Everybody knows by now that the B.C. Teachers' Federation
has been awarded $2 million plus costs against the B.C. Government
related to the dispute over class sizes. The B.C. Supreme
Court ruled that the government simply duplicated previous
legislation that had been declared unconstitutional. The
court had harsh words for the government, essentially finding that
the government ignored the court's previous orders and that it
had tried to provoke a strike by the
teachers, supporting the court's $2 million
damage award, and likely a few hundred thousand in costs to be
The cost to the public purse is bad enough but there are other
aspects of the decision that may have longer and more
important effects on employers. This takes us into the
relatively esoteric area of freedom of association under the
Charter of Rights and Freedoms, which includes several
cases where unions are attempting to turn collective bargaining and
strike action into constitutionally guaranteed fundamental
We have touched on these issues in a
previous post and in material you can find on our website
here. The significance of this latest decision may be in
its interpretation of the government's duty to consult before
legislating. The earlier cases suggested that government
could legislate to limit public sector bargaining rights after
consultation about alternatives with the affected
unions. The B.C. Teachers'
Federation decision suggests that this will not be sufficient,
that there must be a mechanism in the new legislation for "an
employees' association to make representations to the
employer and have its views considered in good
faith" (emphasis in the original at paragraph 66.)
It may also mean that the government has less legislative
freedom when it is not technically the employer (as with the
teachers) than when it is legislating with respect to its own
This decision may not have an immediate and direct impact on
private sector employers, but it all goes into the mix
of how broadly the freedom of association rights under the
Charter may be interpreted, which is something of interest
to all employers.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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