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Case in Point

Legal Developments in Human Resources Law

Another Reminder to Employers: Draft Termination Notice Provisions with Care

Posted in Employment Law, Minimum Standards

The Ontario Superior Court has reaffirmed that if a termination provision in an employment contract does not strictly comply with the requirements of the Employment Standards Act, 2000 (“ESA”), it will be considered null and void.

In Miller v. A.B.M. Canada Inc., the plaintiff, Mr. Miller, was a management accountant. He was hired into the position of Director, Finance and Business Process Improvement at $135,000 per year, which the Court found to be a middle management position. He was employed for 17 months in total before his employment was terminated.

The termination provision in his employment contract stated ““regular employees may be terminated at any time without cause upon being given the minimum period of notice prescribed by applicable legislation, or being paid salary in lieu of such notice or as may otherwise be required by legislation.” (emphasis added).” The Court held that neither the plaintiff’s car allowance nor his 6% pension contribution were included as amounts to be paid during the notice period, contrary to the ESA. As the provision was null and void, a period of reasonable notice was calculated.

Notably, in calculating an appropriate notice period the Court held that the plaintiff had some responsibility for the fact the contract was not compliant with the ESA. It took into consideration the plaintiff’s prior experience in the human resources field and the fact that his position with the defendant required him to monitor relevant legislation, including employment standards legislation. The Court found that the plaintiff could have “voiced objection to whatever provisions he found unsatisfactory” in the employment contract, but did not. It stated:

By signing the contract, Mr. Miller signified to the employer that he had read, and understood, and accepted the terms of the contract. Had he in fact read what he acknowledged having read, the parties could have either negotiated their differences, or parted ways and avoided a period of employment that has been unhappy and no doubt costly for both. In the circumstances of this case, the employee cannot escape bearing some responsibility for the fact that both parties entered into a contract which fell below ESA standards. [para 51]

In the final analysis the Court awarded three months’ notice and it is unclear whether, or by how much, the reasonable notice period was reduced due to the plaintiff’s role in entering into an unenforceable contract. However, a three month notice period is on the low end for a short service middle management employee.

This case is yet another reminder to employers that termination provisions in employment contracts must be carefully drafted to ensure strict compliance with the ESA. Otherwise, an employer may unexpectedly find itself paying out a term of reasonable notice instead of the minimum standards notice it thought was agreed upon in the employment contract. What will remain to be seen is whether other courts in similar cases will hold employees responsible in some small way for agreeing to an unenforceable contract term.

Common Law Notice – Can Employers Deduct STD and LTD Payments?

Posted in Employment Law

As demonstrated by the Ontario Superior Court’s recent decision in Diamantopoulos v. KPMG LLP (“KPMG“), the answer to this question is still “it depends.” In determining the issue, courts will look at a number of contextual factors to determine “the intention of the parties” when they entered the employment agreement.

In KPMG, the plaintiff commenced a sick leave for depression following a disciplinary meeting regarding her conduct and attitude. When her application for long-term disability (“LTD”) benefits was denied, the employer contacted her to arrange for her return to work. It made several unsuccessful attempts to meet with the plaintiff and eventually terminated her employment when she failed to report to a scheduled meeting. The plaintiff then advised that she had been diagnosed with breast cancer and was undergoing treatment. As a result, the employer modified her severance package and continued her benefit coverage to ensure she was eligible to apply for both short-term disability (“STD”) and LTD benefits.

Terminations of this kind are sometimes considered risky by employers. Indeed, the plaintiff subsequently launched an action and claimed that the employer should be liable for aggravated damages, punitive damages and intentional infliction of mental distress. The Court dismissed all of these claims and specifically found that the plaintiff had been treated with “courtesy, respect, fairness and sympathy throughout her employment.”

The STD/LTD Deductibility Question

The plaintiff received both STD and LTD payments during her ten month notice period. In order to determine the intention of the parties with respect to the deductibility of these payments from the notice award, the Court reviewed both the employment contract and the disability policy.

The Court found that the STD payments should be deducted from the notice award based on the following:

  • the benefits were provided as salary continuance;
  • the plaintiff had not contributed directly to the cost of the benefits; and
  • the costs of the benefits were absorbed by the employer as a form of self-insurance.

The Court came to the opposite conclusion with respect to the LTD payments. It found that the LTD payments were “disability benefits” not salary or income replacement. This conclusion was based on the following:

  • the LTD payments were more in the form of private insurance payments, (the employer only paid premiums to the insurer);
  • the plaintiff had contributed to the cost of the benefit; and
  • the payments were made by the insurance provider directly to the plaintiff.

