Reasons for Judgment of the Honourable Madam Justice Huddart:

[1]                The fundamental issue on this appeal is whether an arbitrator appointed by the parties under the Labour Relations Code, R.S.B.C. 1996, c. 244 was correct in finding workplace directives of various school boards (the "School Boards") violated teachers' freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and that the violations were not saved by s. 1.  The appellant's fundamental complaint is that the arbitrator's decision permits a public servant to turn public property into a forum for political action.  In its view, the Charter was never intended to give teachers expression rights not available to the general public.

[2]                 The question arose in a general grievance by the respondent federation and in a grievance the federation directed to School District No. 48 (Howe Sound) and was stated by the parties under s. 92(1)(b) of the Labour Relations Code.

[3]                The appellant British Columbia Public School Employers' Association ("BCPSEA") is designated by statute to represent school boards in collective bargaining.  The respondent British Columbia Teachers' Federation ("BCTF") is the certified bargaining agent for teachers employed by school boards in the province.  They agree the question they stated for decision by the arbitrator is a question of general law to be reviewed by this Court on an appeal under s. 100 of the Labour Relations Code on the correctness standard of review.

[4]                The grieved conduct falls into two general categories:

1.         The School Boards or their representatives advised teachers they were not to post certain material on teacher bulletin boards in areas in schools where students and their parents may see them.

2.         The School Boards or their representatives advised teachers they were not to distribute certain documents to parents either during parent-teacher interviews or otherwise on school property.  Teachers were directed parent-teacher interviews could not be used to discuss class size issues or to make available certain documents produced by them or the BCTF relating to class size or collective bargaining issues.

[5]                The BCTF submits these directives violate its members' freedom of expression and that the violations are not justified under s. 1 of the Charter.  BCPSEA submits the teachers' conduct is not constitutionally protected expression, and if it is, the limits the directives impose on that expression do not violate s. 2(b).  Moreover, it argues, any violation of s. 2(b) is justified under s. 1. 

Background

[6]                During collective bargaining for renewal of teachers' provincial collective agreement in the spring and fall of 2001, the Labour Relations Board held essential service proceedings, and the BCTF carried out limited strike activities without withdrawing instruction.  As the dispute continued, BCTF announced it would completely withdraw instruction at the end of January 2002.

[7]                Just before the planned withdrawal of instruction, the Legislature ended the partial strike and imposed a new provincial collective agreement by enacting the Education Services Collective Agreement Act, S.B.C. 2002, c. 1 on 27 January 2002.  The next day, it amended the School Act, R.S.B.C. 1996, c. 412, by enacting the Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3 to remove class size and composition clauses from the provincial collective agreement and exclude them from the permissible scope of collective bargaining in the public school system.

[8]                In response to this legislation, the BCTF Representative Assembly adopted an Action Plan at a meeting on 1-2 February 2002.  Two days later, the BCTF explained its plan to its members and the public when it issued a news release and faxed a bargaining bulletin to schools throughout the province.  In the news release, the BCTF set out its position opposing the government legislation.  A week or so later, its president sent a letter to all BCTF members summarizing the impact of the legislation and outlining a common response to the changes.  The Action Plan was to terminate on 15 November 2002.

[9]                On 21 October 2002, the BCTF president sent a memorandum to staff representatives at all schools in the province.  Enclosed were materials "to help teachers inform parents about the specific educational losses that have taken place at your school".  The "Report to Parents", with "British Columbia Teachers' Federation" prominently written across the top, summarized the legislation and included a section for teachers to fill in showing their class size before and after the legislation and comparing the number of specialist teachers at the school before and after the legislation.  Information cards also attached to the president's memorandum read:

Front of Card

Last year, the teachers' contract limited this class to __ students.  This year, there are __ students in your child's class.

Common sense and research tell us that smaller classes are better for students.  A 20-year study of 11,500 children from Kindergarten through post-secondary, found that small classes of 13 to 18 are better than classes of 22 to 26.

To support improved learning conditions for students, go to bctf.ca/firmlimits

Back of Card

In January 2002, the B.C. Liberal government removed from the teachers' collective agreement a number of important protections for students.  The government eliminated limits on the size of classes; guarantees of service levels for counselors, teacher-librarians and other specialist teachers; and support for students with special needs.  The government raised the class-size limits for primary grades and put the raised limits into legislation:

·                     Increased Kindergarten from 20 to 22.

·                     Increased Grades 1-3 from 22 to 24.

·                     Removed any firm limits for Grades 4-12.

There was a similar card for learning conditions, which compared the number of specialist teachers.

[10]            At a meeting on 1-2 November 2002, the BCTF Representative Assembly approved a revised Action Plan "designed to pressure the government to adequately fund our schools".  BCTF announced the plan in a "School Staff Alert" dated 6 November 2002 sent to all teachers and posted on the BCTF web site.  It described the plan in a letter dated 12 November 2002 sent to all BCTF members.  By memorandum dated 20 November 2002, the BCTF sent a kit to each local union in every school district in the province with materials for distribution to all teachers.  Among the materials were an updated version and summary of the Action Plan, a document titled "Opportunity into Action", a copy of the Report to Parents, and the cards to be filled out and given to parents during parent-teacher meetings.  Teachers also received a pamphlet titled "Our Children's Education is Threatened: School boards' bargaining demands will undermine the quality of education".

[11]            Disputes arose when administrators in several school districts removed flyers critical of the government's actions from teacher bulletin boards in schools and directed teachers not to discuss class size issues in parent-teacher interviews or to make available BCTF materials to parents.  In addition, School District No. 75 (Mission) tried to prevent teachers from writing to school trustees, parents, or the media.  School District No. 54 (Bulkley Valley) prohibited teachers from making a poster showing loss of services, which they wished to post in the front hall of the school for parents to read.  The BCTF in School District No. 48 (Howe Sound) filed a grievance about that school board's removal of flyers from union bulletin boards and from files intended for parents.  After the employer rejected the specific grievance, the BCTF filed a general grievance.

[12]            Before the arbitrator, the BCTF argued the School Boards' actions were contrary to s. 2(b) of the Charter and s. 8 of the Labour Relations Code.  Neither party appeals the arbitrator's finding on s. 8 to this Court, so I need not discuss it.  BCPSEA submitted the Charter did not apply to public school boards or to the impugned directives; that if it did, the directives did not contravene s. 2(b); and in any event the violations were saved by s. 1.

The Arbitrator's Decision

[13]            The arbitrator concluded that school boards are better characterized as performing "governmental functions" than as simply providing a "public function"; and are therefore subject to the Charter by virtue of s. 32(1):  British Columbia Public School Employers' Assn. v. British Columbia Teachers' Federation, [2004] B.C.C.A.A.A. No. 82 at para. 35 (QL).  He was guided to that conclusion by his reading of authorities from the Supreme Court of Canada, principally Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 and Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710. 

