Peter O’Neil & Tracy Sherlock, Court ruling to force hiring of hundreds of teachers in B.C., Vancouver Sun, Nov 10 2016


The B.C. government will likely have to hire hundreds of teachers and spend between $250 million and $300 million more each year on education, after the dramatic win by B.C. teachers in the Supreme Court of Canada on Thursday.

The estimate comes from B.C. Teachers’ Federation president Glen Hansman at the end of a union legal battle that began in 2002.

“We’re elated, this has been a long journey,” Hansman said.

Canada’s highest court, which often takes several months to deliver a decision, took only a 20-minute recess after hearing legal arguments before delivering a 7-2 decision in favour of the union.

The decision immediately restored clauses deleted from the teachers contract by the Liberal government of Gordon Campbell in 2002 dealing with class size, the number of special needs students who can be in a class and the number of specialist teachers required in schools.  

The government touched off the legal battle in 2002 by passing legislation that stripped those provisions from the teachers’ contract and passed a law denying teachers the right to bargain those issues.

Thursday’s decision overturned the B.C. Court of Appeal’s 2015 ruling in favour of the provincial government, and restored the original decision in the union’s favour by B.C. Supreme Court Justice Susan Griffin.

Hansman said it could take some time to restore class sizes to pre-2002 levels because the union has lost the equivalent of 3,500 full-time positions over the past 15 years.

But he said the clauses should be restored as soon as possible. 

“The province has got the money to pay for this,” Hansman said. 

He said the provincial government has a $1-billion contingency in its budget, which specifically named the teachers’ case as a possible use for some of the money.

The case has huge implications for B.C.’s education system, with affidavits submitted to the B.C. Court of Appeal in 2014 by school superintendents estimating thousands of teachers would need to be hired and more classroom space would need to be found to restore the class size and composition rules.

In Surrey alone, the restoration of the clauses would cost an estimated $40 million a year. Surrey represents about 10 per cent of the entire provincial education system.

In 2014, superintendents’ association estimated it would cost more than $1 billion a year to return to 2002 service levels. 

Changes may not take effect immediately. The teachers’ contract, which was arrived at after a six-week strike in 2014, includes a clause about the court judgment. It says if the judgment restores the 2002 language, which this one does, the parties will reopen the part of the collective agreement that deals with the Education Fund, which was created to support classrooms with many children or those with special needs. The two parties will bargain from the restored language and the Education Fund will continue in effect until there is agreement on implementation or changes to the restored language.

B.C. Finance Minister Mike de Jong said on Thursday that those negotiations will take place “fairly immediately” and that the timing will allow changes to be addressed in February’s budget. 

“I think we want to roll up our sleeves and get to work,” de Jong said. “We want to get to work implementing this as quickly as possible.”  

De Jong said the decision is “good news” because now there is a “clearer set of rules” about bargaining and the circumstances around when governments can legislate the terms of labour contracts. 

“The 2014 collective bargaining agreement was the longest agreement achieved with the B.C. Teachers Federation in B.C. history and it brought labour peace and stability to our classrooms,” de Jong said. “I would like to assure students, parents, teachers and employees in the education system that this stability continues, and this ruling does not bring disruption to classrooms.”

De Jong would not speculate on what it will cost to implement the changes or how many teachers that would have to be hired. 

Opposition NDP leader John Horgan put the blame squarely on Premier Christy Clark, who was education minister when the first unconstitutional teacher-bargaining law came into force in 2002, and was premier when her government “put gas on the flames” with a second unconstitutional law 2012.

“Think of it, from 2002 to now, kids have started in kindergarten and graduated only knowing underfunded classrooms,” said Horgan. “That generation has lost the opportunity that they richly deserved because of decisions and choices that Christy Clark made. The courts have finally shut the door on more confrontation.”

Horgan said public education is now “the number 1 issue for me” in the May provincial election.

“This is a government that has ridiculed, condemned, mocked and criticized the people on the other side of the bargaining. They ripped up a duly negotiated collective agreement and then, according to (the B.C. Supreme Court), used the power of the state to provoke labour action. … That is a stinging indictment of a government that is malicious and bent on making the relationship worse not better.”

Pitted against the BCTF in Canada’s highest court were lawyers from the B.C., federal, Ontario, Quebec, Manitoba and Saskatchewan governments. Gathered behind a courtroom jammed with black-robed lawyers — in addition to the two main adversaries there were 11 other interveners — were 15 British Columbians who flew here to listen to arguments.

When the ruling was made, there were several whispered “ohs” and then a “we won?” that was followed by a “we won!” They hugged and several quietly wept until the last of the nine judges left the chamber, then burst into euphoric cheers and applause.

One of the most emotional was Patricia Gudlaugson, a retired teacher from Richmond, who said her joy was mixed with bitterness over the government’s original 2002 decision to strip hard-won contract concessions on class sizes.“Every kid in 2002 who had special needs got no damn help for 14 years because of that government, that’s what it means,” she said. “All those little kids in kindergarten (then) have finished high school and never got the support they needed.”

The two dissenting Supreme of Canada judges were Suzanne Cote and Russell Brown, the last two appointees of former prime minister Stephen Harper.

The 2014 judgment called for the government to pay the teachers’ federation $2 million in damages for extending the unconstitutional legislation to June 2013. Thursday judgment said the province needn’t pay the damages.

No retroactive grievances can be filed because the 2014 teachers’ contract contained a $105-million fund to address any grievances arising from the deletion of the contract clauses.

Neither the teachers nor the government knew on Thursday if the government has to pay any of BCTF’s costs. 

In 2014, B.C. Supreme Court Justice Susan Griffin ruled that “the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining.”

In April 2015, the B.C. Court of Appeal overturned Griffin’s decision to restore classroom composition rules, class size rules and specialist teacher ratios to the teachers’ contract. One judge, Ian Donald, dissented.

The Supreme Court Thursday agreed with Donald’s dissent and the high court’s written reasons are expected within 24 hours. 

The case hinges on whether pre-legislative consultation can be a replacement for good faith collective bargaining. Donald, the dissenting judge, said the consultation was relevant, but he agreed with Justice Griffin’s 2014 judgment that the B.C. government had failed to consult in good faith.