Wednesday, 25 January 2017

What the Chief Justice of the Supreme Court of Canada said

As I've mentioned before, the case that drew me into the legal system as a self-represented litigant was that of the BC Teachers' Federation seeking the power to bargain what it calls "class size and class composition," but what is in fact how public schools are organized and, overall, how much they cost, not to mention controlling families' lives and all that. It is a fundamentally illegal power that the union seeks, but thanks to a bit of linguistic sleight-of-hand, bad precedent law, and political opportunism, the union was granted that power in 3 out of 4 court appearances, including at the Supreme Court of Canada in November 2016.

This last decision has settled the matter as far as the two parties and the courts are concerned, but has created a legal, constitutional nightmare that the citizens are now left to live in, and which we will have to litigate our way out of if we are to rescue our system of governance. I am now engaged in figuring out how to unravel this mess. I am free to call it a mess because I am not an officer of the court, but unfortunately I also lack the litigation capacity that officers of the court have. So fixing it is going to take a lot longer than saying it.

One thing I had to do to begin unravelling this mess is to listen to the webcast of the hearing at the Supreme Court of Canada. This was necessary because there was, in effect, no decision issued by the SCC. The court simply went behind closed doors for 20 minutes, probably all took a bathroom break, and then voted on the decision of the BC Court of Appeal. The Court of Appeal decision was a 4:1 split against the union; the SCC voted 7 to 2 for the sole dissent (that means the BCTF won).

And that is all the SCC has provided by way of reasons.

So the webcast, and particularly the questions that the SCC judges asked of the presenters as things proceeded, was pivotal to understanding what went wrong. It was pretty interesting throughout, barring how disillusioned one quickly becomes about notions of fairness as one watches how these things proceed. For example, some presenters are allowed to take their allotted time, but with others, the judges interrupt with questions and the presenter never gets to make their whole presentation. There is no apparent allowance made for the time taken up by the judges.

This is, of course, because all the utterances of the judges are meant to be regarded with reverence, and the assumption prevails that having the opportunity to directly address a question from a judge is actually a better use of time than whatever remarks the parties or interveners might have prepared. And to an extent, this held true. Some of them asked quite penetrating questions, although the end result shows they were quite gullible in terms of the answers they accepted from the union.

But there was one remark, or set of remarks, from the Chief Justice herself that caught my attention particularly.

It occurred during the presentation of Donald J. Jordan, QC, appearing for the intervener Canadian Association of Counsel to Employers, circa 3:15:00 of the webcast. This is my own transcript of the exchange:

     DJJ: “ I’m going to take my time here today to address the issue which appears to have caught the court’s attention today about assessing the reasonableness of positions under the rubric of pre-legislative consultation. And I think you have to start with a recognition that it’s a difficult thing to do to reconcile things which are often quite competing in the sense that under the notion of pre-legislative consultation trying to reconcile collective bargaining and the legislative function. Collective bargaining is highly adversarial, it’s bilateral, and people act out of their own self-interest. Legislation on the other hand is polycentric and policy-driven with the government having to act in what it perceives to be the interests of all.

     CJ: How does this really differ from a business… we have management, we have labour, management has to take into account, be it government or be it some very complex corporation, or simple, they have to take into account a whole range of activities and then they come up with something so I’m having a little trouble with how we are in this peculiar situation…

     DJJ: Respectfully I think the situations are not parallel at all. Management has no role for anything, no obligations to anything other than the particular enterprise whereas governments have obligations far beyond, for example, the teachers or the paramedics or various other people…

     CJ: Corporations may have a lot of obligations too, under contracts and one thing and another and to shareholders. I’m just saying from the point of view of the structure its not who you have the obligations to it’s the entities that are going to be doing the negotiation and surely the job of government is to consider all the different ramifications and come to the table with - I’m just suggesting this but…

     DJJ: Respectfully I think it diminishes the role of government as a democratic institution to say it is responsible for the same type of reconciliations as a corporation [does]

     CJ(?): [brief, inaudible]

     DJJ: Well, governments are special. Governments are democratic institutions, they’re part of our democratic tradition, they’re how we, ah, are governed. It’s a pretty simple observation. 

     But it is of course in this case it is the case that we are at the intersection of collective bargaining and government’s role and what I want to speak to today is how that relates to the issue which has been apparently front of mind here about assessing the reasonableness of positions. Let’s start with what collective bargaining does…. [remainder of presentation].

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I'm going to just leave that exchange here for the moment; I hope to post more about its implications at another time. 

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