[14]            The arbitrator then turned to a discussion of whether the School Boards had violated teachers' freedom of expression as guaranteed by s. 2(b) of the Charter.  Following the guidelines laid down in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 [Irwin Toy], he first concluded (at para. 39) that teachers' intended actions came within the sphere of conduct protected by s. 2(b) as attempts to convey meaning with expressive content.  That conclusion is not disputed.  The primary issue on this appeal arises from his next finding, that the purpose or effect of the alleged "government" action was to restrict freedom of expression.  He explained at para. 42: 

Here, the School Boards' purpose was clearly "...to restrict the content of expression by singling out particular meanings that are not to be conveyed"; and likewise "...to control the ability of the [teachers] conveying the meaning to do so". The content of expression sought to be restricted was the teachers' views on issues of class size, class composition, etc. - issues which at the material times were at the public forefront. The control on the teachers' ability to convey meaning was to prohibit them from posting flyers on teachers' bulletin boards where parents or students might see them; and to prohibit the dissemination of information on those subjects, or any discussion thereof, during regular parent-teacher interviews. It is true that the restriction, limitation or prohibition was as to time and place; however, the restriction, limitation or prohibition as to time and place was tied to content.

[15]            This reference to a time and place restriction arose from a submission by the BCPSEA that the School Boards could restrict teacher expression on their property because of the limits to the right to use public property for expressive purposes discussed in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3 (QL) [Commonwealth cited to QL].  Regarding that submission, the arbitrator noted at para. 46:

If one were to adopt the approach taken by Lamer C.J., I see no incompatibility between the teachers' intended communications, on the one hand, and the principal function or purpose of a public school, on the other.  Similarly, if one were to adopt the approach taken by McLachlin J. (now C.J.), I think the "values and interests at stake" favour the benefit of protection under Section 2(b) of the Charter . . .

[16]            The arbitrator then referred briefly to R. v. Keegstra, [1990] 3 S.C.R. 697 before discussing in more detail the reasoning of the Prince Edward Island Supreme Court Appeal Division in Morin v. Regional Administrative Unit #3 (P.E.I.), 2002 PESCAD 9, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 414, and concluding at para. 49: 

. . . Those of the teachers who chose to do so, were intending, as teachers in their work environment, to express themselves on educational issues, either by posting flyers on what the Statement of Case calls teachers' bulletin boards (although in areas of the schools where parents and students have access), or by handing out materials during parent-teacher interviews. The issues had arisen as part of the collective bargaining between the BCPSEA and the BCTF, and ultimately in the context of the provincial government's legislative intervention in collective bargaining, but that is simply to state the context in which the communication was intended to occur and in which the School Boards' prohibition was promulgated; it does not provide a justification for concluding that Section 2(b) of the Charter was not engaged at all. In my view, based on the authorities, if the School Board's prohibition can be justified, it is not by the diminution of the meaning of freedom of expression in Section 2(b) of the Charter, but rather under Section 1: which states that the rights and freedoms set out in the Charter are subject to "...such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

[17]            Having found a violation of the teachers' freedom of expression, the arbitrator turned to whether the impugned directives were justified by s. 1.  His reasons for finding BCPSEA had not justified the School Boards' restriction on the teachers' freedom of expression were brief.  He considered the effect of the teachers' proposed actions on the operation of a school at para. 51:

I begin by observing that the posting of the subject bulletins or flyers on the teachers' bulletin boards, or the handing out of the "cards" at parent-teacher interviews, would in no way interfere with the effective and efficient operation of a school; and neither would it result in loss of instructional time or other educational disturbance.  There is no suggestion in the Alleged Actions that the intended communication by the teachers, either as to form or substance, would in any degree have impaired the performance of their duties as teachers.

Then, citing Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, the arbitrator noted "a balance must be struck between the duty of loyalty or fidelity, on the one hand, and the individual's freedom of expression, on the other" before he concluded that neither the School Boards' exercise of property rights nor the duty of fidelity justified the violation of teachers' expression rights.  He explained why at paras. 52-53:

…If the communications which are here at issue would be unobjectionable in terms of the duty of fidelity if uttered or distributed in public or quasi-public fora, I cannot see how the duty of fidelity becomes a reasonable limit prescribed by law justifying the prohibition of the exact same communications on a teachers' bulletin board or in the privacy of a parent-teacher interview.

…The common law duty of fidelity owed by a teacher, and arising from his or her employment, is a duty owed to the School Board employing that teacher. A teacher does not owe a duty of fidelity arising from employment to the provincial government. To the extent the expressive content of the materials intended by the teachers to be posted or otherwise communicated was aimed at the provincial government, the duty of loyalty or fidelity has no application.

Discussion

Are British Columbia school boards subject to the Charter?

[18]            The first question this Court must consider is whether the arbitrator was correct that British Columbia school boards are subject to the Charter.  Counsel acknowledge this Court left the question open in Lewis v. Burnaby School District No. 41 (1995), 1 B.C.L.R. (3d) 1 (C.A.), and that the Supreme Court of Canada has not ruled definitively on the question.  However, the BCPSEA does not argue the arbitrator erred on this issue. 

[19]            I agree with counsel and the arbitrator that the proposition the Charter applies to school boards in the province follows logically from the views expressed by the Supreme Court in the decisions on which Gonthier J. relied in his dissenting reasons in Chamberlain.  Like the arbitrator, I can add nothing useful to the discussion by Gonthier J. at para. 121 before he concluded (with the concurrence of Bastarache J. and without disagreement of the other seven members of the court) that "there can be no doubt that the School Board is a branch of government and thus subject to the Charter by operation of s. 32".

Do the School Boards' directives violate s. 2(b)?

[20]            The BCPSEA asserts, first, that s. 2(b) was not intended to apply to government directives to employees relating to their employment activities while on government property and during employer time.  If teachers' expression is protected at the workplace during working hours, then, the appellant asserts, the respondent did not satisfy the Irwin Toy test because the School Boards' purpose was not to single out a particular type of message because of its content nor was that its effect.

[21]            The primary source of these propositions is the opinions of Lamer C.J. and McLachlin J. in Commonwealth.  Each sought to establish a test to filter claims to freedom of expression on public property, so that some state-owned property would not come within the s. 2(b) guarantee.  The goal was to avoid the need for a justification analysis under s. 1 in every case as the analysis preferred by L'Heureux-Dubé J. (in her opinion in Commonwealth) would require.

[22]            For Lamer C.J., the question under s. 2(b) is whether the proposed expression is compatible with the principal function or intended purpose of the government property.  On his approach, the question is whether teachers' discussion of their view of provincial education policies at parent-teacher interviews, handing out BCTF materials at those meetings, and hanging posters on school bulletin boards is compatible with the fundamental purpose of school properties or the effective operation of the school.  In this regard, the view of the arbitrator chosen by the School Boards and the BCTF to resolve a workplace grievance merits considerable deference.  He could see "no incompatibility between the teachers' intended communications, on the one hand, and the principal function or purpose of a public school, on the other" (at para. 46).  I agree.  There is nothing in the stated facts to support any other finding.