These conclusions are in line with other cases which have found that unless the STD/LTD benefits are self-insured by the employer, they will not be deductible. Accordingly, in situations where disability benefits are not provided through an “Administrative Services Only” Plan, employers would be wise to assume that benefit payments will not be deductible.

Court of Appeal reduces 24.5 months’ notice granted to 70 year old employee

Posted in Employment Law

In 2013, the decision of Kotecha v. Affinia garnered some attention among employment lawyers and human resources professionals. The motion judge’s award of 24.5 months’ notice (22 months’ notice, in addition to the 11 weeks of working notice already provided) to a 70 year old employee was seen by some as a potential indicator marking a trend of higher notice periods for older workers at or past the age of 65.

At the time of termination, the employee was a machine operator making $18.23 an hour. He was 70 years old and had 20 years of service. Counsel for the Plaintiff brought a successful motion for summary judgment seeking a notice period of 22 months. Evidence was provided that the Plaintiff had applied for over 200 jobs and failed to achieve even a single interview. The motion judge applied the traditional four factors from Bardal v. Globe and Mail Ltd. to determine an appropriate notice period: length of service, age, character of employment and availability of  alternative employment. He indicated that older employees will have a much more difficult time securing alternate employment. The motion judge also rejected a traditional principle that an individual holding a lower level, less skilled position should be entitled to a lower notice period, and commented that the position held by the employee was of declining importance in today’s modern world.

Not surprisingly, Affinia appealed the notice period. Before the Court of Appeal for Ontario, Affinia made an argument that the motion court judge was “bound” by a previous decision involving the same employer and another employee on the basis that the facts were similar. The facts were actually not similar, as the employee in the previous decision was younger and had shorter service. The Court expressly rejected Affinia’s argument. Nonetheless, in reviewing the motion judge’s decision, the Court stated that courts should strive to “ensure that notice periods, which are inherently individual, are consistent with the case law.” In this case, while the Court of Appeal recognized that the employee had “no realistic possibility of obtaining similar employment,” the notice period of 24.5 months was found to be excessive and it held that there were no exceptional circumstances to justify the award. The Court concluded that 18 months was reasonable in all of the circumstances, and that the 11 weeks’ working notice must be deducted from that period.

While this case is good news for employers, it also demonstrates the risk and unpredictability in estimating what a judge might find to be a reasonable notice period. As a result, employers should consider having a well-crafted termination clause in their employment contracts, which will mitigate against this uncertainty.

Kotecha v. Affinia ULC, 2014 ONCA 411 (CanLII)

Arbitrator Upholds Dismissal of Grievor for Posting Vicious Comments about Co-Worker on Facebook

Posted in Labour Relations

In a recent labour arbitration award, Arbitrator Laura Trachuk upheld the dismissal of a three and one-half year employee for posting vicious, humiliating and threatening comments about a co-worker on Facebook. While the Arbitrator left many specifics out of her decision in order to protect the identities of those involved, this decision serves as an important reminder that in a “connected” society, off-duty, on-line conduct can lead to discipline and discharge.

In United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc., the grievor “D” complained about a co-worker (identified in the decision as “X”) for not following workplace procedures during a shift. A Team Leader spoke with X, who stated that D was not following workplace procedures either, and both were told to finish out the shift and speak to another manager the following day.

However, before that could happen, D decided to take their dispute to Facebook, posting disparaging comments about X without referencing her by name, but by making reference instead to a distinctive physical characteristic. A co-worker responded to this post and suggested that a physically aggressive act be performed with this particular physical characteristic. The grievor then responded with further violent and sexual suggestions.

Upon learning of the postings the next day, X complained to management. The grievor took down his posts and apologized to management. He asked to apologize to X, but was told that she was too upset. The grievor was sent home pending investigation and was ultimately terminated for breach of the collective agreement and the employer’s workplace violence and harassment policy. The other employee who replied to D’s Facebook posting was given a ten-day suspension.

Arbitrator Trachuk did not hear evidence from either X or D, and made her findings based on the submissions of the parties and evidence from the manager responsible for the termination decision. The Union argued that there were a number of mitigating factors which should weigh in favour of lessening D’s penalty, including:

  • there was a workplace incident between D and X prior to the comments being made which caused D frustration;
  • the comments were made in the heat of the moment;
  • D did not refer to X by name in his postings; and
  • D had apologized for his comments and admitted that they were wrong.

