On April 30, 2015, the BC Court of Appeal ruled in favour of the
BC provincial government in a longstanding dispute regarding BC
teachers' right to bargain collective agreement terms over
class sizes and composition. The Court of Appeal's
majority decision overturns two previous decisions in BC's
lower court in which the BC Teachers' Federation (BCTF) was
successful in arguing that it was unconstitutional for the
government to pass legislation to prevent teachers from bargaining
these important issues.
This protracted dispute began in January 2002 when the BC
government enacted the Education Services Collective Agreement
Act and the Public Education Flexibility and Choice
Act (collectively, "Bill 28"). Bill 28
purported to remove all terms that governed issues surrounding
class sizes and composition, as well as other matters such as
staffing levels and teacher/student ratios, from the BC
teachers' then existing collective agreement. Moreover,
Bill 28 had the effect of restricting the inclusion of similar
terms in future collective agreements.
The BCTF launched a successful constitutional challenge against
Bill 28 in the BC Supreme Court, which released its judgment on
April 13, 2011 that Bill 28 was unconstitutional because it
infringed BC teachers' freedom of association guaranteed under
the Canadian Charter of Rights and Freedoms. The
Court declared certain parts of Bill 28 to be unconstitutional and
granted the government one year to consider remedial
In the following one year period, the Province and the BCTF
engaged in collective bargaining and held 13 consultation meetings
to resolve the disputed issues, without success.
Upon the expiry of the one year period, the government enacted
the Education Improvement Act ("Bill 22"). Bill
22 had the same effect as Bill 28 to restrict collective bargaining
on the issues of class sizes and composition. Unsurprisingly,
the BCTF launched a further constitutional challenge. The BC
Supreme Court once again agreed with the BCTF and ruled on January
27, 2014 that Bill 22 was also unconstitutional. This ruling
was overturned as a result of the Court of Appeal's April 30,
2015 decision discussed here.
The Court of Appeal made several key findings in its
decision. First, the Court agreed with the BCTF that the
regulation of class sizes, class compositions, staffing needs and
other similar terms were important matters that affected
teachers' working conditions. However, these terms also
directly engage education policy, which falls within the
responsibility of the BC government as the "maker of education
policy and custodian of public finance". Furthermore,
the Court disagreed with the trial judge in the lower court that
the consultation period leading up to the enactment of Bill 22 was
irrelevant to whether teachers' right to freedom of association
had been respected. The Court found that the government acted
in good faith in consulting with teachers leading up to the
introduction of Bill 22 and in the collective bargaining process
and that this was a relevant factor to the constitutionality of
Bill 22. Ultimately, the Court held that BC teachers'
right to freedom of association was not violated in this case
because consultations had taken place that provided the teachers
with a meaningful opportunity to act collectively to attempt to
influence their working conditions.
Following the release of the Court of Appeal's decision, the
BCTF has already announced that it intends to appeal the decision
to the Supreme Court of Canada. The BCTF has 60 days to
appeal to the Supreme Court of Canada, which will then decide
whether to grant permission to hear the case.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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