[23]            Under McLachlin J.'s approach, the question is whether the forum restriction on teachers' political expression is aimed at the content of the political expression and if not, whether "the forum's relationship with the particular expressive activity invokes any of the values and principles underlying the guarantee" (at para. 299).  The Supreme Court articulated those values in Irwin Toy, at 976: seeking and attaining the truth; encouraging participation in social and political decision making; and cultivating diversity in forms of individual self-fulfillment and human flourishing.  As McLachlin J. noted in Commonwealth, "[t]he effect of that inquiry is to screen out many potential claims to the use of government property as the forum for public expression" (at para. 299).  In settling on the Irwin Toy test based on the nature of the expression restriction as a filter, she rejected the "public forum" doctrine of American constitutional law (at para. 233).  On the Irwin Toy test, if the restriction as to forum has as its purpose the control of content rather than the regulation of its consequences, the question whether the use of the forum accords with the values underlying the guarantee does not arise.

[24]            The BCPSEA's first point is that neither a parent-teacher meeting nor a school bulletin board is an open forum "where political messages of all sorts are traditionally tolerated":  Commonwealth, McLachlin J. at para. 241.  Neither are they a public place or a place of "public debate" (at para. 249).  Rather, they are resources used to fulfill the School Boards' mandate to provide public education services, about the use of which the School Boards are entitled to give directives, as they do about matters of curriculum and teachers' classroom appearance and conduct.  They are places where "the guarantee of freedom of expression has no place" (at para. 249).  Its second point is that the School Boards' purpose in imposing limits on teachers' expression was not to restrict the content of expression through limiting the forums, but to prevent a school bulletin board or parent-teacher interview from being used for other than its proper purpose.

[25]            The BCTF responds that the School Boards' purpose was to control a particular message teachers wished to convey.  That is true.  The restriction was not content-neutral.  As the arbitrator stated (at para. 42):

The content of the expression sought to be restricted was the teachers' views on issues of class size, class composition, etc. – issues which at the material times were at the public forefront.

[26]            If teachers' expression is constitutionally protected at school during working hours, as the BCTF asserts, then it follows that the teachers' s. 2(b) rights were violated.  The only remaining question would be whether the appellant has justified the violation under s. 1.  This is because the teachers' proposed actions were political expression that would convey or attempt to convey meaning.  The materials speak to BCTF members' concerns about government education policy and seek to build support among parents for its position on these political issues.  The first step of the Irwin Toy test is satisfied.

[27]            In my view, the BCPSEA can succeed in establishing the School Boards did not violate teachers' s. 2(b) rights only if it can exclude the proposed directives from the scope of the s. 2(b) guarantee.  It can exclude the proposed directives from the scope of the guarantee only if teachers' political expression in the workplace is not constitutionally protected.  The authorities to which we were referred have not established at the definitional stage that freedom of expression has no place at a school or some part or parts of it, but they do establish the irrelevance of the status of the speaker to the protection of expression under s. 2(b). 

[28]            In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, the respondent teacher made off-duty public discriminatory statements about Jews.  A human rights board of enquiry required the school district, inter alia, to terminate Mr. Ross's employment.  On a challenge to the constitutionality of that order, La Forest J., writing for the court, dealt peremptorily with the submission of the Canadian Jewish Congress that the respondent's freedom of expression was not infringed by the Board's order, writing at paras. 60-62:

Apart from those rare cases where expression is communicated in a physically violent manner, this Court has held that so long as an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee of freedom of expression; see Irwin Toy, supra, at p. 969.…

In Irwin Toy, supra, and more recently in R. v. Keegstra, [1990] 3 S.C.R. 697, this Court has adopted a two-step enquiry to determine whether an individual's freedom of expression is infringed. The first step involves determining whether the individual's activity falls within the freedom of expression protected by the Charter. The second step is to determine whether the purpose or effect of the impugned government action is to restrict that freedom.

There can be no doubt that the first step is satisfied. The writings, publications and statements of Malcolm Ross constitute expression within the meaning of s. 2(b). They clearly convey meaning....

[29]            Thus, teachers are not excluded by their employment status from the Charter's guarantee of freedom of expression.  Nor are public servants:  Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69.  In Osborne, the Supreme Court held at 93:

Clearly, the appellant's suggestion that the scope of the right should be limited because of the particular status of the holder of the right, i.e., a public servant, does not find support. I am accordingly of the view that s. 33 [of the Public Service Employment Act, R.S.C. 1985, c. P-33, which prohibited public servants from engaging in partisan political work] is inconsistent with s. 2(b) of the Charter.

[Emphasis added.]

In Osborne at 92, Sopinka J. said this about Fraser, a pre-Charter case in which the court upheld the dismissal of a public servant for going beyond the expression rights then protected:

Fraser is clearly significant in identifying freedom of speech as a deep-rooted value of our democratic system, but it did not consider the scope of that right either under the Canadian Bill of Rights, R.S.C., 1985, App. III, or under the Charter. In my view, Dickson C.J.'s discussion of the competing values supports the view that enjoyment of the right to freedom of expression is subject to reasonable limits under s. 1 which I will consider later in these reasons.

Therefore, where opposing values call for a restriction on the freedom of speech, and apart from exceptional cases, the limits on that freedom are to be dealt with under the balancing test in s. 1, rather than circumscribing the scope of the guarantee at the outset . . .

[Emphasis added.]

[30]            In Morin, Webber J.A., for the majority of the Prince Edward Island Appeal Division, applied the Irwin Toy analysis to administrative limitations on a teacher showing a film about religious fundamentalists to a grade nine class.  On Mr. Morin's appeal from the dismissal of his action for damages for breach of his right to freedom of expression, a majority of the Appeal Division held that school officials and the board had infringed Mr. Morin's expression right.  Webber J.A. accepted s. 2(b) protects teachers' expression in the course of their employment, writing, at para. 111:

. . .The capacity within which you express yourself does not limit the right you have pursuant to s.2(b), whether you are carrying out that expression as an aspect of your employment, livelihood, or just for fun.  Such capacity may provide the framework for a justification on your free expression right under s.1, but that is a different matter . . .

[31]            In my view, these cases meet the BCPSEA's submission that this Court should look for guidance to the opinion of Lambert J.A. in dissent in Port Moody, Dist. 43, Police Services Union v. Police Bd. (Port Moody) (1991), 54 B.C.L.R. (2d) 27 (C.A.), in which he considered an employer might be able to establish rules governing employee expression without running afoul of s. 2(b), and that if s. 2(b) were engaged because an employer rule went too far the Court should follow the balancing exercise in Fraser, rather than the normal justification test under s. 1.  These reasons reflect to some degree the views Lambert J.A. expressed in Cromer v. B.C. Teachers' Fed. (1986), 4 B.C.L.R. (2d) 273 (C.A.), where he held a teacher's right to criticize another teacher was not protected by s. 2(b) because the balance of the values of the individual and the state favoured no protection.  However, MacFarlane J.A., for the majority in Port Moody, observed at para. 63 that the Supreme Court had made it clear in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 that competing values should be balanced under s. 1 of the Charter and that the approach in Cromer had been overtaken by Irwin Toy and Rocket (at para. 69).

