CHRONOLOGY OF EVENTS RELEVANT TO THE APPEAL . . . . . . . . . . . . . . . . . . . . . . . . i
OPENING STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi PART 1 - STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Response to Appellants Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Response re Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Decision of the Trial J udge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Teachers' Working Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Collective Bargaining Before 2002 and PEFCA . . . . . . . . . . . . . . . . . . . . . . 7 Collective Bargaining After 2002 and PEFCA . . . . . . . . . . . . . . . . . . . . . . . . 8 Government Strategy Prior to BCTF #1 on April 13, 2011 . . . . . . . . . . . . . . 9 Government Strategy After BCTF #1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Settlement Discussions Following BCTF #1 . . . . . . . . . . . . . . . . . . . . . . . . 11 Government Provoking a Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Enactment of the EIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PART 2 - ISSUES ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 PART 3 - ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The Trial J udge's Determination of the Additional Remedies Flowing from BCTF #1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Preliminary Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Response re remedy resulting from the BCTF #1 declaration of invalidity . 17 Response re appellants assertion that the trial judge wrongfully assumed supervisory jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Response re interpretation of the trial judge's order . . . . . . . . . . . . . . . . . . 23 Response re functus officio argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Response re the appellant's argument that the trial judge failed to apply judicial restraint in her decision regarding Charter remedies . . . . . . 25 Conclusion re Bill 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Response re Trial J udge's Decision Regarding the BCTF Challenge to Bill 22 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Response re the appellant's "Consultation" Argument . . . . . . . . . . . . . . . . . . . . . . 28 Trial judges conclusion regarding settlement discussions . . . . . . . . . . . . . 28 Response to the appellant's argument on consultation . . . . . . . . . . . . . . . . 30 J udicial deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Pre-legislative consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Wagner Act model of collective bargaining . . . . . . . . . . . . . . . . . . . 35 Elevating collective agreement terms to a constitutional level of protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Indirect employer of teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Conclusion re appellant's "consultation" argument . . . . . . . . . . . . . 38 Response re the findings of bad faith bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . 38 The trial judge applied the correct test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 No palpable and overriding error in findings of fact . . . . . . . . . . . . . . . . . . . 39 Conclusion re bad faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Response re Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Pressing and substantial objective and rational connection . . . . . . . . . . . . 44 Minimal impairment test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Response re Remedies in Bill 22 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Section 52(1) remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Response re section 24(1) argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 PART 4 - NATURE OF ORDER SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 LIST OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 i CHRONOLOGY OF EVENTS RELEVANT TO THE APPEAL Date Description 1987 Through amendments to the Industrial Relations Act, R.S.B.C. 1979, c. 212, and the School Act, R.S.B.C. 1979, c. 375, teachers for the first time gained statutory recognition of their right to engage in full collective bargaining. 1987-1993 First period of collective bargaining between local teachers' associations and school boards. Numerous collective agreements were reached between individual school boards and local teachers' unions during this time period. These collective agreements contained provisions regarding class size, class composition, staffing levels of non-enrolling teachers and hours of work, although these provisions varied from school district to school district. J une 1993 The Report of the Korbin Commission was released, recommending changes to the structure of public sector bargaining. J uly 27, 1993 Public Sector Employers Act, S.B.C. 1993, c. 65 [now R.S.B.C. 1996, c. 384] ("PSEA") enacted, establishing PSEC and mandating that employers' associations be established for six public sector employers. J une 10, 1994 Public Education Labour Relations Act, S.B.C. 1994 c. 21 [now R.S.B.C. 1996, c. 382] ("PELRA") enacted, establishing and designating the British Columbia Public School Employer's Association ("BCPSEA") as the employers' association for school boards and as bargaining agent. The British Columbia Teachers Federation (BCTF) was designated as the bargaining agent for public school teachers. The legislation continued in force the existing collective agreement provisions. April 28, 1996 The Education and Health Collective Bargaining Assistance Act, S.B.C. 1996, c. 1, enacted, allowing for means by which a mediator could impose a collective agreement on the parties. J une 17, 1996 BCPSEA and BCTF concluded the Transitional Collective Agreement in May 1996, with an effective date of J une 17, 1996, and expiring on J une 30, 1998. BCPSEA on behalf of school districts and the BCTF on behalf of teachers agreed to continue the existing language in the previous collective agreements except where amended. This included the language concerning the Working Conditions. ii April 17, 1998 The government and BCTF reached an Agreement in Committee ("AIC") including a K-3 Memorandum of Agreement. It provided for a rollover of other terms of previous local agreement language bargained between 1988-1994. May 4, 1998 BCPSEA, BCTF and the government sign Article A.1, agreeing to continue all of the provisions of the Transitional Collective Agreement, unless amended or modified. J une 30, 1998 The Transitional Collective Agreement expired. J uly 30, 1998 When BCPSEA failed to ratify a collective agreement, the Public Education Collective Agreement Act, S.B.C. 1998, c. 41, is enacted, imposing a collective agreement on the parties for the term J uly 1, 1998 to J une 30, 2001. The collective agreement carried forward the terms of the Transitional Collective Agreement, as well as the terms of the AIC and the K-3 Memorandum of Agreement and also contained a number of provisions bargained by the parties in the recent collective bargaining. J une 1999 BCPSEA and BCTF bargained LOU #3, adding certain common provincial language in the 1998-2001 Collective Agreement dealing with non-enrolling / ESL ratios. J une 2000 BCPSEA and BCTF bargained LOU #5 revising the ESL ratios in the 1998-2001 Collective Agreement. February 2001 BCPSEA and BCTF signed the 2001 K-3 Memorandum of Agreement amending the terms of the class size provisions, including the K-3 Memorandum of Agreement incorporated in the 1998-2001 Collective Agreement. May 10, 2001 A new provincial government was elected. J une 30, 2001 The Collective Agreement constituted under the Public Education Collective Agreement Act expires. August 16, 2001 The Skills Development and Labour Statutes Amendment Act, 2001, S.B.C. 2001, c. 33, was enacted to amend the Labour Relations Code, R.S.B.C. 1996, c. 244, to include K-12 education as an essential service. 2001 BCTF and BCPSEA commenced collective bargaining in March 2001. BCPSEA was also consulting with the new government on potential legislative changes that could reduce the scope of collective bargaining. J anuary 27, 2002 Bill 27, the Education Services Collective Agreement Act, S.B.C. 2002, c. 1 ("ESCAA") was enacted. J anuary 28, 2002 Bill 28, the Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3 ("PEFCA") was enacted. iii May 30, 2002 BCTF filed a constitutional challenge alleging that teachers' Charter- protected rights had been violated with the passage of Bill 27 and Bill 28 ["Bill 28 Action"]. August 30, 2002 Arbitrator Rice issues his decision deleting extensive provisions in the collective agreement, pursuant to s. 27.1 of the School Act, which was added by s. 9 of PEFCA. J anuary 22, 2004 Shaw J . quashed Arbitrator's Rice's decision in British Columbia Teachers' Federation v. British Columbia Employers' Association, 2004 BCSC 86. April 29, 2004 Bill 19, the Education Services Collective Agreement Amendment Act, 2004, S.B.C. 2004, c. 16 ("Amendment Act"), was enacted, effectively restoring Arbitrator Rice's decision by deleting all sections of the collective agreement that had been deleted by Arbitrator Rice. J une 30, 2004 Collective agreement imposed by ESCAA expires. October 7, 2005 Teachers' Collective Agreement Act, S.B.C. 2005, c. 27, enacted, deeming the continuation of the collective agreement imposed by ESCAA. May 18, 2006 Bill 33, the Education (Learning Enhancement) Statutes Amendment Act, 2006, S.B.C. 2006, c. 21 enacted. J une 2006 BCTF and BCPSEA conclude a 5-year collective agreement, which continued all of the provisions of the collective agreement imposed by ESCAA, and extended by the Teachers' Collective Agreement Act, except where amended or modified by the parties. J une 8, 2007 Supreme Court of Canada judgment in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27. J anuary 2008 Post- Health Services settlements reached between the health services employers' bargaining agent and the affected health sector unions by mid-contract amendments to the collective agreements. A separate settlement of the outstanding issues resulting from Health Services was reached between government and the affected health sector unions and government subsequently repealed the unconstitutional provisions. 2009 Government developed a mandate which it gave to public sector bargaining agents, known as Mandate 2010. One aspect of Mandate 2010, known as the "net zero mandate", prevented public sector employers from agreeing to any changes to collective agreements that would result in a net increase in costs to government. November 2010 Summary trial of BCTF's constitutional challenge [Bill 28 Action]. iv March 2011 - February 2012 Collective bargaining between BCPSEA and BCTF to which Mandate 2010 applied. Government additionally asked BCPSEA to achieve concessions from BCTF in favour of greater management rights. April 13, 2011 The Bill 28 Decision is rendered declaring ss. 8 and 15 of PEFCA and s. 5 of the Amendment Act unconstitutional and invalid, but suspends the declaration of invalidity for twelve months to allow the government time to address the repercussions of the decision: BCTF v. B.C., 2011 BCSC 469 ["BCTF #1"]. May - November 2011 Government and BCTF have settlement discussions about the repercussions of the Bill 28 Decision. No settlement is reached. J une 30, 2011 2006 Collective Agreement expires. September 2011 Collective bargaining continues between BCTF and BCPSEA. BCTF commence phase 1 of job action, withdrawing some non- essential services. October 12, 2011 BCTF's clarification application dismissed: British Columbia Teachers' Federation v. British Columbia, 2011 BCSC 1372. February 28, 2012 Bill 22, the Education Improvement Act, S.B.C. 2012, c. 3 ("EIA" or "Bill 22"), is introduced in the legislature. March 15, 2012 The EIA is enacted, with certain provisions at issue (ss. 8, 13, 24) not being brought into force until April 14, 2012. March 28, 2012 Government appoints Dr. Charles J ago as mediator in respect of collective bargaining between the BCTF and BCPSEA with the mediator's terms legislatively limited by s. 6(1) of the EIA. April 14, 2012 Sections 8, 13 and 24 if the EIA come into force. The Learning Improvement Fund Regulation, B.C. Reg. 53/2012 comes into force. J une 18, 2012 BCTF filed an application for further remedies in the Bill 28 Action. J une 26, 2012 The BCTF and BCPSEA sign a Memorandum of Agreement which carried forward the 2006 Collective Agreement except where amended or modified by the parties. J une 27, 2012 BCTF filed a constitutional challenge alleging that teachers' Charter- protected rights had been violated with the passage of Bill 22 ["Bill 22 Action"]. J une 29, 2012 BCTF members ratify the Memorandum of Agreement. J uly 1, 2012 The Class Size Compensation Regulation, B.C. Reg. 52/2012 is brought into force. August 15, 2012 Province files an application to strike the BCTF's application for further remedies in the Bill 28 Action. v September - November 2013 Trial of the Bill 22 Action and hearing of the BCTF's application for further remedies and the Province's application to strike. J anuary 27, 2014 Trial judge renders decision in the Bill 28 additional remedies application declaring that the laws declared unconstitutional in the Bill 28 Action were invalid from the date of their enactment. The trial judge determines that this is a sufficient remedy, with the consequences of the Court's declaration to be dealt with at arbitration. Trial judge renders decision in the Bill 22 Action declaring ss. 8, 13 and 24 of the EIA unconstitutional and invalid from the date they came into force and awarding the BCTF $2 million in section 24 Charter damages. (British Columbia Teachers' Federation v. British Columbia, 2014 BCSC 121 ["BCTF #2"]) February 4, 2014 Province files notice of appeal. February 26, 2014 Harris J .A. orders the stay of two terms of the orders in the Bill 22 Action pending the resolution of the appeal. vi OPENING STATEMENT In late J anuary 2002, the government enacted legislation that prohibited collective bargaining on working conditions of fundamental importance to teachers and resulted in the deletion of hundreds of freely bargained terms of the teachers collective agreement. On April 13, 2011, Madam J ustice Griffin held that the challenged legislation contravened s. 2(d) of the Charter and was not saved by s. 1 (BCTF #1). In addition to declaring the legislation unconstitutional, the Court suspended the declaration of invalidity for a period of twelve months to allow the government time to address the repercussions of the decision. The Court reserved jurisdiction to permit the BCTF to argue any additional remedies. Following the decision, the government entered into settlement discussions with the BCTF. No settlement was reached and on April 14, 2012, after the suspension of the declaration of invalidity expired, the government proclaimed the Education Improvement Act (EIA), which purported to repeal and immediately reinstate the constitutionally invalid legislation. The trial judge heard the remedial issues arising from BCTF #1 concurrently with the subsequent challenge by teachers to the duplicative provisions in the EIA (BCTF #2). The trial judge held that the government had not passed corrective legislation during the period of suspension and, as a legal consequence, the unconstitutional legislation was invalid from the date it was enacted. In BCTF #2, the trial judge held that the duplicative provisions in the EIA were invalid and awarded s. 24(1) Charter damages against the appellant because it had re-enacted a broad prohibition on bargaining it knew to be constitutionally invalid. Both at trial and in this appeal, the central position of the appellant has been that freedom of association only protects the right for workers to be consulted prior to the passage of legislation, even if that legislation significantly interferes with workers ability to collectively pursue common goals with their employer. The appellant says that by meeting with teachers and discussing settlement of remedy following BCTF #1, it could simply continue the unconstitutional provisions under the guise of new legislation. This simplistic position is wrong. It is not supported by the decisions in Health Services and Fraser. The decision under appeal did not mandate a Wagner Act legislative model or constitutionalize collective agreement terms. Instead, the trial judge correctly rejected the appellants position and interpreted s. 2(d) as a meaningful right to the process of collective bargaining, following the purposive analysis prescribed by the Supreme Court of Canada. 