Education removed from list of essential services prior to the Saanich school strike, funding for poverty law clinics, and litigation over law school naming rights

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With Saanich schools closed for a third week as a result of a strike, 2019 amendments to the Labour Relations Code are discussed. These amendments removed a specific provision that declared “the provision of educational programs for students and eligible children under the School Act” to be an essential service.

This change was an example of the labour relations changes made each time the NDP is elected, or defeated, in British Columbia.

This same legislation, Bill 30, would also have included a provision removing the right to a secret ballot for union certification, however, the British Columbia Green Party advised the NDP that they would not support the other changes if that was included.

While the language that remains in the Labour Relations Code dealing with strikes or lockouts that “poses a threat to the health, safety or welfare of the residents of British Columbia” has previously been interpreted by the Labour Relations Board to include education, in some circumstances, this would be more contentious.

In order to engage any of the essential service provisions of the Labour Relations Code, action is required by the Minister of Labour: Harry Bains. He is the minister who introduced the legislation to remove the express provision designating education as an essential service. His background includes 15 years as an officer of a steelworkers-IWA union local. Unsurprisingly, he has not acted to engage the remaining provisions of the Labour Relations Code in order to end the strike.

Other legal news discussed include the announcement by the province of $2 million in funding to open 8 poverty law clinics.

The provincial funding will be provided through the Law Foundation, which will afford some degree of separation from the province as the poverty law issues the clinics will assist with could involve the provincial government as a party.

Prior to a 40% cut to legal aid funding in 2002, British Columbia had more than 40 legal aid offices, that assisted more than 40,000 people a year with poverty law issues. These issues often related to housing or disability claims. Since that time, no legal assistance was available for issues like these.

Finally, a donation of $30 million by a graduate of the UBC Law School is discussed. That donation included an agreement to rename the law school the “Peter A. Allard School of Law” and to include this name on degrees issued by the law school. Unfortunately, for Mr. Allard, it turns out that postgraduate degrees, such as LLM and PhDs, are not granted by the faculty of law, but rather the faculty of graduate and postdoctoral studies. These degrees never had the name of the law school on them and so, don’t include the new name of the law school.

In an attempt to force UBC to include his name on these degree, Mr. Allard took the matter to arbitration. He was unsuccessful and is now going to court in an attempt to overturn the arbitrator’s decision. Unfortunately, this has created the appearance of transforming a generous gift into a contractual dispute over the sale of naming rights.


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Automated transcript:


Adam Stirling [00:00:00] It’s time for legally speaking. Joining us remotely today is Michael Mulligan from Mulligan Defence Lawyers. Michael, good morning. How are you doing?

Michael T. Mulligan [00:00:07] I’m doing pretty well. I can’t complain about joining you remotely as I’m currently looking out on a nice view in Hawaii.

Adam Stirling [00:00:17] In Hawaii. You’re joining us from today. Thank you so much for making some time for us. It’s been seven days since you helped us understand the various legal options the government of British Columbia had at its disposal to cause a timely and fair end to the current labour dispute in district 63. As far as I know, no such option has yet been engaged. I think we’re starting on that topic today, are we not?

Michael T. Mulligan [00:00:40] Yes. And I think some of the history of that section is important and it I think it informs why it hasn’t yet been triggered. We spoke last week about the provisions of section 72 of the Labour Relations Code, and that’s the section of the Labour Relations Code that permits a service to be designated as an essential service so as to require some minimal level of essential service to be provided. And it’s part of the managed strike review we have in British Columbia. It’s this provision that would prevent, for example, all emergency room nurses from going on strike or the fire department, from going on strike. And the language, which is in the section speaks about preventing a, something which would pose a danger to the currently health, safety or welfare of the residents of British Columbia. And that particular language has changed over the years and it’s part of the flip flop that occurs in B.C. labour relations. Each time the government changes between the NDP and the alternative to the NDP, Liberals or Social Credit or whatever it might have been in the past. And interestingly, the most recent change in that ongoing flip flop in British Columbia occurred in April of this year as a result of what was Bill 30, and that was an amendment to the Labour Relations Code. And people may recall that one of the sticking points in the package of proposed amendments, this year, included a proposal to permit the certification of unions without the benefit of a secret ballot.

Adam Stirling [00:02:37] Yes.

Michael T. Mulligan [00:02:37] The current government wished to move to a method that didn’t involve a secret ballot. And the Green Party said, we will not support you if you keep it in. So that got removed. But one of the sections that did get amended was, in fact, the section that we spoke about, the section 72 of the Labour Relations Code. Up until that Bill, this April, that language that talks about safety and well-being of British Columbians also included language that made it an essential service for this, the provision of educational programs for students and eligible children under the School Act. That was until April when that new legislation expressly designated as an essential service.

