The Alberta Teachers’ Association (ATA) has been denied an injunction that sought to pause the province’s Bill 2, the Back to School Act (BSA), while its legal challenge to the bill proceeds.
In early March, lawyers for the Alberta Teachers’ Association (ATA) presented their arguments in the Court of King’s Bench of Alberta in support of the ATA’s injunction case related to Bill 2. The injunction, if successful, would have reverted the ATA’s bargaining position back to its status before Bill 2 was passed in late October.
On March 13, Justice Douglas Mah issued his ruling, rejecting the injunction application.
While disappointed with the outcome, ATA president Jason Schilling assured the membership that this ruling does not signal the end of the fight to restore the fundamental freedoms that Bill 2 stripped from Alberta’s teachers in the fall.
“We see the government’s use of the notwithstanding clause for what it is: a means to silence teachers and sidestep the charter,” said Schilling. “This is not normal governance and is an affront to all Albertans.”
In making his ruling, Justice Mah was careful to emphasize that his decision should not be interpreted as an endorsement of the government’s actions or of the legislation itself. Rather, he said that his role was not to assess whether Bill 2 is fair or good public policy, but to apply the legal test used in Canada to determine whether legislation should be suspended while the case against it proceeds. The graphic below illustrates the three-part test an injunction must meet to be granted.
While Justice Mah agreed that Bill 2 was a serious issue that needs to be addressed, he ruled that the injunction did not pass the remaining two tests. He found that, although the impact of Bill 2 on teachers was significant, it did not meet the legal threshold needed for suspension of the legislation. Finally, Justice Mah concluded that suspending the BSA could generate uncertainty about labour relations and school operations and, therefore, the balance of convenience favoured keeping the legislation in place.
In his written decision, Justice Mah recognized the impact the passing of Bill 2 had on teachers.
“I can well imagine the incredulity, if not the despair and disrespect, that teachers felt upon the passage of the BSA,” Justice Mah wrote. “The exercise of their right to strike, a democratic right guaranteed under Canada’s constitution and their only bargaining chip, was eliminated and a previously rejected collective agreement was rammed down their throats.”
The dismissal of the court injunction will not affect the ATA’s broader legal challenge to Bill 2. While the BSA will remain in effect, the full hearing into its constitutionality will continue to move forward and is scheduled for the week of September 21.
“Until the full hearing, the Association will continue to hold the government accountable for everything promised to the public education system,” said Schilling. “Alberta students and teachers deserve to see progress and refuse to settle for anything less.”