[32]            Undoubtedly, the balancing of competing values of public employees and of the government employing them raises very difficult problems, particularly when those employees wish to exercise their expression rights during the course of their employment.  However, the authorities establish beyond doubt that questions about limits on expression based on status should be considered under s. 1, not by narrowing the scope of the right.  The authorities are not as clear about whether and how limits based on the location of the expression should be considered under s. 2(b).  As I noted earlier, in Commonwealth, both Lamer C.J. and McLachlin J. provided room for consideration of the question at the definitional stage to which McLachlin J. referred at para. 239:

… The task at [the s. 2(b)] stage should be primarily definitional rather than one of balancing, and the test should be sufficiently generous to ensure that valid claims are not excluded for want of proof. Once it has been determined that the expression in question at the location in question falls within the scope of s. 2(b) thus defined, the further question arises of whether the government's limitation on the property's use for the expression in question is justified under s. 1. At this stage the concern should be primarily one of weighing and balancing the conflicting interests—the individual's interest in using the forum in question for his or her expressive purposes against the state's interest in limiting the expression on the particular property.

[Emphasis added.]

[33]            The issue is whether expression at the "location in question" is protected by s. 2(b).  In neither Keegstra nor Morin, did the courts find teachers' expression of their personal views on public school property to be excluded from the protection of s. 2(b).  The BCPSEA asserts the court in Keegstra did not consider the issue and Morin was wrongly decided.  In the BCPSEA's submission, protecting teacher speech on school property is an overbroad reading of the guarantee.

[34]            I do not agree.  In my view, the arbitrator correctly decided the impugned directives restrict content.  If they did not, and it became necessary to decide whether the forums--parent-teacher interviews and teacher bulletin boards--invoke the values underlying the guarantee, it seems self-evident that discussion of political issues relevant to school administration with parents or posting information about those issues on school bulletin boards fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2(b).  It seems, therefore, that the appellant accomplishes no more by its primary submission than to restate as a threshold or definitional issue the second question under the Irwin Toy analysis:  whether the purpose or effect of the impugned government action is to restrict freedom of expression.

[35]            The recognition of the fundamental importance of freedom of expression to a democratic country predates the Charter and the Canadian Bill of Rights.  When the Supreme Court of Canada struck down Québec's padlock law in Switzman v. Elbling, [1957] S.C.R. 285, Rand J. said at 306:

This constitutional fact [of parliamentary government] is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence.

In the same case, Abbott J. said at 326:

The right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy such as ours.

[36]            Freedom of expression continues to be recognized as the foundation of Canadian democracy:  R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156 at para. 32 [Pepsi].

[37]            In light of this longstanding recognition of the breadth of the expression right in Canada and the significance of such rights to our democracy, I would not exclude political expression other than violence from the protection of s. 2(b) because of the role or the location of the person seeking to exercise the right.   Except in the rarest of cases, public bodies should be required to justify any restriction they place on political expression.

[38]            I agree with the arbitrator that, on any reading of the three main opinions in Commonwealth, the impugned directives violated the teachers' right to free expression under s. 2(b).  It follows I would reject the BCPSEA's submission that the teachers' proposed expression at schools does not come within the scope of s. 2(b).  The arbitrator correctly refused to accede to that submission.

Are the violations saved by s. 1?

[39]            The BCTF submits the impugned directives cannot be justified as reasonable limits under s. 1 because they are not "prescribed by law" as required by the wording of s. 1.  It argues policies or internal directives, in the absence of clear statutory authority, are not laws under s. 1.

[40]            The BCPSEA finds legal authority for the directives in school boards' power to exercise supervisory control over schools granted by the School Act and School Regulation, B.C. Reg. 265/1989.  Alternatively, it submits this Court should adopt the reasoning of McLachlin J. in Commonwealth, who observed at para. 264 that justification under s. 1 should not be limited to legislation or regulations because such an approach would require legislatures to enact regulations dealing with every contingency as a pre-condition of a public body justifying its conduct.  In her view, such a requirement would not accord with the spirit of the Charter and would make it unduly difficult for the government to justify reasonable or necessary limits on rights.  

[41]            The arbitrator did not make an explicit finding on this issue, but his reasoning (at paras. 50-52) implies he considered the impugned directives were prescribed by the School Boards' common law property rights and teachers' duty of fidelity to the employer School Boards, because he went on to balance the interests of the parties in his s. 1 justificatory analysis on that basis.

[42]            In a passage from his dissenting reasons in R. v. Therens, [1985] 1 S.C.R. 613 at 645, Le Dain J., concurring on this point, wrote:

… The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.  The limit may also result from the application of a common law rule . . .

[43]            In support of its view that the directives were prescribed by legislative authority, the BCPSEA puts forward various provisions of the School Act and the School Regulation.  Under s. 85(2)(a) of the School Act, a school board may, inter alia, "determine local policy for the effective and efficient operation of schools in the school district", and under s. 85(2)(c) make rules "respecting the . . . operation, administration and management of schools operated by the board" and "respecting any other matter under the jurisdiction of the board".  Generally, "[a] board is responsible for the management of the schools in its school district . . ." (School Act, s. 74(1)).  School boards may also appoint principals to "perform the supervisory, management and other duties required or assigned by the board" (School Act, s. 20(1) and School Regulation, s. 5(6)(a)).

[44]            Although the directives may not fit nicely into the language of this legislation, they are not in the class of arbitrary conduct addressed in the authorities to which the BCTF referred, where government actors acted outside the scope of their legal authority.  Given the directives' restricted political expression that was critical of provincial government educational policy and potentially controversial, they could be seen to come within s. 85(2)(a), as a determination of "local policy" for the effective and efficient operation of schools in the school district.  However, as I noted earlier, the arbitrator observed at para. 51 the proposed expression by teachers would in no way interfere with the effective and efficient operation of a school, result in the loss of instructional time or other educational disturbance, or impair teachers' performance of their duties.  This finding makes justification of the limitations very difficult, but it does not mean they were not prescribed by law.

[45]            The directives are also the type of policy an employer might set down respecting interaction of its employees with customers or a property owner might exercise with regard to the use of its property.  They, therefore, could be justified under common law rules, a permissible source of law for the purpose of s. 1 in the view of Le Dain J. in Therens.  Thus, I find no error in the arbitrator's conclusion the directives were prescribed by law within the meaning ascribed to that phrase by the Supreme Court of Canada.

[46]            Under the test laid down in R. v. Oakes, [1986] 1 S.C.R. 103, BCPSEA must next establish the School Boards' objective is of sufficient importance to warrant overriding or limiting the teachers' expression rights and that its chosen means balance the interests of society and teachers in the sense they are rationally connected to the objective, impair the rights as little as possible, and the deleterious effects of its means do not outweigh its benefits.

