By Gail L. Gatchalian
As a result of an historic decision issued by the Supreme Court of Canada from the bench on Thursday, November 10, 2016, important language regarding teachers’ working conditions has now been restored to the British Columbia Teachers’ Federation collective agreement with the Province of British Columbia. The Province had deleted those provisions by legislation years ago, leading to a decade long battle by the BCTF to regain those provisions.
The majority of the Supreme Court of Canada expressed “substantial” agreement with the reasons of Justice Donald of the BCCA. Justice Donald found that the BC government had failed to engage in good faith consultation with the BCTF before it passed the legislation, thereby depriving teachers of a meaningful process of collective bargaining and breaching teachers’ freedom of association under s.2(d) of the Charter.
Justice Donald’s decision, now endorsed by the Supreme Court, is significant for four reasons.
First, he said that pre-legislative consultations by government are relevant in determining whether government breached employees’ freedom of association. Pre-legislative consultation must be meaningful, and to be meaningful, “the bargaining parties must consult from a position of ‘approximate equality.'”
Second, he said that courts are entitled to assess the substantive reasonableness of the government’s position. If courts could not do this, “government could declare all further compromises in any context to be untenable, pass whatever it wants, and spend all ‘consultation periods’ repeatedly saying ‘sorry, this is as far as we can go.'” As Justice Donald said, “This would make a mockery of the concept of collective bargaining.”
Third, Justice Donald rejected the BC government’s argument that the legislation minimally impaired teachers’ Charter right because the impairment was temporary: the working conditions language was deleted but the BCTF could bargain working conditions again. Justice Donald noted that the BCTF had been fighting for this language for 13 years and should not have to start from scratch.
Fourth, under s.24(1) of the Charter, he ordered that the deleted provisions be put back into the collective agreement immediately.
As Justice Abella stated in the Saskatchewan Federation of Labour case, “Clearly the arc bends increasingly towards workplace justice.”