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: Understanding BC Teachers’ Federation vs the Province of B.C. (Part 1)

In part 1 of a 3 part series, Kelowna lawyer details the legal battles from 2002 to 2014

The B.C. Teachers’ Federation (BCTF) and provincial representatives returned to the bargaining table recently.

Teachers are presently without a collective agreement.

These issues go back decades. The most recent iteration dates back about 17 years.

In 2002, the then newly elected provincial Liberal government engaged in massive cost cutting. Health care, workers’ compensation, and education all suffered deep cuts. The result? Costly litigation.

READ MORE: WCB review wants your comments

Restrictions were also imposed on collective bargaining in the areas of health care and education.

In 2007, the Supreme Court of Canada ruled that the legislative changes in the health sector interfered with collective bargaining rights by unilaterally deleting important collective agreement terms and trying to prohibit negotiations on those terms.

Despite that ruling, the province made no efforts to amend the similar legislation imposed on teachers. This legislation, Bill 28, deleted class size and composition terms from the collective agreement and prohibited collective bargaining on those issues. The BCTF was forced to continue with its legal challenge to Bill 28, which was now highly suspect.

Between 2002 and 2011, the BCTF was prevented from negotiating for reinstatement of terms relating to class size, class composition, ratios of non-enrolling teachers to students (teachers not assigned to classrooms, such as librarians, counsellors and special education teachers), and teacher workload (Working Conditions).

Any collective bargaining during this time could only address issues on which the province allowed discussion.

In 2011, the limits imposed on teachers were declared unconstitutional because they violated teachers’ collective bargaining rights. These rights are protected by section 2(d) of the Canadian Charter of Rights and Freedoms. The Charter was violated because the province failed in its duty to consult with the BCTF and allow it a meaningful opportunity to influence Working Conditions.

The 2011 ruling was suspended for one year to allow the province time to address the decision.

After this ruling, the province attempted to consult with the BCTF to achieve its agreement to legislation to replace Bill 28. These discussions were unsuccessful.

The province then informed the BCTF that the Working Conditions remained off limits.

In 2012, the province passed legislation, Bill 22-which curtailed the teachers’ ability to bargain collectively on class sizes and class composition issues. It was similar to Bill 28, except that it was temporary and allowed for future negotiations on those issues.

In a 2014 court decision, the British Columbia Supreme Court ruled that Bill 22 unjustifiably violated section 2(d) of the Charter. The judge found that provincial representatives failed to “engage in meaningful dialogue, listen to the employees’ representations, avoid unnecessary delay, or make a reasonable effort to reach agreement.”

Instead, the province entered negotiations with its mind made up and a strategy in place. It intended to re-enact the same provisions already found to be unconstitutional in the 2011 court decision.

In the 2014 court decision, the court found that the province failed to consult with the BCTF in good faith. This requires the parties not to be inflexible and intransigent, and to honestly strive to find a middle ground.

The province failed to meet this minimum standard. The province appealed that decision.

Next week, we will look at the decisions of the British Columbia Court of Appeal and the Supreme Court of Canada. The week after that, we will look at where we are at now.

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