Because two members of my family are teachers, I will therefore limit my comments on the ongoing contractual dispute between the teachers and the government to its constitutional aspect.
At the same time, I do, as many others, regard the constitutional aspects of the dispute being at the heart of the current strike/lockout.
Through the Health and Social Services Delivery Improvement Act of 2002 the government had attempted to curtail the B.C. health workers’ rights to collective bargaining.
Section 6(4) of this Act stated: “A provision in a collective agreement requiring an employer to consult with a trade union prior to contracting outside of the collective agreement for the provision of non clinical services is void.”
The health workers’ challenge ultimately reached the Supreme Court of Canada, and that Court ruled in June 2007 that the freedom of association of health care employees had been infringed upon because the legislation interfered with the workers’ right to a process of collective bargaining.
The court specified that the Charter of Rights protects not the content of a collective agreement, but the collective bargaining process. The Court concluded that s. 6(4) of the Act violated that right.
In 2002 the BC Government also adopted the Public Education Flexibility and Choice Act which imposed limits on the teachers’ collective bargaining rights.
The teachers challenged this law and in 2011 the BC Supreme Court, referring to the above Supreme Court ruling, declared those sections of the Act which imposed limits on collective bargaining rights to be unconstitutional and invalid.
The Court allowed the government one year to bring the legislation into compliance.
The government, however, did not heed the Court’s advice and instead it merely reshuffled the wording of the law to improve its appearance while retaining its original intent.
The teachers, not surprisingly, went back to court.
In this second case the BC Supreme Court ruled that the legislation that was ruled unconstitutional because it interfered with rights guaranteed under the Charter had been re-enacted in substantially the same form.
The Court was not amused.
It declared the unconstitutional sections of the legislation to be invalid from the date they came into force, allowing no time to correct the problem.
The Court also ordered the government to pay the teachers $2 million in damages in addition to costs.
It is reasonable to accept that the government believed its 2002 laws dealing with health workers and teachers to be in compliance with the Charter.
What is not reasonable is the B.C. government’s refusal to change its approach to public sector collective bargaining after the Supreme Court of Canada had ruled that the limits on collective bargaining it had imposed on health workers went beyond what is permitted by the Charter of Rights.
Section 1 “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Among the many precedents cited by the BC Supreme Court in its 2011 decision on the Public Education Flexibility and Choice Act was the Supreme Court of Canada’s decision on the Health and Social Services Delivery Improvement Act.
Not surprisingly the B.C. government’s persistent ignoring of judicial interpretations of the Charter of Rights landed it in court yet again.
Three consecutive court defeats were not enough to convince the government to revise its labour strategy, and it decided to appeal.
The Court of Appeal is likely to have the last word; it is unlikely that the Supreme Court of Canada would agree to hear a further appeal in a matter it has only recently dealt with.
The fear of the consequences of losing at the Court of Appeal drove the government to provoke a strike by teachers. The government hoped to create such economic hardship and political turmoil as to force the teachers to surrender their Charter rights. Surrender by teachers would provide governments with a precedent of how to marginalize the citizens’ Charter rights.
Andre Carrel is a retired public sector administrator living in Terrace, B.C.