1 PART 1 - STATEMENT OF FACTS Response to Appellants Overview 1. Rule 22 of the Court of Appeal Rules and Form 10 require that parties set out a Statement of Facts which "must consist of a concise statement of the history of the proceedings and the facts of a case." Instead, under the heading "Overview", the appellant makes a political statement with a blatant in terrorem argument as to the alleged consequences of the trial judge's decision. Further, the appellant attempts to revive asserted facts and argument which were rejected by the Court as unfounded in BCTF #1, which was not appealed by the government (Appellant's Factum (AF), paras. 1-13). 2. We will demonstrate in detail in this factum the inaccuracy of the appellant's assertions of both fact and law, as well as their assertions as to the consequences of the trial judge's decisions. However, given the approach of the appellant, we consider it necessary to respond at the outset to the appellants overview and briefly describe for this Court the context and history of BCTF #1 and BCTF #2 and the issues in dispute. 3. This appeal is not about government's ability to legislate collective agreement terms that a union views as unfavourable (AF, para. 1). This appeal is about fundamental freedoms and teachers' rights protected by s. 2(d) of the Canadian Charter of Rights and Freedoms. In Health Services the Supreme Court of Canada found that legislation which repudiated employment terms in a collective agreement reached by parties in collective bargaining, and which prohibited collective bargaining in the future, interfered with collective bargaining and s. 2(d) Charter rights (Health Services, para. 113). Consistent with Health Services, the trial judge came to the same conclusion in BCTF #1 (para. 189). 4. The appellant's argument is illustrative of a fundamental difference between the parties as to the nature of the constitutional right to freedom of association identified in Health Services and BCTF #1. The appellant's position is that it is entitled to prohibit collective bargaining on fundamental workplace issues and unilaterally remove hundreds of freely bargained collective agreement provisions important to teachers. If that legislation is found to be unconstitutional, government's only obligation is to "consult" with teachers as to why it intends to continue the legislative provisions declared constitutionally invalid. The government is then entitled to "repeal" the constitutionally invalid legislation at the same time as it passes legislation duplicating the constitutionally invalid provisions. If that duplicative 2 legislation is found to be constitutionally invalid, the only remedy available to the trial judge is to order further "consultation". Presumably, this "process" can be repeated ad infinitem, or at least until the teachers of British Columbia recognize that the Charter provides meaningless protection to their right to engage in collective bargaining. 5. The fatal flaw in the appellant's argument is that it considers that Health Services merely requires a process of government consultation prior to passing legislation that substantially interferes with teachers ability to collectively influence their terms and conditions of employment. To support its interpretation, the appellant repeatedly mischaracterizes the trial judge's conclusions and ignores the unappealed legal and factual findings of the trial judge in BCTF #1. Consequently, it is imperative to understand the nature of the proceedings in BCTF #2 and how the trial judge conducted the correct constitutional analysis. 6. In J anuary 2002, the government passed legislation which eliminated hundreds of provisions from teacher collective agreements concerning class size, class composition, levels of non-enrolling teachers and hours of work. The BCTF challenged that legislation. After a lengthy summary trial, the trial judge found that certain provisions in the challenged legislation were unconstitutional and infringed s. 2(d), and were not saved by s. 1. In reaching her conclusions the trial judge applied the constitutional analysis set out in Health Services which consists of the following test: (a) does the legislation interfere with collective bargaining (BCTF #1, paras. 188- 277); and (b) was the interference substantial (BCTF #1, paras. 278-295)? 7. Madam J ustice Griffin (the "trial judge") found that the government's legislation regarding what she described as the "Working Conditions" (i.e., hours of work, class size, class composition and non-enrolling levels) clearly infringed s. 2(d) of the Charter, but that the provisions deleted pursuant to other legislation did not amount to substantial interference with teachers ability to engage in collective bargaining (BCTF #1, para. 316). The trial judge found that the Working Conditions provisions were not saved by s. 1 but provided a period of 12 months "to allow the government time to address the repercussions of this decision" (BCTF #1, para. 382). To the extent that the legislation was unconstitutional, the trial judge ordered that teachers' had reserved their right to argue any 3 additional remedies and could seek a further hearing in that regard (BCTF #1, para. 383, Appeal Record ("AR") p. 390). 8. The government failed to pass corrective legislation during the period of suspension and as a consequence, the trial judge held in BCTF #2 that the declarations of invalidity were effective the date of the legislation. This was a straightforward application of constitutional law which was not challenged by the government before the trial judge. In fact, the government expressly contemplated that if it failed to pass legislation during the period of suspension the consequence would be that the clauses were restored effective the date of the legislation and the issue of whether the language had been breached would be a matter for an arbitrator. The trial judge rejected the government's argument that it is only if government deletes provisions of a collective agreement and prohibits collective bargaining that there is substantial interference with s. 2(d) rights. The trial judge correctly identified that in Health Services the Supreme Court of Canada considered whether the legislation invalidated, nullified or repudiated past negotiated terms and thereby undermined past processes of collective bargaining (BCTF #2, para. 433-434). 9. The government was of the view that it only need enter into the settlement discussions in order to legislatively continue the constitutionally invalid legislation. That clearly would have the effect of significantly undermining the fundamental constitutional rights which protect Canadian citizens against unconstitutional actions by the state. 10. Despite the fact that in Health Services the Supreme Court of Canada expressly stated that governments were not required to consult prior to passing legislation, the appellant says that Health Services stands for the proposition that governments are required to consult with unions before passing legislation which substantially interferes with s. 2(d) rights. The appellant also argues that if it does "consult" with unions, even if it occurs in the form of settlement discussions of a previous action, then government is entitled to eliminate collective bargaining rights and the terms of collective agreements at will. The BCTF will demonstrate that the government's position that the issue is conduct rather than the content of legislation has no foundation in law. 4 Response re Factual Background 11. In J anuary 2002, in the midst of collective bargaining between the BCTF and BCPSEA, the government enacted Bill 27, the Education Services Collective Agreement Act, S.B.C. 2002, c. 1 ("ESCAA"), and Bill 28, the Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3 ("PEFCA"). 12. Section 8 of PEFCA voided hundreds of terms of teachers' collective agreement dealing with class size, class composition (the number of students with special needs integrated per class), ratios of non-enrolling teachers to students (teachers not assigned to classrooms), processes to support successful inclusion of students with special needs and work load (the "Working Conditions"), and prohibited any future collective bargaining on Working Conditions. The Working Conditions provisions had previously been negotiated by the BCTF and its local associations, and their employers. Section 15 of PEFCA voided all collective agreement terms that restricted a school board's power to "establish, vary, extend or amend" teachers' hours of work. 13. In 2004, the decision of Arbitrator Rice deleting the provisions of the collective agreement that PEFCA had voided was overturned on judicial review (BCTF v. BCPSEA, 2004 BCSC 86). The government did not appeal that decision, but in response enacted the Education Services Collective Agreement Amendment Act, 2004, S.B.C. 2004, c. 16 ("Amendment Act"), which legislatively restored the decision of Arbitrator Rice and deleted extensive provisions of the collective agreement that dealt with Working Conditions (s. 5). 14. On April 13, 2011, the trial judge concluded that the Province of British Columbia infringed teachers' freedom of association guaranteed by s. 2(d) of the Charter and declared ss. 8, 9 and 15 of PEFCA and s. 5 of the Amendment Act unconstitutional and invalid (BCTF #1). The trial judge concluded that s. 4 of ESCAA, which deleted whole local collective agreements, did not infringe s. 2(d) of the Charter. 15. The trial judge suspended the "declaration of invalidity for a period of twelve months to allow the government time to address the repercussions" of BCTF #1 (BCTF #1, para. 382, AR p. 390). Government failed to pass corrective legislation during the period of the suspension of the declaration of invalidity. 16. Contrary to the appellant's assertions in its factum at paragraph 6, this appeal does not arise out of the April 13, 2011 judgment in BCTF #1. Neither the BCTF nor the 5 government appealed BCTF #1. In the hearing of the present action, both parties agreed that findings of fact from BCTF #1 applied in the proceeding challenging the Education Improvement Act, S.B.C. 2012, c. 3 ("EIA" or "Bill 22") (BCTF #2, para. 111, AR p. 184). Despite taking this position at trial, the appellant now repeatedly asserts that the trial judge erred in findings in BCTF #2 that were in fact unappealed factual and legal findings from BCTF #1. 17. Although the EIA purported to repeal the provisions declared unconstitutional in BCTF #1, government immediately re-enacted those provisions in precisely the same language. The EIA continued the unconstitutional prohibition on collective bargaining of important Working Conditions (EIA, s. 13) for a further 14 months and re-deleted the Working Conditions provisions in the collective agreement in perpetuity (EIA, ss. 8, 24) (BCTF #2, paras. 2, 12). A. The Decision of the Trial Judge 18. The decision under appeal is with respect to two proceedings before the trial judge, heard concurrently over fourteen days of viva voce evidence and five days of oral argument. The two proceedings were: (i) the teachers' application for additional remedies in BCTF #1 and the appellant's corresponding application to strike the teachers' application, and (ii) the trial regarding the constitutionality of the EIA (BCTF #2, para. 639). (i) The BCTF's application for additional remedies in BCTF #1 19. The government failed to enact legislation during the twelve month period in which the trial judge suspended the declaration of invalidity in BCTF #1 (EIA, s. 26; BCTF #2, para. 566). As a result, the trial judge applied established law that the declaration of invalidity applies retroactively (BCTF #2, paras. 552-565). 20. The trial judge did not award a s. 24(1) Charter remedy because she concluded that striking down the unconstitutional legislation by operation of law provided an effective remedy in BCTF #1 (BCTF #2, paras. 605-607). 21. With respect to the appellant's application to strike the teachers' application for further remedies, the trial judge expressly stated that she was not assuming a supervisory role (BCTF #2, para. 649). 6 (ii) Trial judge's decision on the BCTF challenge to the provisions of the EIA 22. The trial judge applied Health Services and concluded that where government passes legislation and, as in this case, is not the employer, government's pre-legislation consultation is not relevant to whether the legislation substantially interferes with s. 2(d) rights, but could be relevant to the s. 1 Charter analysis (BCTF #2, paras. 72-93). 