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Summary

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Charter of Rights – Constitutional law – Freedom of association – Right to collective bargaining – Prohibition of collective bargaining on certain topic – Law declared unconstitutional and invalid – The provincial government held pre-legislative consultation with the Federation on the remedial legislation – Whether pre-legislative consultations are relevant in the assessment of a breach of right to bargain collectively – Whether the Courts can inquire in the reasonableness of the parties’ position and the good faith of the negotiation at the pre-legislative stage – Education Improvement Act, S.B.C. 2012, c.3 – Canadian Charter of Rights and Freedoms, ss. 1, 2(d)

In 2002, the province of British Columbia passed two statutes dealing with collective agreements for public sector workers in the field of education, the Education Flexibility and Choice Act, S.B.C. 2002 c.3 and s. 5 of the Education Services Collective Agreement Amendment Act, 2004, S.B.C. 2004, c.16. The legislation deleted collective agreement terms between the applicant, the British Columbia Teachers’ Federation (BCTF) and the British Columbia Public School Employers’ Association (BCPSEA), the exclusive employer bargaining agent for the Province of British Columbia, the defendant. The legislation also prohibited future bargaining on certain issues.

In 2011, the Supreme Court of British Columbia found that the legislation was unconstitutional because it infringed s. 2 (d) of the Charter and that the infringement was not justified under s. 1 of the Charter. The Supreme Court of British Columbia declared the law unconstitutional, but suspended the order for 12 months to grant the Province time to address the decision.

Following the decision, consultations between the Province and BCTF and collective bargaining between BCTF and the respondent BCPSEA occurred simultaneously but in both cases the parties were not able to reach an agreement and declared an impasse. Upon expiration of the suspension period, the Province enacted a new statute, The Education Improvement Act, S.B.C. 2012, c.3, that included sections previously declared unconstitutional by the Supreme Court of British Columbia.

BCTF challenged the constitutionality of The Education Improvement Act based on the fact that the Education Improvement Act was virtually identical to the legislation previously declared unconstitutional by the Supreme Court of British Columbia. The trial judge found that there was no basis to distinguish the new legislation from the previous finding of unconstitutionality and granted the BCTF declaratory relief plus $2 million in damages pursuant to s. 24 (1) of the Charter. The Court of Appeal for British Columbia allowed the appeal and found that the consultation were undertaken in good faith and that the context in which the new legislation was enacted was relevant to its constitutionality. The award of Charter damages was set aside.

Lower Court Rulings