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May 12, 2015
LEGAL BULLETIN
On April 30, 2015, the BC Court of Appeal
released its decision in the British Columbia Teachers’
Federation v. British Columbia case regarding class
size and composition. The appeal concerned the
issue of “…whether Bill 22 substantially interfered
with teachers’ s. 2(d) right to a meaningful process
by which they could make collective representations
about workplace goals and have those representations
considered in good faith.” (para. 31). The Court
of Appeal overturned the trial judge’s January 27,
2014 decision. The majority of the Court of Appeal
concluded that:
• Bill 22 was constitutional (para. 6).
• “…Bill 22 did not substantially interfere with
teachers’ s. 2(d) freedom to associate and make
collective representations, through the BCTF,
in furtherance of their shared workplace goals.”
(para. 42).
• “[b]etween the consultations and the collective
bargaining leading up to the legislation,
teachers were afforded a meaningful process in
which to advance their collective aspirations.
Their freedom of association was respected.”
(para. 6).
• the provisions which Bills 22 and 28 deleted
from the teacher collective agreements “have
not been included in any collective agreements
since 1 July 2002.” (para. 274).
The BC Teachers’ Federation has advised that it
intends to seek leave (permission) to appeal the BC
Court of Appeal’s decision to the Supreme Court of
Canada.
Bill 22 was ruled to be constitutional and it applies
unless the Supreme Court of Canada rules otherwise.
Accordingly, the current teacher collective agreements
do not include the 2002 class size, composition, and
non-enrolling ratio provisions which were previously
deleted as a result of Bill 22.
Below please find some background information
regarding the BCTF v. BC case.
Backgrounders and Summaries:
• Harris & Company LLP summary of the
Court of Appeal decision, May 1, 2015
• BCSTA Backgrounder, February 28, 2014
(please see attached)
Court decisions
• BCTF v. BC, 2015 BCCA 184 (April 30, 2015
BC Court of Appeal decision)
• BCTF v. BC, 2014 BCCA 75 (February 26,
2014 BC Court of Appeal decision regarding
province’s application to stay the January 27,
2014 BC Supreme Court decision)
• BCTF v. BC, 2014 BCSC 121 (January 27,
2014 BC Supreme Court decision)
• BCTF v. BC, 2011 BCSC 469 (April 13, 2011
BC Supreme Court decision)
Districts may wish to consult with BCPSEA
regarding any specific labour relations or contract
interpretation questions that arise out of the BCTF v.
BC decision. n
February 28, 2014: LEGAL BULLETIN
BACKGROUNDER
BC Supreme Court decisions
The decision of Justice Griffin concerns the following
legislation:
• Bill 28: This legislation enacted in 2002
resulted in deletion of class size, class
composition and non-enrolling ratio
provisions from the teacher collective
agreements, and also prohibited bargaining on
those issues.
• In 2011, the Court ruled that Bill 28
contravened the Charter but suspended the
declaration of invalidity for a year to allow
government time to address the repercussions
of the decision; for example, by enacting new
legislation. At the same time, the Court noted
that the BCTF had reserved the right to argue
any additional remedies and could seek a
further hearing in that regard.
• Bill 22: This was legislation enacted in
2012 which continued the deletion of the
collective agreement provisions but ended
the prohibition against bargaining on those
matters effective June 30, 2013.
Following the 2011 Court decision, the BCTF
returned to the BC Supreme Court with an
application for remedies regarding Bill 28, as well as
an order striking down the new Bill 22 legislation
and for remedies regarding the new legislation.
The Court awarded remedies including the
restoration of the deleted provisions to the collective
agreements with retroactive effect to 2002. This
restoration had the effect of allowing grievances to
be filed for alleged past violations of these clauses.
The Court also stated that it would be in the interests
of the BCTF and BCPSEA to negotiate an overall
resolution to such claims in bargaining.
Following the decision of Justice Griffin, the BCTF
filed provincial grievances with BCPSEA and local
unions have filed grievances in a number of school
districts. BCPSEA met with the BCTF prior to the
stay decision to discuss the provincial grievances.
BC Court of Appeal decision: Stay
application
On February 26, 2014, the Court of Appeal granted
a stay of Justice Griffin’s ruling regarding the
deleted collective agreement provisions, pending the
resolution of the appeal. The test for a stay requires
the following:
• A serious question to be tried;
• Irreparable harm should the stay not be
granted; and,
• The balance of convenience and public interest
considerations favour a stay.
The Court of Appeal concluded that all three parts of
the test had been met.
With respect to the factor of irreparable harm,
the Court of Appeal accepted that there were
significant potential consequences for school districts
in attempting to implement restored collective
agreement provisions prior to the resolution of the
appeal. The Court noted that irreparable harm would
arise from making changes to the school system to
implement the lower court ruling if there turned out
to be no legal obligation to do so on the appeal.
The Court also noted that
… [t]here is no genuine prospect that this
appeal could be heard and decided leaving
time before the start of the 2014 school year,
either to implement the judgment for the
2014 school year if the appeal is dismissed,
or make whatever adjustments would follow
from the appeal being allowed. [para. 34] n