Adam Stirling [00:03:27] Wow. So, hold on, just to make sure I’m understanding this correctly, the B.C. NDP government, only a small, short number of months ago changed the law to remove the explicit definition of provision of education as a pro…., as an essential service right before all this happened.

Michael T. Mulligan [00:03:42] That’s exactly correct.

Adam Stirling [00:03:44] Wow.

Michael T. Mulligan [00:03:45] And they’re likely to see the fallout of that, not only with this protracted strike in Saanich, but as a result of what appear to be floundering talks with the teachers, you teachers generally in the province. So, we may see real impact from this over the coming months as they are likely to be further labour disputes involving exactly this.

Adam Stirling [00:04:09] Wow.

Michael T. Mulligan [00:04:10] Now, I should say, even though they removed the express language, which until very recently expressly designated education to be an essential service, the language that remains has been previously interpreted by the Labour Relations Board to cover that, although it may be more ambiguous and require more time to argue about, you know, what exactly, what portions of education amount to an essential requirement to preserve the welfare of the residents of British Columbia. So, by removing the express provision that made it clear that this was an essential service, it could lead to more argument and rancor over what exactly is covered. But, as you’ll recall, to trigger any of this the first step would either be, one of the parties, and only the employer would do this, asking a Labour Relations Board to investigate it or after that report is prepared or on his own initiative, the Minister, Harry Bains, would need to take action to designate the service as an essential service. Now here is the real politics of it, Harry Bain’s background on the B.C. government web page included his qualification will include 15 years as an elected officer of Steelworkers Local, and so you might imagine how it is that somebody with that background, who just introduced the legislation to remove education as an essential service, would be entirely unmotivated to engage the provisions that remain. Even though previous decisions indicate that it would still amount to an essential service, and if the minister refuses to act, the provisions are never being engaged and that is why we’re now in week three of the strike.

Adam Stirling [00:06:16] I find it shocking, Michael and I must profess my ignorance, I was not aware that the legislation was amended within the last year to remove the explicit mention of education as an essential service right before all this happened; I’m reeling to hear that.

Michael T. Mulligan [00:06:30] Yes, and that amendment, of course, was introduced by the Minister, Harry Bains.

Adam Stirling [00:06:35] Yes.

Michael T. Mulligan [00:06:36] So you have to ask yourself somebody who introduced legislation only recently to remove this as an essential service this year, somebody whose background is as an elected member of a steelworkers union, it’s perhaps not at all surprising that the government has taken no action to put an end to the continued strike.

Adam Stirling [00:06:59] Indeed. What else do we want to say about this file before we move on to the next story? This is an important one, we’re still following it actively.

Michael T. Mulligan [00:07:07] Well, I guess I would say this is likely to have much bigger implications in the months to come; because the negotiations with the teacher’s province wide appear to be floundering, I think to put it nicely.

Adam Stirling [00:07:21] Indeed.

Michael T. Mulligan [00:07:21] So this is likely to be a problem that’s going to potentially engulf the province generally, and the big background there, of course, right, if you have a you have a provincial government, which is essentially their core of support are these unions. And the government now is in the position of acting as the employer and you have a large group of unions, including transit workers in Vancouver, Saanich support workers and the teachers province wide, all of whom, no doubt, given the change of government, all are hoping for some substantial improvement in their pay and benefits and so forth, as a result of the change of government. I suppose that some people would say elections matter if they have an impact. And one of the impacts here is that we have a government that is politically aligned with the groups who are seeking improved pay and benefits and have just engaged in that decades long swinging back and forth of the Labour Relations Code to expressly remove education as an essential service. So we’re likely to be in for some protracted labour disputes, in part because we have a government, which is in this position of being supported by these very unions, now acting in the role of the employer, but still needing to maintain sort of general support if they ever wish to be elected again, because even though unions form the core of their support, they aren’t getting elected on the basis of the union vote alone.

Adam Stirling [00:09:09] Indeed

Michael T. Mulligan [00:09:09] In the end, it contains the people not able to ride the bus and kids not in school. That’s going to have a long-term political impact.

Adam Stirling [00:09:16] Want to take a quick break here, legally speaking, on CFAX 1070. Michael Mulligan for Mulligan, Defence Lawyers joining us remotely. He’s currently in Hawaii at the moment, offering us the benefit of his analysis and experience. Folks, I didn’t know that. And it was removed as an essential service explicitly mentioned. I think Michael’s absolutely right. Quick break. We’ll continue our coverage in just a moment.

