Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: BC Teachers’ Federation vs the Province of B.C. (Part 2)

In part 2 of a 3 part series, Kelowna lawyer details the legal battles from 2002 to 2014

In part one, we began looking at the squabble between the B.C. Teachers’ Federation (BCTF) and the B.C. government.

READ MORE: Understanding BC Teachers’ Federation vs the Province of B.C.

In 2011 and 2014, two British Columbia Supreme Court decisions sided with the BCTF. Both decisions held that the government’s attempts to limit collective bargaining violated section 2(d) of the Canadian Charter of Rights and Freedoms. Section 2(d) protects freedom of association, including the right to a meaningful collective bargaining process.

The province appealed the 2014 decision.

In 2015, the majority of the Court of Appeal decided in favour of the government. It found that the BCTF was afforded a meaningful process through consultations leading up to Bill 22. That bill had curtailed the teachers’ ability to bargain collectively on class size and composition issues. The majority held that no violation of the teachers’ freedom of association rights occurred.

However, one judge, Justice Donald, dissented.

Prior to becoming a judge, Justice Donald practiced labour law. He understood the teachers’ struggles. He felt that the BCTF had not been meaningfully consulted on Bill 22.

Justice Donald agreed with the trial judge in the 2014 decision. In his view, the province had not provided a meaningful process that protected collective bargaining rights. Unilaterally deleting the Working Conditions substantially interfered with BCTF’s associational activity and breached section 2(d) of the Charter.

An interesting aspect of Justice Donald’s dissent is the remedy he would have awarded.

He felt more was required than simply invalidating the Bill, to provide the teachers an adequate remedy.

The BCTF had essentially argued that it should not be required to negotiate from scratch. Because Bill 22 was not being retroactively invalidated, the Working Conditions would remain absent from the collective agreement. This placed “the teachers at an unfair disadvantage due to egregious and unconstitutional government conduct.”

Justice Donald would also have ordered that the government “reinstate the Working Conditions into the collective agreement immediately.” Further, “any future deletion or alteration of these terms must occur as the result of the collective bargaining process or after a constitutionally compliant process of good faith consultation.”

He would have restored the previous terms only as a remedy, to provide a basis for future bargaining. He did not specifically approve the content of those terms. In fact, both parties had requested that the court not consider the merits of class size and composition education policies.

Why do we care so much about a dissenting judgment?

Well, the BCTF sought a further appeal to the Supreme Court of Canada.

In a 2016 decision, the Supreme Court of Canada disposed of the case in just two sentences. The first sentence stated that “the majority of the Court would allow the appeal, substantially for the reasons of Justice Donald.” The second sentence stated that the two remaining judges “would dissent and dismiss the appeal, substantially for the reasons of the majority in the Court of Appeal.”

It is extraordinary, and rare, for the Supreme Court of Canada to issue such a brief a decision. Many had hoped that its decision would clarify the law on section 2(d) of the Charter and provide more guidance to lower courts.

The majority’s statement that it agreed “substantially” with Justice Donald’s reasons suggests that it did not endorse some aspects of Justice Donald’s dissent.

Restoring the previous language requires both sides to be educated about what the courts did and did not say, and the implications of the rulings. For teachers, this includes the risks of not voting to approve a collective agreement following a fair process. For schools, this includes properly structuring classes and not denying admission to students.

As long as the process is fair, the province is not required to agree to the restored terms, now or in the future.

In the upcoming third and final part of this series, we will look at implications of the Supreme Court of Canada’s decision, and where we are at now.

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