The British Columbia Court of Appeal puts the brakes on freedom of association – BCTF v. BC, 2015 BCCA 184

After the Supreme Court of Canada made a number of decisions enlarging the scope of the fundamental freedom of association in the field of labour relations, in British Columbia Teachers Federation v. British Columbia, 2015 BCCA 184, the British Columbia Court of Appeal has slowed its growth and given some considered discussion of the Supreme Court’s recent pronouncements in the field. A majority of four of a five member panel led by Chief Justice Bauman and Mr. Justice Harris reviewed the law respecting freedom of association, including the recent decisions of the Supreme Court in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“MPAO“)and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL“). Their comments provide penetrating insights as to one approach to understand the newly reconstructed freedom of association.

The Chief Justice and Justice Harris reviewed the law respecting collective bargaining and the protection afforded by s. 2(d) of the Charter. In a situation like the case they were dealing with, where the government is not the employer but where the government controls the legislature where legislation is adopted changing or imposing terms that affect collective agreements and conditions of work, the two justices stated that pre-legislative consultations are relevant to the question as to whether the union’s freedom of association was infringed or not[paras. 56-64]:

[56] First, to conclude that pre-legislative consultations are irrelevant at the infringement stage is to ignore the emphasis in Health Services on the process by which government makes changes to a collective agreement.

[57] It is important to remember two facts about Health Services. The impugned legislation was enacted without any prior consultations with health sector unions and without any effort by the Province, directly or through the employers’ certified bargaining agent, to renegotiate the collective agreement in light of the Province’s new fiscal priorities. Second, the deleted collective agreement terms concerned matters such as bumping, lay-offs and contracting out – traditional terms of a collective agreement which do not engage health policy in the same way as the Affected Topics engage education policy. For this reason, direct consultations with the Province (as health policymaker) would perhaps have been less meaningful for health care unions than the consultations with the Province (as education policymaker) were for the BCTF in this case. Although Health Services and this case both engage the Province’s fiscal policy, this case directly engages substantive policy issues (here education policy) for which the Province is responsible under the School Act, R.S.B.C. 1996, c. 412, and democratically accountable.

[58] In Health Services, McLachlin C.J.C. and LeBel J. stated several times for the Court that, if changes to a collective agreement are preceded by meaningful discussion and consultations with those who will be affected by them, this is relevant to whether those changes amount to an infringement of s. 2(d) (see e.g. paras. 92, 109, 129):

[U]nilateral nullification of negotiated terms, without any process of meaningful discussion and consultation, may also significantly undermine the process of collective bargaining.

Important changes effected through a process of good faith negotiation may not violate s. 2(d). … Only where the matter is both important to the process of collective bargaining, and has been imposed in violation of the duty of good faith negotiation, will s. 2(d) be breached.

Even where a matter is of central importance to the associational right, if the change has been made through a process of good faith consultation it is unlikely to have adversely affected the employees’ right to collective bargaining.

[59] McLachlin C.J.C. and LeBel J. also said that nullifying contractual terms “may”, rather than must, interfere with the right (at para. 96). In our view, this is in part because the presence or absence of good faith consultations is relevant to whether there has been an infringement.

[60] The relevance of the process by which the impugned legislation was enacted is also reflected in their articulation of the applicable test (at para. 112):

First, does the measure interfere with collective bargaining, in purpose and effect? Secondly, if the measure interferes with collective bargaining, is the impact, evaluated in terms of the matters affected and the process by which the measure was implemented, significant enough to substantially interfere with the associational right of collective bargaining so as to breach the s. 2(d) right of freedom of association?

[Emphasis added.]

