In addition to deciding who ultimately has power over collective-agreement terms, the B.C. Court of Appeal must decide in the case between teachers and the province whether confidential cabinet documents used in evidence can be released publicly.
The case is an appeal of B.C. Supreme Court Justice Susan Griffin鈥檚 2014 decision, with the teachers arguing that her ruling should be upheld based on workers鈥� rights to bargain working conditions. The appeal centres on the government鈥檚 ability to legislate collective agreements when bargaining reaches an impasse, and how the rights of employees should be balanced with government fiscal policy.
Griffin鈥檚 decision in 2011 restored class-size guidelines, class-composition rules and specialist-teacher ratios to teachers鈥� contracts, which had been stripped of them by the B.C. Liberals in 2002. The government introduced further legislation in 2012, which was the subject of the 2014 ruling now under appeal. Griffin argued in that ruling that the government bargained in bad faith in those negotiations, deliberately trying to provoke a strike.
Evidence for that ruling came from testimony based on documents protected by cabinet confidentiality and now sealed by the court. The B.C. Teachers鈥� Federation wanted to distribute its closing arguments to its members, but those arguments include reference to and quotes from the confidential documents. In her ruling, Griffin said the BCTF could release its closing arguments, including the references to the cabinet documents, because the majority of the documents were not created with an expectation they would be confidential and that, 鈥渨here the courts are tasked with the role of determining the constitutionality of government conduct, it is even more important for there to be transparency so that the public can have confidence that the result was reached in fulfilment of the court鈥檚 duty to be independent and impartial.鈥�
At issue is the balance between the public interest in open courts and the public interest in free and open debate in cabinet, supported by confidentiality. 91原创 lawyer Howard Shapray was added to the government side in the case specifically to argue against the release of the documents.
In court on Thursday, Shapray said that the open court process was fulfilled by the trial, leaving as relevant only the public interest in cabinet confidentiality. He said the BCTF closing argument is 鈥渙ne-sided 鈥� argumentative and obviously pejorative鈥� and that it would be impossible to contain the distribution just to BCTF members because of unlimited access to the Internet.
Both sides wrapped up their arguments Thursday. The province argued that if the BCTF position is correct, union members effectively have a 鈥減erpetual veto鈥� over any deletion of contract terms. The teachers argued that the province could delete any and all collective agreement terms at will, if the government position is correct.
One member of the five-justice appeal panel asked lead government lawyer Karen Horsman to clarify what would happen if the government decided to delete other collective-agreement clauses.
