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Court of Appeal File No. CA041558

Supreme Court File No. S-124584
Vancouver Registry
COURT OF APPEAL
Between
British Columbia Teachers' Federation
on behalf of all Members of the British Columbia Teachers' Federation

Respondent
(Plaintiff)
and
Her Majesty the Queen in right of the Province of British Columbia

Appellant
(Defendant)

and

The Coalition of BC Businesses

Intervener


FACTUM OF THE INTERVENER, THE COALITION OF BC BUSINESSES


APPELLANT:

Her Majesty the Queen in Right of the
Province of British Columbia



Karen Horsman, Eva Ross, and
Keith Evans


Ministry of Justice, Legal Services Branch
1301-865 Hornby Street
Vancouver, BC V6Z 2G3
Telephone: 604.660.3093
Facsimile: 604.660.6797
RESPONDENT:

British Columbia Teachers Federation on
behalf of all Members of the British
Columbia Teachers Federation


John Rogers, Q.C., Steven Rogers,
Amanda Merritt, and Diane MacDonald


Victory Square Law Office
500 - 128 West Pender Street
Vancouver, BC V6B 1R8
Telephone: 604.684.8421
Facsimile: 604.684.8427





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INTERVERNER:

Coalition of BC Businesses

Lauren J. Wihak

Gall Legge Grant & Munroe LLP
Floor 10 1199 West Hastings Street
Vancouver, BC V6E 3T5
Telephone: 604.669.0011
Facsimile: 604.669.5101
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INDEX




Page
CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION i
OPENING STATEMENT ii
PART 1 STATEMENT OF FACTS 1
PART 2 ERRORS IN JUDGMENT 1
PART 3 ARGUMENT 1
PART 4 RELIEF SOUGHT 19
LIST OF AUTHORITIES 20






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CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION

January 27, 2014 Judgment in the Bill 22 Action and hearing of the Bill
28 Remedies Application: British Columbia Teachers
Federation v. British Columbia, 2014 BCSC 121

February 4, 2014

Province files notices of appeal
June 30, 2014

Coalition of BC Businesses files Application for Leave
to Intervene

July 29, 2014


August 1, 2014





Application for Leave to Intervene by the Coalition of
BC Businesses heard by Tysoe J.A. in Chambers

Application for Leave to Intervene by the Coalition of
BC Businesses is granted by Tysoe J.A.




















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OPENING STATEMENT
The Coalition of B.C. Businesses (the Coalition) has intervened in this case to provide
the Court with what it considers to be important contextual information for the
adjudication of the issues on appeal.
Specifically, the Coalition respectfully submits that the issues on appeal must be
considered in the broader context of:
(i) the differences between public and private sector collective bargaining
that is, in the private sector, the focus is on dividing the revenues of the
business between employees and owners, and in the public sector it is a
matter of balancing the terms and conditions of employment with the
broader public interest; and
(ii) the importance of governments and legislatures retaining the ability to
amend public sector collective bargaining laws and collective agreements
where it is necessary to do so in furtherance of the broader public interest.
The Supreme Court of Canada in Health Services held that, before enacting legislation
that negatively affects important terms and conditions of employment of public sector
employees as included in a collective agreement, the employees, through their
bargaining associations, should first be given an opportunity to be consulted and to
negotiate over these changes.
If this consultation/negotiation process does not produce the Governments desired
objectives, it can then enact these changes.
The Coalition respectfully submits that this approach, providing for meaningful
consultation and negotiation over changes to the terms and conditions of public sector
employment before they are enacted, strikes a fair and appropriate balance between
the interests of public sector workers and the interests of the public at large, consistent
with the Supreme Court of Canadas decisions in Health Services and Fraser.

