What the Court Said, and What It Means for BC Schools

Premier Clark says decision 'put disputes behind us.' Don't count on it.

By Crawford Kilian 1 May 2015 | TheTyee.ca

Crawford Kilian is a contributing editor of The Tyee.

The B.C. Court of Appeal yesterday decided in favour of the government in its long-running dispute with the BC Teachers' Federation. This follows two Supreme Court decisions supporting the teachers' lawsuit against the breaking of their contract with Bill 28 in 2002, which stripped class size and composition out of the collective agreement. With one dissenting voice, the Court of Appeal said that was acceptable. But it did so in terms that make the union's appeal inevitable.

The case has been going on since Christy Clark was minister of education under Gordon Campbell in 2002, and it's a key factor in the continuing friction between teachers and government. The issue has developed so much momentum that the Court of Appeal couldn't resolve it. Whoever won, the losers were certain to take their case to the Supreme Court of Canada.

The long decision is now being studied by legal experts on both sides, and may offer some grounds for new arguments. For example, the majority of justices said when Bill 28 was enacted in 2002, the "conventional wisdom" was that collective bargaining was not protected by the Charter of Rights and Freedoms. When another case resolved the question in 2007, the court said, this was "a substantial change in the law," rather than an affirmation of an existing Charter protection.

Maybe that gets the BC Liberals off the hook, but plenty of governments pass "constitutional" laws later found to be otherwise, and later governments have been stuck with bills incurred by their predecessors. Restitution for the damage done by residential schools is only one example.

Similarly, the Court of Appeal flirted with the fallacious argumentum ad bolsum (argument to the purse) when it said the province might face "liability in the order of $500 million. In our opinion, that sum is such that a retroactive declaration would unduly interfere with the Legislature's constitutional role in allocating public resources."

Note that the court didn't dismiss the liability out of hand as retroactive; it's the size of the liability that the justices objected to, essentially rewarding the government for stealing on such a large scale.

A half-hearted dissent

The Court also ruled that Bill 22, which the government had passed three years after the Supreme Court declared Bill 28 unconstitutional, is also constitutional. In his dissenting opinion, veteran Justice Ian Donald tried to find an alternative. The Supreme Court judge, he argued, had been right to say Bill 28 had interfered with teachers' Charter rights, and that Bill 22 was unconstitutional.

But rather than demand $500 million be restored to the schools, Justice Donald advised putting working conditions back into the collective agreement "immediately." It's unclear what effect this would have when the teachers are locked into a contract with five years still to run, and by not restoring funding, it would effectively write off not just the generation of students who've gone from kindergarten to Grade 12 under the Liberals, but the next generation as well.

In the government's first response to the decision, a smiling Premier Christy Clark told a press conference that the "clear, unambiguous" decision created a chance to "focus on what's really best for students." She called on government and teachers to "work together and put disputes behind us." Clark called teaching a "noble profession" and repeatedly called the decision an "opportunity."

But her flattery of teachers rang hollow. Had she said, "I know the teachers are bitterly disappointed by this, but we're ready to put more money into the system to try to address some of their real concerns," she might have taken some moral high ground. Instead, she just looked too well-bred to gloat openly about her win.

Also at the press conference, Education Minister Peter Fassbender endorsed the premier's statement and said his ministry would work "in the best interests of students and teachers." His platitudes took only a few minutes to deliver, but again the absence of real conciliation was eloquent.

BCTF President Jim Iker, at another press conference, seemed stoic but unsurprised by the decision, and noted that the earlier decision ruling Bill 28 unconstitutional still stood. He said the teachers were "absolutely committed to take this to a higher level," the Supreme Court of Canada.

"If the Supreme Court doesn't hear it," he said, "that may be the end of the road." He called on the government to "pull back" on underfunding and put contingency funds into the schools. He also asked it to withdraw Bill 11, suggesting that with adequate funding, teachers would be happy to talk with government on how best to use it. If the case does go to the Supreme Court of Canada, Iker estimated that it might take a couple of years to get a final decision.

Who'd want to be a teacher?

In the interim, despite Christy Clark's appeal to "put disputes behind us," the atmosphere in B.C. education will remain sour. With no prospect of restored working and learning conditions, many experienced teachers are likely to retire at the first opportunity.

Recruiting and retaining new teachers may pose problems as well. The current pattern is to put in several years as a "teacher on call," doing substitute teaching while waiting for a permanent job to open up. But the least senior teachers are the first to be laid off when programs are cut and schools are closed. Students with new B.C. teaching credentials may reasonably decide that some other part of Canada (or the U.S., or overseas) offers more attractions.

B.C. School Trustees Association President Teresa Rezansoff said she wasn't sure how boards might be affected, since the decision was so new and the association had not yet fully interpreted it. But she was not surprised that the BCTF planned to seek leave to appeal.

Rezansoff's caution is understandable. Under the new Bill 11, the government will assume still greater power over school boards, including "special advisors" that hark back to the ancient days when Victoria appointed supervisors to tell rustic, half-educated school trustees how to do their jobs. After more than half a century of community-controlled schools, we seem to be going back to centralized control; trustees' chief role now is to decide which programs must die and which may live (at least until next year), and too bad what local parents and taxpayers think.

Coming late in the school year, the Court of Appeal's decision won't be felt immediately. Not until the Supreme Court of Canada rules on this case will B.C. schools see a real opportunity for stability and improvement.

And if that court refuses to hear the case, the schools will indeed be, as Iker put it, "at the end of the road."  [Tyee]

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