Publication
TITRE
Teachers' Freedom of Expression
DATE
12 septembre 2005
EXPERTISE
One of Canada's largest Employment and Labour Law practices, dedicated to service and excellence
The B.C. Court of Appeal recently heard an appeal from the decision of Arbitrator Don Munroe who concluded that various School Boards had breached the freedom of expression rights of teachers.[1] The arbitration award found that the employer policy prohibiting distribution and posting of certain documents and bulletins in the workplace violated the teachers' rights to free expression under the Canadian Charter of Rights and Freedoms. The majority of the Court of Appeal dismissed the appeal and upheld the arbitration award. Mr. Justice Lowry dissented and would have allowed the appeal and set aside the award.
BACKGROUND
The events giving rise to the grievance that was before Arbitrator Munroe occurred when the parties were engaged in collective bargaining for renewal of their collective agreement. The British Columbia Teachers' Federation ("BCTF") planned a full strike but the government intervened and passed legislation imposing a new collective agreement. The BCTF, wishing to voice their objection to the legislation, developed an Action Plan to get their message out to the public. As part of that plan the BCTF asked teachers to hand out information with respect to class size and the impact of the legislated agreement at parent teacher meetings. Teachers also posted flyers that were critical of the government on public bulletin boards in the schools. In response, the employer unilaterally implemented a policy prohibiting both the distribution of leaflets and the posting of political bulletins on employer property.
At arbitration the BCTF argued that the employer's policy was contrary to s. 2(b) of the Charter and s. 8 of the Labour Relations Code. The arbitrator's decision in respect of s. 8 was not part of the appeal. With respect to the Charter issue, the arbitrator concluded that the Charter applied to the employer's actions and that the policy violated the teachers' freedom of expression.
On appeal, the employer argued that the freedom of expression guarantee was not intended to apply to employment activities on school property during working hours. The issue, argued the employer, was whether the "expression" was compatible with the principal function of the school.
THE COURT OF APPEAL DECISION
The Court of Appeal agreed with the arbitrator that the School Board was a branch of government and, accordingly, was subject to the Charter. It also agreed with the arbitrator's conclusion that there was "no incompatibility between the teachers' intended communications, on the one hand, and the principal function or purpose of a public school, on the other." Accordingly, the employer's argument could only succeed if it could convince the Court that the communications at issue were not protected in this particular workplace.
Although there was no authority directly on point, the Court was satisfied that similar cases established that the s. 2(b) guarantee of freedom of expression was not restricted by employment status or location of the expression of views. Therefore, the communications of the teachers that occurred in the workplace in this case were also protected by the Charter. The employer's directives violated the teachers' right to freedom of expression.
The Court then considered whether the violation could be saved by s. 1 of the Charter which permits those limitations on rights that are justified in a free and democratic society. The onus was on the employer to convince the Court that the objectives of its policy in limiting the communications were of sufficient importance to warrant overriding the teachers' rights to freedom of expression and that (1) the policy was rationally connected to the objective; (2) it impaired the rights of the teachers as little as possible; and (3) its deleterious effect did not outweigh its benefits.
The Court noted that it must pay particular attention to the nature of the harm and the nature of the infringed activity. While the potential harm from teachers expressing their political views during parent teacher interviews was difficult to measure, the Court was able to find that political expression of this kind should attract a high level of constitutional protection.
The Court concluded that maintaining public confidence in the school system and ensuring that parent teacher interviews met their intended purpose were sufficiently important objectives to justify some limits on freedom of expression. The Court agreed that a rational connection existed between the policy and the objective. However, the Court determined that the means chosen to achieve the objective was not a "minimal impairment" of the teachers' right to freedom of expression.
Something less than a complete prohibition against discussion of political views during parent teacher interviews would, in the Court's opinion, have served the desired purpose. For example, the Court suggested that the employer could have reminded teachers of their professional obligations and this reminder, coupled with the employer's powers to discipline or resort to disciplinary proceedings before the College of Teachers, could have achieved the School Boards' objective without the need for a total ban.
With respect to posting bulletins setting out the BCTF's political position, the Court was not able to find any potential harm and, therefore, the complete ban on posting BCTF political materials was not a minimal impairment of the teachers' rights.
DISCUSSION
This decision is important, particularly for employers in the public sector to which the Charter may directly apply. The principles established in the case will also likely guide the thinking of adjudicators generally when assessing the reasonableness of employer limits on expression or communication in the workplace.
[1]. British Columbia Public School Employers' Association v. British Columbia Teachers' Federation, 2005 BCCA 393.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.
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