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PART I STATEMENT OF FACTS
1. The Coalition of BC Businesses (the Coalition) intervenes in this appeal
pursuant to the Order of Mr. Justice Tysoe dated August 1, 2014. In accordance
with the proper role of an intervener, the Coalition accepts the factual record before
this Court.
PART II ERRORS IN JUDGMENT
2. As an intervener, the Coalition also takes no position on whether the trial
judge committed any errors in the court below. Rather, the Coalition intends to
provide this Court with important background and context to collective bargaining in
the public sector, its impact on all sectors, and the important differences between
public sector collective bargaining and private sector collective bargaining. It
believes a full appreciation of these contextual factors will assist this Court in its
consideration of the issues raised in this important case.
PART III ARGUMENT
A Introduction
3. Though this appeal involves the determination of the constitutionality of
various legislative provisions that, among other things, remove collective
agreement terms favoured by the Respondent British Columbia Teachers
Federation (the BCTF), the issues raised by these appeals go well beyond the
question of the constitutionality of these specific pieces of legislation. They involve
broader questions of the right and ability to legislate changes in collective
bargaining structures and collective agreements that the government considers to
be in furtherance of the public interest.
4. Governments across Canada have always played a very active role in
seeking to reconcile the importance of collective bargaining with the fundamental
obligation of governments to legislate in the best interests of their constituents.
These efforts are particularly critical in the public sector, where the need to
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reconcile the demands of employees with the broader public interest is most acute.
The reluctance of governments to extend Wagner Act model bargaining rights to
public sector unions reflects the tension between the imperatives of democratic
governance and the unparalleled power of public sector unions to disrupt important
public services. In short, while private sector bargaining is bilateral in nature, public
sector bargaining is multilateral, in that the latter directly implicates the interests of
third parties, including the public at large.
5. The need for judicial sensitivity and restraint in these complex areas of social
policy is strengthened by an appreciation of the relationship between public sector
bargaining and the overall economy. Integrated, sophisticated economies can be
impacted significantly by rigidity in collective bargaining regimes, and governments
require the latitude to modify and manage collective bargaining regimes as
circumstances change. Historically, governments have frequently amended
collective bargaining regimes, controlled collective bargaining relationships, and
imposed contractual terms where considered necessary to further the public
interest and ensure fiscal and budgetary sustainability.
6. As such, these appeals have significant implications for the governments
and the Legislatures ability to make sound decisions involving fiscal and social
policy. Depriving the government of the capacity to modify collective bargaining
and labour relations regimes generally, and the terms and conditions of
employment of public sector workers specifically, can have important economic, as
well as social, repercussions. The Coalition submits that these are important
contextual factors for courts to consider in determining the extent to which this
balance can and should be upset in light of rights to collectively bargain in the
public sector context.
7. The Coalition respectfully submits that democratically elected bodies do, and
must, retain the legal authority to legislate where the collective bargaining process
is unable to provide the required flexibility and responsiveness to the needs and
interests of the public. The overriding obligation to serve the public interest may
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require modifying collective bargaining legislation and amending collective
agreements, and the Coalition submits that there are no constitutional impediments
to this course of action, as long as affected employees are given the opportunity to
be consulted over such changes. Such an approach to section 2(d), as supported
in the Supreme Court of Canada jurisprudence, strikes an appropriate balance
between the freedom of workers and the ability of governments to fulfil their
democratic mandate.
B The Importance of Context
8. The Supreme Court of Canada has, on numerous occasions, emphasized
the importance of context in deciding constitutional cases, both in terms of
determining the scope of Charter rights, and in determining whether an alleged
infringement can be justified by section 1 of the Charter. A contextual approach
ensures that constitutional litigation does not take place in a vacuum, and
recognizes that the decision to cloak certain conduct with constitutional protection,
or recognize constitutional rights, will have effects and impacts beyond any
particular case. Such a contextual approach has been particularly valuable in the
field of labour relations, where the Court has expressly cautioned against adopting
a decontextualized approach to defining the scope of freedom of association
under section 2(d).
Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at 1352-56, per Wilson J.;
Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 SCR 6 at para 17;
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 795 at paras 87-88;
R. v. Jarvis, 2002 SCC 73, [2002] 3 SCR 757 at para 63;
Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396 at paras 37-45;
Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016 at paras 20, 22,
26, 34, 49;
Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia,
2007 SCC 27, [2007] 2 SCR 391 at paras 30-34.

9. Consistent with this approach, the Coalition submits that a number of
contextual factors are particularly important in this case: first, the social, political
and economic context, especially the unique nature of public sector collective
bargaining and the necessity and frequency of legislative interventions in furthering
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and safeguarding the public interest; and second, the immediate context of this
dispute, and in particular the importance of elected bodies having the ability to
make important policy decisions in the public education sector. Finally, the
Coalition submits that the jurisprudence of the Court fully supports the contextual
conclusion that legislatures retain the constitutional authority to legislate in the
public interest, even where this is contrary to terms of collective agreements, so
long as they respect the ability of employees to be consulted over such changes.
C The Social and Economic Context Public Sector vs. Private Sector
Bargaining
10. As background, it should be noted that at common law, collective
agreements are not legally enforceable. Collective bargaining rights are creatures
of statute, and collective agreements are only made enforceable under a statutory
collective bargaining scheme. These statutory frameworks are of relatively recent
origin, dating from the 1930s in the United States and the 1940s in Canada. In both
countries, such rights only began to be provided to public sector workers in the
1960s, and they were not extended to public sector employees in British Columbia
until the 1970s. Even today, many American and Canadian workers in both the
public and private sectors have not been accorded statutory collective bargaining
rights.
Young v C.N.R., [1931] AC 83 (PC);
Bradburn and Wentworth Arms Hotel, [1978] 1 SCR 846 at 859, per Estey J.;
George W. Adams, Canadian Labour Law, 2
nd
ed, loose-leaf (Toronto: Canada Law Book,
2013) at paras 1.180-1.260, 2.840-2.1340.

