OTTAWA – Retired B.C. teachers cheered, hugged and in several cases wept after the Supreme Court of Canada ruled in their favour in a lengthy battle with the B.C. government over class sizes and other working conditions.
The 7-2 decision came less than a half hour after lawyers representing the B.C. Teachers’ Federation, and union groups across the country, argued that Victoria violated the teachers’ constitutional right to bargain collectively.
Pitted against them were lawyers from the B.C., federal, Quebec, Manitoba and Saskatchewan governments making conflicting arguments.
“We’re elated, this has been a long journey,” said BCTF President Glen Hansman.
The decision overturned the B.C. Court of Appeal’s 2015 ruling in favour of the government, and restored the original decision in the union’s favour by B.C. Supreme Court Justice Susan Griffin.
Hansman said this is expected to cost the government $250 to $300 million a year going forward. He said it could take some time to restore class sizes to pre-2002 levels because the union has lost 3,500 full-time equivalent positions over the past 15 years.
Gathered behind a courtroom jammed with black-robed lawyers – in addition to the two main adversaries there were 11 other interveners – were 15 British Columbians who flew here to listen to arguments.
There were several whispered “ohs” and then a “we won?” that was followed by a “we won!”
They hugged and several quietly wept until the last of the nine judges left the chamber, then burst into euphoric cheers and applause.
One of the most emotional following the SCOC ruling was Patricia Gudlaugson, a retired teacher from Richmond who said her joy was mixed with bitterness over the government’s original 2002 decision to strip hard-won contract concessions on class sizes.
“Every kid in 2002 who had special needs got no damn help for 14 years, because of that government, that’s what it means,” she said. “All those little kids in kindergarten (then) have finished high school and never got the support they needed.”
The two dissenting judges were Suzanne Cote and Rusell Brown, the last two appointees of former Prime Minister Stephen Harper.
Those opposing the appeal were the federal government, the governments of Ontario, Quebec, Manitoba and Saskatchewan, and the Canadian Association of Counsel to Employers.
The case marked the first time the Supreme Court of Canada has considered freedom of association rights in the Charter of Rights and Freedoms in the context of policy issues that fall outside the range of matters traditionally negotiated by management and unions, like wages and overtime rules.
Those supporting the B.C. Court of Appeal decision argued to varying degrees that governments need flexibility while reconciling the “traditional” demands of unions – regarding wages and overtime rules, for instance – with broader policy matters that have broad impact on the general public.
“The procedural right to collective bargaining (in the charter) should not entail a substantive veto over complex public policy,” Ontario said in its written submission.
Lined up on the side of the BCTF were the Canadian Labour Congress and a string of public sector unions trying to protect major gains won by the union movement, including the right to collective bargaining and to strike, in the Supreme Court since 2007.
Thursday’s decision in favour of BCTF started to appear inevitable just a few minutes into the main argument from B.C. government lawyer Karen Horsman, as McLachlin and several of her colleagues began picking apart her arguments.
They challenged, for instance, B.C.’s assertion that the trial judge made errors in her interpretation of the law.
Instead, they suggested that B.C. was actually trying to make the case Thursday that Griffin made errors in her factual finding that the government didn’t engage in “good faith” consultations before imposing the 2012 legislation.
It is extremely rare for appeal courts to challenge a trial judge’s factual findings unless there is evidence of a “palpable and overriding” error.
As the questions kept coming Horsman appeared more nervous. Her counterpart, lead BCTF counsel John Rogers, could be seen smiling while whispering to co-counsel Diane MacDonald.
BCTF President Hansman later told reporters that it Horsman was struggling because she had such a weak case to argue.
Hansman, like most people, was surprised the ruling came down from the bench. A ruling wasn’t expected for six to eight months, but Supreme Court judges can decide to rule immediately following the arguments, as they did in this case.
But he said he was not surprised with the decision, which restores class size, class composition and specialist teacher ratios that were stripped from teachers’ contracts in 2002.
“The province has got the money to pay for this,” Hansman said.
He said the provincial government has a $1-billion contingency fund in its budget, which specifically named the teachers’ case as a possible use for some of the money. The ruling won’t be retroactive, however will apply on a go forward basis and should be implemented as soon as possible, Hansman said.
He said in 2002 when the clauses were stripped as many as 3,500 teachers had lost their jobs when school started the following September.
In a statement, B.C. Finance Minister Mike DeJong said the court has "confirmed that governments have the ability to legislate amendments to collective agreements. However, the process to legislate specific amendments in Bill 22, the Education Improvement Act (2012), was flawed.
"The six-year collective agreement we reached with the BCTF in 2014 included an agreement on the process that both the employer and union would follow when the Supreme Court gave a verdict. The collective agreement remains in place, and the employer and the BCTF will now meet to discuss how we move forward to address this aspect of the ruling."
The government touched off the battle in 2002 by passing legislation that stripped class size, class composition and specialist teacher provisions from the teachers’ contract and passed a law denying teachers the right to bargain those issues in the future.
When the teachers successfully challenged that decision the government, after consulting with the union, moved in 2012 to pass essentially the same restrictions. In 2014, Justice Susan Griffin ruled that “the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining.”
Griffin also called for the government to pay the teachers’ federation $2 million in damages for extending the unconstitutional legislation to June 2013.
In April 2015, the B.C. Court of Appeal overturned Griffin’s decision to restore classroom composition rules, class size rules and specialist teacher ratios to the teachers’ contract that were stripped in 2002.
One judge, Ian Donald, dissented. The Supreme Court today agreed with Donald’s dissent and written reasons are expected within 24 hours.
- with files from Mark Nielsen, Prince George Citizen
