B.C. Teachers’ Federation to appeal court decision at Supreme Court

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B.C. teachers who have spent more than a decade trying to regain control of classroom conditions have been dealt a significant blow by Appeal Court judges who have ruled that the government acted lawfully when it stripped them of certain bargaining rights.

The B.C. Teachers' Federation said it will seek leave to appeal to the Supreme Court of Canada, further delaying an end to a dispute that has hung over classrooms for as long as some students have been in school.

The B.C. Court of Appeal also rejected a lower-court judge's conclusion that the government acted in bad faith three years ago and attempted to incite a strike – a finding that propelled teachers' frustration through the weeks-long labour stoppage last spring and fall.

The five-judge panel issued its 4-1 decision on Thursday, with the majority concluding that the government did not violate teachers' rights with legislation passed in 2012 that ended a labour dispute at that time. That legislation mirrored a similar law, passed in 2002, that was ruled unconstitutional after it stripped contract clauses related to classroom size and composition.

The appellate court said the government's consultations with the union before the 2012 legislation was enacted were relevant and that the trial judge, Justice Susan Griffin, made factual and legal errors when she concluded the province had acted in bad faith.

Jim Iker, president of the BCTF, said he felt the decision did not give sufficient weight to recent Supreme Court of Canada rulings about collective bargaining rights.

"This ruling swings the power too far against workers' rights," he said. "A government should not be able to just dictate what they want, simply talk to the union, and force it by legislation when there are collective agreements in place."

While Mr. Iker is hopeful the Supreme Court of Canada will hear the appeal, he acknowledged it may not.

"If they don't, that may be the end of the road on this one," he said.

B.C. Chief Justice Robert Bauman and Justice David Harris authored the decision, which was supported by two other judges. Justice Ian Donald, a former labour lawyer, dissented, saying that while the consultations were relevant, Justice Griffin's findings of fact must be respected.

"The appellate function is not to substitute the findings and inferences made by a judge who has had the full benefit of the trial process with an appeal divisions own opinions of the facts," Justice Donald wrote in part.

"I disagree that the trial judge made any palpable and overriding errors of fact."

The earlier court ruling awarded the union $2-million in damages, which will now be returned to the government, Mr. Iker said.

In a second judgment, also released Thursday, the court ruled the union's unredacted written submissions – which referenced confidential cabinet documents – will not be released to the public. The union says they contain evidence the government attempted to incite a strike, among other things.

After successive and significant losses in the courts, the Appeal Court decision marked a major victory for the Liberal government and officials in Victoria expressed relief.

Premier Christy Clark, who was the minister of education when the province first stripped the teachers' contract, noted that the education system has not disintegrated in the 13 years since that decision. In fact, she said outcomes have improved.

"But we have more to do, particularly in an ever-changing world," she said. "I think we should take this opportunity to put disputes behind us and work together and aspire for the best education system anywhere in the world."

The Premier said the ruling, along with last fall's six-year contract with the union, will help secure labour peace in classrooms.

The win by the province suggests the teachers did well to negotiate a $105-million retroactive grievance fund in their last round of bargaining as an alternative to pursuing retroactive damages later if the teachers had won. That money has already been dispersed and was not, by this court's reckoning, owed to teachers.

The union has 60 days to appeal to the Supreme Court of Canada, which will then decide whether to hear the case. Joel Bakan, a law professor at the University of British Columbia, said it's possible the court will reject it, as it has already ruled on a number of related labour law cases in recent years.

"On the other hand, the importance of getting the law right on this issue is quite high," said Mr. Bakan, who specializes in constitutional law. "A good case could be made for it, it's one of national importance."

In 2014, there were 80 appeal applications from the B.C. Appeal Court; only eight were heard.

Parents who spoke to The Globe and Mail expressed worry and frustration at Thursday's decision.

"I'm worried that the government will take today's decision as vindication of its hardball strategy," said Russil Wvong, a father of two. "Like other parents, I wish that the government and the Premier would focus more on working with the teachers to improve education outcomes, not just fighting with the teachers over costs."

Leah Herman called it "a loss for my child, his teacher and this province" and a "heartbreaking blow" to the many special-needs students in her son's classroom.

"In my opinion, the government is celebrating stripping away the potential for enrichment and opportunity in this province," Ms. Herman said.