11. The reluctance to extend Wagner Act model collective bargaining rights to
the public sector stemmed from the understanding that, unlike in the private sector,
public sector collective bargaining necessarily exists in a fundamental tension
with the obligation of democratic bodies to govern on behalf of citizens. Public
services are owned by the public, through their elected governments. Governments
provide services in the public interest, not as a profit-generating business, and
many public services essential to public well-being are provided on a monopoly
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basis. Unlike in the case of private sector collective bargaining, then, collective
bargaining in the public sector is basically an exercise in political, not economic,
power.
Jacob Finkelman, Public Sector Bargaining: Some Basic Considerations (1976-77) 3
Queens LJ 17 at 21-26;
G. Swimmer & M. Thompson, Collective Bargaining in the Public Sector: An Introduction,
in G. Swimmer and M. Thompson eds, Public Sector Bargaining in Canada: Beginning of
the End or End of the Beginning? (Kingston: IRC Press, 1995) at 1-3.

12. Thus, while the impact of private sector bargaining is typically limited to the
interests of the parties at the bargaining table, the impact of public sector
bargaining is of a fundamentally different order. There are many other parties
whose interests may be substantially affected by the outcome of public sector
negotiations, including taxpayers, private businesses, and most importantly,
individuals who depend on public services. Public sector collective agreements
involve the indelibly political matter of public sector remuneration, which affects
taxation levels and government priorities. Public sector collective agreements may
serve as benchmarks for overall public sector compensation levels, can undermine
budgetary sustainability, and can have broader economic effects as described
below.
Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence and
Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3 at para 186;
Clyde W. Summers, Bargaining in the Government's Business: Principles and
Politics (1986) 18 U Tol L Rev 265 at 269-270.

13. This tension is further exacerbated by the fact that modern collective
bargaining can potentially go well beyond traditional employment matters, such as
remuneration or benefits; they can also touch on a range of issues that are critically
important to how a jurisdiction is governed. It is exactly because employees may
seek to bargain on highly contentious public policy issues which might include
everything from class sizes and composition, to public sector delivery standards, to
policing procedures that legislatures require the ability to intervene and legislate
in the public interest.
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Kenneth P. Swan, Safety Belt or Strait-Jacket? Restrictions on the Scope of Public Sector
Collective Bargaining in Geoffrey England & George Lermer eds, Essays in Collective
Bargaining and Industrial Democracy (Don Mills, Ont: CCH Canadian, 1983);
Finkelman, supra at 24.

14. Thus, while the implications of private sector bargaining are almost
exclusively economic and apply most directly to the affected employer and union
the impacts of public sector bargaining are on the whole political. The crucial
difference between public and private sector collective bargaining is that in the
public sector the collective agreement is not a private decision, but a governmental
decision; it is not so much a contract as a legislative act.
R.K. Winter & H.W. Wellington, The Limits of Collective Bargaining in Public Employment
(1969) 78 Yale LJ 1107 at 1117;
Summers, supra at 266;
T.M. Love & G.T. Sulzner, Political Implications of Public Employee
Bargaining (1972) 11 Indus Rel 18.

15. For this reason, legislatures have always possessed the authority to design
collective bargaining schemes and manage bargaining relationships in a way that
permits the interests of employees to be balanced with the broader public interest.
The ability to legislate where negotiation does not produce outcomes in the public
interest operates as a democratic safety-valve. Where critical aspects of public
policy are jeopardized by employee demands, those aspects could be legislated;
where a fiscal downturn or inflationary pressures required austerity measures, they
could be implemented through legislation; where strikes jeopardize important public
services, the legislature could pass back-to-work legislation; and so on.
16. In light of the importance of accommodating the needs and circumstances of
various populations and sectors, collective bargaining schemes vary considerably
across and within jurisdictions. From a collective bargaining perspective, the
allocation of primary jurisdiction over labour relations in our federal system to the
provinces has been considered beneficial, because it allows provincial legislatures
to adopt and change labour laws in response to their particular social, economic
and political climates.
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Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour
Law (Toronto: Carswell, 1980) at 11.

17. As such, each jurisdiction in Canada has adopted its own unique approach
to collective bargaining, which has produced considerable variation in such
legislation across jurisdictions, and across time periods. Even within each
jurisdiction, collective bargaining legislation differs between the public and private
sectors, often significantly. In particular, public sector collective bargaining statutes
almost always contain restrictions on the scope and content of collective bargaining
and collective agreements.
Shirley B. Goldenberg, Public Sector Labour Relations in Canada in Aaron, Najith &
Stern, eds, Public Sector Bargaining, 2
nd
ed (Washington, DC: BNA Books, 1990)
at 287-289; 293-294.

