The B.C. Teachers' Federation has won a landmark decision on negotiating class size and composition in the Supreme Court of Canada.

Canada's top court provided a surprise verbal ruling a few hours after a hearing into the case started Thursday morning.

"It was sense of jubilation, there was cheering," said BCTF President Glen Hansman, who was in the courtroom in Ottawa. "We are very happy for our members and to resolve this once and for all." ...

The ongoing dispute dates back to 2002, when the province used legislation to strip teachers of their right to bargain class size and composition. The union says the province will now have to provide resources for class size and composition that date back to levels from when the legal dispute began.

"What that is going to look like in terms of timelines and operationally, we are going to have to talk about that. We were truly not expecting a decision here today," said Hansman.

"We will definitely be in conversations with the province because ... we need to get those teachers back into schools now."

Government hoping to get negotiations started quickly

The quick decision caught the province and many other observers off guard. Finance Minister Mike de Jong said his government is looking forward to starting negotiations with the BCTF on class size and composition.

The teacher's federation says the province will need to pay an additional $250 to $300 million a year to get back to 2002 staffing levels. The province says it is not able to provide those estimates yet.

The B.C. government will likely have to hire hundreds of teachers and spend between $250 million and $300 million more each year on education, after the dramatic win by B.C. teachers in the Supreme Court of Canada on Thursday.

The estimate comes from B.C. Teachers’ Federation president Glen Hansman at the end of a union legal battle that began in 2002.

“We’re elated, this has been a long journey,” Hansman said.

Canada’s highest court, which often takes several months to deliver a decision, took only a 20-minute recess after hearing legal arguments before delivering a 7-2 decision in favour of the union.

The decision immediately restored clauses deleted from the teachers contract by the Liberal government of Gordon Campbell in 2002 dealing with class size, the number of special needs students who can be in a class and the number of specialist teachers required in schools.  

The government touched off the legal battle in 2002 by passing legislation that stripped those provisions from the teachers’ contract and passed a law denying teachers the right to bargain those issues.

Thursday’s decision overturned the B.C. Court of Appeal’s 2015 ruling in favour of the provincial government, and restored the original decision in the union’s favour by B.C. Supreme Court Justice Susan Griffin.

Hansman said it could take some time to restore class sizes to pre-2002 levels because the union has lost the equivalent of 3,500 full-time positions over the past 15 years.

But he said the clauses should be restored as soon as possible. 

“The province has got the money to pay for this,” Hansman said. 

He said the provincial government has a $1-billion contingency in its budget, which specifically named the teachers’ case as a possible use for some of the money.

When the B.C. Liberals swept into office 15 years ago, they did so on a promise of fair treatment for public sector unions, never mind that most were closely aligned with the outgoing New Democratic Party government. “I don’t believe in ripping up contract agreements,” declared incoming premier Gordon Campbell. “I am not tearing up any agreements.” Then he did.

In a January 2002 legislative doublecross that reverberates to the current day, the Liberals used their majority to strip provisions from a bunch of public-sector labour contracts.

Evidence presented in court would later show how the Liberals ignored the advice of senior public servants, who’d urged the cabinet to first try to renegotiate the contracts. The Liberals also provoked the ire of the courts by giving only minutes worth of advance notice to the unions before wielding the legislative hammer. Among those trampled was the B.C. Teachers Federation, whose line minister of the day was the then deputy premier, Christy Clark.

Fast forward to April 2011. Clark, after a break from politics, was back as leader of the Liberals and as premier. Just in time to be on the receiving end of a blast from the courts over that earlier exercise in contract-stripping the BCTF. “Internal government documents indicate that at least some government officials expected that the teachers’ union would be very opposed to the legislation,” wrote B.C. Supreme Court Justice Susan Griffin. “By passing this legislation without so much as consulting with BCTF, the government did not preserve the essential underpinning of collective bargaining, namely, good faith negotiation and consultation.”

The judge gave the government a year to rectify the situation. Under the guise of seeking a fresh start, the Clark-led Liberals set out to negotiate with teachers. But when those talks failed to meet the mandate set by the cabinet, the Clark government imposed another contract on terms that bore more than passing resemblance to the earlier legislated settlement. Not surprisingly, the union returned to court. Following Clark’s win in the 2013 election, the case ended up back in front of the same judge who’d ruled against the Liberals earlier.

The deciding moment in the second set of proceedings came on Sept. 17, 2013 with the government’s chief negotiator being cross-examined by the BCTF lawyer.

Question: “So your objective as government was to increase the pressure on teachers to have them go out on a full-scale strike? Is that correct?” Answer: “Yes. I’ll say that’s correct.” For reasons that have never been explained, the government let the exchange pass unchallenged in court. But the seeming confirmation that the Liberals had schemed to provoke the union into a strike would prove fatal to the government’s case. 