[47]            In applying the Oakes test, as this Court recently noted in Kempling v. British Columbia College of Teachers, 2005 BCCA 327 at para. 74, a court should consider the context of the government action.  The context of the impugned activity determines the type of proof a court will require of a public body to justify its measures (Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827 at para. 76).  As well, contextual factors "speak to the degree of deference to be accorded to the particular means chosen … to implement a legislative purpose" (Harper, at para. 111).  In this case, any discussion of contextual factors depends on inference from both the impugned School Boards' directives and the BCTF documents.  The BCPSEA put forward no direct evidence of the effect or potential effect of the BCTF's Action Plan.

[48]            In Harper, the majority considered the four contextual factors Bastarache J. identified in Thomson Newpapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 (at paras. 90-91):  the nature of the harm and the inability to measure it; the vulnerability of the group; that group's subjective fears and apprehension of harm; and the nature of the infringed activity.  Two of these factors are relevant in this case:  the nature of the harm and the nature of the infringed activity.

[49]            The potential harm of teachers expressing their collective political views on school property cannot be measured with any degree of precision nor easily proved. It may, however, be reasonably apprehended that distribution of BCTF materials might interfere with the proper functioning of a parent-teacher interview.  The parent-teacher interview is an opportunity (sometimes the only opportunity) for parents to speak directly with their child's teacher about their child's progress and to ask questions of the teacher.  It follows logically that the impression parents take from these interviews will play a role in shaping their impressions of the school system generally.  If teachers are permitted to use parent-teacher interviews to hand out materials expressing their collective political view, it is reasonable to infer a risk that the public's confidence in the school system, and in particular, in teachers' abilities to foster an open and supportive education environment, may be undermined.  Some parents may not have confidence in a school system where teachers, who are employed at public expense, are permitted to use the schools where they teach to advance a political agenda to which all parents may not necessarily subscribe.

[50]            However, while it may be reasonable to infer that the routine discussion of class sizes contemplated by the BCTF to advance its political agenda might tend to undermine public trust in the administration of the school system, it is difficult to see how discussion about class size and composition in relation to the needs of a particular child by an informed and articulate teacher could do anything but enhance confidence in the school system.  Like the arbitrator, I cannot discern any potential harm from the posting of materials on a school bulletin board.

[51]            Political expression and the promotion of participation in the democratic process are at the core of the s. 2(b) protection of freedom of expression (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199).  As the Supreme Court of Canada has said, an infringement of such expression will be more difficult to justify and arguments which seek to do so must be subjected to a "searching degree of scrutiny" (Ross, at para. 89).  Through the various materials the BCTF asked its members to distribute, teachers voiced their concerns about government policies on issues of particular importance to them.  This is, of course, political expression of a kind deserving of a high level of constitutional protection.

[52]            In my view, another relevant contextual factor in this case is the type of public body responsible for the impugned conduct.  Some deference is owed to the School Boards' judgment because they are elected by members of the community they serve to operate public schools.

[53]            Overall, in light of the significance of the expression at issue here, this Court should require some reasonably compelling proof that the measures chosen by the School Boards are justifiable under s. 1, but the School Boards should not be held to the highest standard. 

[54]            At the first step of the Oakes test, the arbitrator identified the School Boards' "legitimate interest" as ensuring the professionalism of the teaching staff and the maintenance of public confidence in the School Boards' administration of the public school system (at para. 52).  I generally agree these are legitimate interests of a school board, and that public confidence in the administration of the public school system is an important societal interest.  However, I note the professionalism of teachers is regulated by the B.C. College of Teachers, and complaints about teachers' professional conduct fall to be considered by that regulatory body, not by a school board:  Teaching Profession Act, R.S.B.C. 1996, c. 449.  I also observe the BCPSEA did not suggest in the hearing before this Court that the School Boards' objective in issuing the directives was to maintain public confidence in the administration of the public school system.

[55]            The arbitrator found the balance to be struck was between a teacher's political expression right and his or her duty of fidelity to a public employer.  In balancing those interests, the arbitrator noted BCPSEA said the directives were not intended to prevent a teacher from discussing the issues or handing out the information cards at public meetings or even parent advisory councils.  He could not see how the duty of fidelity would justify prohibiting the same message on a teacher bulletin-board or in a parent-teacher interview (at para. 52).

[56]            On this appeal, the BCPSEA submits the School Boards' objective was to control the activities of employees on work time and the extent to which school property is used for public debate, and specifically to ensure parent-teacher interviews are not turned into forums for political debate.  It submits this objective is of sufficient importance to justify the impugned directives because school board resources should be used only to educate students, not to promote teachers' political and collective bargaining objectives.  The BCTF replies that this argument is no more compelling than it was under s. 2(b), and adds that School Boards' decisions merit little deference when political expression is at issue.

[57]            In my view, the BCPSEA's expression of the School Boards' objective in issuing the impugned directives is too broad.  It recalls the observation of McLachlin J. regarding the government's stated objective for preventing picketing at the Dorval airport in Commonwealth, at para. 278:

… The government's objective in imposing the limit amounts to little more than the assertion—more as an article of faith than a rationally supported proposition—that an airport is not an appropriate place for this type of communication….

[58]            Nor do I see any force in the BCPSEA's secondary submission that the School Boards were justified in preventing teachers from speaking on political issues because teachers' promotion of their political and collective bargaining agendas on school board property might communicate, even if unintentionally, the message that the School Boards agreed with them.  Not surprisingly, there is no evidence parents would confuse the source of the message.  The materials clearly identify the BCTF as their source.

[59]            The School Boards' objective in issuing the directives is better seen as two-fold:  maintaining public confidence in the public school system; and, more specifically, ensuring a parent-teacher interview meets it purpose:  reporting on the progress of a child to that child's parent.  Parent-teacher interviews fulfil the informal reporting requirements mandated by subsections 5(8) and (9) of the School Regulation.  School Boards obviously have a pressing interest in ensuring this objective is met.  It may also be seen as the School Boards' duty, and indeed as teachers' duty, to ensure public schools are and are seen to be places open and receptive to a wide spectrum of views, particularly in political discourse.  In my view, these objectives are sufficiently important to justify some limit on teachers' freedom of expression if the other steps of the Oakes test are met.

[60]            At the next stage in the Oakes analysis, a court is to determine whether a rational connection exists between the objectives of the public body and the methods used to achieve them.  The directives in this case can be seen as a rational attempt by the School Boards to preclude political activity by teachers that might undermine public confidence in the administration of the public school system and interfere with parent-teacher interviews.  A rational connection exists, although I note the statement of facts contains no suggestion any such abuse had occurred.  

[61]            The difficult question is whether the means the School Boards chose to achieve their objective satisfy the minimum impairment test.  As McLachlin J. observed in Commonwealth, at para. 272, the minimum impairment requirement will be met "[i]f the limit represents a reasonable legislative choice tailored so as to limit the right in question as little as possible".