18. To use just a few examples, the right to strike is often curtailed in the public
sector, and sometimes eliminated altogether, in essential public service areas such
as health, education, fire, and police. Operational matters relating to the extent and
manner of the provision of public services are typically excluded from the scope of
bargaining to further ensure that the public interest is not compromised. Federal
and provincial public sector statutes commonly restrict bargaining over the
organization of the public service, while some jurisdictions mandate interest
arbitration to settle collective bargaining disputes for government workers, and
prohibit arbitrators from imposing terms on some operational matters.
Joseph B. Rose, Public Sector Bargaining: from Retrenchment to
Consolidation (2004) 59(2) RI/IR 271 at 272;
Labour Relations Code, RSBC 1996, c 244, ss. 72 & 73;
Fire Protection and Prevention Act, 1997, SO 1997, c 4;
Public Services Essential Services Act, SS 2008, P-42.2;
Labour Relations Code, RSA 2000, c L-1, s. 112;
Police Officers Collective Bargaining Act, RSA 2000, c P-78;
Public Service Labour Relations Act, SC 2003, c 22, ss. 119-125;
Government Services Act, 1999, SC 1999, c 13;
Civil Service Collective Bargaining Act, RSNS 1989, c 71.

19. Along with the structural design of collective bargaining arrangements
described above, legislatures have also found it necessary to intervene on an ad
hoc basis to ensure fiscal sustainability and the continued provision of important
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public services. As experience developed with public sector bargaining, legislative
intervention of this kind became more frequent, accelerating especially in the
1980s and 1990s. This was a result of myriad factors, including the combination of
fiscal pressures and new philosophies about the appropriate role of government.
Swimmer & Thompson, supra at 1;
Michael J. Trebilcock, The Prospects for Reinventing Government (Toronto:
C.D. Howe Institute, 1994) at 1-6.

20. Such legislative interventions have included voiding negotiated wage
increases in excess of statutory wage guidelines; precluding bargaining over all
issues; rolling back negotiated wages; eliminating tenure for public sector
employees; imposing unpaid leaves of absence and statutory extension of
collective agreements; restricting the scope of bargaining matters; and imposing
statutory terms of employment. These ad hoc interventions have been effected in
light of the recognition that retaining a degree of control over collective bargaining
processes is essential to important public interests, including overall fiscal
sustainability.
Rose, supra at 272-276, 278.
21. The governments prerogative in legislating with respect to collective
bargaining regimes and agreements is also important in light of the potential impact
on the economy as a whole. Restricting the ability of governments to legislate in
the interests of fiscal and social policy can reverberate throughout the broader
economy more generally, in the way that discrete private sector arrangements
cannot. This is because sophisticated, modern economies are complex and
interdependent. The extent of public-sector employment and the relative flexibility
of labour regimes are key drivers of economic growth, and substantially impact a
provinces investment climate. To the extent that labour relations regimes are rigid
and not amenable to change, there will be an impact on the overall health and
vibrancy of the economy.
A. Karabegovic, N. Gabler & N. Velduis, Measuring Labour Markets in Canada and the
United States: 2012 Edition (Vancouver: Fraser Institute, 2012).
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22. In this way, flexible labour relations regimes that are capable of being
modified as circumstances warrant are crucial drivers of a flourishing and
competitive economy. Economic situations are not stagnant; nor are the needs of
particular sectors or industries (or their employees, for that matter) frozen in time.
An appreciation of the effect of constitutionalizing collective agreement rights would
include the risk of hamstringing a governments ability to create a thriving economic
climate, upon which the provinces shared prosperity depends.
23. The Coalition respectfully submits that this appeal must be resolved in a way
that strikes a fair and responsible constitutional balance between the interests of
employees in collectively having a say in matters relating to their employment, the
interests of the private economic sector, and the public at large. This requires
preserving the ability of governments to respond to ever changing social and
economic circumstances in the province to ensure continued economic
sustainability and prosperity, as well as the delivery of efficient, affordable and
quality public services. The critical distinction between the narrow, bilateral
interests in private sector bargaining, and the much broader range of interests
implicated in public sector collective bargaining, should be at the forefront of a
contextual Charter analysis.
D Immediate Context - Public Sector Education
24. The Coalition respectfully submits that the public education sector illustrates
the importance of ensuring some measure of policy autonomy and control in the
provincial legislatures over public sector collective bargaining, in light of the
contextual considerations raised above.
25. Like other Canadian governments, the Government of British Columbia is
struggling to find ways to provide quality, affordable public education. In British
Columbia, approximately $5.3 billion, or 12.3%, of the provincial budget is allocated
to K-12 public education. Labour costs are a major expenditure in this area, and
governments must be able to control these costs if they are able to provide quality
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public education without compromising other important public services. Managing
public education labour costs through collective bargaining can be difficult, if not
impossible, in light of the significant leverage possessed by the employees to
effectively shut down public education in the province.
Appellants factum, at para 13.

