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Supreme Court: B.C. government breached teacher Charter rights

November 12, 2016

The B.C. government breached the Charter by unilaterally deleting teacher collective agreement provisions.

In 2002, the province of British Columbia passed two pieces of legislation that deleted certain provisions of the collective agreement between the BCTF and the B.C. Public Schools Employers’ Association (which bargains with teachers on behalf of the B.C. government).

Ethan, Steven, Colleen & Peter at the SCC hearing with BCTF counsel, John Rogers

Ethan, Steven, Colleen & Peter at the SCC hearing with BCTF counsel, John Rogers

In 2011, the Supreme Court of British Columbia held that the legislation violated s. 2(d) of the Canadian Charter of Rights and Freedoms and could not be saved under s. 1 of the Charter. As is often the case, the court declared the impugned legislation to be unconstitutional, but suspended the order for a year so that the province could address the decision.

The province then entered into consultations with the BCTF, and the BCTF and BCPSEA entered into collective bargaining. However, neither process was successful. After the year long suspension of the B.C. court’s decision had expired, the province passed new legislation, The Education Improvement Act. The new statute contained some of the same provisions that the B.C. court had previously held to be unconstitutional.

The BCTF challenged the legislation once again. The B.C. Supreme Court held that the case was virtually indistinguishable from the earlier case, and held that the new legislation was also unconstitutional. The court also awarded the BCTF $2 million in damages pursuant to s. 24 (1) of the Charter.

However, a majority of a five-member B.C. Court of Appeal allowed the province’s appeal. It held that the consultations between the province and the BCTF discharged the province’s obligations to engaged in a process of good faith collective bargaining under the Charter. The Honourable Mr. Justice Donald dissented from the concurring judgments of his four colleagues.

The BCTF appealed to the Supreme Court of Canada. The appeal was heard on November 10, 2016 and, after it heard the parties’ arguments, the Supreme Court took the unusual step of delivering its decision from the Bench:

The Chief Justice — The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald. Justices Côté and Brown would dissent and dismiss the appeal, substantially for the reasons of the majority in the Court of Appeal

In his dissenting reasons, substantially adopted by the majority of the Supreme Court of Canada, Justice Donald of the B.C. Court of Appeal held:

… I would dismiss the [province’s] appeal in regard to the trial judge’s finding that Bill 22 is unconstitutional. I would allow the appeal in regard to the trial judge’s additional damages remedy and her declaration that Bill 28 was of no force or effect as of the date of its passage, but I would substitute a remedy pursuant to s. 24(1) of the Charter and order the Minister of Education to direct the public administrator for the BCPSEA appointed under s. 9.1 of the Public Sector Employers Act to reinstate the Working Conditions into the collective agreement immediately.

Steven Barrett and Ethan Poskanzer represented the intervenor Canadian Labour Congress in the appeal.

Peter Engelmann and Colleen Bauman represented a group of intervenors comprised of the Professional Institute of the Public Service of Canada, the Association of Canadian Financial Officers, the Association of Justice Counsel – Canada, and the Canadian Association of Professional Employees.



Steven Barrett, Peter Engelmann, Ethan Poskanzer, Colleen Bauman

Practice Areas

Appeals & Judicial Review, Constitutional Law, Labour Law