Sunday, June 8, 2014

Delay, legislate, litigate, repeat

Reasons for Judgment, Madam Justice S. Griffin, January 2014

The hearing before this Court follows on the Court's declaration on April 13, 2011 that legislation interfering with teachers' collective bargaining rights was unconstitutional as a breach of s. 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association. 

The legislation at issue deleted collective agreement terms and prohibited collective bargaining having to do with a range of working conditions, many having to do with class size and composition and the number of supports provided in classes to students with special needs.

The freedom of workers to associate has long been recognized internationally and in Canada as an important aspect of a fair and democratic society.  Collective action by workers helps protect individuals from unfairness in one of the most fundamental aspects of their lives, their employment. 

Normally the result after legislation is determined by a court to be unconstitutional is that it is struck down.  This is part of Canada's democratic structure, which requires that governments must act legally, within the supreme law of the country, the Constitution.

Here this result was suspended for twelve months to give the government time to address the repercussions of the decision. 

The government did not appeal.

After the twelve months expired, the government enacted virtually identical legislation in Bill 22, with the duplicative provisions coming into force on April 14, 2012. 

The over-arching question, then, is whether there is something new that makes the new legislation constitutional when the previous legislation was not.

The government argues there are two new facts that make the new legislation constitutional.

First, the government argues that its "good faith consultation" with the union after the first court decision declaring legislation to be unconstitutional, essentially immunized the subsequent duplicative legislation from a similar constitutional challenge.  This Court concludes otherwise.  The government discussions with the union did not cure the unconstitutionality of the legislation.

The Court has concluded that the government did not negotiate in good faith with the union after the Bill 28 Decision.  One of the problems was that the government representatives were pre-occupied by another strategy.  Their strategy was to put such pressure on the union that it would provoke a strike by the union.  The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union.  

The second argument by the government is that the new legislation has a critical difference from the otherwise identical legislation found to be unconstitutional, and that is that one of the two branches of the legislation was time limited. 

There were two branches to the Bill 28 legislation previously declared unconstitutional.  One was a deletion of existing terms in the collective agreement and a prohibition on including terms in the collective agreement in the future regarding these working conditions.  The second was a prohibition on collective bargaining over certain working conditions. 

The government argues that there is a crucial difference between the Bill 22 package of legislation and the earlier legislation declared unconstitutional, in that in Bill 22 it temporally limited the second branch of the legislation:  the continued prohibition on collective bargaining about the working conditions terms was extended until the end of June 2013 and then repealed. 

However, in Bill 22 the government re-enacted legislation identical to that first branch of what was previously declared unconstitutional, namely, the deletion and prohibition of hundreds of collective agreement terms on working conditions.

The Court concludes that there is no basis for distinguishing the new legislation from the previous findings of this Court.  The new duplicative legislation substantially interferes with the s. 2(d) Charter rights of teachers, which protects their freedom to associate to make representations to their employer and have the employer consider them in good faith.

As a result, the Court finds the duplicative legislation in Bill 22 to be unconstitutional, namely s. 8, part of s. 13, and s. 24, set out in Appendix A.  The unconstitutional provisions that have not already expired, ss. 8 and 24, are struck down.

When legislation is struck down as unconstitutional, it means it was never valid, from the date of its enactment.  This means that the legislatively deleted terms in the teachers' collective agreement have been restored retroactively and can also be the subject of future bargaining. 

Striking down the unconstitutional legislation will have implications for teachers and their employers but both sides will have interests in resolving these implications through collective bargaining and the tools already existing to resolve labour disputes.

The Court has also concluded that it is appropriate and just to award damages against the government pursuant to s. 24(1) of the Charter.  This is in order to provide an effective remedy in relation to the government's unlawful action in extending the unconstitutional prohibitions on collective bargaining to the end of June 2013.  The government must pay the BCTF damages of $2 million…

In The Court of Appeal for British Columbia, February 2014, acting in Chambers, Mr. Justice Harris stayed Justice Griffin's judgment, pending an appeal. Harris did not consider the merits of the province's appeal.

From the beginning of its dispute with teachers, Liberal government actions showed contempt for equity. In the first year of its first term, according to Justice Griffin, while the BCTF and BC Public School Employers (BCPSEA) negotiated, the ministry of education was consulting with BCPSEA "on potential legislative changes that could reduce the scope of collective bargaining. BCTF was not consulted about the potential legislation."