23. In the event that the trial judge was wrong, she determined that if government could rely on the settlement discussions as saving legislation from violating s. 2(d) rights, the pre- legislative consultation process had to be akin to a process of good faith negotiation between employer and employee association (BCTF #2, paras. 94-96). Contrary to the repeated assertion in the appellants factum, the trial judge never held that s. 2(d) protects Wagner Act collective bargaining. She concluded that, as conceded by the government, the settlement discussions were not collective bargaining (BCTF #2, para. 178). Consistent with how government viewed the discussions, the trial judge concluded that the discussions between government and the BCTF were best characterized as settlement discussions aimed at settling the outstanding issues arising from the repercussions of BCTF #1 and teachers' outstanding claim for damages (BCTF #2, paras. 134, 179-180). 24. The trial judge nevertheless made extensive findings of fact regarding government's discussions with BCTF in response to the appellant's argument that the settlement discussions were relevant to the question of whether the EIA substantially interfered with teachers' s.2(d) rights (BCTF #2, paras. 182-400, AR pp. 198-241). The trial judge found that government's discussions with the BCTF did not amount to good faith bargaining because "[t]he government did not engage in meaningful dialogue, listen to the employees' representations, avoid unnecessary delay, or make a reasonable effort to reach agreement" (BCTF #2, para. 398). 25. The trial judge then determined whether the one change in the duplicative provisions - s. 13, the time limit on the legislative prohibition of collective bargaining on Working Conditions - saved the otherwise invalid provisions from being unconstitutional (BCTF #2, paras. 401-425, 457-463). The trial judge held that the 14 month unilateral extension of the prohibition of collective bargaining was not justified (BCTF #2, paras. 425, 447, 569) and that the time-limited prohibition did not change the analysis about the widespread deletion of hundreds of provisions on Working Conditions in the collective agreement because the right 7 to collectively bargain was still undermined (BCTF #2, paras. 426-463). The trial judge held that the duplicative provisions were contrary to s. 2(d) of the Charter and not saved by s. 1 (BCTF #2, para. 567). 26. With respect to s. 13 of the EIA, which prohibited collective bargaining for an additional 14 months beyond the end of the suspension of declaration, thereby unilaterally continuing an unconstitutional law, the trial judge awarded $2 million dollars ($66 per teacher) as a s. 24(1) Charter remedy. B. Teachers' Working Conditions 27. As established in BCTF #1, Working Conditions are important issues to teachers that they have been trying to influence since they first began to form associations . Local teacher associations and the BCTF have continued to collectively bargain Working Conditions since teachers first gained the right to engage in collective bargaining in 1987. Teachers have made "trade-offs" by accepting less favourable terms relating to salary and benefits in order to achieve desired results on Working Conditions during collective bargaining (BCTF #1, paras. 67-68, 300). C. Collective Bargaining Before 2002 and PEFCA 28. After the 1993 Report of the Korbin Commission, government created a two-tiered scheme for bargaining and enacted Public Education Labour Relations Act, S.B.C. 1994, c. 21 ("PELRA"), which continued the provisions of local agreements until the parties concluded a provincial agreement The rollover of the local agreements constituted the 1993-1994 Collective Agreement. 29. In 1996, the BCTF and BCPSEA entered into a freely negotiated collective agreement by concluding the Transitional Collective Agreement ("TCA") which provided for the rollover of existing language in the 1993-1994 collective agreement (BCTF #1, paras. 94-96). The appellant remarks at paragraph 22 of its factum that the rollover of existing language was without prejudice. This was not argued by the appellant in BCTF #1 or BCTF #2 and is not supported by the appellant's reference to s. 2(e) of the TCA or the affidavits filed in BCTF #1 (Appellant's Appeal Book ("AAB") pp. 39-47). The trial judge's unchallenged finding is that the TCA was a freely negotiated collective agreement whereby the parties agreed to continue the Working Conditions provisions in full force and effect. 8 30. In 1998, the BCTF and BCPSEA were negotiating a collective agreement and both sought the direct involvement of government. Subsequently, government and the BCTF negotiated an Agreement in Committee (the "AIC") which included a Memorandum of Agreement dealing with class size and composition for K-3 (the "K-3 Memorandum") (BCTF #1, para. 99). When BCPSEA did not ratify the AIC, the government enacted the Public Education Collective Agreement Act, S.B.C. 1998, c. 41 ("PECAA"). This established a collective agreement which included a number of new provisions agreed to in collective bargaining between BCPSEA and the BCTF, continued previous collective agreement terms which were not modified by the K-3 Memorandum, and also included the AIC and the K-3 Memorandum. This constituted the 1998-2001 Collective Agreement. The consequence was that the 1998-2001 Collective Agreement continued most of the terms previously negotiated by the parties in prior collective bargaining (BCTF #1, para. 103-107). 31. PECAA provided the parties with the ability to negotiate amendments to the AIC and the K-3 Memorandum. The BCTF and BCPSEA entered into those negotiations to address BCPSEA's concerns regarding flexibility. The parties amended the language on non- enrolling/ESL ratios, and on February 7, 2001 negotiated the 2001 K-3 Memorandum to replace the previous K-3 Memorandum that was set to expire on J une 30, 2001. This new 2001 K-3 Memorandum, which is expressly included in the 1998-2001 Collective Agreement, included a number of new provisions that addressed BCPSEA's need for flexibility in the application of class size maximums (BCTF #1, paras. 115-118). The unchallenged finding of the trial judge was that the 1998-2001 Collective Agreement, including the 2001 K-3 Memorandum, were negotiated through the employees' exercise of freedom of association (BCTF #1, para. 210). D. Collective Bargaining After 2002 and PEFCA 32. On J anuary 27, 2002, government enacted ESCAA, which deemed a collective agreement for the time period of J uly 1, 2001 to J une 30, 2004. Combined with the enactment of PEFCA on J anuary 28, 2002, teachers no longer had the ability to bargain or include any provisions in the collective agreement relating to Working Conditions. In 2004, government enacted the Amendment Act deleting terms from the collective agreement regarding Working Conditions retroactive to J uly 1, 2002, and beyond (BCTF #2, para. 125). 9 33. In 2004, government enacted the Teachers' Collective Agreement Act, S.B.C. 2006, c. 27, which deemed the continuation of the collective agreement imposed by ESCAA until J une 30, 2006. 34. On J une 30, 2006, the BCTF and BCPSEA concluded a collective agreement for the time period of J uly 1, 2006 to J une 30, 2011 (BCTF #2, para. 136). As with previous collective agreements, the parties agreed that the provisions of the previous collective agreement were included in the 2006-2011 Collective Agreement except where a term or condition had been amended or modified (BCTF #2, paras. 144-147). Teachers continued to be prohibited from including or bargaining provisions regarding Working Conditions in the 2006-2011 Collective Agreement. Prior to the trial judge issuing the decision of BCTF #1 on April 13, 2011, the BCTF and BCPSEA commenced the next round of collective bargaining. E. Government Strategy Prior to BCTF #1 on April 13, 2011 35. In October 2010, well before collective bargaining between BCTF and BCPSEA commenced in March 2011, at the highest level of the Public Sector Employer's Council ("PSEC") and the Ministry of Education jointly identified a list of deletions or concessions they required to significant and important provisions in the collective agreement, including evaluation, compensation, professional development, post and fill, layoff and recall. Government intended to impose these amendments through a legislated collective agreement (BCTF #2, para. 379, AR p. 237; Respondent's Transcript Extract Book ("RTEB") pp. 373-375, 770-771; Respondent's Appeal Book ("RAB") p. 507). The Ministry of Education then provided a list to BCPSEA directing it to pursue those concessions in collective bargaining (BCTF #2, para. 379, AR p. 237; RTEB pp. 771-775; RAB pp. 516-520, 1648). 36.
10 F. Government Strategy After BCTF #1 37. The trial judge issued BCTF #1 on April 13, 2011.
38.
39. 40. Both the government and BCPSEA took and maintained the position that as a result of the suspension of the declaration of invalidity, the BCTF was not legally entitled to bargain Working Conditions during this round of collective bargaining (RTEB p. 31). 41. 42. 11 G. Settlement Discussions Following BCTF #1 43. For BCTF #2, the parties entered a consensual agreed statement of facts and chronology as an exhibit detailing primarily with the settlement discussions between government and the BCTF addressing the repercussions of BCTF #1 (AAB pp. 273 - 950). 44. The trial judge's fully canvassed considerations of the settlement discussions and findings of fact are at paragraphs 184-313, 329-400 of BCTF #2. The appellant has not asserted any challenge to the trial judge's factual findings on the settlement discussions except for the trial judge's conclusion that there was no "true will" on the government side of the table to reach an agreement in the settlement discussions (BCTF #2, para. 391, AR p. 240; AF paras. 138-150). 45. We agree with the appellant that it is unnecessary to provide a detailed summary of the settlement discussions (AF para. 56). The settlement discussions ultimately failed without the parties reaching an agreement. However, given the appellant's incorrect position that all it had to do was enter into these settlement discussions with teachers prior to enacting legislation in order to comply with BCTF #1 and Health Services (AF para. 40), we will set out specific important facts. 46. 47. The appellant emphasizes the teachers' refusal to accept government's proposal to combine collective bargaining with the settlement discussions (AF paras. 45-47, 118). The appellant ignores that teachers and BCPSEA were already engaged in collective bargaining and that government refused to allow bargaining on Working Conditions in either process (BCTF #2, paras. 339-340, AR p. 230; RAB pp. 318-321; RTEB pp. 113-114). 12 48. Government's objective was to put teachers in a "box" by getting them to agree to a process in the discussions and agree to government's policy objectives (BCTF #2, para. 361, AR p. 234; RAB pp. 555; AAB pp. 318-321, 357-364, 417-426, 480-494, 1353; ATEB, pp. 422-425). Governments policy objectives were the same as those presented for enacting PEFCA, ESCAA and the Amendment Act and relied on by government in BCTF #1 (BCTF #2, paras. 213, 361, AR pp. 204, 234; ATEB p. 301). 49. Peter Drescher, a retired deputy superintendent of the Surrey School District, made an unduly alarmist presentation on behalf of government attempting to illustrate the implications of restoring the Working Conditions provisions on the Surrey School District based on current funding levels. Mr. Drescher's presentation was based on the same myths and unsubstantiated hearsay relied on by government in BCTF #1 (BCTF #2, paras. 229- 251, 306, AR pp. 207-211, 221-222; BCTF #1, paras. 128-130, 146, AR p. 334-335, 339; AAB pp. 480-536; ATEB pp. 671-674; RTEB pp. 675, 679, 696-730, 748-753). 50. Teachers asked legitimate and reasonable questions during governments presentations on its policy objectives (BCTF #2, paras. 349, 352-353, AR pp. 232-233; RTEB pp. 436-447, 750-753). 51. Government's settlement proposal that introduced a Class Organization Fund (the "COF"), which was later imposed by s. 18 of the EIA as the Learning Improvement Fund (the "LIF")), addressed only the Working Condition of class composition (i.e., not class size or other working conditions) and was kept outside of collective bargaining (BCTF #2, paras. 256-257, 259, 262, 271, AR pp. 212-214; AAB pp. 557-558,569-574). Government's varied settlement proposal on October 27, 2011 was virtually identical to its first except that it contained a limited right to the grievance procedure dealing with the method of allocation of COF. The COF was controlled completely by employers, and there was no obligation to utilize any of the funds to retain teachers (BCTF #2, para. 284, AR p.217; AAB pp. 690-698). 52. Government's proposals did not address teachers' ability to collectively bargain Working Conditions, the return of the deleted provisions or the stability of funding. The role of the BCTF was virtually non-existent (BCTF #2, para. 274, 285, 288-289, AR p. 215-218; AAB pp. 557-558, 569-574). 53. Government's settlement proposals required that teachers agree to broad and comprehensive releases of all their claims arising from BCTF #1 and certain outstanding 13 grievances relating to class size maximums that did not arise from BCTF #1 (BCTF #2, para. 273, AR p. 215; AAB pp. 557-558, 569-574, 690-698). 54. The appellant's assertion (AF para. 46) that teachers never changed their position in settlement discussions from its first proposal is not consistent with the evidence and the trial judge's unchallenged findings of fact. While teachers did not change their view that BCTF #1 affirmed teachers' entitlement to bargain Working Conditions (BCTF #2, paras. 202-203, 251, 252, 255, AR pp. 202, 211-212; ATEB pp. 24-25), teachers proposed changes to the deleted collective agreement language, were prepared to bargain limits and ratios, invited a counter-proposal from government and on several occasions stated they were willing to explore costing. The government clearly stated that the issue was not cost but management rights (BCTF #2, paras. 292, 307-308, 311, AR pp. 219, 222-223; AAB, pp. 604-637, 725- 731, 806-819, 823-828; RTEB pp. 107-112). 55. Government never discussed with teachers the possibility of a process such as independent mediation or the appointment of an Industrial Inquiry Commission to assist the BCTF and BCPSEA in reaching an agreement (BCTF #2, paras. 483-486, AR pp. 256-257). There was no evidence that government considered these options or any other alternatives beyond legislating the duplicative provisions. H. Government Provoking a Strike 56.
57.
