Binding the hand that feeds
For more than a decade, the B. C. government and the BC Teachers’ Federation (BCTF) have been locked in an expensive ( and messy) court battle. Hanging in the balance is the ability of elected officials to set public policy priorities.
B.C.’s last New Democratic Party government agreed to a sweetheart deal with the BCTF — one of its key union allies — which included restrictions on class size and class composition, and cost taxpayers millions of dollars by forcing schools to hire more teachers. The NDP was swept out of power soon after, winning just two of 79 seats in 2001. Gordon Campbell and the B. C. Liberals took over, with a clear and resounding mandate to right the fiscal ship by controlling costs and cutting taxes.
The new government and the BCTF started negotiating a new collective agreement, but it was clear they had very different priorities. Campbell believed class size and composition were a matter of government policy that should not be managed through collective agreements, but rather should be decided through consultation with the public. The BCTF disagreed.
Campbell broke this deadlock by legislating a new contract, which removed the aforementioned provisions. The union was enraged and took the government to court. Many years later, a court held that it was unconstitutional for the government to legislatively amend collective agreements in this way. The judge gave the two parties a year to renegotiate the contract. When a settlement still could not be reached, the government again introduced legislation and the BCTF again took it to court.
This time, the BCTF hit the jackpot. B.C. Supreme Court Justice Susan Griffin effectively ruled that important terms in a contract between the B.C. government and a government union could not be modified without the consent of both parties, unless there were “exigent” or “urgent” circumstances.
Fortunately, a year later, the B.C. Court of Appeal overturned this decision. It found that the trial judge erred in finding that the government could not legislate the terms of a collective agreement over the objections of a union, and said that the trial judge stepped too far into the political arena by passing judgment on the reasonableness of the government’s motivations. The BCCA noted — quite rightly — that the trial judge’s approach effectively provides “workers with a presumptive constitutional veto” over education policy.
The BCTF is now appealing to the Supreme Court of Canada. Our organization, the Canadian Taxpayers Federation ( CTF), plans to file an intervener application, to stand up for the ability of duly elected governments to carry out their democratic mandate, and for the taxpayers, who, if the BCTF succeeds, would be stuck with the tab for union-friendly sweetheart deals negotiated by previous administrations.
Yet the CTF will not be the only intervener. You can bet the big government unions will all be lining up with the BCTF. we believe the nine other provincial governments should intervene to support the B. C. government in its efforts. If the B. C. government loses this case, anything granted by a union- friendly government in a collective agreement could become nearly impossible to remove without the union’s permission.
Imagine a future government on its political deathbed signing a 20- year contract with a friendly union, guaranteeing no teachers would have more than 12 students in their classes. If the BCTF is successful at the Supreme Court, any government in Canada could do just that and it would be binding for 20 years, even if voters overwhelmingly say they don’t want it.
While courts have historically deferred to elected officials when it comes to making policy decisions, there has been a troubling trend in the other direction recently. Courts are increasingly stepping into the shoes of politicians — and expanding Charter rights in a way that could prove not only outrageously expensive for all Canadians, but corrosive to our democracy, as well. Voters and taxpayers need to push back.
After all, making policy and prioritizing how tax dollars are spent is the job of the people we elect: politicians. In a democratic country, judges should stick to interpreting the law — not playing politician by trying to make laws themselves.
AN UPCOMING SUPREME COURT CASE WILL DETERMINE WHETHER SWEETHEART UNION DEALS CAN BE OVERTURNED BY DULY ELECTED GOVERNMENTS.