It's difficult to overstate what a shattering blow the B.C. Court of Appeal's ruling Thursday on classroom working conditions is to the B.C. Teachers' Federation. The union didn't just lose. It got thumped in unequivocal fashion.
The union has already indicated it will seek leave to appeal the decision. After reading the appeal court's 4-1 ruling, one strains to see where the federation believes it has a chance at victory at the Supreme Court of Canada. Also, one wonders how warm teachers will be to the idea of seeing their union dues go towards financing such a challenge. The union has already spent $2-million it won from the government at an earlier point in this long-running squabble – money it now has to return.
That said, we may still be dealing with this matter years from now.
The ruling by B.C.'s highest court is complex and overturns several findings that were made at trial earlier by Justice Susan Griffin. In fact, the appeal court justices were unsparing (unusually so) in their critique of legal and factual errors that Justice Griffin made in rendering her judgments in favour of the teachers.
At the core of this dispute is the question of what constitutes working conditions and whether teachers have a right to negotiate them at the bargaining table.
And this is where the appeal court justices and Justice Griffin have a fairly major divergence of opinion.
This case has its roots in legislation that existed as far back as 2001. It gave teachers the right to negotiate class size and composition, among other things. The Liberals under Gordon Campbell ripped that legislation up, prompting the union to take them to court on the grounds that the government's action was unconstitutional. The trial judge – Justice Griffin – sided with the union in 2002.
The government brought in new legislation that was an attempt to address some of the issues raised earlier by Justice Griffin. But Bill 22 still gave the province control over the class size and composition matters the union – and courts – maintained were illegally taken away from them.
Not surprisingly, the same Justice Griffin ruled that legislation was off-side as well, which prompted the government to seek leave to appeal. The result of that petition was made public by the appeal court Thursday.
Where Justice Griffin had ruled the B.C. government had negotiated in bad faith prior to introducing Bill 22, the appeal court disagreed. It said the teachers were afforded a meaningful avenue to advance their positions and as such their freedom of association was respected.
To me, however, the most salient part of the decision revolves around the question of what a government does and does not have the right to control exclusively, unburdened of compromises wrought at the bargaining table. Like the earlier legislation it replaced, Bill 22 had the effect of imposing class size and composition numbers, restricting a school board's power to determine staffing levels and establishing caseloads for teachers.
In her judgment, Justice Griffin referred to these provisions as "working conditions." The appeal court justices saw them more simply, and less judgmentally, as terms that were stripped from the earlier legislation.
"We accept that these subjects affect teachers' working conditions, but they engage more than just working conditions; they directly engage education policy. We consider this to be a centrally important fact." Accordingly, they chose to adopt the more neutral term "Affected Topics."
"The Affected Topics involve not only working conditions, but matters of education policy," the four majority judges agreed. "The province is charged with the democratic responsibility to develop education policy in the public interest and is held politically accountable for the policy choices it makes. Indeed, the provision of public education is one of the longest standing obligations of the provincial government, dating back even before British Columbia joined Canada in 1871."
It is difficult to disagree.
A decision Thursday in favour of the teachers would have had massive financial implications for the government. It would have meant the hiring of hundreds of new teachers to retroactively address the effects of ripping up the earlier legislation. The government had estimated it would cost $500-million to meet the needs of such a ruling. And that, too, was something the appeal court judges found untenable, suggesting it would "unduly interfere with the legislature's constitutional role in allocating public resources."
The BCTF must seek permission to appeal to the Supreme Court of Canada. Last year, there were 80 applications from B.C. cases for an SCC appeal and eight were accepted, so there is no reason to believe the union's application is sure to succeed.
The union will not win at the country's highest court. It would be better off negotiating terms of a peace accord with the government.
Gary Mason