The Supreme Court of Canada Decision Against Christy Clark’s Government, and the Dark Story It Confirms

The Supreme Court of Canada’s repudiation of the BC Liberal Government on November 10, 2016 is a huge validation for teachers, but its meaning goes far beyond education policy. The Court’s verdict confirms a very dark story of government duplicity.

The story begins in 2002 with Christy Clark’s proud announcement in the BC Legislature of a new law – a law that allowed the government to renege on a contract. This contract contained provisions that the allowable number of students in a classroom had limits, and those limits were lowered if the class included children with special needs. These limits allowed teachers to better reach students who needed help, and they ensured that teachers were not so preoccupied managing classroom behaviour that they couldn’t actually teach.

The contract stripping directly violated the Canadian Charter of Rights and Freedoms. This in itself should have been enough to warrant Christy Clark’s resignation. But the BC Liberals went further still, much further.

The teachers took the BC Liberals to court, and in 2010 the BC Supreme Court ordered restitution and gave the government a year to negotiate terms with the teachers. The BC Liberals never did. In fact, how they responded to the BC Supreme Court’s order was so duplicitous as to be reprehensible.

What they did do is foment teachers’ anger by ignoring the court order for two years. It turns out that this was not just negligence, but part of an egregious plan.

The BC Liberals knew about the growing outrage among teachers as they waited for the court-ordered restitution, and they wanted to capitalize on it. They also knew that the teachers union had finite resources, and that further lawsuits would cripple the union financially. So the more they could game the system, the stronger the government’s position became vis a vis negotiations with the BC Teachers Federation.

When the BC Liberals finally did respond to the court order, they timed their response so that it would happen during contract negotiations when tensions were high. Far from following the spirit of the court’s ruling, they simply wrote a new legislation that committed the exact same violation. In fact, the new legislation (Bill 22) contained verbatim passages ripped from the original disqualified legislation.

By now it was 2012. At that time, UBC Law Professor, Joel Bakan, wrote a column in the Vancouver Sun decrying the action of the BC Liberals, writing:

“Governments are obliged to govern according to law. That is what distinguishes democracies from tyrannies. As a fundamental democratic principle, the rule of law is seriously jeopardized when governments play fast and loose with constitutional and international laws, as this government is now doing with Bill 22.”

Naturally the teachers took the BC Liberals to court again. And during the court’s investigation, a stunning revelation was made. Cabinet documents, as well as insider testimony revealed that all along the government had been engaged in political deceit. The Court found that the BC Liberals, by their own admission, had been using legislation to goad teachers into a strike so that they could sweep in with a back-to-work order to reopen schools –a move they believed would win public favour ahead of an upcoming election.

In short, the BC Liberals wanted the union to strike. They wanted schools to be closed and parents to be outraged. They knew they could use this outrage. They were using school children and teachers as political pawns. This can all be read in the BC Supreme Court’s final ruling.

In its ruling, the court expressed its own outrage at the government’s behaviour

[620] It was fundamentally unfair for the government to extend the unconstitutional legislation by way of Bill 22, after the union had already prosecuted and won a Court decision declaring that the legislation was unconstitutional. The government here was strongly influenced to continue the unconstitutional legislation because of its desire to gain the upper-hand in negotiations with the union and not in pursuit of any valid policy objective.

[621] 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.

The Court ordered an immediate return of class size and composition levels to what they were in 2002, even though it would add an enormous cost burden to the government, stating:

… 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.

The BC Liberals responded by appealing the decision at the BC Court of Appeal – further delaying action, further antagonizing teachers, and further prolonging the strike in which teachers fought the best they could, now with depleted resources, against the injustice committed against them.

The teachers did everything they could to get to an equitable settlement, including asking for binding arbitration. The government refused. Eventually, from a weak bargaining position against a government that held all the cards, the teachers accepted a mediated settlement.

The government won its appeal at Provincial Court, but sensing (likely based on the strong written dissent of one of the judges on the case) that the case was ultimately un-winnable at the Supreme Court level, they put public money aside to address the court’s inevitable mandate.

It took 20 minutes for the Supreme Court of Canada to overturn the BC Liberals’ appeal. Now that the final decision has been rendered in favour of the teachers, it will be interesting to see what other slick plans the BC Liberals have up their sleeve. It would be hard to imagine them acting with any kind of nobility at this point.

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4 thoughts on “The Supreme Court of Canada Decision Against Christy Clark’s Government, and the Dark Story It Confirms

  1. In your third paragraph, you said Supreme Court of Canada when you meant Supreme Court of BC. Excellent analysis and description of the timeline of what we have been through with this government. Thanks

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