58. 14 I. Enactment of the EIA (i) Extending the prohibition on bargaining and deleting collective agreement provisions 59. Consistent with the strategy it had planned since the decision in BCTF #1, government enacted the EIA to legislate a collective agreement and continue the unconstitutional duplicative provisions. 60. Government extended the prohibition on collective bargaining of Working Conditions for a further 14 months, but determined that it would not return any of the language, because it wanted to force teachers to bargain from a "clean slate" and to trade off salary increases for class size reductions and vice versa (BCTF #2, paras. 421, 547-550, AR pp. 245, 265-266; RAB pp. 620, 625, 1744, 1755; RTEB pp. 620-622). 61. Section 8 of the EIA again deleted hundreds of collective agreement provisions retroactively after it was found to be unconstitutional in BCTF #1. (ii) Learning Improvement Fund Regulation, Class Size and Compensation and Mediator 62. Sections 18 and 22 of the EIA provided for the issuance of the Learning Improvement Fund Regulation, B.C. Reg. 53/2012 and Class Size Compensation Regulation, B.C. Reg. 52/2012 (the "EIA Regulations"). The appellant never relied on LIF or the EIA Regulations as processes to replace collective bargaining, but as separate elements of its education policy agenda (BCTF #2, para. 501, AR p. 259; RTEB pp. 1267-1268, 1270- 1271). 63. Part 1 of the EIA prohibited any strike or lockout and required the appointment of a mediator to assist the BCTF and BCPSEA in concluding a new collective agreement. Section 6 set out the mediator's narrow terms of reference that followed the objectives of government's bargaining strategy to seek concessions from teachers (BCTF #2, para. 537, AR p. 264; ATEB p. 558). The BCTF and BCPSEA concluded a collective agreement on J une 26, 2012, with the assistance of the mediator, Dr. Charles J ago (BCTF #2, para. 540, AR p. 264). 15 64. The trial judge concluded that these provisions and the EIA Regulations did not violate teachers' s. 2(d) Charter rights. Teachers do not cross-appeal that finding (BCTF #2, paras. 503, 514, AR pp. 260-261). However, the trial judge recognized that the EIA Regulations, the narrow terms of mediation and Mandate 2010 came close to cumulatively interfering with teachers' s. 2(d) Charter rights given the evidence that government tried to provoke a full-scale withdrawal of work and undermine the influence of the BCTF (BCTF #2, paras. 547-550). PART 2 - ISSUES ON APPEAL Appeal of the Remedy Ordered by the Trial Judge Resulting from the Bill 28 Decision 65. The trial judge correctly concluded that the government failed to pass legislation dealing with the repercussions of the decision within the period of suspension. The uncontested legal consequence was that the declaration of invalidity was effective the date of the passage of Bill 28. The trial judge's conclusion was that the consequences of her ruling should be dealt with by the parties to the collective agreement in the arbitration process. This ruling was within her jurisdiction to make. Appeal of the Constitutionality of the EIA 66. The BCTF says: (a) The trial judge correctly applied the Health Services and Fraser decisions in determining that s. 2(d) protected the process of collective bargaining and not the process of settlement discussions entered into by the government with the BCTF following BCTF #1. (b) If the trial judge erred in concluding that the settlement discussions were irrelevant to the determination of whether the EIA infringed the s. 2(d) rights of teachers, she correctly applied the test from Health Services and at no time, either expressly or by inference, determined that the Wagner Act model must apply to those settlement discussions. (c) The trial judge correctly determined that the government's conduct in the settlement discussions amounted to bad faith. 16 (d) The trial judge correctly held that the government, in legislatively deleting hundreds of freely bargained collective agreement terms following their restoration, infringed s. 2(d). (e) The trial judge correctly determined that the continued prohibition on collective bargaining infringed s. 2(d). (f) The trial judge correctly determined that the legislation infringing s. 2(d) was not saved by s. 1. 67. The trial judge applied the relevant factors in awarding s. 24(1) damages as a result of the government's intentional failure to restore bargaining rights under s. 13 of the EIA, despite government's awareness that this right was required by BCTF #1. The damages award is based on a measured and reasoned analysis. The appellant has provided no basis for this Court to alter the trial judge's ruling, especially given the high measure of deference owed to the trial judge on this matter. 68. Although the appellant asserts that all but one of the alleged reviewable errors are errors of law reviewable on the standard of correctness, the appeal is replete with factual assertions which challenge the findings of the trial judge, both in BCTF #1 and BCTF #2. PART 3 - ARGUMENT The Trial Judge's Determination of the Additional Remedies Flowing from BCTF #1 69. The trial judge held that the legal consequence of the government's failure to pass corrective legislation during the period of suspension was that the impugned Bill 28 legislation was unconstitutional from the date of its enactment. She held that the appropriate forum to determine the consequences of that determination was arbitration pursuant to the collective agreement. Although restored by the operation of law, she clarified that this was a sufficient appropriate remedy. As a consequence, she declined to order the monetary damages sought by the BCTF. A. Preliminary Comments 70. It is submitted that there are three fundamental flaws in the appellant's approach to issues of remedy. These are: 17 (a) Despite the fact that the trial judge made separate determinations as to remedy flowing from the separate actions, the appellant conflates the remedial decisions in its appeal (see for example AF para 170). (b) The appellant fails to acknowledge, let alone address, the finding of the trial judge that the government did not pass remedial legislation during the period of suspension of the declaration of invalidity. This was a significant legal finding, which was not contested during the trial. The legal consequences of this failure was understood by the government prior to the passage of the EIA, and included the government's expectation that there would be significant consequences, including retroactive application of the declaration of invalidity, if the government failed to pass remedial corrective legislation during the period of suspension. (c) The appellant fails to acknowledge that the trial judge expressly stated that she was not supervising the appellant's response to BCTF #1. The trial judge only considered the settlement discussions for the purpose of determining the constitutionality of the EIA based on the appellant's argument that the discussions were relevant. B. Response re remedy resulting from the BCTF #1 declaration of invalidity 71. The trial judge's ruling on the remedy flowing from the declaration of invalidity in BCTF #1 is set out at paragraphs 551 to 565 and 594 to 607 of BCTF #2. The trial judge held that the legal consequence of the government's failure to pass corrective legislation during the period of suspension of invalidity was that the declaration of invalidity applied retroactively to the date of the passage of Bill 28, and that the consequence was that the deleted clauses were restored effective J uly 1, 2012. The trial judge determined that the appropriate process for determining the remedies flowing from this ruling was the arbitration process under the collective agreement. She declined to award the global monetary damages sought by teachers. 72. Although not articulated in this fashion, it appears that the appellant asserts three grounds for challenge to the relief ordered by the trial judge. These are: (a) The trial judge assumed de facto supervisory jurisdiction over her order. 18 (b) The trial judge's order in BCTF #1 which stated "And this Court Orders that the Plaintiffs have leave to seek a further hearing to argue any additional remedies", should have been interpreted by the trial judge to limit any remedy to monetary damages. (c) The trial judge was functus to consider the government's failure to pass corrective legislation during the period of suspension established by her order. 73. Given the appellant's failure to even acknowledge the basis of the trial judge's remedial order in BCTF #1, we will address the background to that order, as well as the legal principles on which it is founded. 74. When the teachers initially brought a separate application to have the trial judge determine the remedies arising from BCTF #1, both parties accepted the trial judge's suggestion that, given that the evidence and issues could be intertwined, the Bill 28 remedies application and the Bill 22 trial would proceed concurrently. 75. Contrary to the appellant's argument at paragraph 170 of its factum that "[i]t is impossible to view the decision...as anything other than the de facto assumption of supervisory jurisdiction by the trial judge", the trial judge carefully divided her analysis regarding the two proceedings. The trial judge expressly stated that she accepted the appellant's argument that she was not entitled to take on a supervisory role with respect to the subsequent EIA and agreed with the appellant that any challenge to the subsequent legislation was required to be a fresh challenge: In granting the government a one year suspension of the declaration of invalidity in the Bill 28 Action, the Court was not taking on a supervisory role with respect to subsequent legislation. I agree with the government that any challenge to the subsequent legislation was required to be a fresh challenge. For this reason I conclude that the appropriate proceeding for the declarations concerning the unconstitutionality of the Bill 22 Duplicative Provisions is the Bill 22 Action BCTF #2, para. 649, AR p. 284. 76. Although the appellant refers to the trial judge's order "suspending the declaration of invalidity for a period of 12 months to allow the government time to address the repercussions of this decision", the appellant nowhere in its appeal acknowledges that it failed to enact legislation during the period of suspension. The trial judge's decision on this issue is set out at paragraphs 560 to 565 of BCTF #2: 19 A suspension of a declaration of invalidity is a legal paradox, in that a law which is invalid from its start is nonetheless considered alive for a brief period, out of deference to the legislature so that the legislature has time to react to the repercussions of the invalidity: see Schachter, at 715-717. It is obviously presumed and hoped that when there is a suspension of a declaration of invalidity of a law, the legislature will react lawfully, in accordance with the Constitution. Applying the usual constitutional principles to the Courts declaration in the Bill 28 Decision, after the twelve months suspension period expired from the date of the Bill 28 Decision, the unconstitutional legislation was then invalid from the date of its enactment. The twelve months expired at midnight on April 12, 2012. This means that as of April 13, 2012, the laws declared unconstitutional in the Bill 28 Decision were no longer in effect from the date of their enactment. For clarity, an additional declaration to this effect is made in the Bill 28 Action as part of the application by the BCTF for additional remedies in that action. The result is that as of April 13, 2012, the BCTF had the right to engage in collective bargaining over the Working Conditions; it also means that as of J uly 2002 the Working Conditions clauses were returned to the collective agreement between the BCTF and BCPSEA. All, of course, later subject to the provisions of Bill 22 being brought into force the next day and this Courts findings regarding the constitutionality of those provisions BCTF #2, paras. 560-565, AR p. 268. 77. 78. 79. However, between February 26, and the introduction of Bill 22 on February 28, government altered its position and now concluded that: corrective legislation must be in force by April 14, 2012 (RAB p. 628). 20 80. Government introduced no evidence as to why this long-held legal advice changed. In discovery, the government's explanation was less than illuminating (RTEB pp. 267-268). However, the section notes for Bill 22 contain this statement: Most of the provisions that are a direct response to the Bill 27/28 decision are being re-enacted on April 14, 2012, the date upon which the judgment comes into effect. RAB p. 617. 81. There was no obligation for the government to wait until the last possible date to pass corrective legislation. Indeed, the position of the respondent was that this was clearly an attempt to maximize the term of the period of suspension in order to permit avoidance of the terms of the collective agreement. The government did not dispute that this was its strategy, but instead argued that the government was entitled to act in this manner because of the trial judge's order. However, if the government engages in this tactic, which it is submitted is contrary to the purpose of a judicial suspension of a declaration of invalidity, or for any other reason fails to act within the period of suspension, it must accept the consequences which it had previously identified and recognized. 82. The intention of the government to maximize the period of suspension is easily demonstrated by the fact that Bill 22 was introduced on February 28, 2012 and received Royal Assent on March 15, 2012. However, the provisions which the government stated addressed the unconstitutional provisions were not effective until April 14, 2012. 83. It was not disputed before the trial judge that the period of suspension expired prior to April 14, 2012, nor is this challenged on appeal. Indeed, the consequences of the failure to repeal or amend invalid legislation until after the expiration of the suspension of invalidity was beyond dispute before the trial judge. 84. In Canada (AG) v. Hislop, 2007 SCC 10, at paragraphs 91-92, the Supreme Court of Canada stated: By suspending the declaration of invalidity, the Court allows the constitutional infirmity to continue temporarily so that the legislature can fix the problem. In other words, the Court extends the life of a law which, on the Blackstonian view, never existed. 21 Although if the legislature fails to comply with the Court's order within the period of suspension, the Court's declaration would apply retroactively, the purpose of a suspended declaration of invalidity can be to facilitate the legislature's function in crafting a prospective remedy (emphasis added). 85. Hogg states the law as follows: A suspended declaration of invalidity is not to be confused with a prospective ruling. A suspended declaration of invalidity is delayed in coming into force, but if and when it comes into force it has the normal retroactive effect of a court order. It operates to invalidate the unconstitutional statute from the time of its enactment. Of course, a suspended declaration of invalidity will not come into force at all; if during the period of suspension the competent legislative body enacts corrective legislation that replaces the unconstitutional statute with one that is constitutional. Peter W. Hogg, Constitutional Law of Canada, 5th ed., supplemented (Toronto: Carswell, 2007) at p. 40-11 (emphasis added); see also RAB p. 85. 86. In Hislop, the Supreme Court of Canada stated that the purpose of a temporary suspension is to provide the Legislature with the opportunity to enact something in place of the unconstitutional legislation (para. 90). In this case, government failed to enact something in place of the unconstitutional legislation during the twelve months in which the declaration of invalidity was suspended. 