[62]            The BCPSEA submits the directives minimally impaired teachers' rights because they restrict only the time and place of teacher expression; they did not limit teachers' ability to write letters to the editor, speak at public meetings, or hand out material and engage in other types of expression off school property outside of work hours.  The BCTF says the School Boards did not minimally impair teachers' expression rights because they issued the directives despite the lack of evidence teachers' activities interfered or would interfere with student education or parent-teacher interviews.  It also submits the decisions of the Supreme Court of Canada in Commonwealth and Pepsi establish it is irrelevant teachers could have expressed their opinions elsewhere.

[63]            It is at this stage of the analysis this Court must undertake the difficult balancing to decide whether the directives go too far in light of the importance of teachers' political expression.  

[64]            In Fraser, at 467-68, Dickson C.J. for the Court wrote:

... our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues.  As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion.

. . .

On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value.  Other values must be weighed with it.  Sometimes these other values supplement, and build on, the value of speech.  But in other situations there is a collision.  When that happens the value of speech may be cut back if the competing value is a powerful one.  Thus, for example, we have laws dealing with libel and slander, sedition and blasphemy.  We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.

While the Chief Justice was discussing the pre-Charter right of free expression, his observations are helpful in discerning how to balance the societal interest in restricting political expression on a teacher bulletin board or at a parent-teacher interview with the individual interest in freedom of political expression.  In this case, a teacher's right to political expression must be valued and balanced with society's interest in effective parent-teacher interviews and public confidence in the school system. 

[65]            Generally, this Court should not interfere only because it can conceive of an alternative which seems to it to be less restrictive than that chosen by the School Boards.  That said, as with public servants in Fraser, teachers cannot be "silent members of society" in light of the importance of a "free and robust public discussion of public issues" to democratic society (at 466-67).  The School Boards cannot prevent teachers from expressing opinions just because they step onto school grounds.  School grounds are public property where political expression must be valued and given its place.

[66]            The directives prevented teachers from discussing class sizes and specialist services with parents.  The issues were relevant to parents as the political debate concerned the education of their children.  It is not suggested parents could not raise those issues at parent-teacher interviews.  Given the public nature of the debate over those issues, a complete prohibition on any discussion of class size and composition at parent-teacher interviews seems an overreaction, one with the potential to undermine teachers' dignity and professional status. 

[67]            To achieve their objective, the School Boards might have reinforced the teachers' professionalism by reminding them of their obligation to ensure the goals of parent-teacher interviews were reached, that those meetings were not to be dominated by discussion of class sizes or school resources, and that any such discussion must be reasoned.  If the concern was teachers' abuse of parent-teacher interviews, I would think disciplinary proceedings before the College of Teachers would be a more appropriate response.  It would also, of course, be appropriate for School Boards to respond reasonably to complaints from parents about a teacher's conduct during parent-teacher interviews.

[68]            Therefore, in my opinion, the absolute ban of discussion on school property during school hours did not minimally impair teachers' rights.  Few places would be more appropriate for a discussion of the need for resources for public schools than a parent-teacher interview dedicated to one child's education.  The Supreme Court noted in Pepsi, "[f]ree expression in the labour context benefits not only individual workers and unions, but also society as a whole" (at para. 35).  The same holds true for teachers.  Their political expression benefits society as a whole even where the concerns arise out of a labour relations dispute.

[69]            Because I am unable to infer from the stated facts any potential harm from the posting of materials on school bulletin boards, I cannot find that limit minimally impairs teachers' rights.

[70]            In light of my conclusion on the minimum impairment test, and in the absence of any suggestion the doctrine of severance can be applied to the School Boards' directives, I need not consider whether the deleterious effects outweigh the beneficial effects of the School Board directives.

[71]            I would dismiss the appeal.

“The Honourable Madam Justice Huddart”

I Agree:

“The Honourable Mr. Justice Donald”

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[72]            I have had the opportunity of reading Madam Justice Huddart’s judgment.  I agree with her conclusion that the School Boards are subject to the Charter and that the workplace directives they gave to the teachers they employ (being “prescribed by law” within the meaning given to that term) violate the s. 2(b) right to freedom of expression.  For the most part, however, I do not consider the limitations the School Boards imposed on the teachers’ implementation of the BCTF Action Plan to achieve through political pressure what it was unable to achieve in collective bargaining difficult to justify in accordance with s. 1 as being reasonable in a free and democratic society.  Shortly put, there is, in my respectful view, simply no place for the use of our public schools as a platform for teachers to advance political agendas. 

[73]            Much may be said about the desirability of school boards employing more teachers so that students can be taught in smaller classes where they can be given more individual attention.  Much may be said about the value in increased education funding generally.  But like many demands on the public purse, the question of the education budget in general, and class size and composition in particular, is a matter of priority in the allocation of public financial resources.  That priority is a matter of ongoing political debate.  It is a debate in which the members of the BCTF are of course free to participate effectively as they have through the media and in other ways.  But it is difficult to see why parents, who are required to support the public school system, must send their children to schools where the teachers have closed ranks and are actively advancing a particular political agenda in support of one side of the debate.  There can be no question that the mandate of the School Boards and of the teachers they employ must include the fostering of a healthy education environment and the maintenance of public confidence in the school system.  It is a mandate that, in my view, cannot be served by the teachers’ use of the schools to gain political advantage.  Teachers in the public school system must in this respect be in no different position than if they were teaching in private schools.

[74]            If teachers are to be permitted to post flyers or pamphlets on bulletin boards accessed by students and their parents or to hand out materials carrying a political message at parent-teacher interviews that are consistent with the BCTF Action Plan, it becomes difficult to see what limits, if any, there would be on steps that might be taken to use schools to advance a political agenda.  There might be no reason why pamphlets could not be posted in the classrooms or handed to students directly.  School boards could be hard pressed to justify prohibiting teachers from posting political signage in the schools and on school property.  Teachers might even be said to have a right to convene meetings in school auditoriums or on school grounds, inviting students and their parents to attend, all in support of advancing a political agenda in exercising the right to freedom of expression. 

[75]            At least in my view, when it comes to considering how teachers may use the public schools in which they are employed in order to gain a political advantage, the discussion cannot even get started.

Contextual Factors

[76]            I consider the context in which the BCPSEA’s attempt to restrict the teachers’ freedom of expression here to be of particular importance to applying the Oakes test in the s. 1 analysis.  The School Boards were endeavouring to serve their mandate in the face of the BCTF’s attempt to advance a political agenda using the schools where its members are employed to teach children and young people. 

[77]            As my colleague states (paras. 47 and 48), in Harper v. Canada (Attorney General), [2004] 1 S.CR. 827, four contextual factors were considered relevant to the application of a s. 1 analysis:  1) the nature of the harm; 2) the vulnerability of the group; 3) the subjective fears and apprehension of harm; and 4) the nature of the infringed activity.

