The BC Government vs. Freedom of Association in British Columbia Teachers’ Federation v British Columbia
Much has changed this year with the Supreme Court of Canada’s (“SCC”) new “labour trilogy” of Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 [Mounted Police], Meredith v Canada (Attorney General), 2015 SCC 2, and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 [Saskatchewan]. These cases help define the scope of the SCC’s changing position on freedom of association—yet, at the same time, leave much to be answered.
The emergence of the right to strike and the “purposive and generous approach” to interpreting the right to freedom of association represents a shift in the SCC’s position away from the restrictive approach to section 2(d) expressed in the previous “labour trilogy” (Reference Re Public Service Employee Relations Act (Alberta),  1 SCR 313; Retail, Wholesale and Department Store Union v Saskatchewan,  1 SCR 460; and Public Service Alliance of Canada v Canada,  1 SCR 424.
It is this context—where the SCC has shown a willingness to expand the scope of freedom of association—that will influence whether it will grant leave to appeal from the recent BC Court of Appeal decision in British Columbia Teachers’ Federation v British Columbia, 2015 BCCA 184 [BC Teachers].
At issue at the British Columbia Court of Appeal (“BCCA”) in BC Teachers was the trial judge’s assessment of the pre-legislative consultation conducted by the BC Government with teachers before passing the Education Improvement Act, SBC 2012, c 3. The trial judge had found that the Province did not consult in good faith before passing the legislation—which would unilaterally void terms from the teachers’ collective agreements and prohibit collective bargaining on certain working conditions, including class sizes and student supports.
The trial judge also noted that nearly identical legislation had been struck down in a previous trial in British Columbia Teachers’ Federation v British Columbia, 2011 BCSC 469, but the BC Government did not appeal that decision. Instead, the Government responded with the nearly identical legislation, which was also struck down as unconstitutional in a subsequent decision by the British Columbia Supreme Court (“BCSC”) in British Columbia Teachers’ Federation v British Columbia, 2014 BCSC 121.
Despite no real changes in the new legislation, the BC Government, when challenged again in court, argued that the unconstitutionality of the legislation had been cured by the fact that the Government had consulted with the union before passing the legislation.
At the trial level, the issue between the union and the Government hinged on the definition of “a process of consultation and good faith negotiation.” This raised a number of issues: What constitutes good faith negotiation? Do governments fulfill the “good faith” requirement by merely meeting with the affected union before unilaterally pressing forward with legislation? Or does “good faith” require something more significant?
In this particular case, the trial judge noted that the legislation must be considered in terms of how it actually affects the process of bargaining and consultation. Thus merely going through a series of procedures before passing legislation will not fulfill meaningful consultation. As a result, the trial judge concluded that the consultation that the Government argued it had conducted had not met a standard for meaningfulness required of consultation, and as set out in Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia,  2 SCR 391 [Health Services].
Given the factual finding and this critique by the trial judge of the BC Government’s actions, it is somewhat surprising that a majority of the BCCA reversed the trial judge’s decision and held in favour of the Government. This is especially so given the judicial practice of deference to the findings of fact of trial judges—a principle previously affirmed in Housen v Nikolaisen,  2 SCR 235. In that case it was noted that appellate courts should not reverse findings of fact unless the trial judge made a “palpable and overriding error.” It does not appear that the trial judge made such an error in this case and thus it is surprising that the BCCA reversed the findings of fact.
In contrast with the majority, Justice Donald dissented in upholding the finding of the trial judge that the Province did not engage in good faith consultations with the teachers before passing the legislation. As a result, Justice Donald found the legislation to infringe section 2(d) of the Canadian Charter of Rights and Freedoms [Charter] and to not be justified under section 1.
Despite this factual context and the limitations on appeal courts to not overturn findings of fact unless there is “palpable and overriding error,” however, the majority of the BCCA elected to re-examine the evidence. In re-examining the evidence, the majority noted that the trial judge erred in concluding that the pre-legislative consultations by the Government with the union did not satisfy section 2(d) of the Charter.
