Make no mistake. The BC Liberals have got the province into a terrible mess. It’s not unlike their BC Hydro fiasco in which years of lack of oversight of the crown corporation have led to retroactive costs that will need to be funded by sudden massive increases in citizens’ Hydro fees.
In education, the problem is similar. Bad policy has led to a huge burden on taxpayers years later. The trouble started on January 26, 2002, when Education Minister Christy Clark stood up in the BC Legislature and proudly announced the new Bill 28, which removed class size and composition limits from the teacher contract and enshrined them in law. In effect, what Christy Clark was announcing was that the government was reneging on its part in a contractual agreement, and creating a law that prevented the teachers from ever even asking for such an agreement again.
Naturally, the teachers’ union took the government to court. It took 8 years for the case to wend it’s way through the legal system, but when it finally did, the result was that the court found that the government had acted unconstitutionally.
Recognizing that simply restoring contract language from 2002 and leaving taxpayers on the hook for 10 years of grievances as class size numbers had crept ever higher, the court ordered a year’s time for the government to seek a solution through negotiations with the union.
Two years later, the court re-convened. This is what it found: The government had made no effort at all to seek a solution with the teachers. In fact, it had not only squandered the opportunity the court had given it, but it had also rewritten the impugned legislation, repeating some of the passages word-for-word.
Worse, the Court found that the government had engaged in bad faith negotiations – using the union’s outrage as a tool for its own political purpose. The government strategy (the court found through its reading of cabinet documents) was to goad the union into a strike so that the BC Liberals could look like heroes when they ordered an end to the strike.
For the Court, that was the last straw. The government was not taking teacher negotiations seriously; it was toying with 40,000 dedicated professionals, and worse, it was showing utter contempt for the Court itself by completely disregarding the 2010 ruling. The law does not look favourably on people who openly flout it. The court ordered the government to pay $2 million in damages to the union, to cover all court costs, and to re-implement the 2002 class size and composition language retroactively over the past 12 years.
This ruling would be a huge cost to taxpayers – courtesy of a government that continuously broke the law. Furthermore, the court ordered that the teachers be allowed to negotiate class size and composition language in future contracts. The ruling was worded thus:
 The result of both the Bill 28 and Bill 22 Actions is that the Working Conditions clauses are returned to the collective agreement between the BCTF and BCPSEA as of July 1, 2002. The subject matter of the Working Conditions is a matter for collective bargaining between the BCTF and BCPSEA.  The parties have been unable to point me to any other case where the present process has occurred: where legislation that was ruled unconstitutional because it interfered with rights guaranteed under the Charter was re-enacted in substantially the same form and the government argued that the unconstitutionality was fixed or ameliorated by the fact of the government having “consulted” with the affected party and, or, by the fact that the government made on part of the legislation temporary.  The outcome of this case means that teachers have once again had their right to collectively bargain over their working conditions restored. They have had certain language returned to their collective agreement retroactively. This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining.
Regarding the retroactive nature of the re-instatement of class size and composition levels, the Court says,
When legislation is struck down as unconstitutional, it means it was never valid, from the date of its enactment. This means that the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining.
The ruling uses strong wording to emphasize a rationale for such a costly penalty to government. The court felt that the penalty for violating Charter rights needed to be harsh enough to discourage governments from ever wanting to do so.
 The evidence is that the government knew, following the Bill 28 Decision, that the legislative prohibition on bargaining over Working Conditions was unconstitutional, and so must have known that continuing the prohibition was also unconstitutional.  As noted in Ward, the awarding of Charter damages on the basis of deterring government conduct is meant to deter the government from engaging in conduct that is not in compliance with the Constitution. Furthermore, this deterrence is not aimed at influencing the errant behaviour of a specific government actor but is meant to serve a much broader purpose: to influence government behaviour in general, in order to ensure government compliance with the Charter in the future.  I conclude that unless there is a sufficient deterrent, and some significant cost to a government if it violates s. 2(d) Charter rights even temporarily, the motivation to act unconstitutionally by substantially interfering with the freedom of association of public sector workers can simply be too tempting on the part of governments.  As for the seriousness of the Charter violation, the fourteen month extension of the legislative prohibition on collective bargaining over Working Conditions has to be viewed in context. It was not simply a one-off temporary suspension of rights. It was a continuation of unlawful conduct which had been then on- going for ten years. Further, when combined with the unlimited continuing legislative deletion and prohibition on including certain terms on Working Conditions in the collective agreement, the right to collective bargain over Working Conditions would still not be fully restored even after the fourteen months prohibition on bargaining expired. This Charter breach was more than slight or moderate.
The problem for government in the current negotiation is that if it fails to negotiate new terms, the class size and composition terms set by the Court (pending court appeal) remain in effect. If the government were to simply renege on yet another standing contract, one would think that the Court would invoke severe penalties indeed.
It would certainly be in the best interest of all citizens that negotiations with the teachers go well this round. The electorate should be aware of the past calumny of its government, and it should be watching to ensure that elected officials don’t continue down the same unconstitutional path.
The constitution is meant to protect citizens from the government. Teachers are citizens. If government is allowed to go unpunished for breaching teachers’ rights, it can then proceed to violate anyone’s rights. A society where this is allowed lives in tyranny.
P.S. – Update. The BC Court of Appeal has overturned Justice Griffin’s latest decision. In a move that has very little precedent in appeal matters, it ruled on not just the interpretation of law, but the findings of fact. The Supreme Court of Canada has agreed to hear the case.
For my part, I am still deeply wounded and offended by the actions of my provincial government, as are most teachers. We feel our rights have been denied us. Meanwhile Christy Clark and her colleagues smirk. It’s worth remembering that the first president of the BC Liberal party so many years ago was an educator who didn’t like unionism. Slamming teachers was the original raison d’être of the BC Liberals.