Government lawyer Karen Horsman opened the much-anticipated case in the B.C. Court of Appeal on Tuesday with an offensive stand aimed at convincing a panel of five judges to overturn the union victory handed down last January.
Horsman told the court that the government was never required to restore the language removed from the B.C. Teachers' Federation contract in 2002.
It was only obligated to consult in good faith, she said.
"The government's strong position to not restore the clauses is no more illustrative of bad faith than the refusal of the BCTF to discuss anything other than the union's statement of terms of the 2001 collective agreement," Horsman told court in her opening statement.
B.C. Supreme Court Justice Susan Griffin twice ruled the government acted illegally in 2002 when it removed the clauses, and the appeal court hearing begins the next chapter in the saga of the teachers versus the province over the matter.
Union leadership repeatedly raised the victories in 2011 and 2014 during the bitter teachers' strike that delayed the fall session by three weeks, claiming the government was attempting to bargain away rights enshrined by the court.
In her most recent decision, Griffin found the government had bargained in bad faith — and deliberately planned to provoke a strike — during the consultation process for a 2012 education bill that ultimately barred further strikes and appointed a mediator.
Teachers walked off the job in protest of Bill 22 for three days in March 2012, and the government subsequently passed back-to-work legislation. The bill again deleted the clauses related to working conditions, but allowed for class size and class composition to be part of future negotiations.
Horsman argued Tuesday the trial judge erred in her analysis of the case, saying Griffin's decision went too far when it retroactively restored the stripped clauses. She asserted that the teachers' constitutional rights are limited to providing a fair process, as opposed to guaranteeing an outcome.
"A limited right to process cannot conceivably translate into a perpetual right on the part of unionized employees to insist on the inclusion of prior terms in renewal collective agreements," she said. "The result is to fetter successive government administrations who act in different fiscal and policy climates."
The issue of whether educational policy should be in the hands of the union or the government is at stake in this latest round of the legal battle. After Griffin first ruled the government had violated teachers' rights, she gave one year for the province to provide a remedy. In response, it passed the back-to-work legislation.
Horsman said the consultation aimed at answering the court must be viewed in the context of two decades of impasse between the sides. She told the panel the government was trying to find its way around the historic gulf through an alternative approach — by addressing concerns over class composition and teacher workload in the form of a targeted fund.
"An obligation to consider the views of employees expressed through their union does not mean the government has to agree with them," Horsman said. "Good faith requires that both parties be willing to consider alternatives to their initial positions — and the government was the only party to advance an alternative."
Outside court, union president Jim Iker said the BCTF continues to feel vindicated by the lower court rulings and believes in the strength of its case.
"Governments are elected to uphold the law, not to break the law," Iker said in an interview.
"I think this decision is huge, not just for teachers and students and public education, but for all working people, for all Canadians, where government actually has to uphold the constitution and not violate it."
He said the recent, six-year negotiated settlement created a place holder for the ultimate ruling, which is likely to be appealed by whichever side loses the case and takes it to the Supreme Court of Canada.
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