87. Before the trial judge, the appellant's response to the teachers' argument was that this was an "overly technical argument" because the government's view was that as result of s. 24 of the EIA, and its retroactive application, there were no legal or practical consequences of the Province's failure to enact legislation during the period of suspension" (RAB pp. 1793-1794, paras. 13 and 225-226). The teachers' response was that the government could not by statute restrict a constitutional remedy. 88. Although the appellant now argues that the trial judge's ruling "over looked" the considerations listed in Hislop, before the trial judge it did not argue that these considerations should apply and instead relied upon the argument set out in the previous paragraph. 89. 22 90. Despite this, the appellant now argues that the trial judge's finding that the legal consequence was that the legislation was constitutionally invalid from 2002, "has the effect of imposing terms into two collective agreements (in 2006 and 2012) that were voluntarily concluded and ratified by the BCTF membership in school districts. Whether or not the deleted clauses may have been viewed as the product of free collective bargaining when Bill 28 was enacted in J anuary 2002, they were decidedly not freely bargained in 2006 or 2012" (AF para. 181). 91. In BCTF #1, the government aggressively pursued the argument that the deleted clauses were not the product of free collective bargaining when Bill 28 was enacted in J anuary 2002. The trial judge, after review of all the evidence and argument, determined that in fact the clauses were the product of collective bargaining, and it is not now open for the appellant to challenge that finding. 92. Further, there was no bargaining in 2006 or 2012 concerning the Working Conditions reflected in the deleted clauses. That was because the unconstitutional legislation of the government prohibited such bargaining. In 2012, this prohibition continued despite the fact that the government had expressly recognized that the trial judge's decision in BCTF#1 constitutionally required that those issues be the subject of collective bargaining. 93. We also emphasize that, as was found in BCTF #1, when teachers were entitled to bargain these workplace issues, the collective agreement language was neither altered or maintained. The conclusion of the trial judge was that the consideration of what may have been bargained if the government had not breached the Charter was basically a wash: Collective bargaining between the BCTF and BCPSEA occurred in the 2002 to 2011 timeframe, and whatever gains, set-backs or trade-offs were made would have been while the BCTF had its hands tied in being unable to bargain over the Working Conditions. But just as it is possible that this disadvantaged members of the union, it is possible that the union made other bargaining gains during this period. BCTF #2, at para. 603, AR p. 276. 23 94. The appellant also ignores the trial judge's finding that for each renewal of the collective agreement, the parties expressly agreed to continue language which had not been expressly altered by the parties. C. Response re appellants assertion that the trial judge wrongfully assumed supervisory jurisdiction 95. This argument is made despite, as noted, the trial judge's express statement that she would not assume supervisory jurisdiction in considering the EIA and its provisions in determining the remedy for the declaration of invalidity in BCTF #1. 96. Contrary to paragraph 170 of the appellant's factum, the trial judge did not find the government's response in the period of suspension to be inadequate to address the repercussions of BCTF #1. What she found is that the government did not address the unconstitutional legislation during the period of suspension of the declaration of invalidity. This finding did not turn on the settlement discussions of the parties following BCTF #1it was a legal consequence following from the government's failure to pass corrective legislation. D. Response re interpretation of the trial judge's order 97. The appellant argues that the trial judge was prohibited from the terms of her order from ruling on the retroactive application of the declaration of invalidity. The court order, which was drafted by counsel for the appellant, states "And this Court Orders that the Plaintiffs have leave to seek a further hearing to argue any additional remedies" (RAB p. 141) . Despite this broad wording, the appellant asserts the order is to be interpreted to mean "a further hearing to argue "damages"." This argument is made despite the fact that the trial judge expressly ruled that the remedial term in her order "is very general and is not defined in scope" (AAB, p. 132 at para. 7). 98. It is our submission that exchanges between counsel are not an appropriate means to determine the meaning of a trial judge's order, and that this is especially the case where, as here, the trial judge has expressly stated the meaning of her order. However, if the Court determines these exchanges are to be considered, we identify the following documents: RAB pp. 81-84, AAB p. 153. 99. In any event, it is not correct to say that the issue of retroactivity was not before the Court in BCTF #1. Section 5 of ESCAA provided that "Despite any decision of court to the 24 contrary made before or after the coming into force of this section", the deleted Working Conditions must not be considered part of the collective agreement on or after J uly 1, 2002. The clear consequence of the trial judge's ruling in BCTF #1 that this provision was unconstitutional is that the Court had jurisdiction to rule on the restoration of the terms of the collective agreement which were unconstitutionally deleted by the government. E. Response re functus officio argument 100. In the Doucet-Boudreau decision of the Supreme Court of Canada, both the majority and the minority agreed that a superior court's powers to craft Charter remedies may not be constrained by statutory or common law limits (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J . No. 63, Majority at para. 51; Minority at para. 105). 101. The majority expressly stated that: [T]he functus doctrine has no application where the trial judge does not purport to alter a final judgment. Doucet-Boudreau, para. 76. 102. As noted, the teachers came to the Court pursuant to the trial judge's order which reserved the right of the trial judge to determine "any additional remedies". The trial judge declined to award damages for the unconstitutional legislation contained in Bill 28. Ironically, on the appellant's analysis, the trial judge would have been entitled to award the damages sought by teachers, but not to award the precise remedy contemplated by the government if it did not enact remedial legislation during the period of suspension. However, the reason why the trial judge did not award monetary damages was because she found the return of the Working Conditions provisions to the BCTF and BCPSEA collective agreement was a sufficient remedy (BCTF #2, paras. 594-607, AR pp. 274-277). 103. In any event, in our submission there is no legal significance to the appellants functus argument. Unless the trial judge was not entitled to consider the failure of the government to pass remedial legislation during the period of suspension at all, even if the appellant is correct, the BCTF would presumably have been able to raise that issue in its challenge to the EIA. Since the trial judge struck down the duplicative provisions in the EIA, this would have made no difference in the analysis and conclusions of the trial judge and the consequence would still have been a declaration of retroactive invalidity to 2002. 25 F. Response re the appellant's argument that the trial judge failed to apply judicial restraint in her decision regarding Charter remedies 104. The appellant relies upon the Supreme Court of Canada decision in Hislop to support its argument that the trial judge should have denied the retroactive remedy. In making this argument the appellant ignores the express determination in Hislop that the retroactive application of a declaration of invalidity occurs as a matter of law if the government does not act to pass corrective legislation during the period of the suspension of invalidity. 105. It is inaccurate to assert, as the appellant does at paragraph 185 of its factum, that "at trial the BCTF estimated the retroactive liability to amount to billions of dollars." While such figures may have been contained in specific documents, that was not a figure put forward in legal argument. As noted by the trial judge, teachers sought a global award of damages and the only figures cited were those based on estimates provided by the government. 106. It is submitted that the Court should ignore the assertion at paragraph 185 of the appellants factum that the trial judge's decision on remedy should be overturned because of the alleged "lengthy delay between the enactment of PEFCA and the Amendment Act and the summary trial in BCTF #1 [which] was entirely a function of the unilateral decision of the BCTF not to pursue the action until Health Services was resolved." This argument was not made to the trial judge in either the BCTF #1 or BCTF #2 proceedings, and there was no suggestion that the delay was not the result of a mutually acceptable process. As the trial judge observed, the challenge in BCTF #1 "waited on the sidelines while the Health Services case wound its way through the courts" (BCTF #1, para 7, AR p. 301). 107. Furthermore, the trial judge's determination that teachers would be able to bring labour relations grievances if the restored collective agreement terms were violated in the past (BCTF #2, para 607) is consistent with authorities such as the decision of the Supreme Court of Canada in Weber, where the Supreme Court of Canada held that matters arising out of the collective agreement context should be decided at arbitration (Weber v. Ontario 26 Hydro, [1995] 2 S.C.R. 929). 108. In order to determine the remedies flowing from the retroactive application of the collective agreement, an arbitrator would be required to interpret the collective agreement. A mutually agreed to arbitrator would be more likely to have the knowledge and experience in applying collective agreement principles. In addition, BCPSEA is entitled to raise any objections available to it. 109. Indeed, following the decision of the trial judge, a provincial grievance was filed by the BCTF with respect to the hours of work provisions unconstitutionally voided by PEFCA. An arbitrator is agreed to and dates have been set for the Spring of 2015 to deal with a number of preliminary objections by BCPSEA. A hearing on the merits is scheduled to begin in J une 2015. 110. In summary, the trial judge's conclusion that the consequence of the failure to pass corrective legislation during the period of suspension resulted in the retroactive application of the declaration of invalidity was not only consistent with the legal authorities, but that result was expressly anticipated by the government since at least May 2011. G. Conclusion re Bill 28 111. The trial judge's determination as to the retroactive return of the Working Conditions clauses was balanced and considered (BCTF #2, paras. 604-605, AR p. 276). This was not an order for an additional remedy but a declaration as to the effect of the expiry of the suspension of the declaration of invalidity without government curing the breach found in BCTF #1. 112. In all the circumstances of the case, including the legal principles and the expectations of the government, the trial judge correctly held that the impugned provisions were restored to the collective agreement as of April 13, 2012 and the BCTF had the right to engage in collective bargaining on these subject matters. The trial judge then determined the impact the provisions of the EIA had on this conclusion. Response re Trial Judge's Decision Regarding the BCTF Challenge to Bill 22 Action 113. The trial judge held that sections 8,13, and 24 of the EIA (which the trial judge refers to as the "duplicative provisions") continue to be constitutionally invalid and that the 27 settlement discussions had no relevance to that analysis. In the event that she was wrong on the latter point, the trial judge discussed whether the parties' settlement discussions prior to the enactment of Bill 22 saved the Bill 22 duplicative provisions. She also considered whether the time limit in the collective bargaining prohibition in Bill 22 changed the analysis of the constitutionality of the duplicative provisions. Lastly, the trial judge considered whether section 1 saved the Bill 22 duplicative provisions from a finding of unconstitutionality. 114. The primary finding of the trial judge was that the mere purported repeal of unconstitutional legislation replaced by the continuation of that same constitutionally invalid legislation did not meet the government's legal obligations under the Charter. 115. The trial judge's reasoning is consistent with this Court's ruling in Reference re Election Act (B.C.), 2012 BCCA 394. In that case, the government responded to the previous declaration of constitutional invalidity of its legislation limiting pre-election spending by reducing the time limits but by continuing the restrictive definition which had been held to be unconstitutional. Although there had been no suspension of invalidity, the Attorney General argued that the amendments remedied the constitutional deficiencies identified by the Court of Appeal (Reference re Election Act (B.C.), para. 28). This Court struck down the legislation on the basis that the existing legislation had been held to be unconstitutional: Given that, insofar as they limit political expression in the pre-campaign period, this Court has held the 2008 amendments to be constitutionally invalid principally because of the overbreadth of the definition of election advertising, it is difficult to see on what basis the current amendments could be said to be constitutionally sound in respect to the same period when they contain essentially the same definition Reference re Election Act (B.C.), para. 37. 116. We also rely upon the principles of issue estoppel and res judicata. In BCTF #1, the trial judge determined that the legislation purportedly repealed but, in fact continued, was constitutionally invalid. These doctrines preclude government from now arguing that the provisions are constitutionally valid. 28 Response re the appellant's " Consultation" Argument A. Trial judges conclusion regarding settlement discussions 117. The appellant frames its consultation argument in simplistic terms: the judgments in Health Services and BCTF #1 hold that s. 2(d) protects only a process and, in coming to that conclusion, state (but do not emphasize) that the intrusive legislation was passed without consulting with the affected unions. From this, the appellant argues that a meaningful process was offered through post BCTF #1 settlement discussions, which the appellant refers to as "consultations. Consequently, there was no substantial interference with freedom of association (AF paras. 113-121 & 128). 118. In Health Services, the Supreme Court of Canada made several references to consultation when delineating the scope of the s. 2(d) right. After reviewing these references, the trial judge noted that, by stating the test this way for all types of government conduct, the Court in Health Services raised the possibility that pre-legislative consultation might be relevant in determining whether subsequent legislation itself substantially interferes with collective bargaining (BCTF #2, para. 55, see also paras. 53-54, AR pp. 169-170). 