Question: So, teachers have lost our court case challenging the legislation that sent us back to school. If we didn’t have a winning case, what was the point of going to court and why are we still fighting this?
Answer: To clarify, the Association’s initial court battle may have failed, but the legal challenge of Bill 2, the Back to School Act, continues.
On March 13, Justice Douglas Mah of the Court of King’s Bench handed down his decision, supported by written reasons, on the Association’s application for an injunction that he had heard a week earlier. For those who are not familiar with the Canadian legal system, this is a remarkably quick turnaround. Justice Mah also recognized that teachers have a keen interest in the case and made a point of writing his reasons “in a way that is accessible to non-legally trained persons.”
The “interlocutory” and “prohibitive” injunction the Association was seeking was intended to immediately prevent the application of the Back to School Act until the Association’s objections to the legislation could be heard and ruled on in full hearing before the court, now scheduled in late September 2026. To obtain the injunction, the Association had to meet three tests, which were originally set out by the Supreme Court of Canada in its decision in RJR-Macdonald.
The first of these goes to whether there is a serious issue to be considered at trial. The Association is contending that the government improperly invoked section 33 of the Canadian Charter of Rights and Freedoms, the infamous “notwithstanding clause,” to override teachers’ collective freedom of association and freedom of speech, which have been interpreted to include a union’s right to organize and engage in strike action. When originally incorporated into the charter as part of the patriation of the Canadian constitution in 1982, section 33 was regarded as a way of asserting the ultimate power of legislatures and parliament to determine the law of the land. But the assumption was that this power would be exercised infrequently and only in the most exceptional circumstances. Recently, the willingness of provincial governments to use the section almost casually has given rise to considerable controversy, and there are now several cases that will be before the Supreme Court in the next few months to determine what, if any, limitations or consequences might be placed on this practice. Justice Mah took the very sensible position that what was good enough for the Supreme Court was good enough for him, so the issues raised by Bill 2’s invocation of section 33 were clearly serious issues. Test passed.
Just as a side note, the Association also raised an objection to Bill 2’s overriding a section of the constitution involving the authority of the courts to review decisions of tribunals. Justice Mah concluded that this aspect of the Association’s challenge fell short of meeting the higher standard of being clearly and obviously valid (the Latin term is prima facie) and so will have to be argued when the case goes to a full hearing.
The second test is whether the Association and teachers would suffer irreparable harm if the injunction was not granted. Here Justice Mah took the position that whatever damage Bill 2 had done to relations between the parties, to the integrity of the bargaining process and to any prospects for immediately improving teaching conditions had already been done by the passage of the bill itself and could not be undone by granting an injunction. Furthermore, Justice Mah did not see how setting the clock back with the potential for putting teachers back out on strike (albeit after a three-week delay offered by the Association) could possibly work. He pointed to the potential legal ambiguity surrounding the status of teachers’ employment and concluded that these matters could and should properly be considered and resolved at a full hearing on the merits of the case. On this analysis, the Association failed to meet the second test for granting an injunction.
Finally, Justice May had to weigh the balance of conveniences and the impact that granting the injunction would have on the public interest, defined primarily by its potential effect on students and their families. Pointedly noting that it is not his role to say whether, by passing Bill 2, the government was governing “effectively,” the issue comes down to a contest between teachers’ interests and the precept that “it is better for students to be in school than not in school. Better for them, better for their families, better for the functioning of our society as a whole.” Justice Mah concluded that the latter defines the public interest and that the Association’s application failed to show that, on balance, granting the injunction was in the best interest of the public.
While the Association’s attempt to obtain injunctive relief failed, the issues raised by teachers remain very alive and will be considered by the court in September. Before that happens, several cases will be heard by the Supreme Court relating to the previous use of the notwithstanding clause by Quebec and Saskatchewan that might change the state of the law. In Canada’s democracy, the courts have a critical role in defining the rights of all persons.
By challenging Bill 2, the Association is protecting its members’ fundamental rights and freedoms and, by extension, those of all Canadians. Whether or not the challenge is successful remains to be seen; however, we know the case we have is sound, and we know it is a fight worth fighting.
Justice Mah’s judgement is clearly written and quite accessible to lay readers, read it online.
Executive Staff Officer, ATA
Questions for consideration in this column are welcome. Please address them to Dennis Theobald at dennis.theobald@ata.ab.ca.
