Members of the Petitioner British Columbia Teachers’ Federation (“BCTF”) joined a rally in protest of the decision of the legislature to pass the Education Services Collective Agreement Act, S.B.C. 2002 c. 1. The British Columbia Public Schools Employers Association (“BCPSEA”) brought an application before the Labour Relations Board to declare the attendance at the anticipated rally a breach of section 57 of the Labour Relations Code, R.S.B.C. 1996, c. 244. The Labour Relations Board declared that a cessation of work would contravene section 57(1) of the Labour Relations Code. The Petitioners raised an argument that the definition of strike was unconstitutional. The Attorney General of BC brought a preliminary objection, submitting that the court ought to refer the constitutional question back to the Board. The court held that tribunals have the jurisdiction to consider the constitutionality of their enabling statutes and remitted the matter to the Board.

Administrative law – Boards and tribunals – Labour Relations Board – Jurisdiction to hear constitutional questions relating to enabling statute

British Columbia Teachers’ Federation v. British Columbia (Attorney General), [2003] B.C.J. No. 785, British Columbia Supreme Court, April 8, 2003, Satanove J.

On January 28, 2002, members of the BCTF left the premises of their respective schools where they were employed to join a rally in protest of the decision of the legislature to pass the Education Services Collective Agreement Act. The BCTF announced its intention on January 24, 2002 to hold the protest. Also on January 24th, the BCPSEA brought an application before the Labour Relations Board to declare attendance at the anticipated rally a breach of section 57 of the Labour Relations Code. A hearing of the BCPSEA application was set for January 25, 2002 before the Board. The constitutional validity of the definition of strike in the Code was raised by the Petitioner. The hearing was deferred to January 27, 2002 to allow for notice to be served on the AGBC. Argument on the constitutional issue was further deferred to January 30th, but the Board heard the rest of the application and made a declaratory order that the cessation of work would contravene the Labour Relations Code. Despite the order, members of the Petitioner participated in the protest. No action was taken against them, nor was there any finding by the Board that the activity constituted a strike under the Code. After the strike BCTF’s Counsel withdrew his constitutional challenge and advised that his client would be proceeding to the Supreme Court to have the issue of the constitutionality of the definition of strike determined. The AGBC brought a preliminary objection to the court hearing the petition. Counsel submitted that the court ought to refer the matter back to the Board as it is a more appropriate forum for deciding a labour relations matter, and it has the authority to decide constitutional issues. The court referred to the Supreme Court of Canada in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, noting that tribunals such as the Board have the jurisdiction to consider the constitutionality of their enabling statutes.

The Court concluded firstly that the Board had exclusive jurisdiction over the matters respecting pickets, strikes or lockouts as the intention of the Code was to give the Board exclusive jurisdiction over labour relations. Secondly, labour boards are “administrative bodies of a high calibre”. The Board has the ability to analyze competing policy concerns in a critical fashion and even though Board members may not have legal training, they are sensitive to the relevant facts and able to compile a cogent record. Thirdly, the parties would participate in a constitutional debate before the Board at the same level of involvement as they would before the court.

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