BC Public School Employers Assoc.
v. BC Teachers Federation,


2005 BCSC 1446

Date: 20051009

Docket: L052401

Registry: Vancouver








(the “Union”)




Before: The Honourable Madam Justice B. Brown

Oral Reasons for Judgment

In Chambers

October 9, 2005

Counsel for the Applicant

N.T. Mitha
P.D. McLean and

M. Hancock


Counsel for the Respondent

J. Rogers and

Ms. D. MacDonald

Place of Hearing:

  Vancouver, B.C.


[1]                THE COURT:  The applicant the BC Public School Employers Association applies for an order finding the respondent BC Teachers Federation in civil contempt of an order the Labour Relations Board made October 6th, 2005 and filed as an order of this court on October 6, 2005 pursuant to s. 135 of the Labour Relations Code.  That order provides:

1.         The Board orders:

(a)        The Union, its officers, members, employees and agents to immediately refrain from declaring or authorizing a strike against the schools;

(b)        The teachers to immediately refrain from participating in or continuing a strike against the schools and;

(c)        The teachers to immediately resume their duties and work schedules of employment within the schools except as authorized by the essential services orders.

2.         The Board orders the teachers to refrain from picketing at or near the schools which means refraining from attending at or near the schools for the purpose of persuading or attempting to persuade anyone to not enter the schools or do business with them, but does not include consumer leafleting.

3.         The Board orders that the Union

(a)        Communicate this interim order forthwith to its shop stewards and;

(b)        Post this interim order forthwith on its website for seven days.

[2]                In these reasons I will refer to the parties as “the employers” and “the teachers.”  There is no issue between the parties that the order was properly served on the teachers, nor is there any issue with respect to the teachers’ conduct which the employers say breaches the order.  The teachers have not resumed their duties.  They were not on duty Friday, October 7th and they have picketed at the schools.  I understand that the only step taken in compliance with the order was to post the order on the teachers’ website.

[3]                The test for finding contempt is summarized in the employers argument:

For a court to be satisfied as to the existence of contempt the following elements must be established:

(a)        The contemnor has had proper notice of the court order;

(b)        The terms of the court order are clear;

(c)        The terms of the court order have been breached by the contemnor and;  

(d)        The appropriate mens rea or intent was present.

[4]                In response to this application the teachers says first that they have certain Charter applications to be determined by the Board in a later order, and that they applied to the Labour Relations Board for reconsideration of this order.  They say that the reconsideration may be determined at any time and that the court should exercise its discretion not to deal with the contempt until the Labour Relations Board has determined the reconsideration application.

[5]                With respect to the Charter issues these are still before the Board and they will be determined at a later date and I need not address them here.  The order before me was made pursuant to s. 133(5) which allows the Board to make interim orders.  It is the decision to make the interim order which the teachers ask the Board to reconsider. 

[6]                With respect to the underlying validity of the order, Madam Justice McLachlin in the United Nurses of Alberta and Attorney General for Alberta (1992), 89 D.L.R. (4th) 609 at 639, said:

The validity of the order is not an issue on the contempt hearing.  Unless the order has been set aside for want of jurisdiction, the judge hearing the motion on criminal contempt must accept it as valid.

That, of course is equally true on a motion such as this for civil contempt.  The issue, then, is whether I should exercise my discretion to postpone the contempt hearing pending determination of the reconsideration application.  In Citation Industries v. the United Brotherhood of Carpenters (1988), 53 D.L.R. (4th) 360 our Court of Appeal said at page 367:

Counsel for the respondents raises the spectre of an illegal order being enforced.  If the council’s order is being challenged or reconsidered, it might be that the application to enforce would simply be adjourned until the challenge or reconsideration is completed.  There would be other occasions on which the court would think it appropriate to press for compliance pending the challenge or reconsideration.  It would depend on the nature of the order and the nature of the breach.

[7]                Here the teachers have advised me on October 7th and again today that they will not comply with the order pending reconsideration.  Given the very widespread effects of the teachers actions, their effect on the public and the nature of the order sought today, which is limited to a finding of civil contempt, it is not appropriate to delay my decision pending the Board’s determination of the reconsideration issue. 

[8]                Next, the teachers reviewed the background of the relations between the employers, the teachers and legislation implemented by the prior government.  They say that against this background the teachers’ response to Bill 12, now enacted, which extends the existing collective agreement until June 2006, could be anticipated.  The teachers say that they will not accept government action that removes from them the right to bargain wages and working conditions.  Although they do not suggest that it is a defence to this application, they also say that western societies recognize acts of civil disobedience in defiance of legislation which is perceived to be unjust.  Finally, they say that the teachers’ activities have been peaceful and there is no evidence of intimidation. 

[9]                The issue before me today is not whether the legislation is appropriate or whether the teachers’ position with respect to the legislation is correct.  The issue before me is both narrower, confined to consideration of the breach of the order of October 6th, and wider, concerned with the obligation of every citizen to obey court orders and the implications for a democratic society if citizens choose which orders they will obey and which they will breach. 

