A primer on the BCTF court ruling

Justice Griffin: “So important was a strike to the government strategy that in September 2011, Mr. Straszak planned a government strategy of increasing the pressure on the union so as to provoke a strike.”

BCTF Ruling, BC Supreme Court, BC politics, BC teachers

On Thursday, the BC Court of Appeal will issue its decision on the provincial government's appeal in the long-running BCTF legal dispute. While the government may eke out a win based on fine constitutional points, it has a steep hill to climb to get over the devastating factual findings of the trial judge.

Justice Griffin's factual finding that the provincial government bargained in bad faith may ultimately decide this case.

If confirmed, it will probably doom any chance of success for the government on a constitutional argument. If the court substitutes a finding that the government acted reasonably, the BCTF may still succeed, but the ruling will be significantly more complex. 

To help readers understand the decision rendered by the Court of Appeal tomorrow, here's a summary of key excerpts in the major factual findings and how they led Justice Susan Griffin to her conclusion of bad faith by the provincial government.

Numbers in parentheses indicate paragraph numbers in the original trial ruling.

Introduction

[130] As noted, the result in the Bill 28 Decision was a ruling that certain provisions of the legislation were unconstitutional and invalid. Normally this result means that legislation is null and void, pursuant to s. 52(1) of the Constitution Act.

[132] Because this would impact the scope of the collective bargaining process and the collective agreement between BCPSEA and the BCTF the declaration of invalidity was suspended for a period of twelve months "to allow the government time to address the repercussions of the decision."

[148] The government's concern was that if the Working Conditions clauses were returned to the collective agreement retroactively, teachers would have the ability to make grievances where the clauses had been breached in the past. Mr. Straszak estimated for the government that these arbitrated labour claims could give rise to an estimated $500 million retroactive liability and could cost the government approximately $200 million to $275 million going forward.

[154] In short, after the Bill 28 Decision, if the parties were acting in good faith, there ought to have been an interest on all sides — the BCTF, BCPSEA and the government — in negotiating a resolution to the implications of the invalidated legislation which would have the effect of returning the past negotiated clauses to the collective agreement.

BC government chief negotiator's position

[189] Mr. Straszak's stated view, which he communicated to the union, was that the Bill 28 Decision simply required the government to rectify its error in not having undertaken a good faith negotiations process before the legislation was introduced.

[191] I find that what Mr. Straszak communicated to the BCTF was that the government considered the post-Bill 28 Decision discussions as its opportunity to document that it consulted with the BCTF "in good faith" concerning its legitimate policy objectives, without the necessity of changing the end result...

[192] A party cannot say it is consulting if it starts from the position that its mind is made up no matter what the other side presents by way of evidence or concerns.

Relations between negotiating teams:

[212] When Susan Lambert asked questions during the presentation, and questioned the factual basis for (provincial representative) Ms. Avison's assertions... Mr. Straszak saw these questions as disruptive.

[218] By their negative reaction to questions, it appears that the government representatives were not willing to engage in real dialogue... It is important to note that in making her presentation, Ms. Avison had not even yet read the collective agreement terms at issue, nor apparently had any other member of the government team.

[219] The July 7, 2011 meeting was largely a waste of time. The government had yet to make any proposal on how to address the repercussions of the Bill 28 Decision.

(During 4th meeting in August, 2011, govt was represented by a Mr. Drescher)

[234] Mr. Drescher testified at trial. I found him to be well-meaning, but the evidence on which he based (his presentation)... was a repetition of an earlier myth: that Working Conditions terms... caused extraordinary complications for families and school districts.

[235] Mr. Drescher acknowledged in cross-examination that he could not identify specific examples of the problems he described... He said that he was relying on what Rick Davis told him...

[236] The Bill 28 Decision found that Rick Davis's understanding of problems was based on unsubstantiated hearsay...

[248] As of the August 11, 2011 meeting, it was now one-third into the year the government had been given to address the repercussions of the Bill 28 Decision, and it had yet to present any proposal that was a change in its position...

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