British Columbia Teachers' Federation v. British Columbia Public School Employers' Association et al., (2009) 265 B.C.A.C. 237 (CA)

• Judge: Mackenzie, Levine and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 04, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 265 B.C.A.C. 237 (CA);2009 BCCA 39

Teachers Federation v. Employers Assoc. (2009), 265 B.C.A.C. 237 (CA);

    446 W.A.C. 237

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.020

British Columbia Teachers' Federation (appellant/petitioner) v. British Columbia Public School Employers' Association and Attorney General of British Columbia (respondents/respondents) and Business Council of British Columbia (intervenor)

(CA034982)

Hospital Employees' Union (appellant/petitioner) v. Health Employers' Association of British Columbia and Attorney General of British Columbia (respondents/respondents) and Business Council of British Columbia (intervenor)

(CA034975; 2009 BCCA 39)

Indexed As: British Columbia Teachers' Federation v. British Columbia Public School Employers' Association et al.

British Columbia Court of Appeal

Mackenzie, Levine and Frankel, JJ.A.

February 4, 2009.

Summary:

The British Columbia Teachers' Federation (BCTF) and Hospital Employees' Union (HEU) challenged the definition of "strike" in s. 1 of the British Columbia Labour Relations Code (Code) on the ground that it restricted their ability to engage in political protests, thereby infringing their rights under s. 2 of the Canadian Charter of Rights and Freedoms. In separate decisions, the Labour Relations Board (LRB) concluded that work stoppages for wholly political purposes were distinguishable from collective bargaining strikes and that political protest rallies involving work stoppages were expressive activities protected by s. 2(b) (freedom of expression). In BCTF, the LRB held that the definition of strike as a s. 2(b) infringement could be saved by s. 1, while in HEU, the LRB held that it could not. In BCTF, the LRB also dismissed claims of ss. 2(c) (freedom of thought) and 2(d) (freedom of peaceful assembly) infringement. The LRB's three-member Reconsideration Panel held a consolidated review hearing of the decisions. It held that the definition of strike infringed s. 2(b) of the Charter. It declined to sever the HEU's non-violent protest rallies away from the workplace, from its violent and intimidating picketing activities, for the purpose of deciding whether HEU's activities should receive s. 2(b) protection. It concluded that the totality of the HEU actions was not protected by s. 2(b) because those actions were incompatible with the rights of others. The Reconsideration Panel agreed with the LRB's original decision rejecting BCTF's claims that the definition of strike infringed s. 2(c) or 2(d) of the Charter. It rejected the argument that the expanded definition of strike was overbroad because of its comprehensive ban on all forms of mid-contract work stoppages, and held that the restriction was justified under s. 1 of the Charter. The BCTF and HEU sought judicial review.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. C05, determined that the definition of strike did not infringe s. 2(b), 2(c) or 2(d). Alternatively, the impugned definition was saved by s. 1. The BCTF and HEU appealed.

The British Columbia Court of Appeal dismissed the appeals. The court held that the purpose of the strike definition did not infringe s. 2(b), but its effect did. However, the definition was saved by s. 1. There was no infringement of s. 2(c) or 2(d).

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - The definition of strike in s. 1 of the British Columbia Labour Relations Code was amended to include all concerted work stoppages that restricted production or services - Previously, the definition had been limited to strikes for a collective bargaining purpose - The amendment replaced a "purpose based" definition of strike with an "effects based" definition, thereby extending it to include protest strikes - Section 57 of the Code prohibited strikes during the term of a collective agreement, referred to as "mid-contract strikes" - The British Columbia Court of Appeal held that the purpose of the strike definition did not infringe s. 2(b) of the Charter (freedom of expression), but its effect did - However, it was saved by s. 1 - There was no infringement of s. 2(c) (freedom of thought) or 2(d) (freedom of peaceful assembly).

Civil Rights - Topic 1852.1

Freedom of speech or expression - Limitations on - Labour legislation - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 2062

Freedom of thought, belief or opinion - Denial of - What constitutes - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 2345

Freedom of assembly - Limitations on - Protesting - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 2366

Freedom of assembly - Denial of right of - What constitutes - [See Civil Rights - Topic 1803 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1803 and second and third Labour Law - Topic 9722 ].

Labour Law - Topic 405

Labour relations boards and judicial review - Boards - General - Duty to act fairly - [See second Labour Law - Topic 9722 ].

Labour Law - Topic 7550

Industrial relations - Strikes - Right to strike - General - [See second Labour Law - Topic 9722 ].

