VICTORIA — The B.C. Liberals could not have asked for a more satisfying verdict in the long-running battle with the teachers union than the one delivered Thursday by four judges of the B.C. Court of Appeal.

The Liberals hoped the court would uphold the government’s power to impose settlements in public-sector labour disputes, including the removal of contract provisions inherited from previous governments.

The court ruled the government could, providing always that the government first engaged in a process of good faith collective bargaining, as recognized under the constitution.

The Liberals also hoped that the court would find that in the round of negotiations at issue in the case, the government had bargained in good faith.

The court found that the Liberals had bargained fairly, the lack of a bargain notwithstanding, thereby setting the stage for the legislated settlement.

The Liberals sought a verdict that would recognize the prime role of the labour board in vetting labour disputes.

The judges agreed with the long-standing view (dating back to the province’s first New Democratic Party government) that where possible the courts should defer to the board.

The Liberals hoped the court would not saddle them with hundreds of millions of dollars in costs by reinstating provisions regarding class size and composition that were stripped out by legislation 13 years ago.

The court didn’t.

The Liberals even dared to hope the appeal judges would repeal a punitive $2 million fine imposed last year by a lower court.

They did.

The Liberals sought a ruling to protect the confidentiality of cabinet documents that were part of the court record.

They got it.

Adding to the vindication for the government side was an appeal court verdict that repeatedly and sometimes roughly overturned Justice Susan Griffin of the B.C. Supreme Court.

Griffin’s two judgments against the government, rife as they were with findings of bad faith and worse, were devastating to the Liberals. But on Thursday, all of the devastation was visited on Griffin.

“The trial judge fell into error,” concluded the four appeal court judges early in their decision, before documenting that verdict multiple times.

Errors of principle. A clear misunderstanding of collective bargaining. A misreading of the Supreme Court of Canada. A legal analysis that was “artificial and formalistic.” Unsupported inferences about government motivations. “An extricable error of law” at one point. “A palpable error,” at another.

On and on they went, page after page. Though judges are steeled for reversals on appeal, still one had to think that the Court of Appeal was overdoing it.

But the likely reason for so many citations of error was implicit in the dissenting opinion from Appeal Court Justice Ian Donald.

He sided with Griffin in the view that the Liberals were guilty of bargaining in bad faith. In breaking with his colleagues, Donald took refuge in the view of the highest court in the land:

“The Supreme Court of Canada has gone to great lengths to emphasize the importance of deference to the trial judge when it comes to determination of fact or questions of mixed fact and law,” he wrote in a dissenting opinion that was sometimes as sharply directed at his colleagues as theirs were at Griffin. “An appeal is not an opportunity for an attempt to roll the dice again with potentially more sympathetic judges. As quoted by the court, the appellate court must not retry a case and must not substitute its views for the views of the trial judge.”

Noting that Griffin “had the benefit of 29 days of testimony and submissions over the course of two trials and three years,” he faulted his appeal court colleagues for second-guessing her in so many ways.

But as Donald also acknowledged in his dissenting opinion, the most readily available ground for overturning a lower court is a finding of “palpable and overriding” error. And presumably that goes a long way to accounting for the multiple findings along those lines by the majority.

All those findings of error underpin B.C. Liberal hopes that when the B.C. Teachers Federation seeks leave to appeal to the Supreme Court of Canada, the high court will decline to hear the case.

But I wouldn’t bet on it.

The high court is proving to be increasingly active on many politically-sensitive cases, labour disputes included. This case is fraught with legal-labour implications. Nor has it been reluctant to second-guess the B.C. Court of Appeal — last year’s landmark decision on aboriginal title being one of the more quoteworthy examples.

Besides, the diametrically opposed judgments about the facts in this case — the four Appeal Court justices on one side, Donald and Griffin on the other — may well supply an opening for the judges on the high court to weigh in with their reading of the evidence.

vpalmer@vancouversun.com

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