Interestingly, the majority held that the trial judge’s constitutional analysis “effectively gives employees a presumptive veto over legislative changes to their collective agreement, subject only to s. 1” (para 55). However, the SCC recently criticized this type of reasoning in Saskatchewan—the majority in that case was critical of the dissent’s lament that a generous yet purposive approach to rights’ interpretation would tip the balance of power too far in favour of workers’ rights.
In other words, the majority in Saskatchewan was critical of the dissent’s concern for unions gaining too much power in relation to employers if a right to strike were granted:
In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying. It drives us inevitably to Anatole France’s aphoristic fallacy: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread’ (para 56).
The majority in Saskatchewan was speaking of the approach taken by Justice Rothstein in his dissent in that case. It is significant in the instant case at the BCCA that the majority also cited Justice Rothstein’s restrictive approach to freedom of association in their reasons (para 76). Given that Justice Rothstein has been in the dissent in recent labour law judgments, and that he is cited by the majority in the reasoning here, it seems likely that the majority’s judgment will not be upheld at the SCC on appeal.
In contrast with the majority and their determination that a generous yet purposive approach to freedom of association would give employees a “presumptive veto” over legislation that would effect their working conditions, the dissent of Justice Donald in BC Teachers noted that “if courts were barred from inquiring into the substantive reasonableness of the government’s position, a ‘free hand’ is exactly what the government would have” (para 340). Furthermore, as Justice Donald noted:
The government could declare all further compromise in any context to be untenable, pass whatever it wants, and spend all ‘consultation periods’ repeatedly saying ‘sorry, this is as far as we can go.’ This would make a mockery of the concept of collective bargaining (para 340).
As this excerpt points out, governments must not rely on pre-legislative consultation as a mere “pre-legislative step,” as this circumvents collective bargaining in the public sector. In addition, such high-handed approaches will certainly “substantially interfere” with freedom of association, and as the majority clarified in Mounted Police, “substantial interference” with collective bargaining rights will infringe the right to freedom of association (para 284).
Thus, the dissent turned to the analytical approach to section 2(d) espoused in Health Services to situate pre-legislative consultation within the context of the BC Government’s attempt to unilaterally delete terms from collective agreements (para 281). Further to this, the dissent specified the role that consultation could have to reach the meaningful standard:
If the government, prior to unilaterally changing terms of employment, gives a union the opportunity to meaningfully influence the changes made, on bargaining terms of approximate equality, it will likely lead to a finding that the union was not rendered feckless and the employees’ attempts at associating to pursue workplace goals were not pointless or futile: see SFL at para. 55. Thus, the employees’ freedom of association would likely not therefore be breached (para 287).
The dissent went on, further, to emphasize the factual findings that were made by the trial judge about the lack of good faith in the pre-legislative consultations—despite the BC Government claiming to have met the standard of section 2(d).
The decision at the BCCA is surprising in the context of Health Services, which noted the importance of “meaningful” consultation by governments with unions before passing legislation affecting collective bargaining rights. Meaningful consultation is the standard to be met to uphold the right to freedom of association under the Charter. Yet, on the facts of the instant case, there is no doubt that the government did not consult with the British Columbia Teachers’ Federation (“BCTF”) in any meaningful way before going ahead with the legislation—legislation that limited the scope and topics of collective bargaining. Indeed, this was the finding of the trial judge based on the evidence before her.
In contrast with the expansive approaches to freedom of association enumerated by the SCC in previous cases, the majority in BC Teachers provided a limited scope. The position the BCCA advanced would not provide a negotiation process that employees could “effectively control or influence.” As a result, it is hopeful that the SCC will grant leave to appeal of the decision in BC Teachers.
With respect to the majority of the BCCA, it appears that they erred in their standard of review of the trial judge’s factual findings. Furthermore, given the decision in Saskatchewan, it is doubtful that the SCC will uphold this view if the appeal is heard of BC Teachers. It is hopeful that leave to the SCC will be granted in this case and that the BCTF may finally gain some closure out of the lengthy litigation—and have their collective bargaining rights respected by the BC Government.