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The British Columbia government announced plans last week to appeal the BC Supreme Court's ruling that a law restricting teachers' bargaining rights is unconstitutional. The Court released this decision having recently struck down a near-identical law. Both its decisions followed a 2007 Supreme Court of Canada decision, which had struck down yet another B.C. law restricting bargaining rights in the health care sector. That Supreme Court decision, in turn, relied upon numerous International Labour Organization decisions, which have consistently chastised the B.C. government for violating public sector workers' bargaining rights.
The message is loud and clear -- B.C.'s Liberal governments have been repeat offenders, consistently breaching both constitutional and international laws designed to protect workers' collective bargaining rights. Yet, if the decision to appeal the recent case is any indication, that message seems not to be getting through to the government.
Education Minister Peter Fassbender alleges two mistakes in the recent decision, presumably the grounds upon which his government's appeal would be based.
First, he says, "The judgment is completely unaffordable for taxpayers," and would cost the treasury "upwards of $1 billion" to implement. "We need clarity on what government's rights are," Fassbender has said, with respect to when it can trump teachers' constitutional rights in order to save money on education.
As a ground for appeal, this is a non-starter. The Supreme Court of Canada has consistently held that, as one of its early decision's states, "budgetary considerations cannot be used to justify a violation (of the Charter)." The point was reiterated by the Court in its 2007 case concerning health workers' bargaining rights. "Courts will continue to look with strong skepticism at attempts to justify infringements of Charter rights on the basis of budgetary constraints," the Court said.
In the recent B.C. case, the government's own lawyers refrained from making the argument that budgetary concerns could trump constitutional rights. That was a good thing, according to the judge who said the argument would have failed.
The second of the minister's dissatisfactions with the recent decision is he disagrees with the judge's interpretation of the relevant facts. The judge found the government bargained in bad faith, and fined it $2 million for doing so. Fassbender disagrees. "From my perspective," he says, "in this government we are focused on getting an agreement."
The minister is entitled to his opinion. And the government had its day (actually several days) in court to support that opinion.
But the trial judge found the truth lay elsewhere than in the government's opinion. And, because it is in only the rarest cases that appeals courts disturb trial judges' factual findings, this second possible ground of appeal is no stronger than the first.
Taking it all together, this is a weak case for an appeal, though the costs of mounting it will be high. The government should accept the ruling and move on.
Joel Bakan is a professor of law at the University of British Columbia.
This op-ed originally appeared on the Vancouver Sun and is reprinted with the author's permission.