"People generally conduct their affairs based on their understanding of what the law requires. Governments in this country are no different. Every law they pass or administrative action they take must be performed with an eye to what the Constitution requires. Just as ignorance of the law is no excuse for an individual who breaks the law, ignorance of the Constitution is no excuse for governments. But where a judicial ruling changes the existing law or creates new law, it may, under certain conditions, be inappropriate to hold the government retroactively liable."
Canada (Attorney General) v. Hislop, 2007 SCC 10, para 103

Some commentators have speculated that the Campbell government may be on the hook for over $500 million in damages because of the victory of BC's health unions in having three sections of Bill 29 (2002) deemed unconstitutional by the Supreme Court of Canada. It is easy to see how an estimate in that range could be determined. Approximately 8,000 people lost their jobs as a result of the contract breaking provisions of Bill 29. Some of those workers were rehired at substantially lower wages; others suffered periods of unemployment or changed careers. The law was proclaimed in 2002 and is still being used to layoff health workers without consultation and with none of the recourse that previously was part of their collective agreements. An average loss of $10,000 per year over 5 years times 8,000 gives an estimate of $400 million. In a letter to the editor published in The Province on June 12th, Philip Hochstein, President, Independent Contractors and Business Association of B.C., claimed that "… with the Supreme Court's decision, the clock is being wound back for the benefit of a few at the expense of the many." Another letter writer repeated media reports when he asserted that: "The cost of losing this challenge is said to be between $400 million and $1 billion."

Claims about the costs of the government's mistake with its contract-breaking legislation are premature, and possibly harmful for the unions. By raising the expectations of members, discontent may ultimately exceed that shown when the union agreed to obey the law and return to work in May 2004. Anyone who has an interest in the declaration that Sections of Bill 29 are unconstitutional should realize that the government has been given 12 months before the ruling takes effect, and more importantly, that by giving the government 12 months to change the law, the court has probably signaled that retroactive damages will not be considered.

The matter of retroactive, as opposed to prospective, judgments was canvassed extensively in the Supreme Court of Canada case, Canada (Attorney General) v. Hislop, which dealt with the extent to which Canada Pension Plan benefits should be retroactively paid to survivors of contributing partners of same-sex conjugal relationships. The Hislop class argued that eligibility should be retroactive to all those who died anytime after s. 15(1) of the Charter became effective (April 17, 1985). The court disagreed. In reaching its decision, the court wrote extensively on the general principles of when constitutional decisions should have retroactive application. Paragraphs 79 to 118 of that decision should be required reading for anyone commenting on the costs to government of their constitutional loss on Bill 29. You can bet that a lot of highly paid lawyers are pouring over that ruling and developing arguments.

The majority decision in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 used the word "consult" 43 times! Rather than gambling with another court fight over the magnitude of retroactive damages, all sides would be well advised to engage in meaningful consultation to rectify the mistakes of Bill 29 and to build a better working relationship for the future.

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June 12, 2007

Bill 29 (2002) and the Supreme Court

The victory of B.C.'s health unions in the Supreme Court of Canada noticeably annoyed Premier Campbell, who responded to reporters saying: "We have an obligation to listen to what the Supreme Court has said and to act appropriately with regard to that." Campbell should have limited his remarks to that response, but he attempted to defend Bill 29 (2002) and said his government will take the year that is required. He should have added that his government will consult with the health unions on changes that will be considered, but he must have missed that important lesson, which runs throughout the court's decision.

Some commentators are quick to bring out old rhetoric about "judicial activism", but a far more reasoned explanation of what the court did can be found in Peter Hogg and Allison Bushell's article 'The Charter dialogue between courts and legislatures (or perhaps the Charter Of Rights isn't such a bad thing after all)', published in 1997 in the Osgoode Hall Law Journal. One view of suspended declarations is that they allow governments to operate in an unlawful manner for a period, but Hogg and Bushell argued that such rulings allow the court to enter into a dialogue that allows government objectives to be met while Charter-protected rights are respected. Not so subtle hints are found throughout court rulings that allow government to connect the dots and draft appropriate amendments. That view, combined with a careful reading of the recent decision, is likely to disappoint many union activists. The newsletter published by the Hospital Employees' Union (HEU) on the ruling is lacking any comments that might raise expectations. Comments on the B.C. Government and Service Employees' Union (BCGEU) website hailed the court's ruling as a victory for workers but also pointed to the court's ruling that the scrapping of the Employment Security and Labour Adjustment (ESLA) program did not violate the Charter.

The sections of Bill 29 that were found to be unconstitutional deal with contracting out, consultations regarding contracting out and layoff and bumping procedures for the period between the proclamation of the Bill in 2002 and December 31, 2005. Other sections of the Bill were upheld by the court either because they were not related to collective bargaining or because they were judged to be of minor importance to the objectives of the union and the right of association. For example, with respect to successorship the court ruled:

"Fixing" Bill 29 might be as trivial as adding criteria or tests for when an employer can contract out and reintroducing a form of consultation. The perpetual ban on negotiating contracting out clauses into future agreements will have to be lifted, but, as long as they negotiate in good faith (a challenging concept to test), government won't be forced to accept union proposals to go back to previous contract wording.

The path-breaking content in the decision is: "The protection enshrined in s. 2(d) of the Charter may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining." To get to that conclusion the court had to overturn arguments in previous Supreme Court of Canada cases. The court said arguments used in previous decisions were wrong, and it added: "the Charter, as a living document, grows with society and speaks to the current situations and needs of Canadians." While there is no appeal of a decision by the Supreme Court of Canada, a future court could, as was done here, disagree and reinterpret the Charter in the context of changes in society and institutions.