[78]            In my view, three of the factors mentioned are relevant in this case: 1) the nature of the harm; 2) the vulnerability of the group to be protected; and 3) the nature of the expressive activity.

a)  Nature of the Harm

[79]            The conclusion reached by the arbitrator that the breach of the teachers’ s. 2(b) rights could not be justified under s. 1 was largely dependent on his assessment of the harm that the School Boards’ actions were attempting to ameliorate.  In his view, the teachers’ actions essentially caused no harm to the proper functioning of the schools.  He wrote at page 43 of his reasons:

            I begin by observing that the posting of the subject bulletins or flyers on the teachers’ bulletin boards, or the handing out of the “cards” at parent-teacher interviews, would in no way interfere with the effective and efficient operation of a school; and neither would it result in loss of instructional time or other educational disturbance.  There is no suggestion in the Alleged Actions that the intended communication by the teachers, either as to form or substance, would in any degree have impaired the performance of their duties as teachers.

[80]            I consider his analysis was unduly restricted.  The harm caused by the teachers’ implementation of the BCTF Action Plan must be viewed more broadly in terms of its impact on the education environment and public confidence in the public school system. 

[81]            The case stated for the arbitrator outlined three different actions taken by the School Boards which the BCTF claims violated the s. 2(b) rights of the teachers they represent.  First, the School Boards prohibited the posting of certain materials on school bulletin boards that were accessible to students and parents; second, teachers were directed not to distribute certain documents to parents during parent-teacher interviews; and, third, teachers were directed not to discuss class size issues during parent-teacher interviews.  The actions of the teachers, which the School Boards were addressing, should be analyzed individually as the harm arising is of a different character for each.

i)  Posting of Material on the Bulletin Boards

[82]            The School Boards prohibited teachers from posting four different pamphlets on bulletin boards that were visible to both students and parents.  The materials were not only critical of the BCPSEA’s bargaining positions relating to issues such as class sizes and specialist teachers, but were also directly critical of the provincial government’s proposed imposition of a collective agreement and funding cuts to education.  Some portions of the materials could be described as educational, in that they provide factual information about various programs that are no longer available at the schools, but others are overtly political, directly criticizing the government for certain policies.  The following is an example of the BCTF’s criticism of the government, taken from a pamphlet entitled “Our Children’s Education is Threatened”:

Repeatedly this fall, the premier, education minister, and finance minister have threatened to call the legislature back and impose a contract upon the province’s 45,000 public school teachers.  If they impose the employer’s demands, they will betray their election promise to “provide the best education in Canada.” Worse still, they will betray 600,000 students.

Nobody voted for that!

[83]            Teachers play a vitally important role in our society as those with the primary responsibility for educating our young people.  As educators, it is their job not only to impart information to students, but to create an environment in which students feel free to discuss and analyze ideas.  To create this environment, teachers must be in a position to act as neutral facilitators for the sharing of ideas.  By posting political material on bulletin boards that are accessible to students, teachers communicate to the student body that they have closed ranks on a particular political viewpoint (in this case, the viewpoint that the Liberal government is not keeping its political promises and more importantly that it is failing in its commitment to students).  When teachers collectively use school property to espouse or advocate for a particular political agenda, an open and supportive environment conducive to the sharing of ideas is undermined. 

[84]            This is not to say that teachers need to be apolitical when they are teaching or when they are in the school environment.  Holding and expressing political opinions does not necessarily undermine a teacher's ability to be a neutral facilitator.  Teachers can express their views, while still making it clear to students that other points of view are not only legitimate, but welcome.  However, when teachers post material within the school espousing a particular political position, they collectively place themselves in the role of advocates for a political agenda, and in doing so compromise their position as neutral facilitators.  These actions are inconsistent with the maintenance of an open and supportive education environment.

[85]            Students are, of course, to be encouraged to develop an awareness of the world around them and to participate in political debate.  But using the schools to advance a political agenda is a far cry from the legitimate exercise of fostering debate.

[86]            The harm is not something that can be measured with any degree of precision.  Further, it is not entirely clear what type of evidence would serve as proof (particularly as in some cases a school board prohibited the distribution of the materials before they had been posted).  However, the harm arising in this case is reasonably apparent.  The posting of the political materials is inconsistent with the fostering of an open and supportive education environment, and therefore is inherently harmful to the school system.  In view of the nature of the harm arising in this case, some degree of deference is to be shown to the School Boards’ decision to take action.

ii)  Distribution of Materials

[87]            The BCTF sent materials to its members and encouraged them to distribute these materials to parents during parent-teacher interviews.  The materials for distribution contained information regarding class sizes and the provision of certain services in the schools.  In particular, the materials were critical of the Liberal government for making cuts to services and for removing restrictions on class sizes.

[88]            The harm arising from the distribution of these materials is not to the proper functioning of the classroom, but rather to the proper functioning of the parent-teacher interview, and to the public’s trust and confidence in the school system. 

[89]            The parent-teacher interview is vitally important to ensuring public confidence in the school system.  The interview is an opportunity (and sometimes the only opportunity) for parents to speak directly with their child’s teacher about the progress their child is making, and to ask questions of the teacher regarding how their child’s classroom functions.  The impression parents take from these interviews must be expected to play a large role in shaping their impressions of the school system generally.  As stated, when teachers use the school environment to advocate for a particular political agenda, their ability to foster the appropriate environment is called into question.  Thus, if teachers are permitted to use parent-teacher interviews as a vehicle to espouse their political views, there is a substantial risk that the public’s confidence in the school system, and in particular in teachers’ abilities to foster an open and supportive education environment, will be undermined.  Parents cannot be expected to have confidence in a school system where teachers who are employed at public expense are permitted to use the schools where they teach to advance a political agenda to which all parents do not necessarily subscribe.

iii)  Discussion of Class Sizes

[90]            I accept that the discussion of class sizes in the context of a parent-teacher interview does not necessarily give rise to harm.  Arguably, the size of a child’s class could have an effect on his or her performance at school.  Some students require more teaching attention than can be accommodated by those who teach large classes.  Thus, discussion about class size issues can have a legitimate place in a parent-teacher interview.  If a teacher is alive to the issues surrounding class sizes and is able to articulate potential concerns arising in relation to the needs of any particular child, this could go a long way to instilling public confidence in the system, as opposed to undermining it.  However, if teachers were to routinely embark on a discussion of class sizes as contemplated by the BCTF in advancing its political agenda where the learning of a child who is the subject of a parent-teacher interview is not compromised in any real way by class sizes, their conduct in so doing will tend to undermine public trust in the operation of the school system. 

b)  Vulnerability of the Group Being Protected

[91]            As was recognized in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, children and young people are a vulnerable group and are particularly vulnerable to the messages of their teachers.  In this regard, La Forest J. wrote as follows at para. 82:

            There can be no doubt that the attempt to foster equality, respect and tolerance in the Canadian educational system is a laudable goal.  But the additional driving factor in this case is the nature of the educational services in question:  we are dealing here with the education of young children.  While the importance of education of all ages is acknowledged, of principal importance is the education of the young.  As stated in Brown, [Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)], education awakens children to the values a society hopes to foster and to nurture.  Young children are especially vulnerable to the messages conveyed by their teachers.  They are less likely to make an intellectual distinction between comments a teacher makes in the school and those the teacher makes outside the school.  They are, therefore, more likely to feel threatened and isolated by a teacher who makes comments that denigrate personal characteristics of a group to which they belong.  Furthermore, they are unlikely to distinguish between falsehoods and truth and more likely to accept derogatory views espoused by a teacher.  The importance of ensuring an equal and discrimination free educational environment, and the perception of fairness and tolerance in the classroom are paramount in the education of young children.  This helps foster self-respect and acceptance by others.