Arbitrator Trachuk rejected all of these arguments for mitigation, importantly stating that the conduct in question did not constitute “off-duty” conduct because it was directed at “poisoning X’s work environment.” It was obvious to the Arbitrator that the employer’s workplace violence and harassment policy would include threats and harassment via Facebook, and that the grievor ought to have known that discipline and discharge were potential responses to this conduct.

In concluding her decision, the Arbitrator stated:

…An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men “joke” about the sexual violence they should inflict on a woman she can reasonably be concerned that they may actually hurt her… [T]he grievor sexually harassed X and created a poisoned work environment. The grievor is not a long term employee and the company could have little confidence that he could be trusted to never harass someone else. The company is responsible under the Human Rights Code, OHSA and the collective agreement for maintaining a workplace free of harassment and, in these circumstances, reinstating the grievor would be contrary to that goal, even if he were assigned to a different shift from X. This is not an appropriate case for progressive discipline. I do not find that the company violated the collective agreement by terminating the grievor’s employment. The grievance is denied.

The employer in this case was able to rely on its policies concerning workplace violence and harassment to defend its decision to terminate the grievor for his on-line actions against a co-worker. However, whether or not an arbitrator is willing to shoe-horn off-duty conduct into such a policy will likely depend on the nature of the conduct and the wording of the policy. In order to ensure that employers are able to discipline for off-duty, on-line conduct, it is important that such conduct is contemplated under the organization’s workplace violence and harassment policies. Likewise, if an organization has policies concerning social media use, those policies should also address how on-line misconduct may be treated. Taking such steps to address these issues from a policy perspective will help employers defend their decisions to discipline and discharge employees when they engage in off-duty, on-line conduct that harms fellow employees or brings negative attention to the organization.

Supreme Court Affirms Broad Public Sector Decision-Making Privilege

Posted in Information and Privacy

Below is a post I wrote for All About Information regarding a significant decision rendered by the Supreme Court of Canada last Friday on the scope of the “advice and recommendations” exemption from disclosure found in the Freedom of Information and Protection of Privacy Act:

“Yesterday the Supreme Court of Canada held that the “advice and recommendations” exemption in Ontario’s freedom of information legislation exempts both suggested courses of action and evaluative analysis from the right of public access.

The advice and recommendations exemption provides public servants with a zone of privacy in which to make good decisions that are free from the pressures of partisan politics. Justice John Evans of the Federal Court of Appeal has described the purpose the exemption as follows:

It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.

The Supreme Court of Canada held that the IPC/Ontario’s interpretation of the advice and recommendations exemption as shielding only the recording of a “suggested course of action that will ultimately be accepted or rejected by the person being advised” was unreasonable. It said that the IPC’s interpretation gave insufficient meaning to the word “advice,” which has a broader meaning than the word “recommendation.” It also said the IPC’s interpretation unduly limited the protective purpose of the exemption.

The Supreme Court of Canada’s ruling applies equally to government ministries and other Ontario FOI institutions. It means that recordings of decision-supportive “evaluative analysis” made by public servants, employees, consultants and others will generally be exempt from the right of public access. This may include, for example, lists of alternatives with comments about advantages and disadvantages or simply lists of alternatives. It may also include, according to the Court, drafts of the same kind of recordings.”

John Doe v Ontario (Finance), 2014 SCC 36 (CanLII).

Employer Permitted to Define “Spouse” under Benefit Plan to Exclude Married but Separated Spouses

Posted in Pension and Benefits

In a recent decision of the Ontario Human Rights Tribunal (“Tribunal”) in VanderLinde v. Corporation of the City of Oshawa (“VanderLinde”), the Tribunal found that it is not discriminatory for an employer to require that an employee’s legally married spouse be living with the employee as a condition of eligibility as a spouse under its group benefit plan.

In the VanderLinde case, the City of Oshawa (“Employer”) offered eligible employees a group benefit plan that covered part of their medical and dental costs (“Benefit Plan”). Spousal coverage under the Benefit Plan required that a person be married and not living separate and apart from an employee, or be the common law spouse who has been continuously living in a conjugal relationship with an employee for at least one year.

