Trevor Winch who teaches Grade 6/7 at Waverley Elementary School in Vancouver talks with his students before class April 21, 2011 about the school blog.John Lehmann/The Globe and Mail
For months, the contract stalemate between the BC Teachers' Federation and the provincial government was confined to the bargaining table. Tuesday, the arguments moved inside the courtroom as the union asked for clarification on a ruling that it believes gives teachers the right to negotiate class size and composition.
In April, Madam Justice Susan Griffin of the B.C. Supreme Court declared "unconstitutional and invalid" a law that restricted teachers' bargaining rights. The 2002 legislation took the makeup of classrooms – the total number of students, as well as the numbers of special needs students integrated into each class – out of collective bargaining.
But in the months after the ruling, with the province and BCTF negotiating a new contract, Education Minister George Abbott has refused to discuss class size. That prompted the union to walk out of talks last month.
Appearing before Judge Griffin on Tuesday, BCTF lawyer John Rogers applied for an order of clarification, arguing the two parties can't move forward because they have vastly different interpretations of her ruling.
"We say that such direction … would provide both convenience and fairness in these proceedings," Mr. Rogers told the court.
"It's clearly in the interests of all parties that there be a common understanding. The lack of such a common view, in our submission, would undermine the potential for resolution and create the possibility of prolongation in the dispute between the parties."
Karen Horsman, the lawyer representing the province, opposed the BCTF's application and characterized it as a "pre-emptive strike." She said the province is only halfway through the year-long period it was given by the judge to consult with teachers and formally respond to the decision.
"The real disagreement between the parties … is in BCTF's insistence that anything short of the immediate repeal of the legislation and the return of class size and composition issues to the collective bargaining process would be contrary to the court's ruling," Ms. Horsman said. "In my submission, the difficulty for BCTF in taking that position is that's not what the court ordered and its position is inconsistent with the type of immediate flexibility that's inherent in this suspended declaration."
Ms. Horsman said the parties should "just be permitted to go away" and work on a resolution. "This application should be dismissed," she later said.
Mr. Rogers said another way to look at the year-long consultation period isn't that there are still six months to go, but that six months have already been squandered.
"The purpose of this application did arise from the bargaining process," he said. "The union … sought to engage in this process in a positive way. It feels that the difference between the parties would be assisted by this court and that's the purpose in bringing it."
Judge Griffin, citing her desire to issue a judgment quickly, reserved her decision and ordered the parties to reconvene at B.C. Supreme Court on Wednesday afternoon.