The BC Public School Employers’ Association (“BCPSEA”) was unsuccessful in appealing from an arbitrator’s decision to the effect that the British Columbia Teachers’ Federation (“BCTF”) was justified in taking a grievance from the decision of the School Boards to advise teachers that they were not to post materials on teacher bulletin boards or to distribute documents to parents regarding issues of class size that were the subject of collective bargaining negotiations between the BCTF and the BCPSEA

27. September 2005 0

Administrative law – Schools and school boards – Powers – Teachers – Labour law – Arbitration – Decisions of administrative tribunals – Labour and employment boards – Charter of Rights – Freedom of expression – Remedies – Charter relief

British Columbia Public School Employers’ Association v. British Columbia Teachers’ Federation, [2005] B.C.J. No. 1719, British Columbia Court of Appeal, August 3, 2005, Donald, Huddart and Lowry JJ.A.

During collective bargaining negotiations and partial strike actions being taken by the teachers, the BCTF president sent a memorandum to teachers enclosing materials that they could distribute to parents to help them become informed about the specific educational losses that had taken place pursuant to certain new legislation. These items included comments about class size and its effect on a child’s education, as well as the elimination of certain guaranteed service levels from counsellors, teacher librarians and other specialist teachers and support for students with special needs.

School Boards in several districts subsequently tried to prevent teachers from writing to school trustees, parents or the media about these issues, and tried to prohibit teachers from posting these notices in the hallway of the school for parents to read.

The BCTF filed a general grievance and argued in front of the arbitrator that the School Boards’ actions were contrary to section 2(b) of the Charter (freedom of expression) and to section 8 of the Labour Relations Code. The BCPSEA submitted that the Charter did not apply to public school boards or to the impugned directives, and that even if it did, the directives did not contravene section 2(b), or could be saved by section 1 of the Charter.

The arbitrator concluded that School Boards do perform governmental functions rather than simply a “public function”. Therefore School Boards were subject to the Charter by virtue of section 32(1).

The arbitrator then considered the Supreme Court of Canada’s decision in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 in concluding that the teachers’ intended actions in posting these notices and distributing them to parents came within the sphere of conduct that was protected by section 2(b) as an attempt to convey meaning with expressive content.

The arbitrator also concluded that the purpose or effect to the alleged government action was to restrict freedom of expression.

The Court agreed with the arbitrator’s conclusion that School Boards appear to be subject to the Charter because they are a branch of government.

On the issue of whether the School Boards’ directives violated section 2(b) of the Charter, the BCPSEA argued that section 2(b) was not intended to apply to government directives to employees regarding their employment activities while on government property during employer time. The Court held that the question was whether the teachers’ discussion of their view of provincial education policies at parent-teacher interviews, handing out BCTF materials at those meetings, and hanging posters on school bulletin boards, was compatible with the fundamental purpose of school property to effectively operate the school. The Court agreed that there was no incompatibility between the teachers’ intended communications and the principal function or purpose of the public school. Although the BCPSEA argued that a parent-teacher meeting or a school bulletin board is not an open forum for political messages of all sorts, the Court held that teachers are not excluded by their employment status from the guarantee of freedom of expression under the Charter.

The Court then proceeded to consider whether the section 2(b) violation was saved by section 1 of the Charter. The Court stated:

Undoubtedly, the balancing of competing values of public employees and of the government employing them raises very difficult problems, particularly when those employees wish to exercise their expression rights during the course of their employment. However, the authorities establish beyond doubt that questions about limits on expression based on status should be considered under section 1, not by narrowing the scope of the right.

The Court applied the analysis from R. v. Oakes, [1986] 1 S.C.R. 103 and ultimately held that the School Boards had not chosen to achieve their objective by a minimum impairment of the teachers’ rights:

[T]he absolute ban of discussion on school property during school hours did not minimally impair teachers’ rights. Few places would be more appropriate for a discussion of the need for resources for public schools than a parent-teacher interview dedicated to one child’s education. The Supreme Court noted in Pepsi, “[f]ree expression in the labour context benefits not only individual workers and unions, but also society as a whole” (at para. 35). The same holds true for teachers. Their political expression benefits society as a whole even where the concerns arise out of a labour relations dispute.

In conclusion, two members of the three-member panel of the Court of Appeal dismissed the BCPSEA’s appeal.

There was a dissenting judgment from Lowry J.A. In dissent, Lowry J.A. would have held that the section 2(b) Charter infringement was demonstrably justifiable under section 1.

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