In 2012, the Employer provided advance notice that, as a result of a change in service provider effective January 2013, eligible Benefit Plan employees were required to provide up-to-date information about themselves and their dependants.  Through this process, the Employer discovered that one employee, Ms. VanderLinde (“Employee”), had been erroneously claiming her husband as a spouse under the Benefit Plan since 2009, despite the fact that, although they were legally married, they were no longer living together. At this point, the Employer notified the Employee that her husband did not qualify for spousal coverage under the Benefit Plan, since he did not fall under the Benefit Plan’s definition of “spouse.” Continue Reading

No Jurisdiction to Determine Unjust Dismissal Complaint Where Employee Terminated Without Cause Pursuant to Employment Contract

Posted in Employment Law

In a recent adjudication under the Canada Labour Code (the “Code”), Adjudicator Rose relied on the Federal Court decision in Atomic Energy of Canada v. Wilson to grant an employer’s preliminary objection and dismiss an unjust dismissal complaint. In doing so, he found that in the case of without cause terminations an adjudicator lacks jurisdiction under the Code where the employee had agreed to a valid and enforceable contract of employment that complied with the Code and no discrimination, bad faith, reprisal or any other impropriety was alleged in relation to the termination.

The applicant was initially hired by the employer into a bargaining unit position, but was promoted to a non-union position and signed an employment contract upon his promotion. The employment contract provided that the employer could terminate his employment at any time by giving him two weeks’ notice in writing or his minimum entitlements under the Code, whichever was greater. About five months after his promotion the applicant was terminated without cause and was provided pay in lieu of notice and severance pay in accordance with the Code. The applicant subsequently filed a complaint under the Code alleging he had been unjustly dismissed.

The employer raised a preliminary objection to the complaint on the basis that the adjudicator was without jurisdiction to order a remedy under the Code unless the dismissal in question was “unjust.” As the Code permits an employer to terminate an employee without cause, a termination cannot be considered “unjust” merely because it was done on a without cause basis. Thus, as long as the termination was in accordance with the valid terms of an employment agreement that complied with the Code and there were no allegations that the termination was in any way “improper,” a without cause termination could not be considered unjust. In this case there were no allegations of impropriety and the employer therefore asserted that the adjudicator was without jurisdiction to consider the complaint.

Adjudicator Rose agreed with the employer’s argument and dismissed the complaint.

He found that the Federal Court’s decision in Atomic Energy of Canada v. Wilson clearly held that without cause dismissals are permitted under the Code. An adjudicator is without jurisdiction to grant a remedy under the Code merely because the dismissal was without cause, provided that an employee had entered into a valid and enforceable employment contract which complies with the Code and there are no allegations of discrimination, bad faith, or reprisal.

Adjudicator Rose noted that adjudicators must carefully scrutinize each contract of employment. Here, he found that there was no indication of impropriety nor any allegation that the dismissal arose out of discrimination, reprisal or bad faith. As such, he was without jurisdiction and dismissed the complaint.

This decision highlights for employers in the federal sector the importance of having a written contract with an enforceable termination provision that complies with the Code. In these casesemployers should be able to bring a successful preliminary objection to most unjust dismissal complaints arising from without cause terminations. However, employers should also expect to see more unjust dismissal complaints alleging bad faith or discrimination, even when none existed, in order to circumvent this type of preliminary objection.

Filo Sigloy v. DHL Express (Canada) Ltd (20 March 2014, Rose)

B.C. Court of Appeal Stays Decision Rendering Teachers’ Collective Bargaining Legislation Unconstitutional, Pending Appeal

Posted in Constitutional Law

In our blog post of February 18, 2014, “British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation,” we reported that the B.C. Supreme Court declared Bill 22, legislation relating to teachers’ collective bargaining rights, unconstitutional. The Court concluded that this legislation was “essentially identical” to earlier legislation (Bill 28) that had also been struck down as unconstitutional but for which a declaration of invalidity was granted for 12 months.

In declaring Bill 22 to be unconstitutional, the B.C. Supreme Court ordered that the provisions relating to the cancellation of the teachers’ collective agreement and the temporary prohibition on bargaining for class size and composition (sections 8 and 24 of the Education Improvement Act) be returned to the collective agreement between the British Columbia Teachers’ Federation (“BCTF”) and the British Columbia Public School Employers’ Association (“BCPSEA”) effective July 1, 2002.

It was from that order that the B.C. government sought a stay pending appeal. Before the British Columbia Court of Appeal, it argued that the appeal raised a serious question to be heard and that the balance of convenience favoured granting a stay. The government argued that “the immediate restoration of the deleted clauses to the collective agreement presents irreparable harm to the public interest of unprecedented magnitude” through, for example, the disruption of school programs and classrooms.

