In a previous article, we reported on the Supreme Court of Canada’s “New Labour Trilogy,” a set of three landmark constitutional law decisions released in January 2015 that raised questions about basic aspects of Canada’s labor relations system. Unsurprisingly, the decisions sparked a huge debate in the Canadian labor law community as to whether the Supreme Court of Canada had reshaped Canadian workers’ rights to organize, bargain collectively, and take strike action.
While there was (and remains) a diversity of views on this question, there was a general agreement that the decisions did provide worker representatives with a powerful basis to argue that the New Labour Trilogy expanded workers’ right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms in some general way.
However, in the first major appellate decision to follow the New Labour Trilogy, the British Columbia Court of Appeal appears to have rejected the idea that the New Labour Trilogy did, in fact, reshape the basic foundations of the Canadian labor law system.
Decision
In British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184, the British Columbia Court of Appeal considered the latest developments in a long-running dispute between a public school teachers union, the British Columbia Teachers’ Federation (BCTF), and the provincial government.
Specifically, in 2012 the government enacted legislation that eliminated terms in the teachers’ collective agreement and provided that similar terms could not be included in a new collective agreement until July 2013. The legislation also provided for the appointment of a mediator whose main purpose was to help the BCTF and the affected school boards negotiate a short-term collective agreement that would expire at the end of June 2013.
Importantly, earlier legislation that had similarly eliminated terms of the collective agreement had already been declared unconstitutional for violating teachers’ freedom of association. The judge had suspended her declaration for a period of 12 months to allow the parties time to address its implications.
During that period, the BCTF was consulted by the province, and teachers and school boards engaged in collective bargaining. However, the parties were unable to reach agreement and the teachers engaged in a lawful job action. Ultimately, on the expiration of the 12-month suspension of the judicial declaration, the government enacted Bill 22, the legislation at issue in this case.
At trial, the judge declared that the legislation was unconstitutional for infringing on teachers’ right to freedom of association under section 2(d). The trial judge’s decision was based on two main findings.
First, she found that the government’s consultations with the BCTF were irrelevant to the constitutionality of the legislation.
Second, she found that the government had failed to consult in good faith with the BCTF. The provincial government appealed.
The Court of Appeal allowed the appeal. It did so for three main reasons.
First, the Court of Appeal found that the government’s consultations with the BCTF were highly relevant to the question of whether Bill 22 violated section 2(d) of the Charter. In particular, the Court of Appeal found that the trial judge had ignored the Supreme Court’s earlier finding in BC Health Services that if a unilateral change has been made through a process that preserves good-faith consultation between the employer and worker representative, it is unlikely that a Charter violation will occur.
Second, the Court of Appeal rejected the trial judge’s alternative conclusion that the pre-legislative consultations would have been relevant to the analysis only if they had occurred through traditional collective bargaining between the parties. In the Court of Appeal’s view, the existing case law is clear: Section 2(d) does not require traditional collective bargaining or guarantee workers a particular process; rather, it provides only a general right to a meaningful process through which workers can make collective representations to their employer and have those representations considered in good faith. As such, the government was free to consult with the BCTF outside of a formal negotiation process.
Third, the Court of Appeal concluded that the trial judge had erred in her analysis of whether the government had consulted in “good faith.” In particular, it was inappropriate for the trial judge to have scrutinized and evaluated the substantive reasonableness of the government’s position. Instead, the Court of Appeal concluded, the fundamental requirement of “good faith” in the section 2(d) context is “subjective honesty.” The overall reasonableness of an employer’s position should not be examined by a court.
Notably, in reaching its decision, the Court of Appeal also expressly stated that the new constitutional principles set out in the New Labour Trilogy offered little assistance in this case. In the court’s view, those new principles were primarily relevant to cases where the constitutionality of the underlying labor regime is under attack.
In contrast, the issue in this case was whether legislation that interfered with the terms of a collective agreement and temporarily prohibited collective bargaining on certain issues substantially interfered with workers’ freedom of association. Accordingly, the analysis set out by the Supreme Court in 2007 in BC Health Services applied.
Considered together, the elements of the Court of Appeal’s decision described above suggest that the New Labour Trilogy does not mark the beginning of an entirely new and more expansive approach to worker rights in all Canadian labor cases that involve section 2(d) arguments. However, in July 2015 the BCTF sought leave to appeal the decision to the Supreme Court of Canada.
A decision on whether leave should be granted is pending. It remains to be seen whether the Supreme Court, or courts in other provinces, will adopt the approach to the New Labour Trilogy taken in this case.