Commercial [00:09:38] COMMERCIAL BREAK

Announcer [00:13:15] This is Adam Sterling on CFAX 1070.

Adam Stirling [00:13:24] And this is Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers as we continue our conversation, some good news on the legal aid front Michael Mulligan.

Michael T. Mulligan [00:13:35] Yes. And I must say this over the years has been a rare thing to receive the good news in this regard, so I think this is certainly one who should be a positive announcement from the provincial government. And the announcement is this, the provincial government has agreed to provide 2 million dollars in funding through an organization called the Law Foundation in order to establish 8 poverty law clinics around the province. So, there’s a little bit in there to be unpacked. First of all, what is poverty law? That would be things like assisting people with issues with rental disputes, disability benefits and other legal issues that arise from somebody who’s experiencing poverty. So very important. And what is the Law Foundation? Well, the Law Foundation is an organization that gets most of its funding from the interest on lawyers’ trust accounts. And the way that works is if you had money and trust with the lawyer, for example, to buy a home, the money might be in trust for some period of time before the home purchase went through and that might generate some interest.

Adam Stirling [00:14:50] Mmm hmm.

Michael T. Mulligan [00:14:51] That interest doesn’t go to the lawyer, It goes, since 1969 to this Law Foundation, which would do charitable work involving things legal aid, public legal education and other good work of that sort. So, the government’s using this Law Foundation, using the Law Foundation to administer these grants, which will allow for these 8 Poverty Law Clinics to be set up. And I suppose there is an element of this, which is, you know, everything old is new again, because in British Columbia, we used to have legal aid offices all over the province, there were more than 40 of them. And back in 2002, when the legal aid budget of the province, was cut by some 40%, all of those legal aid offices, the 42 of them all around the province, were all shut…many people here were fired. And in the last year, before all of those offices were shut, there were in excess of 40,000 people who went in and received help of the sort that I’ve described, this poverty law services. They could also help with immigration issues, housing issues, disability issues, things like somebody trying to apply for disability benefits if they were injured or something of that sort. So very important work which has simply been absent in most of the province since 2002, so I think it’s very good news that they’re putting some money into funding this again. And as well, I think there is something to be said for the fact that they’re going to do the funding through an external organization. Now, on this occasion, it’s not through the Legal Services Society, but through the Law Foundation. And the reason that can be important is that sometimes the legal advice or assistance that somebody would get at a poverty law clinic might involve the government being on the other side of it. Like, for example, let’s say somebody was denied disability benefits and they were wanting to appeal that you wouldn’t want to have the person who’s helping you with that appeal to be an employee of the very government that you’re trying to persuade to give you the benefits and doesn’t want to do it.

Adam Stirling [00:17:08] Indeed.

Michael T. Mulligan [00:17:09] So, by having that a little bit of a disconnect between the funding and the government, I think that’s a wise move as well. So, for a relatively small amount of money, and this is a small amount of money, much less than what we had back in 2002, I think there’s a whole lot of good to be done here. There have been tens of thousands of people every year who needed that kind of help and simply had nowhere to go. So I think this is a very good a good step and hopefully it will continue and there are a lot of people who genuinely need help, and I think this is a good prospect of providing it. So, a rare good news story on a legal aid front, so very positive.

Adam Stirling [00:17:53] All right. I agree. It seems very promising. The quickest, I want to ask you a little bit about this story about UBC’s law school and one Peter A. Allard, who was very generous and gave a sum some of I believe it was in excess of 30 million dollars to the law school but there are conditions that are a matter of dispute at the moment.

Michael T. Mulligan [00:18:14] Yes, that’s true. So, this is a very generous gift to someone. He was somebody who was a graduate of the UBC law school, and just a few years ago in 2014, he made what amounted to the largest donations, to any law school in Canada. He gave the law school 30 million dollars, which helped provide scholarships and I think helped them construct a whole new building over there. Now, I must say, in terms of how somebody, but not one of the terms of this was that there be his name appear on the degrees granted by the University. They renamed the law school, the Peter Allard School of Law. I think given his middle initials in there and the terms of the gift included, that his name appear on the degrees granted by the University. Now, the dispute that’s arisen is that somehow he discovered that the postgraduate degrees that were being granted, people who had a LLM and like a master’s degree in law or a doctorate in law, that those degrees didn’t have his name on them and he inquired into that. The explanation given was that those degrees aren’t granted by the law faculty they are granted by the different faculty deals with postgraduate work, so that was the reason for that. So, he decided to take that to mediation or arbitration. The arbitrator ruled against him that said no, the school didn’t have to put his name on those degrees because the law school doesn’t grant them. It’s another faculty that grants those degrees. But being dissatisfied with that, he’s decided to launch a challenge in court to try to force the University to add his name to those degrees. And I must say that the decision to do that strikes me as about the fastest way to turn what was a very generous donation into something that appears a little otherwise, trying to go to court and force your name on to the various degrees not actually issued by the law faculty. And that caused me to sort of wonder about the broader question, about gifts to universities and whether we ought to have things like naming rights sold effectively, because this doesn’t appear to be a circumstance where through the University, in gratitude for the very generous gift, decided on their own initiative to rename the building or put a picture up or do something to recognize a very generous gift. But it now appears to be a contract dispute involving what exactly was to be provided in response to the money that was provided, so it’s starting to look a lot more like a sponsorship agreement for an arena and a little bit less like a, like a gift that made it originally appeared to have been.