When negotiations failed, as they were almost bound to do with conflicting action behind the scenes, the BC Liberal government passed Bills 27 & 28. BCTF began a legal challenge in May 2002. Bill 28 required the appointment of an arbitrator to review the collective agreement, determine what provisions had to be removed, and then remove them. After the first three arbitrators resigned, the fourth arbitrator dismissed BCTF objections and deleted extensive provisions in the collective agreement. Soon after, the Supreme Court quashed the arbitrator's decision. Within a year, federal Liberals made the fourth arbitrator, lawyer Eric Rice, a judge of the BC Supreme Court.

In 2004, Liberals passed the Amendment Act, which effectively restored the arbitrator's decision by deleting all sections of the collective agreement the arbitrator had deleted. The fight has continued ever since, with delay after delay, precipitated by government tactics.

In 2011, Justice Griffin wrote extensive reasons for judgment in which she ruled provincial legislation to be unconstitutional interference with teachers' rights. The court declaration was suspended for a year to allow the government time to address the repercussions of this decision. Their response was to pass another law that was essentially the same.

That resulted in a new court case and another trial like the one that ended in 2011. Surprising absolutely no one, the subsequent case was decided in favour of the BCTF, as noted above.

Millions of dollars enriched numerous lawyers, the Supreme Court repeatedly ruled against the BC Liberals, yet nothing is resolved after a dispute of 12 years. One side has sufficient control and financial resources that it can ensure the court process moves at a pace that would make a tired snail impatient. Despite repeated losses in courtrooms, government has continued on the same course it still follows. It prefers the status quo; conflict with teachers serves its anti-labour philosophy and Liberals calculate it helps them politically.

In addition to squadrons of lawyers billing taxpayers between $500 and $1,500 an hour, Liberals employ spin masters and social media trolls tasked with demonizing the very profession that may matter most to the success of future generations.

The Supreme Court of Canada must act to stop governments from stalling single issues in an endless cycle of delay, legislation, litigation and re-legislation. This current top court might do that, bringing Harper's Government to regret disrespecting the Chief Justice. Particularly, if as it seems on the prostitution issue, Harper's minions rely on circular reintroduction of unacceptable laws as Clark's government has done.

In his recent column, Andrew Coyne described a situation that Chief Justice Beverley McLachlin's court may deal with soon.

"The prostitution bill. The Supreme Court having tossed out the old laws as a violation of prostitutes' constitutional right not to be beaten or murdered (I paraphrase), it was expected the government would opt for the "Nordic model," criminalizing the purchase of sex rather than the sale, as a replacement — a contentious but tenable response to the Court's decision. It was not expected it would, in effect, fling the ruling back in the Court's face. Not content with leaving the impugned provisions, but for a few cosmetic changes, essentially intact, the government imposed new restrictions, for example banning prostitutes from advertising: not just in violation of the Constitution, it would seem, but in defiance of it. The bill is written as if calculated to provoke another confrontation with the Court, ideally in time for the next election."

Inappropriate actions when elected officials respond to court declarations are startling. In these cases, attitudes of extreme arrogance convince politicians they are above rules that apply to others. David Owen, a British ex-cabinet minister trained in psychiatry, described symptoms of hubris syndrome:

• A narcissistic propensity to see one's world primarily as an arena in which to exercise power and seek glory

• A disproportionate concern with image and presentation

• A messianic manner

• Excessive confidence in own judgment and contempt for advice

• Exaggerated self-belief, bordering on omnipotence

• A belief that one is accountable solely to history or god

• Loss of contact with reality; often associated with progressive isolation

• Restlessness, recklessness and impulsiveness

Owen admits that while in the theatre of national politics, he suffered a tendency to hubris and believes the syndrome affects many modern leaders. In most activities, particularly private life, checks and balances constrain our behaviour. If we live outside generally accepted rules of conduct, there are prices to pay. Literally, there's a heavy price to pay if you are on the losing end of successive legal actions. Christy Clark and Stephen Harper are not so constrained.

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  1. .. brilliant reference and analysis.. Harper & Clark are pathetic examples, political abusers.
    As these reckless deceivers proceed, they are aided and abetted by fully complicit partisans.. and none actually have a concern for the electorate or citizenry, law or Constitution.

    It would be wonderful to have an exemplar such as a current or retired supreme court judge, offer a brief illuminating appraisal of Harper's or Clark's actions and lack of due consequence. Such a document could be utilized prior to further elections.. or to assist in driving such political animals to retire in disgrace.

    An excellent example would examine how Harper, Peter Kent and Alberta continued to obstruct the federal courts regarding endangered species.

    Another would be regarding The Harper Government proroguing to evade legal revelations of the Afghan Detainee Scandal.