26. The legislation at issue in this appeal was passed against the backdrop of a
perceived need for legislative action to better manage public services, including
publicly-funded education, brought on by economic downturn, and in the context of
a multi-faceted policy initiative to address that need. The Government believed that
this legislation was necessary to enable it to better manage labour costs while at
the same time reorganizing the delivery of public education in an efficient and
sustainable manner.
27. Public education is, of course, an immensely important public service. The
public depends on free access to education for all children, and cannot simply go
elsewhere for these services during a labour dispute, as they could in the case of a
labour dispute involving a private sector business. Relatedly, public sector
employers cannot go out of business if their labour costs are too high. They must
continue to provide educational services. These unique circumstances effectively
give unions in the public education sector monopoly power in the collective
bargaining process, and indeed serve to highlight the risks of the fundamental
tension referred to above.
28. It is also important to appreciate that the impugned legislation did not deal
primarily with traditional employment matters, such as benefit packages or vacation
time. Rather, it was focused on core aspects of education policy, including class
sizes and composition. Undoubtedly, the size and composition of classes has some
impact on the teachers conditions of employment, just as certain public safety
measures might impact the work of police officers, mail routes may impact mail
carriers, city design may impact civil engineers, or environmental policy may impact
government scientists. Nevertheless, they are at their core policy decisions as to
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how education services are to be delivered in the province, and as such are
decisions made by democratically elected governments.
Education Improvement Act, SBC 2012, c 3.
29. Of course, there are no easy answers to the public education challenges
facing Canadian governments. Government must mediate between the competing
interests of students, parents, teachers, administrators, school boards, and
taxpayers, all of which must necessarily be balanced in any publicly-funded
education system. Governments actions in this area are subject to intense political
scrutiny and debate, and elected representatives have a democratic obligation to
seek and pursue the public interest.
30. Effective management of these complex public education policy issues,
including the control of labour costs and the making of policy in the public
education sector, demands nuanced and innovative responses, which fairly
balance the interests of all affected parties. The Coalition respectfully submits that
this immediate context provides further guidance with respect to the resolution of
the constitutional issues in this appeal, and the proper interpretation of section
2(d).
E Jurisprudence
31. As stressed above, an appreciation of context is critically important in
articulating both the definition of, and limits on, Charter rights and freedoms. The
Supreme Court of Canada has repeatedly emphasized that courts must be mindful
of second guessing complex political choices, and that Legislatures are entitled to
particular latitude in matters of social and economic policy. The rules and policies
developed by governments and Legislatures in the field of labour relations
particularly public sector labour relations are situated within just such a complex
social and economic environment. As a starting point, these important policy
decisions should be left to the elected branches, as labour relations questions are
of a nature peculiarly apposite to the functions of the Legislature.
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M. v. H, [1999] 2 SCR 3 at para 79;
RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199 at paras 131-133;
R. v. Advanced Cutting & Coring Ltd, 2001 SCC 70, [2001] 3 SCR 209 at paras 256-257,
per LeBel J.;
Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313 at
419-420, per McIntyre J.

32. Thus, while Health Services confirmed that laws regulating employment
conditions are not immune from Charter scrutiny, the jurisprudence both before and
after that decision has acknowledged that legislative policy-making in the domain
of labour relations is better left to the political process, as a general rule.
Otherwise, constant court interventions might freeze or disrupt a fluid and evolving
social environment. As different governments will have different views of the best
public policy in this area, they must retain the latitude within section 2(d) to make
legitimate policy choices.
Advanced Cutting, supra at paras 256-257;
Alberta Reference, supra at 391, per LeDain J. and at 414-415, per McIntyre J.;
R. v. Saskatchewan Federation of Labour, 2013 SKCA 43 at paras 107-108;
Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 SCR 465 at paras 55-57.

33. As described above, the appropriate formulation of labour law and collective
bargaining rights, and the appropriate scope and content of those rights, depend
upon the particular social, economic and industrial circumstances prevailing in a
particular jurisdiction at a particular time. The Courts should seek to respect the
balance achieved by legislatures in designing labour relations legislation, lest they
become, in the words of Mr. Justice LeBel, arbiters of complex problems about
which they had no particular knowledge.
Brian Langille, Why are Canadian Judges Drafting Labour Codes And Constitutionalizing the
Wagner Act Model (2010) 15 CLELJ 101;
Delisle v. Canada (Deputy Attorney General), [1999] 2 SCR 989 at para 23;
Plourde, supra at paras 55-57;
Advanced Cutting, supra at paras 157, 256-257.