Adam Stirling [00:21:22] All right. Interesting. So, again, the courts will make a decision potentially on that matter in due time. But for the moment, we don’t really know what the answer to the question is yet do we?

Michael T. Mulligan [00:21:32] No, we’ll wait and find out. I’m just hoping that, you know, we don’t have Dunkin Doughnuts or anything else, a sponsor of the law school over in Victoria because some similar condition that their name appear in every degree.

Adam Stirling [00:21:44] Now, on I may be mistaken, but I do believe that it is a matter of university policy that the name of any corporate entity is prohibited from being a fix to any either food outlet or similar undertaking within the ring of UVic itself, but I would I would leave that one to the lawyers.

Michael T. Mulligan [00:22:02] Sure. I with the wait and see until Dunkin Doughnuts showed up at the offered 30 thousahd… 30-million-dollar deal to construct a new building perhaps that the policy will be rethought.

Adam Stirling [00:22:12] All right. And this is an interesting one because it pertains to the Representative for Children and Youth in British Columbia and the need to be able to access records to carry out the duties of that office. What’s the story?

Michael T. Mulligan [00:22:25] Yes, so British Columbia has this Representative for Children and Youth, and they serve essentially as a watchdog, largely with respect to how the Ministry of Children and Families operates. But their mandate isn’t restricted to that and they’re designed to ensure that children are being treated properly for the representative for children and youth. Now, this representative for children and youth was interested in doing a report about legal representation for children and youth in the context of family law disputes. So, it would seem like this sort of thing that these represent over children youth might spend their day doing.

Adam Stirling [00:23:08] Mm hmm.

Michael T. Mulligan [00:23:09] In any case, the representative made a request for information in the possession of the British Columbia Attorney General’s Ministry about that funding so that they could prepare their report and in fact, the legislation that sets up the reps, representative for children and youth expressly provides that they have the right to information in possession of a public entity. So, one would have expected, given all of those things, the Attorney General’s Ministry to turn over the information so that the Representative could prepare their report. But instead of doing that, the Attorney General’s ministry decided to try to resist turning over the information to the representative, arguing that they had no business preparing this sort of a report. And in fact, decided to litigate the matter going off to the B.C. Supreme Court, trying to avoid having to turn over the information that the representative for children and youth wanted. The judge on that application had none of it and ordered the information requested to be turned over so that the representative can prepare their report. The bigger takeaway there, I think, is one of sort through the attitude and approach to these things, and you would hope that the government’s knee jerk reaction to requests of this sort wasn’t to do whatever they could in their power to try and prevent the information from being provided. That, to my mind, just seems like a poor use of resources and contrary to the spirit of these things, when you have somebody who’s express purpose is to make sure that children and youth are being treated properly, including in the justice system. You would hope that the approach would be provide whatever that person wants to prepare that report and not try to use whatever legal argument you could come up with to resist doing that because, for heaven’s sakes, wouldn’t that money be better served or better used helping children and youth rather than litigating whether you need to give information to their representatives to prepare the report.

Adam Stirling [00:25:22] On the litigation is often necessary, yet it is not always the highest and best use for those tax dollars Michael, So I doubt there are many who would disagree with you on that,

Michael T. Mulligan [00:25:33] Including the judge.

Adam Stirling [00:25:34] Including the judge. Thank you so much as always for joining us from the island of Hawaii today. We’ll see you next week.

Michael T. Mulligan [00:25:42] Thank you so much. Look forward to it.

Adam Stirling [00:25:43] All right. Thank you so much, as always, for offering us the benefit of your analysis and insight. Michael Mulligan with Mulligan Defence Lawyers every week here on a Thursday on CFAX 1070 as we enter the second half of our second hour. I look forward to this segment every week, I learn at least one new thing at hopefully once a week I try to learn new things every day, but today is a day that I learned something I did not know.

Automatically Transcribed on November 14, 2019 – MULLIGAN DEFENCE LAWYERS