119. However, rather than simply reading those statements in isolation, as the appellant urges, the trial judge carefully analyzed Health Services and Fraser and came to the following conclusion regarding what our highest Court meant: where the government is acting as legislator, not as an employer, pre-legislative consultation is not relevant to the question of whether or not legislation substantially interferes with s. 2(d) (BCTF #2, paras. 168 181, AR pp. 196-198). 120. The trial judge based her conclusion on a number of key observations. She noted that once the Supreme Court of Canada had articulated the statements of general principle and began to analyze the government legislation at issue, the Court did not refer to any pre- legislation consultation process or lack thereof. Instead, the Court examined whether the content of the legislation preserved a process of good faith bargaining and consultation (BCTF #2, para. 61, AR pp. 173-174). 121. The trial judge noted that the majority in Health Services only mentioned pre- legislative consultation as being relevant to the s.1 analysis. This presumably was a response by the majority to Deschamps J ., who in her partially dissenting judgment had 29 taken issue with the majoritys statements on consultation. In Deschamps J .s view, the legislature is not obliged to consult prior to legislating (Health Services, para 179). 122. The majority in Health Services responded at paragraph 157 as follows: Legislators are not bound to consult with affected parties before passing legislation. On the other hand, it may be useful to consider, in the course of the s. 1 justification analysis, whether the government considered other options or engaged consultation with the affected parties, in choosing to adopt its preferred approach. 123. The BC Court of Appeal recently referred to the same principle, holding that there is generally no obligation on governments "to consult upon the content of impending legislation" (Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2013 BCCA 371, para. 57). 124. It is submitted that the appellant confuses this legal principle. The government asserts that the process referred to in Health Services is the process of legislating, and that the government is bound to consult with unions prior to passing legislation which interferes with collective bargaining. It is submitted that the recognized principle of law that legislators are not required to consult reinforces the conclusion of the trial judge that the references to consultation in the jurisprudence are directed at negotiations between employers and employees, not at pre-legislative consultation. 125. The trial judge also observed that in the subsequent decision in Fraser, the Supreme Court of Canada did not mention consultation prior to legislation as a factor in assessing the s. 2(d) right. Instead, the Court examined whether the legislation itself provided a process that satisfies the constitutional requirement (BCTF #2, paras. 64, 66-67, AR pp. 174-175). 126. In light of her reading of the judgments in Health Services and Fraser, the trial judge found that it would be hard to envision many situations where pre-legislative consultation by government would save legislation that substantially interfered with s. 2(d) rights (BCTF #2, para. 79, AR p. 177). 1 The trial judge did find that government pre-legislation 1 However, where the government is acting in its capacity as employer it would be possible to imagine situations where negotiations would be collective bargaining or akin to collective bargaining and could be relevant (although not conclusive) to the question of whether the employees associational rights have been interfered with in a substantial manner (BCTF #2, paras. 79-80, AR pp. 177-178). 30 consultation could be relevant to the s. 1 Charter analysis and the question of whether or not the government considered other solutions (BCTF # 2, at para. 81, AR p. 81). 127. The trial judge found the appellants argument that post-judgment settlement discussions somehow remedied unconstitutional legislation to be based on its unusual interpretation of Health Services and Fraser. The trial judge articulated the appellants position this way: it is even harder to imagine a situation where legislation is found to be unconstitutional as amounting to substantial interference with s. 2(d) rights, but then this unconstitutionality could be cured by the government consulting with the union after the fact of the legislation. This is essentially the unusual position the government takes in this case. BCTF #2, para. 91, AR p. 180. 128. Applying Supreme Court of Canada jurisprudence, the trial judge found that s. 2(d) ensures a process that gives employees the opportunity to achieve workplace goals (Health Services, paras. 19, 89 and 129; and Fraser, paras. 2, 32, 37, 46, 98 and 117). As the trial judge recognized, if all governments must do is engage in pre-legislative discussions regarding their policy objectives, there would be no opportunity for employees to achieve workplace goals. This was demonstrated in the present case where the government consulted with the union by telling its representatives its policy objectives and never deviating from its original position (BCTF #2, para. 313, AR pp. 223-224). B. Response to the appellant's argument on consultation 129. The appellant argues that the provisions in the EIA are constitutional even though the legislation repeats, in identical form, the provisions from 2002 that the trial judge found to be unconstitutional in BCTF #1. This is based on its view that it need only consult prior to government passing legislation eliminating fundamental associational rights protected by the Charter. The position of the BCTF is that this interpretation of s. 2(d) of the Charter is manifestly in error. 130. In BCTF#2, the trial judge rejected the appellants argument that the fact and content of consultation was determinative of whether the EIA violated s. 2(d) of the Charter (BCTF #2, paras. 72-93, AR pp. 176-180). The trial judge applied Supreme Court of Canada jurisprudence, finding that the exclusive focus of s. 2(d) is on the content of the 31 legislation, not the manner in which legislation is enacted, and that governments need not consult prior to passing legislation. 131. The respondents submit that the trial judge was correct to reject the appellants argument. Supreme Court of Canada jurisprudence, both in principle and application, is consistent with the decision of the trial judge. However, given the emphasis placed on its consultation argument by the government, both before the trial judge and on appeal, we will respond to this argument in greater detail than is perhaps necessary. 132. If the appellants argument were accepted, this would provide governments with license to override any collective agreement provisions regardless of context, such as how invasive the content of the legislation is on the collective rights of employees. No consideration would be given to the process that led to the adoption of the collective agreement terms, or to what sacrifices and/or tradeoffs were made to achieve their inclusion in the collective agreement. As long as consultation preceded the deletions, governments could eliminate collective agreements in their entirety. If the courts invalidate the legislation for lack of good faith consultations, the only remedy would be further consultations. Presumably this process could be repeated until those whose rights are affected recognize that the Charter protection is meaningless. Such illusory rights are not what our highest Court has said flows from the protection of collective bargaining in s. 2(d). 133. Such an interpretation would not be acceptable when interpreting other Charter rights. We do not accept that other freedoms such as freedom of expression and freedom of religion can be restricted as long as the citizens affected are consulted first. We would not accept that legislation could prohibit free speech so long as the government first consulted with those who intended to speak. For example, if the government restricted the right of environmentalists to make public speeches, the fact of whether or not the government had consulted with their organizations prior to legislating those restrictions would be constitutionally irrelevant in determining whether the legislation violated s. 2(b). 134. In its factum, the appellant attempts to justify its position on consultation by arguing that the trial judge wrongly: (i) failed to recognize the principle of judicial deference to legislatures; (ii) concluded that the settlement discussions were irrelevant to the issue of whether the EIA infringed s. 2(d) of the Charter (AF paras. 90, 110); 32 (iii) found that s. 2(d) entrenches a Wagner Act model of collective bargaining (AF paras. 90, 110); (iv) elevated collective agreement terms to a constitutional level of protection (AF para. 123); and (v) failed to consider that government is the indirect employer of teachers (AF paras 114-115). 135. The appellant's first and second arguments are contrary to the Health Services and Fraser decisions, as well as general Charter jurisprudence. The appellant's third and fourth arguments are based on a misreading of BCTF #2. The fifth argument is unsupported by the facts and contrary to one of the key positions taken by the appellant in BCTF #1. (i) Judicial deference 136. The appellant argues that the trial judge failed to recognize the principle of judicial deference to legislatures. The response to this argument is contained in Health Services. When responding to the argument that courts should exercise judicial restraint in the area of labour relations, the majority stated: This argument ... takes an overbroad view of judicial deference. It may well be appropriate for judges to defer to legislatures on policy matters expressed in particular laws. But to declare a judicial "no go" zone for an entire right on the ground that it may involve the courts in policy matters is to push deference too far. Policy itself should reflect Charter rights and values. Health Services, para. 26. 137. This approach to judicial deference was confirmed in Fraser (paras 79 and 81). 138. The appellants argument that pre-legislative consultation is sufficient would result in a judicial no go zone. It would allow the governments to ignore fundamental constitutional rights and freedoms as long as they notified citizens and consulted with them prior to eliminating their rights. This is totally inconsistent with a broad and purposive interpretation of s. 2(d) and is inconsistent with the way other fundamental freedoms have been protected by our highest Court. (ii) Pre-legislative consultation 139. The appellant argues that the manner in which the EIA was enacted (i.e. pre- legislative settlement discussions) preserved good faith consultation and that is all that is 33 required to meet the s. 2(d) test. This argument is without foundation in the jurisprudence and confuses pre-legislative consultation with the associational right to collective bargaining. Furthermore, this argument ignores clear statements from the Supreme Court of Canada with respect to the requirement to preserve good faith negotiation and consultation in the context of s. 2(d). The majority in Fraser rejected the concept that s. 2(d) protects a particular form of collective bargaining, but the constant theme is protection of collective bargaining not pre-legislative consultation. 140. Similarly, the majority in Health Services, when applying the s. 2(d) test, framed the issue as whether [the impugned legislative] provisions preserve the processes of collective bargaining (Health Services, para. 13). The majority held that provisions of the Act (not the pre-legislative conduct) must preserve the process of good faith consultation fundamental to collective bargaining. That is the bottom line (Health Services, para. 107 [emphasis added]). Also, when the majority concluded that the interference with collective bargaining over matters pertaining to contracting out, layoff and bumping constituted substantial interference with the s. 2(d) right, the majority exclusively focussed on how the legislative provisions affected the rights of employees to engage in collective bargaining. 141. Despite the appellants claim that the settlement discussions are determinative, when applying the s. 2(d) test, the Court in Health Services did not mention "consultation", but instead focused squarely and exclusively on how the provisions affect the process of good faith bargaining and consultation (Health Services, para. 133). The majority determined that the legislative provisions interfered significantly with the ability of those bound by them to engage in the associational activity of collective bargaining (Health Services, para. 133). Even when recognizing that government was facing a situation of exigency, the Court stated, the difficulty, however, is that the measures adopted by the government constitute a virtual denial of the s. 2(d) right to a process of good faith bargaining and consultation (Health Services, para. 135 [emphasis added]). 142. The majority in Fraser confirmed that the focus is on the impact on collective bargaining, present and future. When explaining the ruling in Health Services, the majority stated: ... The claimants had a right to pursue workplace goals and collective bargaining activities related to those goals. The government employer passed legislation and took actions that rendered the meaningful pursuit of these 34 goals impossible and effectively nullified the right to associate of its employees. This constituted a limit on the exercise of s. 2(d), and was thus unconstitutional unless justified under s. 1 of the Charter. The majority of the Court in Health Services affirmed that bargaining activities protected by s. 2(d) in the labour relations context include good faith bargaining on important workplace issues (para. 94; see also paras. 93, 130 and 135). This is not limited to a mere right to make representations to one's employer, but requires the employer to engage in a process of consideration and discussion to have them considered by the employer. In this sense, collective bargaining is protected by s. 2(d)... Fraser, paras. 38 & 40. 143. To the extent the Supreme Court of Canada examined governments conduct, the focus was on the content of the legislation and how it affected collective bargaining, not on the process leading up to the legislation. 144. The appellants argument on consultation ignores the explicit statements in Health Services that, in order to survive s. 2(d) scrutiny, government conduct must preserve the process of collective bargaining between employers and employees. As the trial judge recognized, the references to consultation by the Supreme Court of Canada is aimed at labour relations negotiations. It did not refer to the appellants action as legislator, except under s. 1. 145. That it is the employers duty to bargain in good faith with its employees was confirmed in Fraser. Writing for the majority, Chief J ustice McLachlin and J ustice LeBel held that s. 2(d) protects a right to collective bargaining, which includes a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith (Fraser, para. 2). 146. The Fraser majority did not adopt the interpretation of s. 2(d) being urged upon this Court by the appellant. Rather, good faith negotiations and consultation in Fraser is collective bargaining (Fraser, para 50). 147. As noted above, when the Supreme Court of Canada considered whether there had been any consultation prior to the passage of the legislation, it did so as part of the s. 1 inquiry and not as part of the s. 2(d) analysis (Health Services, paras. 156-59). 148. Lastly, the trial judge was correct that the judgment in Fraser made no reference to consultation (BCTF #2, paras 65-67, AR pp. 174-175). 