Supreme Court of Canada ruling in favour of BCTF raises important question about B.C. Court of Appeal

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      Yesterday, it took Canada's top court less than a half an hour to conclude that the B.C. Court of Appeal got it wrong in a case involving billions of public dollars.

      After hearing arguments and then a short recess, the Supreme Court of Canada came back and ruled in favour of the B.C. Teachers' Federation in an ongoing controversy that dates back to 2002.

      That's when the B.C. Liberal government tore up contracts with teachers and legislated class-size and class-composition rules.

      The Supreme Court of Canada decision repudiates a ruling last year by four of five justices on a B.C. Court of Appeal panel. They concluded that the B.C. Liberal government did not violate teachers' constitutional right to freedom of association by legislating class size and class composition a second time.

      The only dissenting B.C. Court of Appeal justice at the time was Ian Donald.

      He agreed with trial judge Susan Griffin's ruling that this "unilateral nullification" of working conditions "substantially interfered" with the union's charter right to freedom of association. It came after the government's chief negotiator testified that the government's objective was to try to provoke a full-scale teachers' strike.

      Writing for the 4-1 majority in last year's B.C. Court of Appeal ruling, Chief Justice Robert Bauman and Justice David Harris stated that applying economic pressure on the B.C. Teachers' Federation was "not inconsistent" with bargaining in good faith, "provided it is done for a legitimate purpose".

      This view was endorsed by B.C. Court of Appeal justices Mary Newbury and Mary Saunders.

      They also concluded that Griffin's earlier ruling "was based on errors of law and palpable and overriding errors of fact". With yesterday's Supreme Court of Canada decision, Griffin appears to have been vindicated.

      The Supreme Court of Canada has not released written reasons explaining why seven of its nine justices decided that Bauman, Harris, Newbury, and Saunders erred in their interpretation of the Canadian Charter of Rights and Freedoms' guarantee of freedom of association.

      It's not the first time that Canada's highest court has overruled the B.C. Court of Appeal.

      In the landmark 2014 Tsilhqot'in land-claim case, the Supreme Court of Canada upheld an appeal by First Nations. This allowed a declaration of aboriginal title over a large area in the Chilcotin area of B.C. 

      As in the teachers' case, the B.C Court of Appeal had overturned a lower-court ruling, only to see that reversed by Canada's top court.

      In 1997, the Supreme Court of Canada blew out a B.C. Court of Appeal ruling in another famous land-claim case. In a unanimous decision, the highest court recognized the existence of aboriginal title post-Confederation in the Delgamuukw case, overruling an earlier decision by B.C.'s highest court.

      More recently, the B.C Court of Appeal has overturned two B.C. Supreme Court decisions quashing search warrants in drug cases involving confidential police informants.

      Looking at these cases collectively, one might conclude that the B.C. Court of Appeal has, at times, demonstrated a conservative bent.

      It's worth repeating that B.C.'s chief justice cowrote last year's ruling against the B.C. Teachers' Federation.

      According to the B.C. Court of Appeal Act, the chief justice ranks above all other judges. Bauman is the administrative head of the court. 

      The law states that he "is authorized to attend in his or her capacity as a justice any meeting, conference or seminar that is held for a purpose relating to the administration of justice".

      Presumably, this would include any meeting with B.C. government officials regarding the allocation of resources to B.C.'s superior courts.

      There's a famous 1924 British case called R v Sussex Justices, Ex Parte McCarthy that set the standard around the impartiality of the judiciary.

      It included the oft-quoted phrase "justice should not only be done, but should manifestly and undoubtedly be seen to be done."

      So should the chief justice be appointing himself to judicial panels on cases with monumental financial implications for the same provincial government that provides his court with resources it needs to operate?

      It's a discussion worth having in light of what happened yesterday in the Supreme Court of Canada.