B.C. teachers wait for court ruling on class size bargaining rights

B.C.'s highest court will deliver the latest ruling on the lengthy dispute between the B.C. Teachers' Federation and the provincial government on Thursday.

The B.C. Court of Appeal will rule on whether the province violated teachers' charter rights in 2002, when it passed legislation that removed clauses relating to class size and class composition from their collective agreement and prohibited those issues from being bargained in the future.

A B.C. Supreme Court judge has twice ruled the province's legislation unconstitutional, ordered it to pay the federation $2 million in damages and retroactively restored the deleted clauses, but the province immediately appealed.

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Many parents and students hope the ruling will bring resolution to the dispute, and will lead to a new era of respect and co-operation between teachers and the government. They shouldn't hold their breath.

Both parties have said they expect the dispute to drag on and Premier Christy Clark has made it clear she expects the case to eventually end up in the country's top court.

"I think that if the government wins, and I'm pretty confident that the government's going to win this case, the teachers' union is going to take it to the Supreme Court of Canada. That's probably where it will end up," Clark said back in September.

Why this case matters

The premier may sound confident in interviews, but on paper, the government is clearly concerned its decision to void the teachers contract in 2002 could be very expensive.

In its 2015 budget documents the government lists the following under the heading 'Risks to the Fiscal Plan':

"The main risks to the government's fiscal plan include ... the outcome of litigation ... including the appeal of the B.C. Supreme Court decision on the teachers' contract issue."

The government has yet to publicly estimate the cost of losing this case, but it has painted a bleak picture in court, arguing a return to 2002 contract provisions — such as class-size limits and restrictions on the number of special-needs students in each class — would cost some school districts tens of millions of dollars just to hire enough staff.

Regardless of what the court decides on Thursday, the likelihood of an appeal means the public will be paying additional court costs, possibly for years to come.

Implications outside the classroom

There could also be implications outside the classroom, and the provincial budget. The government is arguing that the issues of class size and composition is a matter of public policy, and falls outside of the collective bargaining process.

In other words, the government believes it was acting in the public interest, and had a right to tear up the teachers' contract in 2002.

Experts in public policy, such as UBC professor emeritus Charles Ungerleider say there is no clear demarcation for where collective bargaining ends, and public policy begins.

He wonders what impact the court decision might have on other public sector contracts.

"Where you establish that boundary, and whether the courts establish that boundary, would be quite interesting to me," Ungerleider said.

Ungerleider — who became deputy minister of education under the NDP government in 1998, shortly after teachers bargained class size and composition — thinks it was unfair for the Liberals to tear up a contract, and he doesn't think the court will side with the government Thursday.

"I would be surprised if they do, but I've been surprised many times in the past."