Name of Case: Baier v. Alberta

Court appealed from and date of judgment: Judgment of the Alberta Court of Appeal, dated May 1, 2006

Panel: Justices Marshall Rothstein, Beverley McLachlin, Ian Binnie, Marie Deschamps, and Louise Charron; Justices Louis LeBel, Michel Bastarache, and Rosalie Abella concurring; Justice Morris Fish dissenting

Facts: When 13,500 Alberta teachers went on strike in February 2002, the provincial government ordered the teachers back to work, and introduced legislation stripping the teachers of the right to strike for two years. Against this backdrop, on March 5, 2002, St. Albert Conservative MLA Mary O'Neill introduced a private member's bill entitled the School Trustee Statutes Amendment Act, 2002 (Bill 205), proposing amendments to the Local Authorities Election Act (LAEA) that would ban teachers and school employees from being elected as school trustees anywhere in the province, unless they first resigned their employment.

The LAEA already prohibited teachers and school employees from being elected to the school board in the district in which they were employed, unless they took an unpaid leave of absence. Under the amended LAEA, teachers and school employees would be required to obtain a leave of absence before seeking nomination as a school trustee anywhere in the province, and if elected they would have to resign from their jobs. The bill was passed and proclaimed on March 26, 2003, to come into effect on September 20, 2004 – the date nomination papers were due for candidates in the next school board election, scheduled for October 18, 2004.

Of 420 elected school trustees in Alberta, three were teachers. Trustees Ronald David Baier, George Ollenberger, and Liam McNiff, joined by would-be first-time candidate Evelyn Keith and the Alberta Teachers' Association, launched a challenge to the Bill 205 amendments. The applicants argued that the new rules violated the Canadian Charter of Rights and Freedoms.

Case History: Court of Queen's Bench

In a decision dated September 14, 2004, Alberta Court of Queen's Bench Judge Doreen Sulyma granted the teachers' application, and struck down the Bill 205 amendments on the basis that they violated the guarantee of freedom of expression in s.2(b) of the Charter, and could not be saved as a reasonable limit under s.1. Sulyma rejected the government's argument that the right to run in school board elections did not fall under s.2(b). She reasoned that the fact that "democratic rights" are "carved out" in s.3 of the Charter "does not preclude the application of s.2(b) to this or other forms of political expression." In Sulyma's view, running for election to a school board fell squarely within s.2(b)'s scope, because "full participation in the political process encompassing the election of school trustees and the governance of education in Alberta is an activity which conveys or attempts to convey meaning. By participating in this process, both candidates for election and those elected as school trustees have the opportunity to express their views on the most effective ways to manage and deliver education in Alberta." Although Sulyma was not convinced that the amendments were intended to stifle freedom of expression, she ruled that their effect was to deny the teachers their s.2(b) rights, because "[i]n the long term, the economic consequences of the LAEA amendments are so onerous that they render illusory the ability of the applicants and other teachers to sit as school trustees."

Turning to the s.1 analysis, Sulyma agreed with the union that the amendments were not "reasonable limits ... that can be justified in a free and democratic society." In light of the paucity of evidence of the frequency of recusals, the safeguards already contained in the LAEA, and the fact that only three of 420 trustees were teachers, Sulyma ruled, "there is no evidentiary foundation for concluding that the prevention of conflicts of interest is a sufficiently pressing and substantial objective to justify the exclusion of school board employees from eligibility for election to district school boards other than their own employer boards." Furthermore, Sulyma declared: "[T]he fact that most Canadian provinces permit school board employees to seek nomination as school trustees outside their employing jurisdiction demonstrates that the regulation of individuals who may seek office as school trustees can be achieved in a less impairing manner than instituting a province-wide ban." Sulyma concluded that the deleterious effects of this "extremely oppressive measure" outweighed any salutary effects achieved by the elimination of conflicts of interest. In the result, Sulyma declared the LAEA amendments a violation of s.2(b) of the Charter, which was not saved by s.1.

The government applied to Sulyma to stay her order pending appeal to the Alberta Court of Appeal: this application was denied on September 17, 2004. As a result of Sulyma's order, the relevant amendments did not come into force, as scheduled, on September 20, 2004. (Baier, Ollenberger and McNiff successfully ran for the positions of school trustees in the October 2004 election.)

Court of Appeal

In a judgment released on May 1, 2006, the Alberta Court of Appeal allowed the government's appeal ([2006] A.J. No. 447 (QL), 2006 ABCA 137). The Court ruled that "seeking election to a school board is not a constitutionally protected fundamental freedom" under s.2(b) of the Charter. Though running for office was expressive activity, the power to decide whether or not to hold school board elections and to decide who was eligible to seek election was reserved to the Alberta legislature. Barring teachers from seeking election to a school board did not "interfere with a fundamental freedom or with the exercise of a constitutional right." Turning to the teachers' discrimination claim under s.15, the Court held that it did not apply because, unlike other Charter-protected personal characteristics, "teaching is … not an immutable characteristic changeable only at unacceptable cost to personal identity."

