A recent decision from the Supreme Court of Canada (“SCC”), British Columbia Teachers’ Federation v. British Columbia,  SCC 49, is having a significant impact on education in British Columbia.
In 2002, the B.C. government enacted Bill 28 which declared void certain terms in the collective agreement between the British Columbia Teachers’ Federation (“BCTF”) and the British Columbia Public School Employers’ Association (“BCPSEA”). The legislation removed the ability of BCTF to negotiate issues such as class sizes, staffing levels, teacher ratios and workloads.
In 2011, the B.C. Supreme Court ruled that Bill 28 was unconstitutional because it infringed s. 2 (d) of the Canadian Charter of Rights and Freedoms (the “Charter”) and could not be justified under s. 1. The decision was suspended for one year to allow the government to draft remedial legislation. Following the decision, consultations between the B.C. government and BCTF and collective bargaining between BCTF and the respondent BCPSEA occurred simultaneously. In both cases, the parties were not able to reach agreement. Upon expiration of the suspension period, the B.C. government enacted Bill 22, the Education Improvement Act, which was very similar to the earlier Bill 28. However, Bill 22 placed a time limit on select provisions, specifically, terms concerning class sizes and composition. Such terms would only be excluded from a collective bargaining agreement for a 14-month period.
At trial, Justice Griffin of the B.C. Supreme Court found that there was no basis to distinguish Bill 22 from the previous finding of unconstitutionality of Bill 28. She held that the B.C. government breached the teachers’ rights pursuant to s. 2(d) Charter of freedom of association by failing to negotiate and consult in good faith. Bill 22 was found to be unconstitutional and BCTF was awarded $2 million in damages pursuant to s. 24 (1) of the Charter.
Court of Appeal
At the Court of Appeal, the majority concluded that Bill 22 did not violate the teachers’ right to freedom of association. The majority concluded that the provincial government had conducted consultations with the teachers in good faith prior to passing Bill 22. Therefore, the majority was of the opinion that teachers still had access to a meaningful process to make collective representations about their workplace goals and that those views were considered. The majority also felt that the bill only had a minor impact on teachers’ freedom of association because the prohibitions on negotiating class size and staffing levels through collective bargaining were only temporary. The majority was critical of Justice Griffin’s position that the pre-legislative consultations were irrelevant and held that she had failed to consider the context in which Bill 22 had been enacted.
In dissent, Justice Donald held that Justice Griffin had not erred in finding that the B.C. government failed to consult with BCTF in good faith. Justice Donald stated that a substantial power imbalance exists between the government and its employees. Further, he argued that it is important that courts scrutinize the “substantive reasonableness” of the government’s approach to consultation.
Justice Donald found that freedom of association, in the context of labour relations, includes the “right of employees to associate in pursuit of workplace goals and to a meaningful process within which to achieve these goals.” When legislation or government action substantially interferes with this freedom in a way that fails to respect good faith consultation, then this freedom will have been jeopardized.
Justice Donald held that the constitutional test for bad faith on the part of government should be expressed in the same language used by the SCC in the Health Services and Fraser decisions. At paragraph 348 of the decision, he stated:
Parties are required to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground. In order to determine whether the government is bargaining in good faith, it may sometimes be necessary to probe and consider the government’s substantive negotiating position.
Justice Donald was critical of the majority’s disregard of Justice Griffins’ findings of fact about the province’s conduct and lack of good faith. He noted that she reached her conclusions after a very lengthy hearing, and that there were no apparent palpable or overriding errors. He concluded that he would have ruled that the collective bargaining agreement provisions on class sizes, composition, and other working conditions be reinstated into the collective agreement. He also stated that he would have overturned the trial judge’s award of $2 million in additional damages.
Supreme Court of Canada
The majority of the SCC, with Justices Côté and Brown dissenting, allowed the appeal, “substantially for the reasons of Justice Donald”, who provided the dissent in the Court of Appeal decision. No further reasons or analysis were provided.
In order to comply with the SCC’s ruling, the B.C. government will need to hire more teachers, librarians, counsellors, and other staff in order to reach the ratios, classroom sizes, and staffing thresholds that were in place before Bill 28 was enacted in 2002. The president of the BCTF has recently stated that approximately 3,500 full-time jobs have been eliminated since 2002. However, recent reports also acknowledge that there are currently 70,000 fewer students in B.C. than in 2002. B.C. Premier Christy Clark has stated that the government set aside $100 million in the event that the government was not successful. Just last month, the B.C. government committed, on an interim basis, to spending $50 million to hire additional teachers, including various types of specialized teachers. Discussions regarding class sizes and specialized teachers will continue with the expectation that an agreement might be in place for September 2017.
This decision continues the SCC’s trend to preserve elements of the right to freedom of association. What may have once been construed as hard, but “fair”, bargaining might now be found to be a failure to negotiate in good faith. Prior to making a substantial and unilateral change in terms of employment, governments must provide employee groups an opportunity to meaningfully influence change through negotiation. This opportunity must occur on “bargaining terms of approximate equality” in order ensure that association in order to pursue workplace goals are not “pointless or futile”. In circumstances where the consultation process is carried out correctly, the government can use legislation to change the terms of employment.
 Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27.
 Ontario (Attorney General) v Fraser, 2011 SCC 20.