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Lengthy court case a big challenge for teachers and their union

A BCTF-initiated court case that began almost five years ago has resulted in a very long and highly expensive litigious process
Striking teachers waved at traffic going by Langley Secondary on 56 Avenue in late August, in the midst of the teachers’ strike.

Editor: What BCTF president Jim Iker seems to have forgotten — and plays on people’s benign ignorance of the collective bargaining process between teachers (the BCTF) and the provincial government (BCPSEA) — is that the issue he raises in his letter  (“B.C. Teachers Federation is working on many initiatives,” The Times, Feb. 10) is still before the courts.

When it comes to Iker’s point about the B.C. government funding “the basics like improving class size and composition”, the crux of the matter is that a BCTF-initiated court case that went before the Supreme Court of British Columbia nearly five years ago. It has resulted in a very long and highly expensive litigious process for the BCTF, which has nearly bankrupted the 40,000-plus member teachers’ union.

In the end, it may fail to produce the results that the teachers of B.C. and the BCTF have been hoping for, as the stakes are higher than the $2 billion impact that it may have on the provincial government’s budget. It may have ramifications all the way across the country to the tune of a quarter of a trillion dollars.

As of October, 2014, this protracted case was before the Appeals Court of B.C. regarding what the B.C. government cabinet purported to be confidential information that has not been put forward in this five-year-long process — an issue that has now been resolved in part in the BCTF’s favour with the provincial government being compelled to pay $2 million in costs — but which has not been paid as the provincial government is considering appealing.

And undoubtedly the matter will be taken to the Supreme Court of Canada where it could take years before attaining resolution, which will only acerbate the already soured relationship between the teachers and the BCTF and the B.C. government.

This case was initiated by former Surrey teacher and Surrey Teachers’ Association president David Chudnovsky (1986-88), a former BCTF president (1999-2002), who later was an NDP MLA representing Vancouver-Kingsway from 2005 to 2009.

He challenged what the BCTF feels is impugned legislation interfering with the rights to freedom of association contrary to the Canadian Charter of Rights and Freedoms.

Five years ago, this case went before  Chief Justice Bauman, with the BCTF attempting to impugn the validity of three pieces of provincial legislation:

1. The Educational Services Collective Agreement Act, S.B.C. 2002, c. 1, (also known as Bill 27,);

2. The Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3, (also known as Bill 28); and,

3. The Education Services Collective Agreement Amendment Act, S.B.C. 2004, c.1, (also known as Bill 19 – 2004).

The alleged infringement was found by Justice Bauman not to be a reasonable limit demonstrably justified under section 1 of the Charter.

Not taking no for an answer, the BCTF challenged what they felt was ‘impugned’ legislation (Bills 27 and 28) before Madam Justice S. Griffin.

In her 78-page ‘Reasons for Judgement – In Chambers’, Madam Justice Griffin concluded that the B.C. Government infringed the teachers’ freedom of association guaranteed under the Charter and that the infringement — speaking to Sections 8 and 15 of the Public Education Flexibility and Choice Act (Bill 28) — was not a reasonable limit demonstrably justified in a free and democratic society under Section 1 of the Charter.

Justice Griffin did not find that the provincial government had infringed the teachers’ freedom of association as it pertained to Section 4 of the Education Services Collective Agreement Amendment Act (Bill 19 – 2004).

She gave the provincial government a year to address the repercussions of her decision, suspending the invalidity of the legislation for 12 months.

A year and a half later, she made an oral ruling which,  in essence, dismissed the BCTF’s application and advised the teachers that her previous judgement was precise and unambiguous in its direction.

Pushing the envelope, the BCTF made further application to Madam Justice Griffin, citing four instances where their rights had been violated; however, the justice advised both parties, the BCTF and the provincial government, to communicate with each other more effectively, before any further judicial action was to be taken.

In this lengthy process-oriented series of court appearances, Justice Griffin made a further judgement regarding the BCTF’s application for production of confidential cabinet documents, noting that the documents sought were not relevant and were not needed to be produced by the provincial government.

If that wasn’t enough, the BCTF challenged the issue once again on Jan. 13, 2014 and Madam Justice Griffin ruled in favour of the BCTF.

In concluding his letter, BCTF president Iker stated that “a change in government attitude towards funding is the first adaptation (that) B.C. students need.”  I agree.  But I don’t think he should hold his breath.  The current B.C. government is primarily former Social Credit and Reform Party of B.C. members with only one true Liberal — and she is now the Speaker of the House and only votes when there is a tie vote on a bill.

The B.C. ‘Socred/Reform’ Liberal Party is ideologically committed to a balanced budget and reducing the provincial debt.

Yes, the province’s teachers are leading the way, but the significance of their demands made before the Supreme Court of B.C. and the B.C. Court of Appeals since 2010 has massive implications for the control of educational policy throughout the country.

It will cost billions if the teachers’ unions were to gain the power of deciding policy regarding education throughout the country.

Perhaps the BCTF and its member associations and the 40,000-plus teachers need to start a door-to-door campaign soliciting support from industrial, commercial and residential taxpayers to pressure the government in increase the provincial debt                        by another $2 billion to meet their aspirations.

I wish him the very best of British luck on that.

G.E. Macdonell,