Earlier this month, B.C. Supreme Court Justice Susan Griffin handed down her ruling in the ongoing dispute between the B.C. Teachers' Federation and the B.C. government. I already read it so you don't have to, but the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/SC/14/01/2014BCSC0121cor1.htm
Madame Justice Griffin is known in the legal profession as a real straight shooter and one of B.C.'s most respected jurists, which makes the damning conclusions of her decision in the BCTF case all the more extraordinary. Judicial writing like this doesn't come along every day.
Rather than pen yet another commentary on the decision itself, I've excerpted salient quotes from this extraordinary decision so people can read it for themselves. The numbers in parentheses indicate judgment paragraphs.
The uncompromising stance of the provincial government has exposed the B.C. public to prolonged uncertainty and excessive down-side financial risk. Worst of all it has hurt our kids and their education.
While it's to be expected that the government will file an appeal, one can only hope that it will wake up, smell the coffee, and realize that its best option is to cut its losses and come to a deal with the union.
Here are the decision highlights:
Introduction
[130] As noted, the result in the Bill 28 Decision was a ruling that certain provisions of the legislation were unconstitutional and invalid. Normally this result means that legislation is null and void, pursuant to s. 52(1) of the Constitution Act.
[132] Because this would impact the scope of the collective bargaining process and the collective agreement between BCPSEA and the BCTF the declaration of invalidity was suspended for a period of twelve months "to allow the government time to address the repercussions of the decision".
[148] The government's concern was that if the Working Conditions clauses were returned to the collective agreement retroactively, teachers would have the ability to make grievances where the clauses had been breached in the past. Mr. Straszak estimated for the government that these arbitrated labour claims could give rise to an estimated $500 million retroactive liability and could cost the government approximately $200 million to $275 million going forward.
[154] In short, after the Bill 28 Decision, if the parties were acting in good faith, there ought to have been an interest on all sides -- the BCTF, BCPSEA and the government -- in negotiating a resolution to the implications of the invalidated legislation which would have the effect of returning the past negotiated clauses to the collective agreement.
BC government chief negotiator's position
[189] Mr. Straszak's stated view, which he communicated to the union, was that the Bill 28 Decision simply required the government to rectify its error in not having undertaken a good faith negotiations process before the legislation was introduced.
[191] I find that what Mr. Straszak communicated to the BCTF was that the government considered the post-Bill 28 Decision discussions as its opportunity to document that it consulted with the BCTF "in good faith" concerning its legitimate policy objectives, without the necessity of changing the end result...
[192] A party cannot say it is consulting if it starts from the position that its mind is made up no matter what the other side presents by way of evidence or concerns.
Relations between negotiating teams:
[212] When Susan Lambert asked questions during the presentation, and questioned the factual basis for (provincial representative) Ms. Avison's assertions... Mr. Straszak saw these questions as disruptive.
[218] By their negative reaction to questions, it appears that the government representatives were not willing to engage in real dialogue... It is important to note that in making her presentation, Ms. Avison had not even yet read the collective agreement terms at issue, nor apparently had any other member of the government team.
[219] The July 7, 2011 meeting was largely a waste of time. The government had yet to make any proposal on how to address the repercussions of the Bill 28 Decision.
(During 4th meeting in August, 2011, govt was represented by a Mr. Drescher)
[234] Mr. Drescher testified at trial. I found him to be well-meaning, but the evidence on which he based (his presentation)... was a repetition of an earlier myth: that Working Conditions terms... caused extraordinary complications for families and school districts.
[235] Mr. Drescher acknowledged in cross-examination that he could not identify specific examples of the problems he described... He said that he was relying on what Rick Davis told him...
[236] The Bill 28 Decision found that Rick Davis's understanding of problems was based on unsubstantiated hearsay...
[248] As of the August 11, 2011 meeting, it was now one-third into the year the government had been given to address the repercussions of the Bill 28 Decision, and it had yet to present any proposal that was a change in its position...
[278] The government... is very critical of the BCTF first proposal as simply a reiteration of its position from the beginning of the discussions. It is a fair description, but not a fair criticism.... After having won a court victory affirming the teachers' collective bargaining rights, the government's position seemed to be contrary to the Court's decision.
[279] The BCTF correctly perceived that the government representatives had not read the Working Conditions terms in the collective agreement. It was therefore appropriate for the BCTF representatives to try to educate the government representatives on the terms that were at issue.
Further additional meetings...
[301] At the November 10, 2011 meeting the government representatives still had not come back with the results of their review of the...clauses which were, and which were not, acceptable to the government.
[303] At the November 21, 2011 meeting Mr. Straszak explained that the government was not able... to agree to return any clauses to the collective agreement, even the ones that the government saw as unproblematic.
[331] Mr. Straszak's overall message to the BCTF was that all the government was required to do after the Bill 28 Decision was show that it stated its position and listened to the other side.
345 Even then, after having read the clauses, the government representatives were only willing to concede that the most innocuous of clauses might be restored to collective bargaining, such as clauses dealing with fire drills... for special needs students.
347 The government representatives discouraged BCTF representatives from asking questions about their position and were not interested in providing substantive answers.
[352] I find that the BCTF representatives wanted to get to the heart of the issue and they were understandably confused by the tactics of the government negotiating team.
356 But since the government insisted on starting from an extreme position... the BCTF response position was rather predictable. If one side starts from an extreme position, it should not be surprised if the other side does not immediately compromise all that is important to it.
[357] I consider it a fair criticism that the BCTF representatives did not appear open to discussions about the costs implications... until very late in the day. However part of the problem was the way this discussion was framed by the government...
361 The government's repeated attempt to state that the language in the 2001 Collective Agreement... impeded policy objectives of flexibility and choice was not in good faith, because the government representatives had not even read the deleted collective agreement language...
On the government bargaining strategy
[382] After the Bill 28 Decision came down against it, the government developed a broad political strategy to deal with the BCTF, both in respect of its settlement discussions following the Bill 28 Decision, and in respect of collective bargaining.
[383] The government saw that the failure of the two negotiating tables could be a useful political opportunity for it. As early as June 2011, the government was considering a strategy of a combined legislative response to an expected teachers' strike...
[384] The government thought that a teachers strike would give the government a political advantage in imposing legislation that the public might otherwise not support.
[385] Rather than taking full strike action, instead the teachers withdrew some administrative, non-essential services, such as preparing report cards.
[386] When a full strike did not materialize, so important was a strike to the government strategy that in September 2011, Mr. Straszak planned a government strategy of increasing the pressure on the union so as to provoke a strike.
[387] In furtherance of this strategy, the government sought to force school districts to cancel teachers' leaves and professional development days, including by reducing funding to school districts to get them to carry these measures out. Another aspect of these pressure tactics was to have BCPSEA apply for an order (to)... reduce teachers' pay.
[389] ...I find that Mr. Straszak's key role in developing and pursuing this broader political agenda undermined the sincerity of Mr. Straszak's search to reach a solution in his discussions with the union following the Bill 28 Decision.
[543] There is evidence that one government motivation... was to diminish the influence of the BCTF.
Result:
[635] I find that an appropriate damages award, serving the functions of compensation, vindication, and deterrence, but without being so large as to unduly take from the public purse and other public programs, is $2 million awarded to the BCTF as the bargaining agent representing teachers.
610: The result will be to return the Working Conditions clauses to the collective agreement effective as of July 1, 2002, as already noted, and I find that whatever labour relations grievances and remedies flow from this will be a sufficient remedy in respect of that piece of the legislation.