Labour Law - Topic 9721

Public service labour relations - Strikes - General - The British Columbia Court of Appeal stated that "Government is intimately involved in the delivery of public services by members of public sector unions. Government revenues pay for the services and governments are accountable at the ballot box for the quality and quantity of the services. Public sector employers are formally the bargaining agents and the parties to the collective agreements but, unlike private sector employers, they are substantially constrained by government determination of available resources and policy. A public sector strike has a different impact than a strike in the private sector. Typically a public sector employer saves money during a work stoppage. There may be little or no loss of revenue to the employer, and it does not have to pay the wages of the striking employees. The adverse impact is felt by the public in the interruption of public services; the union objective is to influence the government to direct or allow the public sector employer to make concessions. In that sense a public sector strike is more a political than an economic weapon." - See paragraph 21.

Labour Law - Topic 9722

Public service labour relations - Strikes - Right to strike - [See Civil Rights - Topic 1803 ].

Labour Law - Topic 9722

Public service labour relations - Strikes - Right to strike - Two public sector unions appealed a decision dealing with protest strikes - The British Columbia Court of Appeal held that the effect of the strike definition infringed s. 2(b) of the Charter (freedom of expression), but was saved by s. 1 - In determining whether the harm caused by the expressive activity could override freedom of expression under a s. 1 analysis, the court stated that "Attempting to draw a line at a point of significant disruption seeks a balance that is at best elusive. It tempts a weighing of the merits of the protest against the harm to the public interest. The higher the threshold of significant harm, the more powerful the protest. In my view, this type of balancing is primarily a political policy judgment that is incompatible with the neutral adjudicative function of labour boards and courts." - See paragraph 68.

Labour Law - Topic 9722

Public service labour relations - Strikes - Right to strike - Two public sector unions appealed a decision dealing with protest strikes - The British Columbia Court of Appeal held that the effect of the strike definition in s. 1 of the Labour Relations Code infringed s. 2(b) of the Charter (freedom of expression), but was saved by s. 1 - In determining whether the harm caused by the expressive activity could override freedom of expression under a s. 1 analysis, the court rejected a "significant disruption" test - The court stated that "A majority of the [Labour Relations] Board expressed serious reservations about its capacity to apply an indefinite standard in a politically charged atmosphere, even with the benefit of the Board's specialized expertise. The difficulty is particularly acute when the strike is said to be a political protest outside collective bargaining norms. I agree ... that a vague test that leaves a wide discretion to the Board or the courts is not compatible with Charter standards." - See paragraph 69.

Cases Noticed:

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 15].

BC Hydro & Power Authority v. International Brotherhood of Electrical Workers Locals 258 & 213 et al., [1976] B.C.L.R.B.D. No. 71, refd to. [para. 18].

Pacific Press Ltd. and Vancouver - New Westminster Newspaper Guild, Local 115 et al., [1985] B.C.L.R.B.D. No. 140, refd to. [para. 19].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, appld. [para. 24].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd. et al., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 27].

Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P, [1999] 2 S.C.R. 1136; 245 N.R. 67; 216 N.B.R.(2d) 1; 552 A.P.R. 1, refd to. [para. 27].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 34].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 40].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 46].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 50].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 57].

General Motors of Canada Ltd., [1996] O.L.R.D. No. 2056 (O.L.R.B.), refd to. [para. 63].

Statutes Noticed:

Labour Relations Code, R.S.B.C. 1996, c. 244, sect. 1 [para. 16].

Authors and Works Noticed:

International Labour Office, Committee on Freedom of Association, Report No. 330, Case Nos. 2166, 2173, 2180 and 2196 Complaints against the Government of Canada concerning the Province of British Columbia, I.L.O. Official Bulletin (2003), vol. 86, Series B., No. 1, generally [para. 47].

Weiler, Paul C., Reconcilable Differences: New Directions in Canadian Labour Law (1980), pp. 61, 62 [para. 21].

Counsel:

J. Rogers, Q.C., and M. Brown, for the British Columbia Teachers' Federation;

C. Boies Parker, for the Hospital Employees' Union;

K. Murray, for the British Columbia Public School Employers' Association;

G.H. Copley, Q.C., E.W. Hughes and K. Wolfe, for the Attorney General of British Columbia;

E. Harris, Q.C., for the Health Employers' Association of British Columbia;

E.F. Miller, for the British Columbia Labour Relations Board;

D. Sartison and B. Korenkiewicz, for the Business Council of British Columbia.

These appeals were heard at Vancouver, B.C., on November 12-14, 2008, by Mackenzie, Levine and Frankel, JJ.A., of the British Columbia Court of Appeal. Mackenzie, J.A., delivered the following reasons for the court on February 4, 2009.