09/09/2013 02:11 EDT | Updated 11/09/2013 05:12 EST

B.C. Teachers: Class Size Crowding Results From Government Inaction

VANCOUVER - The B.C. government thumbed its nose at a court order and instituted only a "sham repeal" of legislation that the B.C. Supreme Court concluded violated teachers' rights to bargain, a lawyer representing the B.C. Teachers Federation argued in court Monday.

In April 2011, B.C. Supreme Court Justice Susan Griffin ruled the government violated teachers' constitutional rights in 2002 by passing legislation that stripped them of their right to bargain for issues such as class size, class composition, and teacher-student ratios.

The province was given a year to address the repercussions of the ruling. While the government introduced new legislation last year that it said repeals the legislation declared unconstitutional by Griffin, the BCTF has once again taken the government to court.

The union argues the Education Improvement Act, or Bill 22, is still unconstitutional because it restricted the negotiating of class sizes and class composition for 14 months.

"To merely purport to repeal invalid legislation, and then immediately establish it, is not true repeal, but a sham repeal," lawyer John Rogers told the court in his opening statement Monday.

"Instead of responding to the decision, the province, we say, has the audacity to merely continue the provisions that this court found to be unconstitutional and invalid."

Bill 22 also required the province to appoint a mediator, Charles Jago, to assist with setting the terms and conditions of a new collective agreement. But Rogers said Jago's appointment violated the teachers' right to have collective agreement terms protected from legislative interference.

The province's lawyer, Karen Horsman, disagreed, arguing that while the Charter of Rights and Freedoms obliges government to ensure that the BCTF has an opportunity to "engage in meaningful consultation," it does not restrict the legislature's freedom to act if an agreement cannot be reached through consultation.

Horsman said that after the 2011 court decision, the province met with the BCTF on 13 occasions to consult on the repercussions, making clear that any remedies must be consistent with the government's own objectives of "flexibility of choice and efficiency in the allocation of resources."

But former BCTF president Susan Lambert focused only on the mechanics of repealing the legislation declared unconstitutional by the court and on the reinstatement of class size and composition provisions, Horsman said.

The union's refusal to discuss alternative remedies led to the failure to reach an agreement, Horsman said.

Court documents say the BCTF is seeking remedies such as the restoration of class-size limits and guarantees of student access to specialist teachers, as well as damages to "remedy the harm caused by the government's breach of teachers' fundamental freedom of association."

"The government broke the law in 2002...and here we are, almost two years later, having to argue the case that the government didn't respect the decision of the court back in 2011," BCTF president Jim Iker told reporters earlier outside the court house. "We need a government that respects the constitutional rights of all British Columbians."

The BCTF says since 2002, students have been forced to learn in overcrowded classrooms, and have lost access to specialist teachers who can give them extra support.

The new legislation brought in last year included $200 million in added funding, but the teachers' union has rejected it, saying the money merely benefited support staff unions.

The provincial government has pegged the cost of reinstating the provisions of the teachers' contract at $6 billion. While Iker insisted that figure is unrealistic, he refused to provide an estimate of costs to taxpayers.

Teachers have been without a contract since June, and negotiations are expected to resume in October.

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