The British Columbia Supreme Court has found the B.C. Teachers Federation in contempt of court and fined it $500,000 for ignoring court orders during an illegal strike, reportedly the largest fine for civil contempt of court in Canadian history.
The decision, handed down in October, made headlines across the country. In her written reasons, Justice Brenda Brown made it clear she wanted to send a number of signals to the public with this ruling.
One thing Justice Brown wanted to clear up is any misconception around the right to breach a court order. Citizens simply do not have the right to breach court orders, she said.
“Whether they label their conduct as civil disobedience or political protest, citizens may not breach court orders,” said Justice Brown. “Each and every one of us derives the security and freedom which we enjoy in this country from the rule of law. Essential to this is obedience to orders of the court.”
Court decisions inevitably produce winners and losers
Justice Brown cited a 2000 ruling by a Newfoundland and Labrador Court that said:
“A court decision inevitably produces winners and losers. The unsuccessful litigant may well feel that the decision is wrong or even unjust. His or her remedy is to appeal according to law. While the original decision exists, the rule of law requires that the court order must be observed.”
Justice Brown said it is not enough to pay lip service to courts. Court orders must be followed and, if they are not, then there is a penalty to pay.
On Oct. 9, 2005, Justice Brown found the teachers to be in contempt of an order issued on Oct. 6, 2005 (the original order is reproduced at the bottom of this article.) She adjourned the penalty phase until Oct. 13 to give the teachers an opportunity to consider the decisions and their actions.
On Oct. 13, the court ordered the teachers’ union to stop using its assets to facilitate a breach of the court order. Among other things, that meant teachers who were illegally striking could not receive strike pay from the union.
The difference between civil contempt and criminal contempt
On Oct. 21 the court handed down its decision on the fine for contempt. By that point, the teachers had not resumed their duties and work schedules as ordered by the court on Oct. 6.
The employers in this case provided evidence that the teachers had not returned to work and that picketing continued throughout the province. It also provided transcripts of interviews given to the media by Jinny Sims, president of the B.C. Teachers’ Federation (BCTF), indicating that the federation would not comply with the court order to return to work.
“The teachers had not complied with the order and it is clear, from Ms. Sims’ statements, that they would not comply,” said Justice Brown.
She then turned her attention to what an appropriate step would be for the court to take to ensure compliance. Justice Brown pointed out the difference between civil and criminal contempt.
This was a case of civil contempt, she said. The Supreme Court of Canada, in a 1992 ruling, discussed the difference between the two this way:
“A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.”
At first glance, the teachers’ defiance might seem to rise to the level of criminal contempt because it was so public. But Justice Brown said that although a special prosecutor had been appointed to consider whether criminal contempt proceedings should be initiated against the teachers, the proceedings before her remained civil contempt proceedings. (In the weeks following this decision, it has become clear that criminal contempt proceedings are unlikely to follow.)
How much damages?
Justice Brown said the court must impose a sanction that recognizes the gravity of the contempt, deters the teachers from continuing contempt and deters others from similar conduct.
She said the BCTF has about 38,000 members and net assets of more than $30 million. Its collective bargaining defence fund was $14.6 million as of June 30, 2005. The teachers were offered two opportunities to comply yet continued to defy the order, said Justice Brown.
She looked at an earlier contempt case involving the Hospital Employees Union in B.C. The union was found in contempt and fined $150,000. The hospital union had 43,000 members and net assets (including cash, capital assets and strike funds) of $16 million. In that case, union members maintained essential services during a protest, and it ordered its members back to work and issued an apology shortly after the court found it in contempt on May 2, 2004, for defying an order issued April 30, 2004.
Justice Brown said the number of members and the extent of the assets of the BCTF were such that a fine similar to that levied against the hospital union would be “trivial, the equivalent of about $4 per union member.”
She settled on $500,000, taking into account the fact that the teachers were planning on returning to work shortly. She said the fine would have been much higher had the teachers not been planning on returning shortly.
For more information see:
British Columbia Public School Employers Assn. v. B.C.T.F.
, 2005 CarswellBC 2439, 2005 BCSC 1490 (B.C. S.C.)
Fine goes to charity
In making her ruling, Justice Brown said she would permit both sides the opportunity to make submissions with respect to an appropriate charitable donation in lieu of the fine.
According to a report in the
Globe and Mail
, the court carved up the $500,000 fine and gave it to a number of charities. The United Way received $175,000 to support services for needy children and families.
Another $175,000 was to be divided equally among nine charities that deal with disadvantaged, disabled and special-needs students.
The remaining $150,000 was earmarked for the R.R. Smith Memorial Fund Foundation, which provides scholarships and bursaries to students.
Peter Voith, a lawyer who represented the attorney general in this case, said the BCTF should not be involved in selecting charities to receive the money.
“This should not turn into a good news story,” he said. “This fine was meant to denounce a willful and deliberate breach (of a court order.)”
Teachers return to work
On Oct. 23, 2005, the BCTF put out a press release announcing that the teachers voted 77 per cent in favour of returning to their classrooms on Oct. 24.
“Teachers have voted by a large majority to end our campaign of civil disobedience and to return to work tomorrow,” said BCTF president Jinny Sims. “We will do so with our heads held high, and our hearts touched by the many gestures of kindness and solidarity we have experienced in the past two weeks.”
The teachers walked out of class on Oct. 7 to protest Bill 12, and maintained picket lines at all public schools throughout the province for the next 10 school days.
Bill 12 was the provincial legislation that imposed a contract on the teachers and ordered an end to their job action.
According to the federation, teachers began limited job action Sept. 28 by withdrawing supervisory and administrative duties. Classroom teaching and extracurricular activities carried on as usual.
"After a mere three days of very minimal job action, this government brought down the legislative hammer. What are the lessons to be learned from that?" said Sims. "The Liberals don't care about students' unmet needs and they won't allow teachers to exercise even the vestiges of rights remaining to us under their charade of essential services."
The Oct. 6, 2005, court order
Below is the text of the court order issued on Oct. 6, 2005, that the teachers were found in contempt of:
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.
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