For in early 2014, Griffin ruled that the Liberals had no more bargained in good faith in the second go-round with the BCTF time than they had in the first.

“Their strategy was to put such pressure on the union that it would provoke a strike by the union,” ruled Griffin. “I find that there was no true will on the government side of the table to reach agreement.” She also delivered a stern lecture on why government is obliged to negotiate in good faith. The cabinet has so much power over collective bargaining — to determine mandates, impose spending limits, establish regulations, move goalposts — that when it finally does sit down at the table, it must do so with clean hands. “Any student of history or human nature recognizes that a natural tendency and desire of any political force is to attempt to consolidate and gather more power and to seek to diminish any restraint on that power,” she wrote. “A democratic system has institutional checks to counter that tendency and to safeguard against tyranny. … Democratic institutions and democratic philosophy are at their root based on a belief that society should be structured in a way that is fair.”

Stung for a second time by the same judge, the Liberals decided to appeal. In May of last year, they scored what looked like a big win when the Griffin findings were overturned at the B.C. Court of Appeal in a four-to-one verdict.

But tucked inside that judgment was a strongly argued dissent from Justice Ian Donald. While agreeing with his colleagues on some constitutional points, he maintained they had gone too far in one respect.

The general rule is that courts of appeal don’t overturn trial judges on matters of fact. Griffin heard 29 days of evidence and numerous submissions over a period of three years.  Her ruling that the Liberals had failed to bargain in good faith was a finding of fact. Donald said it should stand.

With that, the case was headed for the Supreme Court of Canada, and on Thursday there was a remarkable and unexpected denouement to the years of legal proceedings.

Just 20 minutes after hearing arguments from both sides, the justices reconvened to announce an expedited verdict. By a vote of 7-2, the high court restored the finding of bargaining in bad faith, effectively handing the Liberals their ass on a plate.

As the day ended, the Liberals were preparing to return to bargaining with teachers, this time insisting that they would do so in good faith.

But given their untrustworthy record to date, this strikes me as more of a case for independent and binding arbitration.

The courts have repeatedly faulted the Liberals for failing to bargain in good faith with teachers, going back to their first year in office. Those court decisions set out the proper standard for collective bargaining in the public sector, with an emphasis not on a particular outcome, but on a fair process, constructive engagement and compromise.

Those standards were reiterated by Ian Donald, the B.C. Court of Appeal justice whose decision in favour of the teachers was endorsed last week by the Supreme Court of Canada. Justice Donald began his May 2015 judgment by identifying what manifestly does not constitute bargaining in good faith, drawing on lower court findings of fact against the Liberals.

The Liberals went into teacher talks with a sham commitment to consultation and a hidden agenda to provoke a strike. They never took the union seriously nor bothered to digest its positions.

“An absolute minimum requirement for good faith consultation is that the government must read and consider the proposals made by the other side,” the court found. “And yet, for the five months after the BCTF had put forward its initial position, the provincial representative did not even take the time to read those proposed clauses.” The government dismissed as lacking in flexibility contract language involving class size, composition and other working conditions. “This was a seemingly unwavering position, and it appeared impossible to convince the province otherwise,” the judgment states. “The union repeatedly asked for an explanation why the working conditions could not meet the flexibility needs of the province, but was repeatedly rebuffed.”

Instead, the Liberals tried to deflect talks on working conditions to issues of policy and process. “In essence,” wrote the judge, “the province was informing the union that it intended to keep the door shut on the subject of working conditions, but it would allow the union to have input on exactly what kind of door would be used.”

Negotiating in good faith is not simply a matter of announcing good intentions in advance. Nor is it just sitting and talking. The key is substantive engagement with the other side. “Governments, as employers, are allowed to take firm positions, even extreme ones,” wrote Justice Donald. “But the government must be open to compromise.”

None of this is to suggest the government cannot wield the legislative hammer should bargaining reach an impasse. But the impasse must be genuine: “An impasse created by the province through the adoption of unwavering, unreasonable positions and a lack of good faith is not a legitimate impasse.” ...

“If the government, prior to unilaterally changing terms of employment, gives a union the opportunity to meaningfully influence the changes made, on bargaining terms of approximate equality, it will likely lead to a finding that the union was not rendered feckless and the employees’ attempts at associating to pursue workplace goals were not pointless or futile.” ...

The right to free collective bargaining, as defined by the courts, is a right to a fair process, not a guarantee of specific process or outcome. Nor do unions have a constitutionally-backed veto over any and all legislative changes in their collective agreements.

Justice Donald again: “Good faith negotiation, from a constitutional perspective, has been described by the Supreme Court of Canada as requiring parties to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representationsmade by the other. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground.”