This protracted dispute began in January 2002 when the BC government enacted the Education Services Collective Agreement Act and the Public Education Flexibility and Choice Act (collectively, "Bill 28"). Bill 28 purported to remove all terms that governed issues surrounding class sizes and composition, as well as other matters such as staffing levels and teacher/student ratios, from the BC teachers' then existing collective agreement. Moreover, Bill 28 had the effect of restricting the inclusion of similar terms in future collective agreements.

The BCTF launched a successful constitutional challenge against Bill 28 in the BC Supreme Court, which released its judgment on April 13, 2011 that Bill 28 was unconstitutional because it infringed BC teachers' freedom of association guaranteed under the Canadian Charter of Rights and Freedoms. The Court declared certain parts of Bill 28 to be unconstitutional and granted the government one year to consider remedial legislation.

In the following one year period, the Province and the BCTF engaged in collective bargaining and held 13 consultation meetings to resolve the disputed issues, without success.

Upon the expiry of the one year period, the government enacted the Education Improvement Act ("Bill 22"). Bill 22 had the same effect as Bill 28 to restrict collective bargaining on the issues of class sizes and composition. Unsurprisingly, the BCTF launched a further constitutional challenge. The BC Supreme Court once again agreed with the BCTF and ruled on January 27, 2014 that Bill 22 was also unconstitutional. This ruling was overturned as a result of the Court of Appeal's April 30, 2015 decision discussed here.

The Court of Appeal made several key findings in its decision. First, the Court agreed with the BCTF that the regulation of class sizes, class compositions, staffing needs and other similar terms were important matters that affected teachers' working conditions. However, these terms also directly engage education policy, which falls within the responsibility of the BC government as the "maker of education policy and custodian of public finance". Furthermore, the Court disagreed with the trial judge in the lower court that the consultation period leading up to the enactment of Bill 22 was irrelevant to whether teachers' right to freedom of association had been respected. The Court found that the government acted in good faith in consulting with teachers leading up to the introduction of Bill 22 and in the collective bargaining process and that this was a relevant factor to the constitutionality of Bill 22. Ultimately, the Court held that BC teachers' right to freedom of association was not violated in this case because consultations had taken place that provided the teachers with a meaningful opportunity to act collectively to attempt to influence their working conditions.

Following the release of the Court of Appeal's decision, the BCTF has already announced that it intends to appeal the decision to the Supreme Court of Canada. The BCTF has 60 days to appeal to the Supreme Court of Canada, which will then decide whether to grant permission to hear the case.

Note: This a reprint of an article by Victor Inc of Miller Thomson LLP.