2005BCSC1443

Before: The Honourable Madam Justice B. Brown

Oral Reasons for Judgment

October 13, 2005

Counsel for the applicant	N.T. Mitha P.D. McLean M. Hancock
Counsel for the respondent	J. Rogers S. Anderson D. MacDonald
Place of Hearing:	Vancouver, B.C.

[1] The employers ask me to fine the teachers for their contempt of court and require the teachers to post recognisance for good behaviour. I do not propose to do that today, although that may be appropriate at a later date.

[2] As I indicated in my reasons on Sunday, October 9, 2005, it is imperative that all citizens obey orders of the court.

[3] Despite the order of October 9th, finding the teachers in contempt, the teachers have refused to obey the order of October 6, 2005.

[4] The court’s concern is to ensure that the court orders are obeyed. Here the breach continues.

[5] The court’s powers in circumstances such as these are very broad, invoking the court’s inherent powers. Sir Jack Jacobs, Q.C., in 23 Current Legal Problems 23 (1970), at p. 27, said:

On what basis did the superior courts exercise their powers to punish for contempt and to prevent abuse of process by summary proceedings instead of by the ordinary course of trial and verdict? The answer is, that the jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called "inherent."…. the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very lifeblood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.

[6] The BCTF acts through its members to commit the contempt. It is apparent from the materials before me that the BCTF is using its assets to facilitate the continuing breach of the court order, in part by paying teachers.

[7] I will enjoin the BCTF and related entities (and here I am contemplating wholly-owned subsidiaries, trusts, etc, because I do not understand or know the exact mechanism that the BCTF is using to facilitate the breach of the court order, it appears that there may be funds solely in control of the BCTF) and from using their assets to further the breach of the court order of October 6, 2005.

[8] The BCTF may use assets in the ordinary course of business, which would include such things as paying rent, wages to employees and other expenses it would normally pay. It may pay legal fees.

[9] The BCTF is restrained for 30 days from directly or indirectly using its assets to facilitate breach of the court order of October 6, 2005. In particular, the BCTF is enjoined from paying amounts to its members as “strike pay” or to otherwise compensate members for loss relating to breach of the order of October 6, 2005; from providing guarantees or promises to pay to protect members from such losses; from using its books records and offices to permit third parties to facilitate continuing breach of the court order. Either party may apply to extend or shorten this order.

[10] I am appointing a monitor to ensure that this order is obeyed. The monitor will have the following powers and duties:

(a) to have full access to all books and records of the BCTF, including all bank accounts of the BCTF and related entities;

(b) to review, on a daily basis, all payments made by the BCTF and related entities;

(c) to immediately report to the Court any payment or other activity which the monitor considers to be in breach of this order;

(d) to report to the court as requested with respect to the financial position of the BCTF and its compliance with this order;

(e) to appoint legal counsel as required and to obtain such assistance from time to time as the monitor may consider necessary in respect of its powers and duties.

[11] The monitor shall incur no liability or financial obligation as a result of the making of this order, the appointment of the monitor or the carrying out of this order, except for negligence or wilful misconduct.

[12] The monitor will not be an employer or successor employer within the meaning of any legislation, and shall be deemed not to be in possession and control of the assets of the BCTF or related entities for any purpose whatsoever.

[13] The monitor need not file security with the court.

[14] The monitor will be paid its remuneration, costs and expenses from time to time by the BCTF as costs herein and costs arising from the continuing breach of the order of October 6, 2005, subject to passing of accounts before a master or registrar of this court.

[15] The monitor may apply to this court for further direction.

[16] I will be requesting the Chief Justice to appoint the monitor and I will be advising the parties later today of the name of the monitor so that it may be inserted in the formal order. The order will otherwise be immediately effective.

[17] If there are aspects of this order which are unclear, the parties may return for clarification.

[18] As the parties have not made submissions on this order, I will permit the parties to consider their position and make submissions to me to set aside or limit the order.

[19] The impositions of sanctions pursuant to R. 56 is adjourned generally.

[20] The issue of costs of this application to the employers is adjourned, pending further submissions.

“B. Brown, J. “
The Honourable Madam Justice B. Brown

Citation:	BC Public School Employers Assoc. v. BC Teachers Federation,
	2005 BCSC 1443