[10]            In this regard many courts have eloquently commented on the significance of citizens obeying court orders.  They were quoted at length today and I do not propose to review them all.  It is sufficient to quote the frequently cited words of Madam Justice McLachlin in Taylor, which are quoted in the materials before me in Canada Humans Rights Commission v. The Canadian Civil Liberties Net (1998), 1 S.C.R. 626 at paragraph 51:

If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind.

[11]            It is the rule of law, in this case obedience to court orders, which permits us to enjoy the rights and liberties of a civilized democratic society.  These are fragile social constructs which are seriously weakened when a group refuses to obey orders of the court.  If one may breach a court order, so may another, leaving none of us with rights or privileges.  No citizen or group of citizens may choose which orders they will obey.

[12]            I am satisfied that the teachers are in contempt of the order of October 6th.  First, they were properly served with the order; second, its terms were clear; third, the terms have been breached as described above; fourth, the intent of the teachers to breach the order may be inferred from their actions on October 7th and from the various public statements of Ms. Sims, the president of the teachers.  I declare that the teachers are in contempt of the order of October 6th.

[13]            We will need to set a time for the sanction hearing and I will require evidence with respect to the ability of the union to pay fines, as I understand that will be the relief which the employers will be seeking.  When shall we set that hearing?

[14]            MR. MITHA:  My lady, if I may, I would have a couple of comments in terms of the remedy phase and the comments are to continue to follow the path which BCPSEA is trying to follow and that is to follow a gradual process to try to deal with what’s going on.  In that regard I would respectfully suggest that the appropriate way to proceed might be for this court to do two things.  The first is to require the union to produce its most recent financial statements or at least statements which show the size of its strike fund and other financial capability to pay.  And the second thing is to order that some officers of the union or the president of the union be present in the courtroom.  I notice that there hasn’t been anybody to date, to my knowledge, present in this important hearing.  And that the union be required to advise the court what it intends to do on Tuesday either through counsel or through an officer of the union.  In other words I am suggesting that we proceed tomorrow morning or later today at my friends’ convenience, perhaps tomorrow morning actually.  It would be appropriate to give the union a chance now to, having heard your decision, to consider it and give it due consideration and to appear in court and decide what is going to happen on Tuesday, because that is an important factor, it’s not the most important factor as to what the penalty will be.  And after you’ve heard from my learned friend or from an officer of the union, you can then hear submissions on what is the appropriate penalty, and I think that would be the appropriate way to proceed, subject to comments my friend may have.

[15]            MR. ROGERS:  My lady, I just point you to, in that regard for authority, to Tab 6 which is a decision of Mr. Justice Bauman where he points out after hearing submissions that – it’s Tab 6, paragraph 58 where he notes that the question of deterrence is an important factor and he wanted to give the union an opportunity to consider the decision of contempt and to obtain financial wherewithal being able to pay before proceeding to a hearing.   And, my lady, the court is in your hands in this but I’m not at all sure the financial records are something that can be produced immediately.  The issue of whether an individual is required to attend or not, counsel is here and certainly report on your decision, I can assure you of that. And whether individuals have to attend or not in a matter of civil contempt, I doubt is the case, but of course we leave that for your direction.

[16]            THE COURT:  All right.  I am going to schedule the continuation of this hearing for Thursday morning, ten o’clock.

[17]            MR. MITHA:      My lady, we would have some issue with that and we would prefer to have the hearing, subject, obviously to your lady’s decision and I appreciate you have made your decision, earlier than that if they continue to picket on Tuesday.  In other words, if they continue the defiance of the order on Tuesday morning then, my lady, we would request an earlier hearing, in fact, with respect, my submission was that there’s no reason that the union can’t make a decision by noon tomorrow as to what they’re going to do and advise the court.  And the decision to be made tomorrow because the purpose of any remedy in terms of a fine, my lady, is deterrence and if the union is going to come to the court tomorrow morning and advise – or tomorrow sometime and advise that it will comply with the order then that factor takes a much lower consideration and, therefore, the fine will be presumably commensurately considered.  If, on the other hand, the union comes in tomorrow and says, no, we are going to continue on Tuesday, then I think that is an important factor which the court will want to consider before they go out in defiance on Tuesday.  But I am in your hands, or alternatively, my lady, if they do continue on Tuesday to hold the hearing on Tuesday to make a decision so that they don’t have essentially three free days before a penalty phase is made.

[18]            THE COURT:  Mr. Mitha, I am hopeful that the teachers, as responsible citizens, will appreciate the significance of what I have had to say today, and the significance for citizens at large where court orders are breached.  There will be no free days.  If they choose not to return, so be it, and we will move onto the phase of the hearing that deals with sanctions.  Whether that is Tuesday, Wednesday or Thursday does not constitute free days.  Therefore, Thursday morning, and I will require evidence of ability to pay a fine.

[19]            Thank you.

“B. Brown, J.”
The Honourable Madam Justice B. Brown