34. This appeal directly implicates the ability of governments and legislatures to
respond to contemporary conditions in particular employment sectors by modifying
collective bargaining regimes and outcomes, in an attempt to preserve the
sustainability of those sectors. All citizens are impacted by collective bargaining in
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the public sector, and the management of public sector collective bargaining
inevitably has a spill-over effect into the private sector and the health of the
economy as a whole.
35. The circumstances leading to the present appeal are overlaid with yet
another degree of social and economic complexity, as this case arises out of the
public education sector. As noted, these are not purely bilateral issues. Matters
involving public education policy are of significant importance to the entire
community, and should not necessarily be left to the school board and unions
alone, as if such matters only affected employees. To the contrary, the scope and
design of public education impacts the interests of all British Columbians, and all
should have a say in its management through elected representatives.
36. In light of these contextual factors, the Coalition submits that the British
Columbia Legislature must retain the ability to make changes to the structure of
collective bargaining and the content of collective agreements in the public
education sector (or in any other sector for that matter) where it is considered
necessary to sustain affordable and efficient public services. Further, the
Legislature must be free to restrict what can be negotiated in a statutory collective
bargaining regime, and to modify the application of that scheme to specific sectors
of workers. This includes the legislative imposition of wages, and statutory
limitations on what matters can be negotiated and enforced in collective
agreements.
37. Of course, such legislative action must always be undertaken in a manner
consistent with the Constitution, and in particular the employees freedom of
association. However, the Coalition submits the jurisprudential context of this case
does not lead to the conclusion that public sector unions have a veto over
important democratic decisions. Rather, a regime granting legislatures significant
room to make public policy decisions is entirely consistent with the jurisprudence
on section 2(d) and the contextual approach urged above.
38. In particular, and central to this appeal, there is a critical distinction to be
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drawn between an interference with freedom of association the ability to work
together in an effort to achieve collective goals and an interference with
contractual rights acquired pursuant to a collective agreement that was the end
result of the associational activity. In the absence of constitutional protection for
contractual and economic rights, benefits acquired by negotiation are not
constitutionally immunized from legislative action; the constitutional right is only to
a process respecting the ability of workers to seek to achieve collective goals. The
nullification of terms, however valuable to the employees, will still not constitute a
violation of 2(d) unless such action is antithetical to associational activity.
Robert E. Charney, "The Contract Clause Comes to Canada: The British Columbia Health
Services Case and the Sanctity of Collective Agreements" (2008) 23 NJCL 65;
Robin K. Basu, "Revolution and Aftermath: BC Health Services and Its Implications"
(2008) 42 SCLR (2d) 165 at 204-205;
Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2013
BCCA 371 at paras 53-54.

39. The Court in Health Services did not constitutionally divest legislatures of the
power to amend collective bargaining statutes and statutorily modify collective
agreements. Rather, the Supreme Court of Canada held that before legislating in a
manner that affects an issue of fundamental importance in an existing collective
agreements, governments should ensure that meaningful attempts have been
made to negotiate the changes the government believes are needed.
Health Services, supra at paras 92, 134-135;
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 SCR 3 at para 76.
40. The constitutional right recognized by the Supreme Court in Health Services
was, therefore, a process right. As recently confirmed by the Court in Fraser,
section 2(d) of the Charter protects the right of employees to engage in a process
of meaningful discussion that allows employees to make representations and
have them considered in good faith by employers. This gives public sector
employees, through their bargaining associations, an opportunity to convince the
government that contemplated changes are not needed, and/or that the
governments objectives can be realized in some other way that has less of an
impact on the employees.
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Health Services, supra at paras 89-91;
Plourde, supra at para 55;
Fraser, supra at para 33, 54 (emphasis added).

41. As the Court has repeatedly emphasized, this constitutionally protected right
does not have a substantive component; it does not provide to public sector
employees a constitutional entitlement to any particular contractual terms and
conditions of employment or any particular process, such as the Wagner Act
model. The Court in Health Services unequivocally stated that s.2(d) does not
guarantee a particular model of collective bargaining or a particular outcome.
Governments must permit a process that makes it possible to pursue [collective]
goals in a meaningful way, but no particular outcome is guaranteed.
Health Services, supra at paras 89-91;
Fraser, supra at paras 33, 45.

42. Thus, while the ability to negotiate over terms and conditions of employment
is constitutionally protected, acquired rights under a collective agreement are not
themselves constitutionalized. In response to Rothstein Js challenge that Health
Services had improperly elevated the content of contracts over duly-passed
legislation, the Court in Fraser confirmed that Health Services did not stipulate or
imply that labour contracts could not be interfered with by legislation. As long as
the process rights of public sector employees are respected, the Government is
constitutionally entitled to legislate these or other changes to the collective
agreements in question.
Fraser, supra at paras 216-218, per Rothstein J., and at para 76, per McLachlin
C.J. & Lebel J.

43. The facts of Health Services may help illustrate the content of this process
right. In that case, the Court found that the British Columbia Government had
breached section 2(d) by not providing the affected public sector employees with
an opportunity to bargain over the terms and conditions of their employment before
legislatively changing them, and prohibiting such negotiations in the future. As the
Court repeatedly emphasized in Health Services, there was almost no effort on the
part of the government to consult with the union prior to making the changes. The
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Court found the changes constitutionally invalid because they eliminate[d] any
possibility of consultation and effectively preclude[d] consultation with the union.
Health Services, supra at paras 92, 134-135, 156-159 (emphasis added).
44. Critically, the Supreme Court of Canada did not say that the Government
was constitutionally barred from subsequently legislating the very same changes if
done in a manner consistent with its underlying obligation to consult and negotiate
over substantial terms. The constitutional infirmity identified by the court was the
unilateral imposition of these terms without consultation and negotiation, which
failed to provide any opportunity for real dialogue over terms and conditions.
Indeed, the Court expressly recognized that even where legislative changes
substantially impact issues of fundamental importance to unions, they will still not
violate s.2(d) if they preserve a process of consultation and good faith negotiation.
Health Services, supra at paras 94, 113, 134-135.
45. In this way, section 2(d) of the Charter creates a limited right to negotiation
and consultation but does not guarantee any particular result. It guarantees the
right of employees to have their views heard in the context of a meaningful process
of consultation and discussion, but does not guarantee any substantive contractual
or economic outcome for employees. It protects a process of consultation, not the
fruits of that process. This approach is entirely consistent with the purpose
underlying section 2(d), which is not to guarantee economic rights or contractual
outcomes, but rather to preserve the freedom of individuals to interact with,
support, and be supported by, their fellow humans in the varied activities in which
they choose to engage.
Dockyard Trades, supra at para 47;
Fraser, supra at paras 50, 76, 84;
Alberta Reference, supra at 366, per Dickson CJ.

