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:
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].
~~~~~~~~~~
A mind-boggling moment, in which counsel had to respectfully remind the Chief Justice of Canada that the rest of the Canadian people exist, and that the government owes them some consideration.
Comments
Post a Comment