[92]            This case bears no resemblance on its facts to Ross.  This is not a case where teachers are espousing discriminatory or hateful views as was Mr. Ross.  On the contrary, the political position taken by the BCTF is one legitimate view of a priority that should be given to the allocation of limited provincial resources.  It is well-informed, rational and motivated in part by a desire to improve the education system.  However, the above passage from Ross illustrates how susceptible young people are to the views of their teachers.  Teachers are role models and authority figures for young people.  As a result, young students are not in a good position to challenge the perspectives and points of view taken by their teachers.  For this reason, teachers must be particularly careful not to impose their political views on their students.

c)  Nature of the Activity

[93]            There can be no doubt that political expression and the promotion of participation in the democratic process are at the core of the s. 2(b) protection of freedom of expression (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199).  As the Supreme Court of Canada has indicated, an infringement of such expression will be more difficult to justify and arguments which seek to do so must be subjected to “a searching degree of scrutiny” (Ross, para. 89).  Through the various materials that the BCTF intended to have distributed, teachers were to be voicing their concerns about policies of the government regarding issues of particular importance to them.  This is, of course, political expression of a kind deserving of a high level of constitutional protection, but not so high as to render the implementation of the BCTF Action Plan to use the schools to gain political advantage immune to the imposition of reasonable restrictions. 

The Oakes Test  (R. v. Oakes, [1986] 1 S.C.R. 103)

[94]            There are, as my colleague indicates, two parts to the Oakes test.  First, the School Boards must demonstrate a pressing and substantial objective of sufficient importance to warrant overriding a constitutionally protected right or freedom.  Second, the School Boards must demonstrate that the impugned measure is proportionate to the achievement of that objective.  There are three elements to be considered at the second step: i) is there a rational connection between the measure and the objective; ii) does the measure minimally impair the Charter right at issue; and iii) is there proportionality between the objective and the effects of the measure?

a)  The Objective

[95]            However stated, the objective of the School Boards in prohibiting the posting and distribution of political material in the schools, and prohibiting the discussion of class size issues in parent-teacher interviews, was consistent with fulfilling their mandate to: 1) foster an open and supportive education environment; and 2) maintain public confidence in the school system.  The objective was not only pressing and substantial, but the School Boards would be remiss in their duties if they did not attempt to achieve it.  It is the School Boards’ duty to ensure that public schools are places (and are seen to be places) which are open and receptive to a wide spectrum of views.  This is particularly the case in the realm of political discourse.  As a result, it is incumbent upon School Boards to ensure that teachers do not take actions which threaten this open environment, or which undermine the public’s confidence in this regard.

[96]            When the School Boards’ objective is framed in this manner, it is clear that what is at issue in this case is not only the School Boards’ right to uphold their mandate, but the rights of students to an open and supportive education environment.  It is these interests which must be weighed against the teachers’ constitutionally protected freedom of expression.

b)  Proportionality

[97]            The measures taken by the School Boards were rationally connected to their objective.  If one accepts that the posting of political material in schools that expresses the collective views of teachers is inconsistent with ensuring an open and supportive education environment, then a directive prohibiting the posting is rationally connected to fostering such an environment.  In the same way, if one accepts that the imposition of a particular political viewpoint on parents in the course of a parent-teacher interview could undermine public confidence in the school system, then banning the distribution of political material during these interviews is rationally connected to maintaining that confidence. 

[98]            However, as noted above, the discussion of class size issues in the course of a parent-teacher interview could in the proper context inspire, rather than detract from, the public’s confidence in the school system.  As a result, a wholesale prohibition on the discussion of class size issues is not rationally connected to the School Boards’ objective and cannot be justified under s. 1.  The School Boards’ directives in that regard were too broad.  The exception must be that discussion of class size is permissible when raised by teacher or parent in the context of a student whose educational needs are by virtue of his or her learning abilities truly compromised.

[99]            To satisfy the minimal impairment requirement, the actions taken by the School Boards need not impair the teachers’ rights as minimally as is conceivable, but rather need only fall within a range of reasonably proportionate options (RJR-MacDonald Inc. v. Canada (Attorney General), supra).  Other than the complete prohibition of discussion of class size issues, the actions taken by the School Boards were minimally impairing.  The School Boards did not issue an outright ban on the posting and discussion of BCTF materials regarding the teachers’ views on the government or their bargaining positions.  Teachers remained free to post political materials in places that were not accessible to students, and they remained entitled to discuss their political views with parents outside of the school environment.  The political message that the BCTF hoped to make public would not be stifled by the limited measures taken by the School Boards.  Accordingly, the teachers' s. 2(b) rights were minimally impaired in this case.

[100]        The final consideration in the Oakes test is whether the deleterious effects of the infringement outweigh the salutary effects.  In my view, the deleterious effects cannot be understated in this case.  It is beyond doubt that the type of expression at issue is precisely that contemplated by s. 2(b) of the Charter.  Through the materials posted in the schools and distributed to parents, the teachers were expressing their disagreement with certain policies of the provincial government in a peaceful and rational manner.  The right to make such statements is, of course, at the heart of a properly functioning democracy.  In this case, however, the expressing of these views interfered with the School Boards’ ability to fulfil their mandate. 

[101]        Citizens of this province have a collective social responsibility to educate their children in a manner that best situates them to become healthy and functioning members of society.  To achieve this goal it is of utmost importance to ensure that students are not only exposed to different ideas and perspectives, but are supported in their investigation and analysis of those perspectives.  If teachers are permitted to use public schools as forums to advance particular political agendas, they will undermine an open and supportive education environment and ultimately that will detract from the fundamental objective of the school system.  In the same vein, public confidence in the system is also of vital importance as the proper functioning of the school system is dependent upon public support and in particular the support of parents.  In the result, the salutary effects of the actions taken by the School Boards outweigh the deleterious effects that result from the minimal infringement of the teachers’ rights.

Conclusion

[102]        The School Boards must be given latitude to fulfil their mandate, and to ensure the harm inherent in the proposed actions of the BCTF is avoided.  Accordingly, the School Boards’ workplace directive prohibiting posting materials on school bulletin boards and of distributing BCTF materials during parent-teacher interviews, when viewed in context, was a demonstrably justifiable infringement of the teachers’ s. 2(b) rights.  The School Boards’ directive about discussing class sizes at parent-teacher meetings was too broad and could not be justified without provision for legitimate discussion about the needs of any particular child.

[103]        It follows that I would allow the appeal, set aside the Arbitrator’s award, and substitute an award consistent with this conclusion.

“The Honourable Mr. Justice Lowry”