Joel Bakan, is a law professor at UBC. He says the B.C. Court of Appeal’s ruling in April embodies ‘neither the spirit nor the letter’ of the Supreme Court’s arc toward workplace justice.John Lehmann/The Globe and Mail
Joel Bakan is a legal theorist and law professor at the University of B.C., specializing in constitutional law. He holds law degrees from Oxford, Dalhousie and Harvard and served as a law clerk with a Supreme Court of Canada Chief Justice.
One week after the B.C. Court of Appeal ruled in favour of the provincial government, finding it did not violate the constitutional rights of B.C. teachers when it stripped them of certain bargaining rights in 2002, Mr. Bakan spoke with The Globe and Mail about the judgment, other notable labour-relations cases and possible next steps.
In the decision, released April 30, four of five judges sided with the government; one dissented. The B.C. Teachers' Federation (BCTF) has said it will seek leave to appeal to the Supreme Court of Canada (SCC).
Some observers, including BCTF president Jim Iker, have said the Appeal Court did not give sufficient weight to other recent SCC cases on the Charter and labour relations. For example, the court ruled that Mounties have a right to unionize and found, in Saskatchewan Federation of Labour v. Saskatchewan, that the right to strike is protected. How might case law be applied here?
The SCC has self-consciously pushed since 2007 toward Charter protection of collective bargaining and strike rights for trade unions. Though in earlier cases, from the 1980s, the court had rejected significant Charter protection for trade union rights, that changed when, in the 2007 [B.C. Health Services] case, the court overruled those earlier decisions and held collective bargaining is an essential part of freedom of association and it deserves constitutional protection. It is now clear that, as Madam Justice Rosalie Abella recently described it in the Saskatchewan Federation of Labour case, "the arc bends increasingly toward workplace justice" in the court's Charter labour decisions since 2007.
When I look at the majority decision of the B.C. Court of Appeal, it seems out of step with that arc, embodying neither the spirit nor the letter of the Supreme Court's current constitutional course towards greater workplace justice.
The BCTF says it will seek leave to appeal to the SCC, but the court doesn't necessarily have to grant the appeal. (Of 80 such applications from the B.C. Court of Appeal last year, only eight were heard.) Do you think it will?
There is a strong argument for this case being granted leave by the SCC, and my best guess is that it will be. The SCC has wide discretion to grant leave, but the primary criteria, as laid out in the Supreme Court Act, is that a case raises an issue of "public importance," or an important issue of law, or of mixed law and fact. This case arguably meets all these criteria, especially when we consider the Supreme Court's tendency over the years to grant leave to cases that raise constitutional questions about important public policy issues, relevant to all provinces and subject to conflicting opinions from different judges and courts. The BCTF case truly hits all these marks and, more than that, it will likely be attractive to the court for providing an opportunity to reaffirm its robust commitment to constitutional rights to workplace justice and democracy.
The Appeal Court found that the trial judge, B.C. Supreme Court Justice Susan Griffin, made factual and legal errors when concluding that the government had bargained in bad faith, and that the 2012 legislation did not in fact infringe teachers' Charter rights. The panel also said there is no evidence to support the idea that the government wanted to incite a strike. What do you make of that?
The trial judge, having heard and considered all the evidence, over many, many weeks of testimony, and in an earlier similar case as well, found that the government and its agents had dealt in bad faith with the union. Traditionally, it's the role of an appellate court to respect – defer to – the findings of fact of trial judges. In exceptional cases, where the findings of a trial judge are palpably wrong, it's possible for a Court of Appeal to step in. The majority of the B.C. Court of Appeal held that that's what happened here. I find more persuasive the reasons of dissenting Justice [Ian Donald] that it did not.
Could you elaborate on the deference that is typically afforded to trial judges' findings of fact?
The Supreme Court has said that before an appellate court questions a trial judge's findings of fact, it must find that the trial judge made a "palpable and overriding error of fact." That's a very high standard to meet, and it's rarely met. The reason for this is simple: A trial judge's findings of fact are based on the nuances of the testimony before him or her; examination and cross-examination of witnesses, analysis of broader contextual factors and so on. Trial judges are in the courtroom. Appellate judges are not. Moreover, Justice Susan Griffin is a highly able and respected judge with an intricate knowledge – developed over two major cases – of the relationship between the BCTF and the government. Her account of the facts is detailed, thorough, and well-grounded in the evidence she finds relevant. That is why I was surprised by the majority's decision that this is one of those rare instances where a trial judge has made palpable and overriding errors of fact. And, it's why I find the dissenting opinion of Justice Donald more persuasive than the majority's.
What is at the heart of this case?
At the heart of this case is the question of whether public sector employees have robust constitutional rights to meaningful collective bargaining, and therefore robust constitutional protection of workplace justice and democracy.
This interview has been edited and condensed.