    How politicians in British Columbia along with Federal Ministers and Harper have evaded scandal regarding farmed salmon versus wild salmon fisheries is shocking. Collusion, denial and obstruction nows seems perfectly acceptable.

  2. Thank you for providing this history. It shows government's dishonest approach to public education and I can't help thinking the ultimate goal is a form of privatization. BC might hope to follow the Louisiana school voucher program and instead of being near the bottom in Canada, we can aim to be among the worst of North America. Neo-liberals usually seem happy to fire the starter's gun in any race to the bottom.

  3. So lawyer Eric Rice took on a job from which three other arbitrators bailed, had his Liberal friendly award promptly thrown out by the courts and shortly after, Liberals rewarded Rice with a much desired spot on the Supreme Court, with its handsome salary and even more handsome pension after a few years of service. Unconnected events, of course.

    A bit like the strange shuffling of judges in the Basi Virk case. Things were not going well for government after the judge made a number of rulings about document disclosures. Suddenly, the judge was gone, promoted to the appeal court. So in comes a new judge who was also made the Assistant Chief Judge of the S.C. Her cooperation included turning a blind eye to government's $6 million purchase of guilty pleas and agreeing to sentences that were almost meaningless, unmonitored "house arrests." Shortly after, that judge was rewarded with another promotion, this time to the appeal court.

    Lawyers may wonder why they are among the least appreciated workers in North America (Pew & AngusReid) but none of us should wonder.

  4. Excellent analysis, Norm thank you!

  5. scotty on denmanJune 9, 2014 at 11:03 AM

    You said it perfectly: the courts have to stop governments from thumbing their noses at the law. Questions remain: when, for example, do the courts punish individual politicians personally as opposed to levying fines that the tax payers ultimately pay---where's the incentive to smarten up in that?

  6. I am wondering if you would know the answer to a question that has been nagging at me since last week Mr. Farrell. Do you know who and what affiliations are represented on the Labour Relations Board? I was quite shocked at the decision that brought about the 10% reduction in my pay, particularly in light of previous LRB decisions. It has me wondering whether or not the LRB has been "tampered with" as is the BC Liberals' style.

    1. The recent decision of the LRB was by Richard Longpre. He was first appointed to the LRB in 1985 by Bill Bennett's Social Credit Government (Labour Minister Terry Segarty). From an old LRB report,

      "Richard Longpre graduated from the University of British Columbia in 1976
      with a Bachelor of Commerce Degree, majoring. in industrial relations. He
      joined Noranda Mines Limited where over the next four years he negotiated
      collective agreements and co-ordinated labour relations policy amongst the
      Noranda Group of companies in Ontario, the Prairies and British Columbia. In
      1981, Mr. Longpre -joined the Mediation Services Branch of the Ministry of
      Labour as a mediator. After three years with the Branch, he set up an
      independent labour arbitration and mediation practice. In June 1985,
      he was appointed Vice Chair of the Labour Relations Board of B.C.
      and has subsequently held the positions of Vice Chair with the
      Industrial Relations Council and Vice Chair wi th the current Board.
      Mr· Longpre resigned as a Vice Chair effective May 31, 1996; however,
      he continued to serve on a part-time basis until September 30, 1996.

      It seems Longpre left Noranda, which was involved in potash, oil and gas, mining, etc. and joined BC's Labour Ministry about the time Noranda took control of giant BC forestry company MacMillan Bloedel.

      In 1992. the Canadian Film and Television Producers Association hired Richard Longpre to serve as its new vice-president of labor relations for the B.C. branch.

      In 2001, Longpre became Labour Minister Graham Bruce's Assistant Deputy Minister. As Liberal ADM, he handled the strange situation in 2002 that saw appointments of a number of arbitrators in the class composition dispute. The final arbitrator that the Labour Ministry appointed in this matter (they discarded the usual practice of parties jointly agreeing on arbitrator selection) was Eric Rice. He did the what the government wanted but his work was tossed by the BCSC in early 2004.

      In 2005, Longpre was back in the private sector as a consultant. He worked for trucking companies in a dispute with container truck drivers and for private health services company Sodexho. In 2006, he negotiated for Securiguard in a dispute with airport guards.

      Public Accounts records list payments to Longpre FY's 2011,2012 and 2013 as an OIC appointment. Current LRB records show him earning $155,000 as one of five Vice-Chairs in the seven person LRB.

      Considering Longpre's close involvement as Assistant Deputy Minister with the early days of this lengthy dispute, many people would think him the least credible member of the LRB to have acted on the file in 2014. However, as I wrote in the main article, this government has never been concerned about equity in this matter.

    2. That is disturbing!!



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