46. Even where good faith consultation and negotiation occurs, there is still a
distinct possibility that there will be no agreement and that the government will feel
obliged to modify the terms of the collective agreement in the public interest. The
Coalition respectfully submits that there is no constitutional barrier to this outcome,
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where the process itself preserves an opportunity for consultation and negotiation
over substantially important terms.
47. The Coalition respectfully submits that the Supreme Court of Canadas
decision in Health Services struck the appropriate balance between the
associational freedom of public sector employees to engage in a process of
negotiation and consultation, and the ability of governments and legislatures to
legislate necessary changes to the structure of collective bargaining legislation and
the content of specific agreements in furtherance of the public interest. The
constitutional question to be asked is not whether unions are able to secure certain
preferred economic and contractual rights particularly where those impinge upon
important matters of public policy but whether there was good faith consultation
and the opportunity to negotiate over those terms.
F Conclusion
48. As detailed above, there is no single, specific template for statutory
collective bargaining schemes across the country or the province. In fact, there
has been considerable debate over whether completely different approaches are
required to meet the needs of workers in a competitive, global economy. Public
sector bargaining presents unique challenges in this regard because of
governments fundamental democratic responsibilities to the public. Thus, it is not
surprising that legislatures have frequently reshaped and refined public sector
collective bargaining laws both generally and on an ad hoc basis in search of
new solutions to the complex issues that arise in this context. Changes to laws
affecting collective bargaining and labour relations are generally subject to intense
public debate. Public sector unions, such as the BCTF, are active and able
participants in this debate and in the political process.
G. Swimmer & T. Bartkiw, The Future of Public Sector Collective Bargaining
in Canada (2003) 24 J Labor Research 579.

49. The Coalition, as the representative of its members, is concerned with an
interpretive approach to s. 2(d) that fails to appreciate the important differences
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between public sector and private sector bargaining, and the overall impact that
expenditures on the public sector workforce can have on budgetary sustainability,
and the health and strength of the economy generally. Further, the Coalition is
concerned with an interpretive approach to s. 2(d) of the Charter that would enlarge
the scope of constitutional collective bargaining rights in such a way as to restrict
the ability of governments and legislatures to intervene, and where necessary
legislate, in a manner that promotes and protects the broader public interest.
50. Depriving the government of the ability to deal with indelibly political and
policy-laden areas without, as a necessary precondition, obtaining the consent of
public sector unions, elevates contractual and economic rights over the process
rights guaranteed under 2(d), and risks giving various unions a veto over critical
public policy decisions made on behalf of the population as a whole. Such an
approach improperly conceives of public sector bargaining as a purely bilateral
arrangement, and fails to acknowledge the important public interests involved. In
that way, an unreasonably enlarged interpretation of 2(d) eliminates the very
safety-valve that makes public sector bargaining workable in a democratic society,
and is inconsistent with a contextual interpretation of section 2(d) in light of the
factors identified above.
51. For these reasons, the Coalition respectfully submits that any intervention by
the courts risks upsetting the delicate balance sought by the legislature both with
respect to labour relations policy, education policy, and the interaction between the
two and as such should be undertaken with caution and sensitivity to the complex
nature of the inherently political issues at play. The jurisprudence supports an
approach that preserves the employees right to be consulted over important
contractual terms, while at the same time reserving to the government the ability to
legislate where such negotiations do not provide sufficient flexibility to govern in the
public interest.


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PART IV RELIEF SOUGHT
52. The Coalition seeks no relief in this appeal, and takes no position on the
outcome of the appeal.
53. The Coalition also does not seek to make oral submissions at the appeal
hearing.
54. Consistent with the Order of Mr. Justice Tysoe granting the Coalition leave to
intervene in this appeal, the Coalition respectfully requests that there be no costs
order for or against the Coalition, except for those disbursements reasonably and
necessarily incurred by the parties as a result of the Coalitions intervention.