[61] We interpret Fraser to be consistent with our analysis. As the trial judge observed, Fraser did not deal directly with the relevance of pre-legislative consultations. That is not surprising, because the case concerned the adequacy of a scheme enacted by Ontario to govern collective bargaining between agricultural workers and their employers. Pre-legislative consultations were not at issue. Nonetheless, in explaining Health Services, the Court reiterated that s. 2(d) guarantees workers a meaningful process through which they can make collective representations in furtherance of workplace goals and have those representations considered in good faith (see e.g. paras. 2, 37, 38). Fraser confirms that s. 2(d) protects process, not outcomes. This is entirely consistent with, and indeed supports, our interpretation of Health Services.

[62] Our interpretation of Health Services is also shared by the Ontario Court of Appeal. In Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, leave to appeal refused, [2012] S.C.C.A. No. 430, the impugned legislation had the effect of imposing terms of a collective agreement on the claimants. Interpreting Health Services, Sharpe J.A. for the Court said (at para. 41):

In my view, the validity of the [legislation] must be assessed on the basis of whether, at the time it was enacted, the parties had had the opportunity for a meaningful process of collective bargaining. If they had, s. 2(d) is satisfied. The faint hope of further negotiations in the shadow of a dispute resolution mechanism not protected by s. 2(d) cannot expand or extend the reach of s. 2(d) beyond its core guarantee.

[Emphasis added.]

[63] As we see it, nothing in the recent cases from the Supreme Court of Canada casts doubt on our interpretation of Health Services. Pre-legislative consultations were not a factor in MPAO or SFL, both of which dealt with the structure of collective bargaining regimes. The issue in MPAO, as in Fraser, was whether a separate labour relations scheme for a particular type of employee (RCMP officers) was constitutionally adequate. The issue in SFL was whether legislation limiting the right to strike, but not otherwise affecting working conditions or the collective agreement, infringed s. 2(d).

[64] Pre-legislative consultation was a minor issue in Meredith. It too supports our interpretation of Health Services and our conclusion the trial judge erred in the case at bar.

The Chief Justice and Justice Harris were quick to confirm and point out that the Health Services decision did not hold that a legislature could never interfere with a collective agreement. Rather, it was the union’s right to freedom of association, and therefore, its right to bargain collectively that had to be respected, measured and balanced in the constitutional crucible [para. 77]:

[77] However, McLachlin C.J.C. and LeBel J. for the majority in Fraser did not accept that these criticisms were valid (at para. 76):

Our colleague argues that Health Services gives constitutional status to contracts, privileging them over statutes. The argument is based on the view thatHealth Services holds that breach of collective agreements violates s. 2(d). In fact, as discussed above, this was not the finding in Health Services. The majority in Health Services held that the unilateral nullification of significant contractual terms … coupled with effective denial of future collective bargaining, undermines the s. 2(d) right to associate, not that labour contracts could never be interfered with by legislation.[Emphasis added.]

Here the majority said explicitly that legislation can change a collective agreement without infringing s. 2(d). This could not be the case if workers had a presumptive veto over such changes. We do not think the scope of the majority’s comment is limited to legislative changes of an insubstantial nature.

The Chief Justice and Justice Harris noted that the Supreme Court had expressly held that nothing in the earlier Supreme Court judgments required the government to adhere to a particular labour model (see paras. 78-81).

They then overturned the trial judge’s finding of fact that the government had not acted in good faith when holding pre-legislative consultations with the BCTF. This finding had been central to the question as to whether the government had breached the union’s s. 2(d) rights. This then led them to conclude that the trial judge had erred in holding the government liable for breaching the union’s freedom of association.

The case will no doubt be appealed to the Supreme Court where yet another discussion about the refurbished freedom of association will ensue. The careful discussion by the Chief Justice and Justice Harris (as well as by the dissenting judgment of Justice Donald), dissecting the importance of good faith consultation and discussions with collective representatives from the equally important legislative capacity to impose one or more labour provisions for the sake of public policies, including fiscal prudence, will be of great assistance to that Court when considering just how far the Charter value for associational freedom should go when faced by a government making decisions about such things as educational policy (size of classes and curriculum as examples) and the public purse.

I remain

Constitutionally yours

Arthur Grant

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