Reflecting on the Post-Appeal Landscape

This is not an article about denying any person or organization the right to due legal process.

Why do I feel it necessary to start off with such a sentence?

Because I’m familiar with the way in which posted opinion pieces are picked apart in the frenzied hot-house atmosphere of social media and what I’m about to say will likely be open to simplistic misinterpretation.

Before I explain and as I’ve done in previous articles, I’d like to note that any errors of fact in the following discussion are my own as are the views expressed here: these are not the views of the West Vancouver Board of Education. I’d also like to clearly acknowledge that this is not a legal opinion.

Starting in 10 days’ time, the BC government and the BC Teachers’ Federation (BCTF) will once again be in court, this time at the BC Court of Appeal addressing the government’s appeal and stay which were both granted in response to the Griffin decision released earlier this year.

The case hinges on what Justice Griffin deemed to be the unconstitutional removal of clauses from the collective agreement relating to class size, class composition, and the ratio of specialist teachers.

I’m not going to dwell on the intricacies of labour law, on the history of the case, or on the relative merits of each sides’ arguments.

What I want to touch on is what may happen after the appeal.

Why?

Because it’s time to get public education in BC out of the courts and back into the classrooms and I’m concerned about the post-Appeal landscape in terms of the potential for continuing legal proceedings.

An article by Ian Mulgrew of The Vancouver Sun prompted me to reflect and write on this issue. In his piece, Mr. Mulgrew explains a recent Supreme Court decision which declared that the fees BC charges for court hearings are unconstitutional. The court ruled that these fees in effect prevented individuals from unfettered access to the legal system in their pursuit of justice.

So what’s the connection to the pending appeal of the Griffin decision?

To me, it’s this. We know the Supreme Court of Canada is the highest court in the land and we know it remains as the ultimate arbiter especially in regard to Charter issues. Applying to the Supreme Court of Canada with regard to a judgement ought not to be taken lightly and only with due regard to the consequences its decisions may have on governance and policy.

There has been much speculation that no matter who wins the appeal this October, the next step is bound to be the Supreme Court because the issues raised in the Griffin decision go to the very heart of collective bargaining rights.

But does it automatically follow that it is the right course of action in this situation?

Specifically, if the government loses the appeal would it be smarter to honour the spirit of the Griffin judgement and negotiate class size and composition rather than taking the matter to the Supreme Court of Canada and risking an outcome which could have a significant impact on all public sector agreements?

Similarly, if the government wins the appeal would it be smarter for the BCTF to honour the spirit of the Griffin judgment and negotiate class size and composition rather than taking the matter to the Supreme Court of Canada and risking an outcome which may actually relieve the government of an obligation to significantly reinvest in the BC public education system?

I know that lawyers for both sides will have very compelling reasons for their clients to continue to pursue the case all the way to Ottawa. Why not? It’s a legal challenge and becomes part of one’s legal legacy let alone precedence as law of the land.

However, is it valid to say just because you can doesn’t mean you have to?  And while the outcome of the case on court hearing fees is a victory for citizens, I think the case regarding the BCTF collective agreement is even more complex and nuanced which makes the risk, in my opinion, greater.

And while I’m proud of our legal system and would always support due process, I’m not convinced — yet — that extending this particular legal imbroglio all the way to the highest court will be in the best interest of our students.