The Court of Appeal found that the implementation of the judgment would “entail very significant disruption to the provision of education services” and irreparable harm to the government should the appeal be granted. The Court concluded that the test for granting a stay was met, and so stayed the portion of the order relating to sections 8 and 24 of the Education Improvement Act.

The Court of Appeal also stayed the lower court’s variation of a previous production order, which permitted the BCTF to distribute its unredacted written submissions to its members. Both orders related to the “conditions of disclosure and use of Cabinet documents over which the Province had claimed public interest immunity privilege so that they could be produced in litigation.” It found that “[d]isclosure will vitiate what may be constitutionally protected information.” It found that the effect of the stay on open court principles was outweighed by the irreparable harm that would result to the government if the stay were not granted.

We will continue to monitor and provide updates on the status of the government’s appeal in this case.

British Columbia Teachers’ Federation v. British Columbia, 2014 BCCA 75 (CanLII)

Privacy Rights vs. Union’s Duty to Represent its Membership: The Bernard Case Concludes

Posted in Information and Privacy

The Supreme Court of Canada dismissed the appeal in Bernard v. Canada (Attorney General), thus ending the “legal odyssey” of an employee who did not want her personal information disclosed to the unions which she declined to join during her years of employment with the federal government, but to which she was mandatorily obligated to pay union dues.

As previously reported, Ms Bernard filed a complaint with the Office of the Privacy Commissioner after learning that her employer had disclosed her home address to the union representing the bargaining unit to which she then belonged. The employer subsequently ceased disclosing such information, ultimately causing the Professional Institute of the Public Service of Canada (“PIPSC”) to file an unfair labour practice complaint with the Public Service Labour Relations Board (“Board”) against it. The Board ruled that the employer’s failure to provide employee home addresses and phone numbers to the bargaining agent interfered in the union’s representation rights. It ordered disclosure of the requested information for all bargaining unit employees, whether employees were union members or—like Ms Bernard—not. The Board concluded that PIPSC required Ms. Bernard’s personal information to properly discharge its duties as her bargaining agent and discharge its representational duties under the Public Service Labour Relations Act (“PSLRA”). This disclosure was authorized by section 8(2)(a) of the Privacy Act because the purpose for disclosure was consistent with the reasons for which it was collected – i.e. “compensation” and “business continuity” purposes.

A majority of the Supreme Court of Canada found that the Board’s decision was reasonable, and specifically, that PIPSC’s use of home contact information was “consistent” with the purpose for which it was collected within the meaning of s. 8(2)(a) of the Privacy Act. Central to the majority’s decision was its consideration of the labour relations context in which Ms Bernard’s privacy complaints arose. It  noted that a key “cornerstone” of labour relations law in Canada is majoritarian exclusivity: the union has an “exclusive right to bargain on behalf of all employees in a given bargaining unit,” [para. 21] including so-called “Rand employees” like Ms Bernard. While Rand employees are not required to join the union, they are not permitted to “opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees” [para. 21].

Against this backdrop, the Court accepted the two rationales underlying the Board’s finding that the employer’s refusal to disclose employee home contact information constituted an unfair labour practice. First, the majority recognized that unions need an “effective means” of contacting employees in order to discharge the specific representational duties imposed by the PSLRA [para. 24]. Second, unions must be on an “equal footing” with the employer with respect to relevant employee information in the context of a collective bargaining relationship [para. 26]. In finding the Board’s conclusions on both points “clearly justified,” the Court ruled as follows:

[27]      …The union’s need to be able to communicate with employees in the bargaining unit cannot be satisfied by reliance on the employer’s facilities. As the Board observed, the employer can control the means of workplace communication, can implement policies that restrict all workplace communications, including with the union, and can monitor communications. Moreover, the union may have representational duties to employees whom it cannot contact at work, such as employees who are on leave, or who are not at work because of a labour dispute.

[28]      The second rationale — equality of information between the employer and the union — further supports the Board’s conclusion. The tripartite nature of the employment relationship means that information disclosed to the employer that is necessary for the union to carry out its representational duties should be disclosed to the union in order to ensure that the union and employer are on an equal footing with respect to information relevant to the collective bargaining relationship.

