A bitter battle between British Columbia's teachers and the provincial government could be headed to the Supreme Court of Canada. 

In a 4-1 decision, the B.C. Court of Appeal ruled Thursday that the province did not violate teachers' constitutional rights when it introduced Bill 22 in 2012 — legislation that temporarily limited teacher bargaining on class size and composition.

However,  the government acknowledged that it has to bargain class size and composition in future negotiations, and points out the issues were on the table during the last round of negotiations.

"We have an opportunity to move ahead in a collaborative way and find those unique opportunities for education in the future," said Education Minister Peter Fassbender. 

Still, the ruling means the government is under no obligation to restore class size limits and ratios stripped out by Bill 28 in 2002 — legislation that has since been deemed unconstitutional, as pointed out by B.C. Teachers' Federation.

"A government should not be able to just dictate what they want, simply talk to the union and force it by legislation, when there are collective agreements in place," said the federation's president Jim Iker. 

"Collective bargaining needs to be about give and take, about respect and hard negotiations between employers and employees."

Major blow to teachers

The decision is a major blow to the B.C. Teachers' Federation, which had earlier won two lower court rulings on the matter.

In today's majority decision, written by Chief Justice Robert Bauman and Justice David Harris, the judges found the government acted in good faith when it consulted with teachers leading up to the introduction in 2012 of Bill 22.

"Between the consultations and the collective bargaining leading up to the legislation, teachers were afforded a meaningful process in which to advance their collective aspirations," the judgment said. "Their freedom of association was respected."

Their ruling overturns an earlier decision by B.C. Supreme Court Justice Susan Griffin, who ruled only last year the province did not consult in good faith before passing Bill 22.

In today's decision, the B.C. Court of Appeal said Griffin went too far.

"In our opinion, the judge should not have assessed the substantive merit or objective reasonableness of the parties' negotiating positions," Bauman and Harris wrote. "Courts are poorly equipped to make such assessments."

Dissenting opinion

The lone dissenting opinion was written by Justice Ian Donald, who did agree with the majority that the province's consultations with teachers were relevant to the constitutionality argument.

But Donald disagreed with the decision to overturn Griffin's ruling that the province acted in bad faith.

"An appropriately deferential approach to the trial judge's findings of fact … leads to the conclusion that the trial judge's finding that the passage of Bill 22 was unconstitutional must be upheld," Donald wrote.

The B.C. government also won its appeal of a decision to release information it says is subject to cabinet confidentiality.

The information in question was read out in open court during the B.C. Supreme Court case.

But the appeal court ruled the information was released by the provincial government for litigation purposes only, and should never have been made public.

Off to the Supreme Court of Canada?

The teachers union says it will seek leave to appeal to the Supreme Court of Canada.

It's unclear whether Canada's high court would hear the case, as it agreed to hear only eight of 80 applications from the B.C. Court of Appeal level last year.

This case was somewhat unusual, in that five justices heard the appeal instead of the traditional three. Only three cases out of 453 at the B.C. Court of Appeal last year were heard by five judges.

No reason was given for the decision to sit five judges.


  • A previous version of this story said today's appeal court ruling found the government's actions in stripping teachers of the right to bargain class size and composition in 2002 was constitutional. In fact, the government's actions in 2002 were ruled unconstitutional in 2011, and the government did not appeal. It instead introduced similar legislation in 2012, which was the subject of today's court ruling. A previous version of this story suggested the government would not have to bargain class size and composition in the future. In fact, the government bargained those issues in the last round of negotiations and will continue to do so.
    Apr 30, 2015 3:25 PM PT
With files from the CBC's Steve Lus