British Columbia teachers are presently without a collective agreement.
The issues go back decades. The most recent iteration dates back about 17 years. Class size and class composition have been key issues. Class composition refers to the number of special needs students integrated into a class.
In 2002, the then newly elected provincial government engaged in massive cost cutting. Health care, workers’ compensation, and education all suffered deep cuts. The result? Costly litigation.
I have previously written about problems in the workers’ compensation system as a result of these cuts.
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 British Columbia Teachers’ Federation (BCTF) was forced to continue with its legal challenge to Bill 28, even though Bill 28 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. In two weeks, we will look at where we are at now.
This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about October 11, 2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or through our website at inspirelaw.ca.
