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Analysis: Court ruling a major blow to Clark’s strategy with teachers

B.C. teachers rally at the Vancouver Art Gallery, March 7, 2012. The B.C. Supreme Court delivered a sharp rebuke to Premier Christy Clark’s Liberal government Jan. 27, 2014, ruling that the government sought to manufacture a failure in collective bargaining for political gain.

John Lehmann/The Globe and Mail

Premier Christy Clark was education minister in 2002 when she introduced legislation to curb the bargaining rights of B.C. teachers: "This bill marks a turning point for public education, a turning point for every student in British Columbia," she told the legislature as she proudly introduced the Public Education Flexibility and Choice Act. "It marks a move toward a more flexible, more responsive, better-managed system … where meeting students' needs is the absolute number one priority."

On Monday, the B.C. Supreme Court concluded that the Clark government has not just trampled the Charter rights of the province's teachers for the past dozen years, but that it did so in an effort to manufacture a failure in collective bargaining for political gain.

Justice Susan Griffin's ruling paints a picture of a government that stubbornly stuck to a political agenda, even after the court found Ms. Clark's bill unconstitutional in 2011. When that verdict was delivered, a chastened Ms. Clark promised to fix the law. Her government vowed to "be entirely mindful of every word in the judgment."

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What the province did, however, was introduce virtually the same legislation, plus a $165-million fund for special-needs students.

The 2002 laws, Bills 27 and 28, took class size and composition – the number of special-needs students integrated into the classroom – out of the collective-bargaining process. Ms. Clark said at the time that the changes were needed to replace "rigid provisions and inflexible ratios with common sense and good judgment."

The court Monday found a more sinister motive.

The B.C. Liberal government thought that a teachers strike would give it a political advantage, Justice Griffin found, and this mindset set bargaining up for failure and made disruption in the public-school system inevitable.

Further, Justice Griffin concluded that the government hoped to weaken the teachers' union. The ministry of education's superintendent for achievement "saw it as serving a useful goal of driving a wedge between individual teachers and the [British Columbia Teachers' Federation]," she wrote.

When Justice Griffin ruled two years ago that Ms. Clark's education laws were unconstitutional, she gave the government a year to provide a remedy. Back in court, the province's lawyers argued that the new version of the law should meet the Charter test because they had entered into "good faith consultation" with the BCTF.

"The Court has concluded that the government did not negotiate in good faith with the union," Justice Griffin wrote. "One of the problems was that the government representatives were preoccupied by another strategy. Their strategy was to put such pressure on the union that it would provoke a strike by the union. The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union."

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It means that the Premier, who now hopes to land a 10-year labour deal with the federation, has less clout than ever before to persuade teachers that her government is ready to bargain in good faith. The union has been in bargaining since October, and more talks are scheduled. But now, the BCTF will return to the table armed with a court order that states the government must allow teachers the right to negotiate their working conditions.

The $2-million fine imposed on the province is a significant rebuke, and it is a given that good-faith bargaining with the teachers is damaged. But it is the finding that the B.C. Liberals were trying to manipulate public opinion against public-school teachers that could leave a lasting sting.

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