35 149. The Supreme Court of Canada in Fraser carefully examined the legislation before it to determine if it met the s. 2(d) test. Although Fraser emphasized good faith negotiations, it noted that the majority in Health Services defined good faith negotiations as collective bargaining (Fraser, para. 50). Neither the majority, concurring, nor the dissenting judgments in Fraser made any reference to pre-legislative consultation. In articulating the scope of s. 2(d) the Court did not suggest that independent weight should be given to the legislative process by which a right is eliminated or significantly affected. The entire focus in Fraser was on the content of the legislation. 150. Again, Health Services and Fraser do not support the appellants interpretation of s. 2(d). What the appellant now says is a fundamental and determinative principle was not even raised as a possibility by the Supreme Court of Canada. (iii) Wagner Act model of collective bargaining 151. The appellant argues that the trial judge was in error by holding that s. 2(d) of the Charter constitutionally entrenches the Wagner Act model of collective bargaining. The trial judge made no such ruling, and the appellant has pointed to no passage where this alleged error was made by the trial judge. Indeed, contrary to the assertions of the appellant, the trial judge explicitly stated that the protection of s. 2(d) does not require the state to respect exclusively a traditional model of collective bargaining, referred to as the Wagner model (BCTF #2, para. 26, AR p. 159). 152. Health Services and Fraser stand for the proposition that the s. 2(d) right protects associational collective activity in furtherance of workplace goals. In other words, it protects collective bargaining, but not necessarily a Wagner Act model. The trial judge properly applied the test in Health Services. 153. The majority in Health Services did find that [c]onsideration of the duty to negotiate in good faith which lies at the heart of collective bargaining may shed light on what constitutes improper interference with collective bargaining rights (para. 98). 154. The appellant does not articulate how the trial judge strays beyond the Health Services test apart from asserting that the trial judge found bad faith in the failure of the appellant to restore the collective agreement terms. This misstates the reasons of the trial judge. The trial judge finds bad faith not because the government failed to restore the terms, but because it did not have an open mind about the issues (BCTF #2, para. 331, AR p. 229). 36 (iv) Elevating collective agreement terms to a constitutional level of protection 155. The appellant argues that because the trial judge found that the duplicative provisions contravened s. 2(d), the result is undeniably to constitutionalize collective agreement terms (para. 123). This is clearly not the case. The appellant misstates the trial judges decision and ignores the findings in Health Services that the legislative removal of collective agreement terms can infringe s. 2(d) rights: . Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements. Health Services, para. 96. 156. In both Health Services and BCTF #1, some collective agreement provisions were protected whereas others were not. The findings in Health Services established that removing collective agreement terms is not unconstitutional per se. Deletions may violate s. 2(d) depending on the effect that nullifying terms has on the collective bargaining process that led to their inclusion and/or the effect that their removal has on future negotiations. If legislation is challenged, a court must undertake a contextual analysis to determine if their elimination significantly undermines past and/or future freedom of association. 157. In BCTF #1, whole local agreements were deleted and this was found not to violate s. 2(d) because it did not substantially interfere with the process of collective bargaining (BCTF #1, paras 309-316, AR pp. 373-374) . However, the deletion of hundreds of Working Conditions clauses did violate the Charter. The appellant did not challenge the trial judge's interpretation of the law regarding the removal of contractual terms (AF para. 40). 158. As found by the trial judge in both BCTF #1 and BCTF #2, whether a government can remove collective agreement terms without violating s. 2(d) depends on whether the removal constitutes a substantial interference with freedom of association. 159. This Court in Dockyard Workers, when examining legislative interference with collective bargaining, confirmed that the test is based on the breadth of the legislation and whether the legislation permits collective bargaining in the future. This reasoning is consistent with Health Services, where the majority found that the legislative nullification of 37 concluded collective agreement terms, even without a prohibition on future bargaining, was contrary to s. 2(d) (Health Services, para. 126). 160. It is the breadth and scope of the legislation, not merely the fact that the legislation alters collective agreement terms, which will determine whether legislation is contrary to s. 2(d). This does not constitutionalize collective agreement terms or, as the trial judge recognized, does not entrench them in perpetuity (BCTF #2, para 482). (v) Indirect employer of teachers 161. In BCTF #1, the government strenuously and successfully argued that it was not the employer or the bargaining agent for the process of collective bargaining. This position was a significant foundation of the appellant's argument in that case. First, the purpose was to support the governments argument that because the 1998-2001 Collective Agreement had been imposed by legislation, the impugned provisions could not amount to interference with collective bargaining (BCTF #1, para. 198). 162. Second, the government emphasized it was not the bargaining agent in order to distance itself from allegations that collective bargaining had occurred in bad faith (BCTF #2, paras. 165-167, AR pp. 195-196; AAB p. 66, para. 3.1; RAB p. 51-54). As the trial judge held, in the settlement discussions following BCTF #1 the government representatives consistently maintained that they did not represent the employer, and that their discussions were separate from collective bargaining between BCTF and BCPSEA (BCTF #2, paras. 157, 163 & 167, AR pp. 194-196; RTEB p. 371-372). 163. The appellant now attempts to overcome its earlier position by stating that the references to the employer in Health Services were intended to encompass the government as the indirect employer (AF, para. 114). The appellant asserts that there is a co- management model of public service bargaining in B.C. so that the government can maintain control over public sector collective bargaining commitments (AF para. 115). 164. Apart from the appellants repeated assertions that it was not the employer and the unchallenged findings in BCTF #1, there is a fundamental contradiction in the appellants new argument, even if we accept a co-management model of labour relations in the public sector. The appellant states that it tried to combine the settlement discussions with the discussions with the employer at the bargaining table, but the BCTF refused. If the appellant was the indirect employer, there would be no need to combine the tables. 38 165. In any event, combining the settlement discussions with those at the bargaining table would not permit changes to the collective agreement language as the appellant asserts (AF para. 45). The legislation, which had not been repealed, did not permit amendments to the collective agreement that in any way resembled the legislatively removed provisions. Further, government maintained throughout the settlement discussions that it would not allow collective bargaining with respect to Working Conditions. C. Conclusion re appellant's " consultation" argument 166. Properly read, Health Services and Fraser establish that pre-legislative consultation may be considered within the s. 1 justification. Settlement discussions cannot be used to exonerate the government for re-enacting legislation that has been found to substantially interfere with the associational rights of employees under s. 2(d) of the Charter. The settlement discussions were for the purpose of resolving the issues arising from BCTF #1 and were irrelevant to the question of whether there had been a substantial interference with associational rights as determined in BCTF #2. Response re the findings of bad faith bargaining 167. The appellant's appeal on this ground alleges two errors by the trial judge: (a) the trial judge made an error in law by basing her decision "on an incorrect statement of the model of associational activity required under s. 2(d)"; and (b) the trial judge's conclusions of fact were based on her decision that the government had bargained in bad faith were based on a material palpable and overriding error of fact (AF paras. 129 - 150). A. The trial judge applied the correct test 168. The appellant asserts that the trial judge erred in law in applying a Wagner Act model to the settlement discussions following BCTF #1. As noted above, there is no foundation for this assertion, and the appellant has cited no passage where this alleged legal error was made by the trial judge. 169. The trial judge reviewed both Health Services and Fraser on the issue of what constituted bargaining in good faith (BCTF #2, paras. 97-104, AR pp. 181-183). The trial judge then applied the factors identified in those decisions and concluded that the government had not met the test established by the Supreme Court of Canada: 39 I conclude that the government approach to its discussions with the BCTF regarding the repercussions of the Bill 28 Decision did not amount to consultation in good faith in the sense that would ameliorate the subsequent legislative violation of s. 2(d) rights by way of Bill 22, so as to make the legislative interference any less substantial. The government representatives did not engage in meaningful dialogue, listen to the employees' representations, avoid unnecessary delay, or make a reasonable effort to reach agreement, all factors is assessing good faith consultation: Fraser, at paras. 40-41. I therefore conclude that the process by which Bill 22 was implemented did not respect the duty to consult and negotiate in good faith. BCTF #2, paras. 397-398, AR p. 241. 170. We emphasize that the trial judge's findings about the standard of good faith negotiations are made only as an alternative to her conclusion that "when the government has passed a law it is entitled to justify the law based on s. 1 of the Charter, not by showing that it has engaged in a pre-legislative consultation process" (BCTF #2, para. 90, AR p. 180). 171. Although the appellant says that the collective bargaining model of good faith should not apply, we note that this was precisely that standard which the appellant intended to meet by entering into the settlement discussions with teachers (AAB p. 1354). B. No palpable and overriding error in findings of fact 172. It is trite law that the findings of fact of the trial judge are entitled to a deferential standard of review by this Court. The Court will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it (Toneguzzo-Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114, para. 13). 173. The significant policy reasons behind this approach to appellate review are articulated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. After a review of the policy considerations, the Court summarized that the autonomy and integrity of the trial process must be preserved by exercising deference towards the trial court's findings of fact (Housen, para. 11). 174. The appellate approach of deference extends to the inferences drawn by the trial judge from the evidence, the weight assigned to that evidence, and questions of mixed fact 40 and law (Housen, paras. 23, 27). In our submission, the appellant's third ground of review and its s. 1 argument primarily allege errors of fact or errors of mixed fact and law. 175. The trial judge's summary of her evidentiary conclusion in considering the factors established by the Supreme Court of Canada on bad faith are set out at paragraphs 329 - 400 in BCTF #2. The evidence before the trial judge was based not only on the viva voce evidence given at trial, but also almost 600 documents entered into evidence, much of which was entered by agreement of the parties. 176. With one exception, the appellant does not specifically assert that the trial judge's findings are based on a palpable and overriding error. However, a number of the errors of law alleged by the appellant are more properly characterized as challenges to the findings of fact by the trial judge. For example, the appellant asserts that the trial judge erred in criticizing government's failure to immediately restore collective bargaining rights following BCTF #1" (AF, para 135). That assertion mischaracterizes the trial judges decision and attempts to avoid a direct challenge to the trial judges finding of facts. 177. The trial judge found that the appellant understood from the time BCTF #1 was issued that its obligation was to recognize the right of teachers to bargain these fundamental workplace issues. However, in the settlement discussions, the government never proposed a return of the right to collectively bargain over Working Conditions and then legislatively extended the unconstitutional prohibition on bargaining for a further 14 months (BCTF #2, para. 262, see also para. 274, 282, 288 and 422-423, AR pp. 213, 215, 216, 218, 245). 178. That is, although government understood that a significant repercussion of BCTF #1 was that bargaining rights be restored, at no time was it prepared to discuss that restoration with teachers in the settlement discussions. If the appellant is correct that the consequence of Health Services is that it is required to negotiate with teachers as to how it intends to address the repercussions, and it intended to restore teachers bargaining rights, then at a minimum it was surely required to engage in negotiations or consultations with teachers as to how that would be achieved. However, the appellant did not intend to recognize that right despite BCTF #1, and instead continued the prohibition. 179. The appellant is correct that it was legally entitled to delay action during the suspended declaration. However, the appellant is hardly in a position to assert that it engaged in good faith negotiations when at no time did it indicate that it was prepared to 41 discuss the restoration of a fundamental Charter right or, if it was, how it proposed to do so. These circumstances were exacerbated by the fact that government subsequently used its delay to extend the prohibition on that bargaining. 180. The trial judge made a clear and correct finding of fact on this point: I have concluded on the evidence that the reason that the government did not return the right to collective bargain over the Working Conditions earlier, is that it wanted to use the threat of not restoring these rights as part of its negotiating leverage over the union, in the post-Bill 28 discussions. BCTF #2, at para 421 181. That assertion is without foundation. 182. The trial judge's conclusions regarding the government strategy are set out at paragraphs 379 - 389 of BCTF #2. While the appellant does not challenge any other factual finding, in light of the appellants argument, we will review the evidence before the trial judge and the trial judges findings. 183. 184. 42
185. 186. The identification of government's strategic requirements occurred at a meeting between Mr. Straszak and senior representatives from the Premier's office. This included the goal of timing a teachers' strike with its intended legislation to achieve a "social license to legislate because it would be harder to justify the intended controversial legislation without a full- scale strike" (ATEB pp. 436-427; RAB p. 569). 187. 188.
43 189.
190.