ALL OF WHICH IS RESPECTFULLY SUBMITTED




DATED August 29, 2014






____________________

Lauren J. Wihak
Counsel for the Coalition



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PART V LIST OF AUTHORITIES
INDEX
Case Law Paragraph(s)
Bradburn and Wentworth Arms Hotel, [1978] 1 SCR 846 ............................................ 10
Delisle v. Canada (Deputy Attorney General), [1999] 2 SCR 989 ................................ 33
Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016 .................. 8
Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 ........................... 8
Federal Government Dockyard Trades and Labour Council v. Canada (Attorney
General), 2013 BCCA 371 ..................................................................................... 38, 45
Health Services and Support-Facilities Subsector Bargaining Assn v. British Columbia,
2007 SCC 27, [2007] 2 SCR 391 ............................................................ 8, 39-41, 43-44
M. v. H., [1999] 2 SCR 3 ............................................................................................. 31
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 SCR 3 ............... 39-42, 45
Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 SCR 465 .................... 32-33
R. v. Advanced Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 SCR 209 ................ 31-33
R. v. Jarvis, 2002 SCC 73, [2002] 3 SCR 757 ................................................................ 8
R. v. Saskatchewan Federation of Labour, 2013 SKCA 43 .......................................... 32
Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313 .........
.......................................................................................................................... 31-32, 45
Reference re Remuneration of Judges of the Prov Court of PEI; Ref re Independence
and Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3 ........................... 12
RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199 ...................... 31
Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 SCR 6........................ 8
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 795 ............... 8
Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396....................... 8
Young v. C.N.R., [1931] AC 83 .................................................................................... 10
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Statues
Civil Service Collective Bargaining Act, RSNS 1989, c 71 ........................................... 18
Education Improvement Act, SBC 2012, c 3 ................................................................ 28
Fire Protection and Prevention Act, 1997, SO 1997, c 4 .............................................. 18
Government Services Act, 1999, SC 1999, c 13 .......................................................... 18
Labour Relations Code, RSA 2000, c L-1 .................................................................... 18
Labour Relations Code, RSBC 1996, c. 244 ................................................................ 18
Police Officers Collective Bargaining Act, RSA 2000, c P-78 ....................................... 18
Public Service Essential Services Act, SS 2008, P-42.2 .............................................. 18
Public Service Labour Relations Act, SC 2003, c 22 .................................................... 18

Other Authorities
G.W. Adams, Canadian Labour Law, 2nd ed (Toronto: Canada Law Book, 2013) ...... 10
R.K. Basu, Revolution and Aftermath: BC Health Services and Its Implications" (2008)
42 SCLR (2d) 165 ....................................................................................................... 38
R.E. Charney, The Contract Clause Comes to Canada: The British Columbia Health
Services Case and the Sanctity of Collective Agreements (2008) 23 NJCJ 65 ........... 38
J. Finkelman, Public Sector Bargaining: Some Basic Considerations (1976-77) 3
Queens LJ 17 ........................................................................................................ 11, 13
S.B. Goldenberg, Public Sector Labour Relations in Canada in Aaron, Najith & Stern
eds, Public Sector Bargaining, 2
nd
ed (Washington, CC: BNA Books, 1990) ............... 17
A. Karabegovic, N. Gabler & N. Velduis, Measuring Labour Markets in Canada and the
United States: 2012 Edition (Vancouver: Fraser Institute, 2012) .................................. 21
B. Langille, Why are Canadian Judges Drafting Labour Codes And
Constitutionalizing the Wagner Act Model (2010) 15 CLELJ 101 ................................ 33
T.M. Love & G.T. Sulzner, Political Implications of Public Employee Bargaining (1972)
11 Inds Rel 18 .............................................................................................................. 14

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J.B. Rose, Public Sector Bargaining from Retrenchment to Consolidation (2004) 59(2)
RI/IR 271 ................................................................................................................ 18, 20
C.W. Summers, Bargaining in the Governments Business: Principles and Politics
(1986) 18 U Tol L Rev 265 ..................................................................................... 12, 14
K.P. Swan, Safety Belt or Strait-Jacket? Restrictions on the Scope of Public Sector
Collective Bargaining in Geoffrey England & George Lermer eds, Essays in Collective
Bargaining and Industrial Democracy (Don Mills, Ont: CCH Canadian, 1983) ............. 13
G. Swimmer and T. Bartkiw, The Future of Public Sector Collective Bargaining in
Canada (2003) 24 J Labor Research 579 ................................................................... 48
G. Swimmer & M. Thompson, Collective Bargaining in the Public Sector: An
Introduction, in G. Swimmer and M. Thompson (eds), Public Sector Bargaining in
Canada: Beginning of the End or End or the Beginning? (Kingston: IRC Press, 1995)....
............................................................................................................................... 11, 19
M.J. Trebilcock, The Prospects for Reinventing Government (Toronto: C.D. Howe
Institute, 1994) ............................................................................................................. 19
P. Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto:
Carswell, 1980) ............................................................................................................ 16
R.K. Winter & H.W. Wellington, The Limits of Collective Bargaining in Public
Employment (1969) 78 Yale LJ 1107 .......................................................................... 14