The B.C. government’s in-house lawyers are set to launch a constitutional challenge this week against a law from Premier David Eby’s administration that forces them to join a union they didn’t choose.
The BC Government Lawyers Association will file notice in B.C. Supreme Court on Friday, the day the Eby cabinet has set the law to be brought into force, said Gareth Morley, president of the B.C. Government Lawyers Association.
“We’re going to take our case to the courts — we already took it to the court of public opinion and I think we were reasonably successful there,” said Morley.
“Now we’re going to take it to the B.C. Supreme Court and make our case, which is freedom of association means not just the right to any union but the right to a union the employees themselves choose.
“The government, just like any other employer, can’t choose their union for you. That’s our case.”
The NDP government passed legislation in May to force the 300 civil lawyers to join the Professional Employees Association. The lawyers had been in the middle of a unionization drive to form their own bargaining unit.
The strong-arm tactic was met with widespread criticism by union leaders, who expressed surprise the NDP would trample the basic rights of a group to form their own union, having fought to protect that principle for decades.
Finance Minister Katrine Conroy has argued the move is necessary to limit the number of unions the government has to bargain with when trying to get collective agreements with the public service.
Put another less elegant way: The NDP didn’t want the hassle of having a new union to negotiate with, so it shoved the lawyers into a larger pre-existing association and told them to shut up and like it. It’s a move more in alignment with the union-busting tactics of the previous BC Liberal governments than any sort of values the New Democrats claim to espouse.
“This provides government civil lawyers certainty about their terms and conditions of employment,” the finance ministry said in a statement this week.
“It also supports stability in labour relations and public services.”
Morley said lawyers had still held out a small amount of hope that government would not actually enact the legislation, despite having passed it in May. But a cabinet order signed by Conroy on July 10 set the enactment date of July 14.
After the lawyers file the notice of civil claim, the government will have 21 days to respond. Whatever ruling the BC Supreme Court ultimately makes in the future could then be appealed to the BC Court of Appeal, and ultimately the Supreme Court of Canada.
“It’s probably the case that this will take years,” said Morley.
The Eby government faces a formidable opponent in the courtroom.
The civil lawyers are usually the ones helping the politicians craft legislation to survive constitutional challenges. Now, they will use their expertise to pick this legislation apart, much to the chagrin of New Democrats.
“We have the same rights as anyone else to go to court and say a piece of government legislation is unconstitutional,” said Morley. “It’s a role reversal for us. But it’s the same process.”
In the meantime, the in-house civil lawyers are still running an overtime ban. They are dispirited and not particularly enthused at helping the Eby government write its bills or enact its rapid agenda.
“I can’t imagine anything government could have done to hit the morale of the public service lawyers more than to do something, from our perspective, fundamentally unfair,” he said.
“It’s a real distraction from government away from its agenda. If it’s trying to do something about healthcare, housing and public safety and all of that requires legal work, all of that requires legislation, and they’re really not helping themselves in the agenda.
“And unfortunately, that means for the people of British Columbia as a whole, because those are things they should be focusing on, not taking away union rights from a small group of employees.”
The NDP kicked a hornets’ nest when it decided to run roughshod over the constitutional rights of government’s own in-house constitutional experts. The Eby administration may rue the day it chose to pick this fight.
Rob Shaw has spent more than 15 years covering B.C. politics, now reporting for CHEK News and writing for Glacier Media. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio. [email protected]