With the issuance of the Court of Appeal's decision, the relevant amendments precluding school board employees from running for election as school trustees anywhere in Alberta were constitutionally valid and in force. As a result, school board employees, including Baier, Ollenberger and McNiff, became disqualified from holding their positions as school trustees. 

The applicants applied to the Court of Appeal for a stay of its decision pending leave to appeal to the Supreme Court of Canada.  By decision of June 13, 2006, that application was denied ([2006] A.J. No. 678 (QL), 2006 ABCA 187).  However, on July 10, 2006 Judge Rothstein of the Supreme Court of Canada stayed the operation of the Alberta legislation "to the earlier of the Court's decision on appeal or the expiry of the current terms of the affected school board employees."  On July 28, 2006, the Supreme Court granted leave to appeal the decision in Baier v. Alberta.

Issue(s): The issues on appeal to the Supreme Court of Canada included whether Bill 205 breached sections 2(b) (freedom of expression) or 15 of the Charter (freedom from discrimination).

Supreme Court’s Decision (8-1): The Supreme Court of Canada affirmed (8-1) the Alberta Court of Appeal's decision, holding that neither the teachers' freedom of expression nor their equality rights had been infringed.

Reasons: Speaking for five members of the Court, Justice Marshall Rothstein pointed out that the teachers were asserting a positive obligation on the part of government to protect them, rather than a negative obligation not to interfere with their right to freedom of expression, and that being the case, they could succeed only in exceptional circumstances.

In determining whether a positive obligation should be imposed on government to protect or assist in the exercise of a fundamental freedom such as freedom of expression, Rothstein referred to the factors set out in the Court's 2001 decision in Dunmore, which involved a claim that labour legislation infringed s.2(d) of the Charter, i.e., freedom of association, when it denied agricultural workers access to a statutory regime that included the right to collectively bargain. Adopting these factors, Rothstein ruled that (1) claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime; (2) the claimant must demonstrate that exclusion from the statutory regime permits a "substantial interference" with activity protected under s.2 of the Charter, or that the purpose of the exclusion was to infringe such activity; and (3) the state must be accountable for the inability to exercise the fundamental freedom – i.e., the failure to protect "substantially orchestrates, encourages or sustains the violation of the fundamental freedoms."

In this case, Rothstein ruled that the teachers' claim did not meet the first criterion in Dunmore, namely that claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime, as the teachers sought access to the platform of school trustee candidacy and school trusteeship which did not itself constitute a "fundamental freedom." Rothstein further held that the second criterion in Dunmore had not been met, in that the teachers had "not established that their practical exclusion from school trusteeship substantially interfered with their ability to express themselves on matters relating to the education system," as they were still free to speak at school trustee meetings, to lobby trustees, to sit on school councils, to write letters to public officials, and to make their concerns heard through the media. Nor, in Rothstein's view, had the teachers shown that the purpose of the amendments was to interfere with their freedom of expression, as they had not proven any causal link between the amendment and the strike that preceded it.

Speaking for himself and two other concurring judges, Justice Louis LeBel agreed that the teachers' freedom of expression had not been violated, and indeed went further in finding that the teachers' freedom of expression was not engaged at all. In LeBel's view, the teachers sought constitutional protection for a right "to take part in the management of Alberta's local education system," and the amendments "[did] not prevent [the teachers] from expressing views on any subject, let alone education."
 
Rothstein also concluded that the teachers' section 15(1) equality rights had not been infringed, as their claim did not meet the criteria set out in the Supreme Court's 1999 decision in Law v. Canada. While the amendments resulted in differential treatment as between school employees and others (such as municipal employees, who were allowed to run for positions on the councils of municipalities other than their employer), the differential treatment was not based on one of the grounds enumerated in section 15(1) – such as age, race, sex, etc. – nor on a ground analogous to the enumerated grounds. In Rothstein's view, school employees' and teachers' occupational status was not an "immutable characteristic" such as race or disability, nor a characteristic that was changeable only at great personal cost such as religion. Nor could school employees be characterized as a "discrete and insular minority" whose occupational status was "a constant marker of suspect decision-making or potential discrimination."

Lancaster Reference: For analysis of the Supreme Court’s decision, see Lancaster’s Education Employment Law E-Bulletin, October 4, 2007, Issue No. 13. For a review of Bill 205 and the surrounding conflict, and of similar litigation in Ontario, see Lancaster's Collective Bargaining Reporter, March/April, 2002.

Date of the Supreme Court's decision: June 29, 2007