association], and ordered the government to pay $2 million in damages to the B.C. Teachers’ Federation. Here is a Globe and Mail story about the decision.
Here is the decision, B.C.T.F. v. B.C. (2013, BCSC)
As per the norm, it is an exceedingly long decision (683 paragraphs!) of high complexity. This is the route in which our Supreme Court of Canada has crafted by its complicated definition of freedom of association. I’ve attempted to give a lay-person’s description of Section 2(d) Charter law in my paper The Charter and the Law of Work: A Beginner’s Guide. I’ll need to update that paper, again. Sigh. I will attempt to give a very simplified description of this latest case. I would bet that government appeals, as governments do in these things. So this story may not be over. And it remains to be seen how this decision will affect pending Section 2(d) cases, some of which will be heard later this year by the SCC.
On April 13, 2011, a B.C. court struck down as unconstitutional a law (Bill 28) that deleted a bunch of collective agreement terms from the BCTF
collective agreement and prohibited future bargaining over the issues covered by the terms, including issues relating to class size and composition, among other matters affecting working conditions. The usual impact of this decision would be that the law is repealed, and the collective agreement terms would be put back into the bargaining agenda. However the Court suspended the decision for 12 months to give the government time to fix the law. The government then engaged in some discussions with the Union, as did the school board employer, but both refused to bargain over the conditions and terms that had been repealed by Bill 28.
The government’s position was that the problem was not with the law per se, but with its failure to engage in good faith consultation with the union before passing the law. Therefore, the government believed all it had to do was go through the process of ‘consulting’ with the union for a while, at which point it could simply re-introduce the law in almost identical form to the law that had been ruled unconstitutional! And that is exactly what it did. In April 2012, it introduced a new law (Bill 22) that duplicates Bill 28 almost identically, with one major exception: it said that the restrictions on bargaining would last only until June 2013. The government argued that it was not unconstitutional to temporarily restrict bargaining over important issues. The Union brought a new Charter challenge against Bill 22, and it also sought damages for both the original Charter violation in Bill 28 and the new Charter violation in Bill 22.
Did the BC government violate the Charter (again) in Bill 22, which duplicated the unconstitutional Bill 28, except that it was temporally limited to a period of 14 months?
Yes, the government violated Section 2(d) (again), and the violation is not ‘saved’ by Section 1.
It’s an interesting decision for what it says about the the duty to consult as a defence in a Section 2(d) collective bargaining decision. The Court ruled that the duty to consult that is required by Freedom of Association since the B.C. Health Services and Fraser decisions applies differently when the government is acting as the employer than when it is acting as legislator. When the government is the employer engaged in direct bargaining with a union, then it has a duty to engage in meaningful consultation and bargaining before it can enact legislation imposing collective agreement terms. This appears to be what happen in the case Association of Justice Counsel decision of the Ontario Court of Appeal.
However, when the government is acting not as direct employer, but as legislator, pre-legislative consultation can not save an otherwise unconstitutional law that restricts collective bargaining. However, the fact that the government has engaged in meaningful consultation could be relevant in the Section 1 analysis, including the issue of whether the legislation satisfies the minimum impairment test under Section 1:
 But where the government is not the employer and passes legislation after an employer-employee labour negotiations impasse, it is difficult to see how government pre-legislation consultation with the union could be relevant to the question of whether or not the legislation substantially interferes with the s. 2(d) right. However, in that situation, government pre-legislation consultation could be relevant to the s. 1 Charter analysis and the question of whether or not the government considered other solutions. Also, the background of the labour impasse could be relevant to understanding the context and any exigencies that applied to the situation.
In this case, the government argued that it had ‘cured’ the unconstitutionality of the original Bill 28 by ‘consulting’ with the Union after the legislation has been ruled illegal. The Court ruled that it ‘was hard to imagine’ had that could save Bill 22. And it doesn’t:
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.
The judge then concludes that if the government’s argument that its pre-Bill 22 dialogue with the union saves Bill 22 has any meaning, it must be because the employer is acting as the employer of the teachers. Otherwise, the consultation with the union prior to Bill 22 would be irrelevant, except maybe at the Section 1 stage of the analysis.
If the government is acting as an employer, it must satisfy the standards of good faith, meaningful collective bargaining as described in B.C. Health and Fraser. The government did not satisfy these conditions. Here, the judge was quite critical of the government’s position that it needed only to consult for a while before it could reenact essentially the same law that had already been deemed unconstitutional. Interestingly, and explosively, the judge held that the government’s plan throughout was to force the Union into a strike position so that it could then acquire public support to legislate the teachers back to work on the conditions the government wanted, including a wage freeze. This plan was thwarted when the union didn’t bite and instead engaged in a work to rule campaign. The judge explained the government’s response to this tactic:
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.
What do you think of that as a government bargaining strategy?
The judge held that the government had no intention of reaching an agreement with the Union following the ruling that Bill 28 was unconstitutional. Rather, the government’s message to the Union was that all it was required to do was sit and listen to the Union, after which it could enact whatever law it wanted. [para. 331]. The Court ruled this failed to satisfy the duty to engage in meaningful dialogue required by Section 2(d). The fact that Bill 22 was time-limited did not make it constitutional. Moreover, the violation of Section 2(d) was not saved by Section 1. In fact, the objective of Bill 22 was not pressing and substantial, it did not impair the teachers’ Charter rights as little as possible, and the proportional harm test favoured the union. A complete strike out in Section 1 for the government.
The Court ordered the terms of Bill 22 and Bill 28 void, with the result that the stripped collective agreement terms are returned to the collective agreement and the prohibition on future bargaining is gone. In addition, for the violation of the Charter in respect of Bill 22, the judge ordered the government to pay the union $2 million dollars in damages (plus usual legal costs). That amount works out to a bout $66 per bargaining unit teacher, assuming 30,000 teachers.
Note this useful comments from Craig Bavis, a B.C. labour lawyer, on the remedy (and [shameless plug] student in the Osgoode LLM program:
I think it is important to note that the $2 million damage award was pursuant to section 24(1) of the Charter, by far the largest damage award under that section. For Charter watcher, this is a significant development with implications beyond labour law. The Court specifically made that damage award as a deterrent:
 I conclude that unless there is a sufficient deterrent, and some significant cost to a government if it violates s. 2(d) Charter rights even temporarily, the motivation to act unconstitutionally by substantially interfering with the freedom of association of public sector workers can simply be too tempting on the part of governments.
The other implication of the decision is that by retroactively restoring collective agreement terms, it allows for the BCTF to pursue grievances and seek damages for oversized classes and lost teaching positions.
Disclaimer, though I’m a lawyer at VSLO, which represented the BCTF, and my views above are of my own, not VSLO or the BCTF.
Issues for Discussion
This a big win for the teachers’ of B.C. It throws a wrench in the interpretation some counsel have promoted since B.C. Health that all Section 2(d) requires is that the government engage in some level of cursory consultations with a union prior to enacting legislation that strips collective agreements and imposes limits on future bargaining. On the other hand, the facts in this case are somewhat unusual in the sense that the government re-enacted almost identical legislation to that which had already been ruled unconstitutional.
Do you think this decision will be upheld on appeal? What parts of the decision do you think are most vulnerable to attack, if any?
What does this decision tell us about the ability of a government to use legislation to strip collective agreement terms that it doesn’t like?
Should governments be able to strip rights from collective bargaining by simple wave of the legislative pen?