British Columbia Teachers' Federation v. British Columbia, 2016 SCC 49

The Supreme Court of Canada upholds the right to collective bargaining for teachers’ union

In a case concerning the employment contracts of teachers across the province of British Columbia, the Supreme Court of Canada, Canada’s highest court, has upheld the right to collective bargaining under the freedom of association guarantee {S. 2 (d)} enshrined in the Canadian Constitution. This case has significant positive implications for workers’ rights particularly as it relates to the right to collective bargaining. The case also highlights the interdependence of all economic, social and cultural rights, as it positively (albeit indirectly) impacts the human right to education, particularly with respect to issues of access and quality, especially as concerns students with special needs. 

Date of the Ruling: 
Nov 10 2016
Supreme Court of Canada
Type of Forum: 

On 10 November 2016, in a decisive victory for workers’ rights, the Supreme Court of Canada (SCC) upheld the constitutional right to the freedom of association {S. 2 (d)}, delivering a 7-2 decision in favor of the British Columbia Teacher’s Federation (BCTF), the labour union that represents all public school teachers in the province of British Columbia (BC).

The judgment is the culmination of a 14-year legal battle precipitated in 2002 by the passage of legislation which nullified hundreds of clauses in an existing contract between the provincial government and thousands of teachers relating to class size, resources for special needs students, student-teacher ratios and similar workload provisions. In addition, the 2002 law deprived teachers of the right to bargain those issues in the future. In 2011, this legislation was deemed unconstitutional by the BC Supreme Court. The provincial government of British Columbia (BC), following pre-legislative consultations with teachers, then passed a second legislation in 2012 with largely similar provisions (one change was that there was no longer a permanent curtailment of collective bargaining rights although a temporary prohibition remained in place). As a result of the two laws, thousands of teachers lost their jobs and others suffered a significant adverse impact on their working conditions. Moreover, schools as well as students, especially ones with special needs, struggled to cope with a severely under-resourced education system. 

The 2012 legislation was the basis for the current court case, which came before the SCC on appeal. The court overturned the 2015 British Columbia Court of Appeal’s judgment in favor of the BC provincial government, and reinstated the original decision of the BC Supreme Court by declaring the 2012 law unconstitutional. The judgment also restored the deleted terms back into the teacher’s contract with immediate effect.

The SCC substantially adopted the reasoning of Justice Donald who had issued a dissenting opinion in the 2015 appeal court decision. Justice Donald had held the 2012 legislation to be unconstitutional because it infringed on the teachers’ freedom of association under s. 2 (d) of the Charter of Rights and Freedoms in the Canadian Constitution (Charter).

Citing key SCC precedents, Justice Donald wrote “[t]he freedom of association protected under s. 2(d) of the Charter in the labour relations context is the right of employees to associate in pursuit of workplace goals and to a meaningful process within which to achieve these goals...“ (para 283) He further elaborated “[c]ollective bargaining is protected [under the right to free association in the Charter] in the sense that substantial interference with past, present, or future attempts at collective bargaining can render employees’ collective representatives effectively feckless, and thus negate the employees’ right to meaningful freedom of association. Actions by government that reduce employees’ negotiating power with respect to the employer can satisfy this standard of substantial interference.”(para 284) In his deliberations, Justice Donald concluded that in the current case the substantial interference with collective bargaining was not saved by s. 1 of the Charter (the provision that permits reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society). In particular, while the disputed legislation arguably had a reasonable objective (namely, to provide greater flexibility to school boards on a range of issues), the provincial government did not take any approach to minimize interference with the right to free association. Further, even a temporary restriction on collective bargaining rights would have placed the teachers back at the start of their bargaining position, in the context of a 13-year fight to have working conditions, that had been unconstitutionally removed, reinstated. (Paras 378-390)

Further, Justice Donald noted that pre-legislative consultation can be seen as a replacement for the traditional collective bargaining process only if it truly is a meaningful substitution. In this regard, he stated “…to be meaningful, the bargaining parties must consult from an assumed position of “approximate equality”.” (para 291) In this context, courts are required to take a probing and robust review of the substantive reasonableness of the government’s position when assessing whether the chosen consultation process meets the standard of good faith. Upon analysis it was held that the pre-legislative consultations held by the government with teachers were not in good faith, as the provincial government failed to meet the minimum standard of good faith negotiation, which “…requires parties to explain their position and read and consider the positions of opposing parties”. (paras 372-6)

Enforcement of the Decision and Outcomes: 

Enforcement of this case has major implications for BC’s public school system. It is estimated that hundreds of teachers would need to be hired and more classroom space would need to be found to restore class size and composition rules pre-2002 levels. Proper implementation of the judgment may entail the government spending an additional CAD 250 million to CAD 300 million on education per year. According to Glen Hansman, president of the BCTF, the province has the money to pay for these costs. He said the provincial government has a CAD 1-billion contingency in its budget, which specifically named the present case as a possible use for some of the money.

In the aftermath of the case, BC Finance Minister Mike de Jong has observed that negotiations to restore the stripped provisions will begin fairly immediately with teachers and that the timing will permit changes to be addressed in the February 2017 budget. He has further commented, “[w]e want to get to work implementing this as quickly as possible.” Hansman has indicated that he expects more teachers in classrooms as early as January but BC Premier Christy Clark has said implementing the ruling will take some time. She has also remarked that “…there is a lot of speculation about how much this will cost, but I would say this is the most important investment that we make as a society, so let’s make it.” 

Groups involved in the case: 

The BCTF brought the case as the party challenging the 2012 legislation. Interveners include:

Centrale des syndicats du Québec, Canadian Association of Counsel to Employers, Canadian Labour Congress, National Union of Public and General Employees, Public Service Alliance of Canada, Professional Institute of the Public Service of Canada, Association of Canadian Financial Officers, Association of Justice Counsel, Canadian Association of Professional Employees and Coalition of Ontario Teacher Affiliates.

Significance of the Case: 

This decision specifically addresses the right to collective bargaining, as protected under the constitutional right to freedom of association. It may also be considered, at a broader level, to be at the intersection of the human rights to work and education.

This decision is a significant ruling on workers’ rights that strengthens the ability of unions to engage in collective bargaining on behalf of their members, and clarifies the circumstances in which governments can and cannot restrict such action. Through a robust approach to collective bargaining, the ruling also supports the human right to just and favourable conditions at work. The President of the BC Federation of Labour, Irene Lanzinger calls this a big victory for workers across the country, noting that “[u]nions and collective bargaining wins better wages, better benefits, pensions, pay equity for women, health and safety positions, they raise the bar for everyone.”

This case also has significant implications for the human right to education (not a protected constitutional right in Canada), including the right of children with disabilities to access education. The decimation of teacher’s rights and underfunding of the school system for 14 years took a toll on the ability of students, in particular those with special needs, to access quality education. This case will allow for a better-resourced education system and thus, it may be hoped, will benefit all students. In providing guidance to States on the relationship between teachers’ working conditions (specifically the right to organize and bargain collectively) and the right to education, the Committee on Economic, Social and Cultural Rights has previously confirmed that not only will deteriorating working conditions of teachers be inconsistent with article 13(2)(e) of the International Covenant on Economic, Social and Cultural Rights (which requires that, among other things, “…the material conditions of teaching staff shall be continuously improved.”) but are also a major obstacle to the full realization of students’ right to education. (CESCR General Comment No. 13, para 27) At a time where austerity measures in many countries are affecting public education, this case suggests alternative ways to ensure the right to education in practice, including through legal strategies that build on the interdependence between economic, social and cultural rights.