[29]      Moreover, an employee cannot waive his or her right to be fairly — and exclusively — represented by the union.  Given that the union owes legal obligations to all employees — whether or not they are Rand employees — and may have to communicate with them quickly, the union should not be deprived of information in the hands of the employer that could assist in fulfilling these obligations.

In determining whether the disclosure of Ms. Bernard’s personal information by the employer to the PIPSC was authorized by section 8(2)(a) of the Privacy Act, the Court noted that a use must be “consistent” with the purpose for which information was collected – not identical to that purpose. In its view, “there need only be a sufficiently direct connection between the purpose and the proposed use, such that an employee would reasonably expect that the information could be used in the manner proposed” [para. 31]. Here, the Court found that the Board made a reasonable determination in identifying PIPSC’s proposed use as being “consistent” with the purpose for which it was collected – that is, contacting employees quickly and effectively about terms and conditions of their employment, in order to discharge their representational duties under the applicable legislation [para. 32].

A majority of the Court summarily dismissed Ms Bernard’s Charter-based arguments that disclosure of her personal information violated her freedom of association as provided by section 2(d), which the Board had declined to consider. Moreover, Ms Bernard could not assert the disclosure amounted to an unconstitutional search and seizure within the meaning of section 8 of the Charter, as in this labour relations context, there is no reasonable expectation of privacy in such employee information.

Bernard v. Canada (Attorney General)

British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation

Posted in Constitutional Law

Last month, the British Columbia Supreme Court (“BCSC” or “Court”) released the latest in a series of cases dealing with collective bargaining and the right to freedom of association as guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter“).

This 683-paragraph decision follows a previous decision of the BCSC dated April 13, 2011, wherein the Court found that legislation dealing with teachers’ collective bargaining rights (“Bill 28”) was unconstitutional and in violation of section 2(d) of the Charter. Bill 28 prohibited collective bargaining with respect to numerous topics including class size, class composition, and the number of classroom supports available to students with special needs. Bill 28 also deleted terms with respect to these topics from the teachers’ collective agreements. The Court found that Bill 28 violated section 2(d) of the Charter, but suspended its declaration of invalidity for a period of 12 months to give the B.C. government a year to enact new legislation or to otherwise address the Court’s concerns.

Following this 12-month period, the government enacted new legislation (“Bill 22”) which was nearly identical to Bill 28: it prohibited collective bargaining with respect to certain classroom working conditions, and struck down collective agreement terms dealing with these topics. The British Columbia Teachers’ Federation (“BCTF”) took issue with Bill 22, asserting that it violated section 2(d) of the Charter.

The B.C. government argued that, unlike Bill 28, Bill 22 was constitutional because the government engaged in good faith discussions with the BCTF prior to its enactment, and because certain of Bill 22’s provisions were time-limited (e.g. the prohibition on collective bargaining with respect to working conditions was scheduled to expire in June, 2013).

The Court disagreed. It found that the government’s discussions with the BCTF did not “cure” the constitutional defects found in Bill 28. The Court held that the discussions did not amount to good faith negotiations because the government’s strategy was “to put such pressure on the union that it would provoke a strike,” thereby giving the government the opportunity to gain political support for the imposition of Bill 22. The Court also held that the time-limited nature of Bill 22 did not provide any basis for distinguishing the two pieces of legislation. Both pieces of legislation were unconstitutional.

With respect to damages, the Court stated that an appropriate award must “[serve] the functions of compensation, vindication, and deterrence, but without being so large as to unduly take from the public purse and other public programs.” It awarded the BCTF a staggering $2 million in damages, plus costs, under section 24(1) of the Charter. The Court noted that $2 million equates to roughly $66 for each of the BCTF’s 30,000 members.

This case is important given the Court’s analysis of the relationship between collective bargaining and the right to freedom of association. The B.C. government has filed a Notice of Appeal to the British Columbia Court of Appeal, thereby indicating its intent to challenge the Court’s decision. Currently, the Supreme Court of Canada has granted leave to appeal in other freedom of association cases, which may provide further clarification on the issue: Saskatchewan Federation of Labour v. Saskatchewan, Mounted Police v. Attorney General of Canada and Meredith v. Attorney General of Canada (the two latter cases were argued before the Supreme Court this week).

Together, these cases demonstrate that Canadian courts are still grappling with the proper scope of freedom of association, and its connection to collective bargaining, following the Supreme Court’s rulings in B.C. Health Services and Fraser. 

British Columbia Teachers’ Federation v. British Columbia, 2014 BCSC 121 (CanLII)