Case In Point
B.C. Court of Appeal Stays Decision Rendering Teachers’ Collective Bargaining Legislation Unconstitutional, Pending Appeal
Date: March 11, 2014
In our blog post of February 18, 2014, “British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation,” we reported that the B.C. Supreme Court declared Bill 22, legislation relating to teachers’ collective bargaining rights, unconstitutional. The Court concluded that this legislation was “essentially identical” to earlier legislation (Bill 28) that had also been struck down as unconstitutional but for which a declaration of invalidity was granted for 12 months.
In declaring Bill 22 to be unconstitutional, the B.C. Supreme Court ordered that the provisions relating to the cancellation of the teachers’ collective agreement and the temporary prohibition on bargaining for class size and composition (sections 8 and 24 of the Education Improvement Act) be returned to the collective agreement between the British Columbia Teachers’ Federation (“BCTF”) and the British Columbia Public School Employers’ Association (“BCPSEA”) effective July 1, 2002.
It was from that order that the B.C. government sought a stay pending appeal. Before the British Columbia Court of Appeal, it argued that the appeal raised a serious question to be heard and that the balance of convenience favoured granting a stay. The government argued that “the immediate restoration of the deleted clauses to the collective agreement presents irreparable harm to the public interest of unprecedented magnitude” through, for example, the disruption of school programs and classrooms.
The Court of Appeal found that the implementation of the judgment would “entail very significant disruption to the provision of education services” and irreparable harm to the government should the appeal be granted. The Court concluded that the test for granting a stay was met, and so stayed the portion of the order relating to sections 8 and 24 of the Education Improvement Act.
The Court of Appeal also stayed the lower court’s variation of a previous production order, which permitted the BCTF to distribute its unredacted written submissions to its members. Both orders related to the “conditions of disclosure and use of Cabinet documents over which the Province had claimed public interest immunity privilege so that they could be produced in litigation.” It found that “[d]isclosure will vitiate what may be constitutionally protected information.” It found that the effect of the stay on open court principles was outweighed by the irreparable harm that would result to the government if the stay were not granted.
We will continue to monitor and provide updates on the status of the government’s appeal in this case.