191. The appellant states that "the very purpose of a strike or lockout of resolving labour disputes is to exert economic pressure on the parties that will promote settlement" (AF para. 141). We agree. However, government did not direct BCPSEA to engage in a lockout. 44 C. Conclusion re bad faith 192. It is important to emphasize that the trial judge in this case was best positioned to make the findings of fact underlying the conclusion that the settlement discussions were not conducted in good faith. The trial judge carefully reviewed the documents and was the adjudicator present for the testimony of Mr. Straszak. 193. The appellant had the benefit of BCTF #1 and therefore a heightened obligation to redress the infirmities of the impugned legislation. It did the opposite. Not only did it not discuss and address the problems identified by the trial judge, it thought it could simply tell teachers its "policy" objectives" and then enact identical legislation. Such intransigence is not the foundation of a "meaningful process". Response re Section 1 194. It is noteworthy that the appellant's s. 1 argument on appeal significantly exceeds its s. 1 argument at trial. At trial the argument on s. 1 consisted of four paragraphs (RAB pp. 1795-1796, paras. 291-294). 195. The appellant's complete s. 1 justification argument in BCTF #2 was follows. There are two important points of distinction between the Bill 28 Decision and the challenge to the Education Improvement Act: government did consult with the BCTF (extensively) before the enactment of the Act, and the Act restores collective bargaining rights. To the extent that such issues are relevant only at the s.1 stage of the analysis, an assertion the Province disputes, the legislation is minimally impairing in light of the consultation in combination with the restoration of bargaining rights RAB p. 1796, para. 294. A. Pressing and substantial objective and rational connection 196. The appellant asserts that the trial judge erred in finding that the appellant failed to establish that its policy objectives behind the EIA were pressing and substantial and the impugned legislation was rationally connected to these objects. The appellant essentially argues that the previous findings in BCTF #1 relieved it of the obligation to meet this part of the s. 1 test in BCTF #2. Further, the appellant argues that it was entitled to ignore the findings of the trial judge that the impugned Bill 28 provisions were unconstitutional and not saved by s. 1. 45 197. In BCTF #1, the trial judge found that the governments pressing and substantial objective was to provide flexibility to school boards to manage class size and composition and that the legislation was rationally connected to this objective because the government had been presented with stories by BCPSEA. The trial judge found that these stories were not supported by evidence (BCTF #1, para. 146, AR p. 339) and that many of the terms of the pre-2002 collective agreement already provided for flexibility and choice (BCTF #1, paras. 128-130, 378, AR pp. 334-335, 389). However, despite finding these stories and assertions of BCPSEA were unfounded, the fact that the government unwittingly believed them was sufficient for the trial judge to find a pressing and substantial objective and rational connection to that objective (BCTF #1, paras. 338-339 and 343, AR pp. 380-381). 198. In BCTF #2, the facts were different. In our submission, the trial judge was correct in concluding that the government was not entitled to rely upon findings in a separate decision (BCTF #1) to found its arguments as to its pressing and substantial objective and rational connection of the EIA, even if the legislation merely duplicates that already found to be unconstitutional (BCTF #2, paras. 475-476, AR pp. 254-255). In light of the findings of the Court in BCTF #1, with which the appellant was clearly familiar, we submit that the trial judge correctly found in BCTF #2 that the appellant could not simply rely on those same unfounded stories as the foundation for the duplicative provisions in the EIA (BCTF #2, paras. 235-237, AR p. 208). 199. The trial judges reasons for finding that the appellant failed to establish a pressing and substantial objective or rational connection in BCTF #2, are succinctly set out in the decision as follows: The BCTF argues firstly that the government cannot rely on the findings in the Bill 28 Decision as to the government having pressing and substantial policy objectives and the legislation being rationally connected to those objections. This is not only because the government was unsuccessful in upholding the challenged legislation. It is also because the Court in the Bill 28 Decision rejected the assertion that the government policy objectives could not be accomplished within the process of collective bargaining: a) The Court found that the policy objectives of flexibility and choice could be accomplished within collective bargaining, and that many terms of the collective agreement provided flexibility and choice already (at para. 378). b) The Court was critical of the government for not pursuing other established labour solutions in the event of a collective bargaining 46 impasse which would preserve the employees freedom to associate to influence their Working Conditions (at para. 368). c) The Court was critical of the government goal of taking important Working Conditions out of the collective bargaining process (at para. 375). I accept the BCTF argument that having learned the above results in the Bill 28 Decision, the government is not able to rest on the same legislative goals that it had for Bill 28 as the basis for the Bill 22 Duplicative Provisions BCTF #2, paras 475-476. 200. The trial judge also held that the appellant made it clear that it was not costs driving the government's motivation in passing the legislation, but to increase management rights (BCTF #2, para. 488, AR p. 257; AAB pp. 809-810, 812, 818-819). In Health Services, the Supreme Court of Canada expressed skepticism as to whether the objective of cutting costs or increasing management rights would be considered a pressing and substantial objective (Health Services, para. 147). 201. One of the objectives of the delay in passing legislation to return the right of teachers to engage in collective bargaining on fundamental workplace issues was to require teachers to renegotiate the deleted clauses by sacrificing salary. It is submitted this is an improper objective. As the trial judge found, it is no answer to say that teachers were permitted to start bargaining from scratch in the future (BCTF #2, para. 444, AR pp. 249-250). B. Minimal impairment test 202. Following BCTF #1, the government understood that the decision required it to restore the right to engage in collective bargaining on fundamental workplace issues. It did not do so. Instead, it chose to unilaterally extend the unconstitutional legislation for another round of bargaining, without seeking a judicial extension of the suspension of the declaration of invalidity. 2 This was not minimally impairing. 203. The appellant asserts that in BCTF #1, at the minimal impairment stage, the trial judge focussed on the lack of consultation with teachers and the breadth of the legislation in prohibiting collective bargaining on fundamental issues. That is an inaccurate summary of the trial judge's lengthy consideration of the minimal impairment test in BCTF #1 (BCTF #1, at paras. 347-376, AR pp. 381-389). 2 For circumstances where the government properly applied for such an extension see Morten v. British Columbia (Minister of Agriculture and Lands), 2010 BCSC 100, at paras. 28-35. 47 204. The appellant ignores significant findings of the trial judge in BCTF #2, arguing that she focussed solely on whether the government's chosen means minimally impair the outcome of collective bargaining. That is not correct. Firstly, the trial judge observed that the government did not argue there were any circumstances of exigency following BCTF #1 and that any costs were not so large that the legislation was justified pursuant to s. 1 (BCTF #2, paras. 470-473, AR p. 254). 205. What the trial judge did find was that there were a number of options open to government following BCTF #1: Had the government not extended the prohibition on collective bargaining, and had the government not re-deleted terms of the collective agreement, collectively bargaining could have dealt with any management-side desire to change the substance of the Working Conditions clauses. If collected bargaining resulted in an impasse (and we do not know that it would) there are all sorts of tools available for resolving the impasse without infringing collective bargaining rights, as mentioned in the Bill 28 Decision (at para. 368), whether by mandatory arbitration, mediation, or otherwise BCTF #2, paras. 482-483, AR p. 256. 206. This approach is consistent with the finding in Health Services that government has to consider the available options and search for a minimally impairing solution to the problem the government sought to address (paras. 150-161). There was no evidence to suggest that the government considered any other alternatives in BCTF #2, other than purporting to repeal the unconstitutional legislation and then immediately duplicating that invalid legislation (BCTF #2, paras. 483-486, AR pp. 256-257). 207. After observing the various options available to government that were less intrusive, the trial judge found: The government did not choose to follow this path or anything similar. I do not suggest that this was the only path open to the government. However, I do wish to point out that the government had conciliatory paths open to it which were far less intrusive on s. 2(d) rights BCTF #2, para. 486, AR p. 257. 208. The trial judge also determined that the harmful effects of the legislation were adversely disproportionate to any objectives of the legislation (BCTF #2, para. 490, AR p. 257). The government challenges that finding because government entered into settlement discussions with teachers following BCTF #1, and unilaterally extended a prohibition on 48 collective bargaining that the government had accepted was unconstitutional. Simply put, neither is an answer to the trial judge's conclusions. Response re Remedies in Bill 22 Action 209. As established in the decision, the legal status of the unconstitutionally deleted clauses was as follows: The result is that as of April 13, 2012, the BCTF had the right to engage in collective bargaining over the Working Conditions; it also means that as of J uly 2002 the Working Conditions clauses were returned to the collective agreement between the BCTF and BCPSEA BCTF #2, at para. 565, AR p. 268. 210. The primary remedy of the trial judge was to provide a s. 52(1) constitutional remedy of striking down the duplicative provisions in the EIA to the extent they remained in force. 211. As the trial judge correctly concluded: This provides a remedy with respect to the provisions which re-deleted the Working Conditions clauses from the collective agreement, namely ss. 8 and 24 of the EIA. The result will be to return the Working Conditions clauses to the collective agreement effective as of J uly 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 BCTF #2, para. 610, AR p. 277. A. Section 52(1) remedy 212. The appellant does not challenge the retroactive s. 52(1) remedy ordered by the trial judge following the finding that the duplicative provisions in the EIA were unconstitutional. B. Response re section 24(1) argument 213. The Supreme Court of Canada has expressly found that a judge's discretion to award remedies pursuant to s. 24(1) of the Charter is virtually unfettered: It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion" Doucet-Boudreau, at para 50. 214. The trial judge's basis for awarding section 24(1) damages is contained at paras. 611-637. We emphasize that the appellant does not address the trial judges reasoning in 49 its appeal, but instead relies on a single paragraph regarding the "immunity rule" (AF para. 160). 215. The trial judge considered a number of factors, including that the evidence established "that the government knew, following the Bill 28 Decision, that the legislative prohibition on bargaining over Working Conditions was unconstitutional, and so must have known that continuing the prohibition was also unconstitutional (BCTF #2, para. 621, AR p. 279). 216. The trial judge was persuaded that the deterrence factor made an award of s. 24 damages just and appropriate (BCTF #2, paras. 624-625, AR pp. 279-280). This was based on the factual finding that government had extended unconstitutional legislation in full awareness that BCTF #1 required that the rights to collective bargaining be restored. 217. Thus, even without the obligation of an appellate court to approach a s. 24 remedy with deference, it is submitted that the trial judge's reasoning is unassailable. 218. The alternative ground of appeal of the appellant is that the appellate court should reduce the amount of damages because it is allegedly "unprecedented and inordinate" (AF para. 161). Our first response to this argument is that for the appellate court to replace its judgment as to the amount of damages could only result from a failure to respect the comments of the Supreme Court of Canada in Doucet-Boudreau. 219. The appellant argues that the appropriate range for damages is between $5,000 and $20,000 (AF, para 163). What the appellant fails to acknowledge is that in each case relied upon for this range, the s. 24(1) award was to each individual affected by the Charter breach. An award of $5,000 to each individual member of the BCTF would result in an aggregate award of over $150 million. 220. In this case, the trial judge concluded that a s. 24(1) remedy should be awarded to the BCTF as the representative of all of its members. One of the factors influencing that decision was the administrative cost of having each teacher pursue an individual claim for s. 24 damages. The trial judge determined that it would be consistent with ...the functions of compensation, vindication, and deterrence, without being so large as to unduly take from the public purse and other public programs to award $2 million to the BCTF as the bargaining agent. This would provide some very small financial compensation for each of the teachers harmed by the unconstitutional act (BCTF #2, paras. 635-637, AR p. 282). 50 221. Despite the trial judge's express consideration of the impact of a damage award on "the public purse and other public programs," the appellant unfairly asserts that the trial judge "ignored concerns for good governance and unnecessarily diverted considerable funds out of public programs and into the private hands of the BCTF" (AF para. 164). 222. Furthermore, although the appellant acknowledged at trial that the Charter right to damages was an individual one, it accepted that the award of damages would be to the BCTF (RTEB p.1267). 223. Finally, in considering the proportionality of the s. 24(1) damage award in the BCTF #2, we submit it is instructive to review the government's view of the appropriate penalties for teachers for breach of the EIA (s. 7(1 )). For example, if teachers did not immediately return to work in protest against the continued denial of their constitutional rights to engage in collective bargaining, the penalties considered appropriate by the government were $425 per day for each of the 30,000 individual teachers ($12,750,000 for teachers in total) and $1,300,000 per day for the BCTF. That is, the amount considered appropriate by the government as penalty for one day of with non-compliance by the BCTF and all of its members was over $15 million. On that measure, if the $2 million award of damages to teachers as a result of 14 months of non-compliance with the Charter was disproportionate to the harm at all, it was disproportionately low. PART 4 - NATURE OF ORDER SOUGHT 224. The Respondent seeks an order dismissing the appeal, with costs. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Dated: August 28, 2014 John Rogers, Q.C., Steven Rogers, Amanda Merritt, Diane MacDonald 51 LIST OF AUTHORITIES Case Law Paragraph(s) BCTF v. BCPSEA, 2004 BCSC 86 13 BCTF v. B.C., 2011 BCSC 469 1, 4-8, 14-16, 19, 27, 29- 31, 37, 39, 49, 67-70, 91, 93, 99, 103, 116-117, 129, 135, 156-158, 161, 193, 196-198, 203 Canada (AG) v. Hislop, 2007 SCC 10 84, 86, 88, 104 Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J . No. 63 100-101, 213, 218 Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 3-8, 10, 22, 45, 66, 106, 117-119, 121, 122, 124, 126-128, 135, 136, 140- 144, 147, 149-156, 159, 163, 166, 169, 178, 200, 206 Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2013 BCCA 371 123, 159 Ontario (Attorney General) v. Fraser, 2011 SCC 20 66, 119, 125-128, 135, 137, 139, 142, 145-150, 152, 166, 169 Reference re Election Act (B.C.), 2012 BCCA 394 115 Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 107 Toneguzzo-Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114 172 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 173-174 Morten v. British Columbia (Minister of Agriculture and Lands), 2010 BCSC 100 202 Legislation Paragraph(s) Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ss. 1. 2. 24(1) and 52(1) 3-4, 7, 14, 20, 22-26, 64, 93, 100, 114, 126, 129- 136, 142, 151, 157, 166, 170, 179, 213, 219, 222- 223 Court of Appeal Rules, R. 22 1 52 Legislation Paragraph(s) Education Improvement Act, S.B.C. 2012, c. 3 16-19, 24, 26, 51, 59, 61- 64, 66-67, 70, 75, 87, 95, 103, 112-113, 129, 130, 134, 139, 196, 198, 210- 212, 223 Education Services Collective Agreement Act, S.B.C. 2002, c. 1 11, 14, 32, 33, 48, 99 Education Services Collective Agreement Amendment Act, 2004, S.B.C. 2004, c. 16 13, 14, 32, 48, 106 Public Education Collective Agreement Act, S.B.C. 1998, c. 41 11-14, 32, 48, 106, 109 Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3 30 Public Education Labour Relations Act, S.B.C. 1994, c. 21 [now R.S.B.C. 1996, c. 382] 28 Teachers' Collective Agreement Act, S.B.C. 2006, c. 27 33 Commentary Paragraph(s) Peter W. Hogg, Constitutional Law of Canada, 5th ed., supplemented (Toronto: Carswell, 2007), p. 40-11 85
Luis Alvaro Ceballos (Y Arboleda) v. Edward J. Shaughnessy, District Director of Immigration and Naturalization at The Port of New York, 229 F.2d 592, 2d Cir. (1956)