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The Alberta Teachers’ Association has filed a constitutional challenge of a provincial government law that forced educators across the province back to work and imposed a new contract.
At a Thursday news conference in Edmonton, ATA president Jason Schilling said the application, filed in Alberta’s Court of King’s Bench, also seeks an injunction against the Back to School Act, which is also called Bill 2.
The association wants the court to pause “some or all” of the effects of Bill 2 while it hears the constitutional challenge, according to the court application. The bill used the notwithstanding clause to shield the government from legal challenges.
“Let’s call this what it is — it is abuse of power,” Schilling said Thursday. “This clause was not used to protect children, or to preserve democracy, or to address an emergency. It was used to win an argument.”
About 51,000 public, Catholic and francophone teachers belonging to the ATA went on strike Oct. 6 after members twice voted to reject contract offers. They were also locked out on Oct. 9.
About three weeks after the strike cancelled classes, the Alberta government tabled the Back to School Act, which made any strike or lockout illegal.
The bill also imposed one of the contracts teachers rejected in September, and proactively invoked the notwithstanding clause to prevent a court from overturning the law.
Schilling said the ATA seeks for the court to declare the government’s use of the notwithstanding clause improper and invalid, and that government acted unconstitutionally by shielding itself from judicial review.
Schilling said Bill 2 violates teachers’ Charter rights to freedom of expression and association.
“We will pursue every legal avenue to restore what was taken, not only for teachers, but for the integrity of the charter itself,” he said.
He said the outcome has implications for all Albertans.
Should a court pause the effects of the law, Alberta teachers could regain the legal right to strike, though Schilling said the ATA hasn’t decided yet whether teachers would walk off the job again in that scenario.
Alberta’s Justice Minister Mickey Amery said the purpose of Bill 2 was to prevent further disruptions for students after a teachers strike cancelled classes for most of the province’s students for more than three weeks. (Legislative Assembly of Alberta)
Alberta Justice Minister Mickey Amery said on Thursday afternoon the government will take time to analyze the ATA’s court applications.
“Part of the reason why we brought forward back-to- work legislation along with the notwithstanding clause was because we wanted finality to this situation,” Amery said. “We wanted our children to be back in schools.”
Later, in a statement, Amery said the government will fight to defend the Back to School Act.
Ministers have previously said the use of the notwithstanding clause was needed because teachers bargain at provincial and local levels, and they wanted to prevent future localized teacher strikes driven by residual anger from the provincial dispute.
Critics of the government’s use of the clause have said the government could have ordered teachers back to class and to attend mediation or binding arbitration without suspending their charter rights.
Lawyer: Could be an uphill battle for ATA
Vibert Jack, litigation director for the B.C. Civil Liberties Association, said Thursday that the ATA is using “creative arguments” to say the government has infringed upon the powers of Alberta’s superior court to judicially review provincial decisions.
“I think the argument will be essentially that the government of Alberta cannot oust the courts completely — can’t say that the courts have no power to review legislation that they’ve passed,” he said.
He said the ATA is also arguing the notwithstanding clause was applied inappropriately by the government.
However, courts have previously been deferential to provinces that have invoked the notwithstanding clause, Jack said.
“It might be an uphill battle, I would say, for the union,” Jack said.
As in other court challenges of provincial governments’ uses of the notwithstanding clause, the ATA and Alberta government can expect interested parties to seek intervenor status in the case, including possibly the BCCLA, he said.
“Every Canadian really should be concerned about this growing use notwithstanding clause and the threat that it poses to all of our rights,” he said.
Condemnation of the Alberta government’s use of the clause against teachers has also come from labour groups, human rights and other civil liberties groups, religious organizations, and legal groups such as the Canadian Bar Association.
Supporters contributing to ATA’s cause
Alberta NDP education critic Amanda Chapman applauded the ATA for launching the legal challenge. She said teachers were forced back into the same working conditions they were fighting to change.
The government has pledged to hire 3,000 more teachers and 1,500 new educational assistants by 2028, but hasn’t detailed how or when those investments will come.
Chapman said almost all the feedback she hears from constituents is displeasure with how government has treated educators.
“It has been in support of teachers and it has been completely opposed to the government’s heavy-handed tactics,” she said.
As for the costs of mounting a legal challenge following the ATA’s three-week strike, Schilling said labour groups in the public and private sectors from across Canada and the U.S. donated to the association throughout the strike.
He said the organization will continue accepting donations from people who want to support the organization’s legal fight.