Bill 22 and the Supreme Court of Canada's adventures in labour law

As Bill 22 winds its way towards a final vote this week, and BC prepares for the next chapter of the current teachers’ contract dispute, I have been reflecting on what a dreadful mess the Supreme Court has made of public sector collective bargaining and the Charter of Rights and Freedoms.

The story begins with one of the most controversial pieces of legislation in the first term of the Gordon Campbell government, in which I was Attorney General, the infamous Bill 29 of 2002 (the Health and Social Services Delivery Improvement Act).

At the heart of this bill were provisions that rewrote - “stripped” - existing collective agreements in the health sector.  Its justification lay in the fact that the previous (NDP) provincial government had negotiated unaffordable agreements with these unions.  In our drive to restore the province to fiscal health, we decided that it was necessary to reduce health care workers wages; the tool chosen to do this was legislation.  

To add to the controversy that such a move would naturally create, we had promised in the 2001 election that we would not do this kind of thing.  So the outrage was compounded.

In our system of government, the central image - and foundation - of accountability is the ballot box.  When government strays too far from the will of the people, it is punished by the voters.  When this principle works, it is a marvel to behold.

In this case, the principle worked.  We were elected in 2001 with 77 of 79 seats.  Bill 29 was enacted a year later.  In the 2005 election, the voters responded with their verdict on four years of BC Liberal government by electing only 47 BC Liberals, a drop of 30 seats.  Though re-elected, the BC Liberals were clearly punished.  

By this time, however, a court challenge to Bill 29 had been launched, and it continued to wind its way through the system until it reached the Supreme Court of Canada.  The Court’s 2007 decision is known as Health Services and Support - Facilities Susbsector Bargaining Assn. v. British Columbia.

To summarize, the Supreme Court overturned 20 years of its own jurisprudence, and for the first time in Canadian history created constitutional protection for the process of collective bargaining.  It then applied its newly-minted principles to Bill 29 and decided that the legislation was in part unconstitutional and several of its provisions should be struck down.  It then suspended its order for a year to give government an opportunity to address the repercussions of its decision.

The foundation for the successful union argument was section 2(d) of the Charter of Rights and Freedoms, which says that everyone has the fundamental “freedom of association.”

The basic framework for the interpretation of section 2(d) in the context of labour law had been established by the Supreme Court of Canada in a series of decisions over 20 years.  Several attempts had been made to try to “read” protection for collective bargaining into section 2(d) and in each case the Supreme Court rejected the argument.

It is not the practice of Canadian governments to introduce legislation which is known to be unconstitutional.  And it gives no secret away to suggest that, whatever the labour relations politics of Bill 29, there could be no question at the time of its introduction that it was constitutionally sound.  Twenty years of Supreme Court of Canada decisions made that clear.

But in the Health Services case the Supreme Court of Canada turned the constitution on its head.  It violated a basic principle of the rule of law, namely that the law must be predictable and certain.  

When the Court overturns itself - and in this case we are talking about three recent decisions almost directly on point, not a dusty shopworn precedent from half a century ago - it undermines everyone’s ability to plan their lives.  Why?  Because you don’t know what the rules are.

This was not a case where the rule in question was uncertain.  It was perfectly clear.  It’s just that the Court decided to change it.  Nor was it a case where there was an overwhelming public consensus that the previous twenty years of decisions were seriously out of line and a modest re-alignment was necessary to get the jurisprudence back on track.  No, the question whether section 2(d) of the Charter should be extended to protect collective bargaining was highly contentious and vigorously debated.

The Court’s decision required government to consult with affected unions before enacting legislation that might affect their collective bargaining rights.  As a principle of political practice, the idea that government should consult during the development of public policy is a good one.  But converting good political practice into binding constitutional law is something else altogether.

The government, as I have said, had already paid the political price for politically controversial legislation.  There was absolutely no need for the Court to punish government still further by inventing a new constitutional principle of labour law.

What’s worse, the reasoning supporting the Court’s decision is, to put it generously, vulnerable to criticism.  A subsequent decision (called Fraser), just 4 years later, contains one of the most trenchant criticisms ever written by a Supreme Court justice, albeit in a concurring minority decision.  I will discuss this judgement in a subsequent post.

For all its flaws, and for now, the Health Services case remains the law.  It was subsequently invoked and applied in a trial court decision that overturned two critically important (and also highly contested) pieces of education legislation from 2002, Bills 27 and 28.  The Health Services decision is the ghost that haunts government as it tries now to bring an end to the teachers’ contract dispute.  

It is the reason negotiations, and even the debate on Bill 22, have taken so long.  In the case of the current legislative debate, you could even argue that we are seeing a classic example of the law of unintended consequences: a court decision intended to change public sector labour law now lengthens legislative debate for several weeks, preventing the Legislature from doing any other business that might also be important to the public welfare.

There is no partisan pleasure here.  Whichever party is in power, Health Services governs public sector labour relations in BC (and the rest of Canada).  By introducing enforceable process rights into public sector wage negotiations, the Supreme Court has enormously strengthened the hand of public sector unions as they make demands upon a fiscally-constrained public purse.  This is because process necessarily creates expense, delay and uncertainty, all of which tend to pressure governments to settle at higher amounts than might otherwise be negotiated.  

But important as that is, there is something much more fundamentally worrisome about this decision, because it suggests that there really is no certainty in even the most deeply entrenched principles of our law.  And in the long run, that is far more troubling than the provisions of any single bill.  

If I were advising the BCTF on their strategy post-Bill 22, I might be saying, be careful what you wish for.  A court that can change its mind once can change its mind again.  Wouldn’t it be ironic if the case which undid the Health Services decision came as result of a court challenge to Bill 22?