Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged legislation
A non-legislative response to bullying
Jul 27th
There was an interesting opinion piece in the New York Times over the weekend from two professors based in Massachusetts discussing the new state law requiring schools to establish an anti-bullying curriculum, investigate incidents of bullying and report certain cases to the police. The article is designed for consumption by the general American public as a response to the near unanimous trend among states to enact similar legislation. Their premise involves the basic point that the law is only one instrument to address social challenges, and we should be realistic about the limits and side-effects of legislation:
[Legislation] alone can’t create kinder communities or teach children how to get along. That will take a much deeper rethinking of what schools should do for their students…
[The] danger of anti-bullying laws, which have now been passed by all but six states, is that they may subtly encourage schools to address this complicated problem quickly and superficially. Many schools are buying expensive anti-bullying curriculum packages, big glossy binders that look reassuring on the bookshelf and technically place schools closer to compliance with the new laws.
But our research on child development makes it clear that there is only one way to truly combat bullying. As an essential part of the school curriculum, we have to teach children how to be good to one another, how to cooperate, how to defend someone who is being picked on and how to stand up for what is right.
Involving the legal system makes a strong statement that a society won’t tolerate bullying. But for laws like the one in Massachusetts to succeed, they have to be matched by an educational system that teaches children not only what’s wrong, but how to do what’s right.
There have been a wide variety of responses by governments and legislatures over the past decades arising from the increased awareness of bullying and other forms of harassment and intimidation in schools. British Columbia has chosen to advance non-legislative initiatives to help prevent and address bullying as a common phenomenon. For example, in the late 1990s, the provincial government established the B.C. Safe Schools Initiative to deal with student safety in schools and communities. Similarly, parent groups, like the BC Confederation of Parent Advisory Councils, have released publications intended to assist parents, students, teachers and administrators. The Ministry of Education has posted a series of pamphlets on school safety on its website here. (The term “bullying” is generally reserved for elementary schools and “harassment and intimidation” is reserved for high schools.)
Although legislation in this province does not mention bullying by name, there are several general provisions that are relevant, though none impose the measures apparently being used south of the border. Many school boards have established their own internal policies for schools within their jurisdiction. As well, consider section 11(2) of the School Act (British Columbia) (BCLaws):
If a decision [or failure to make a decision] of an employee of a board significantly affects the education, health or safety of a student, the parent of the student or the student may, within a reasonable time from the date that the parent or student was informed of the decision, appeal that decision to the board.
Similarly, The Statement of Education Policy Order (Mandate for the School System), OIC 1280/89 (Ministry of Education), is an order-in-council that sets out in broad strokes the purpose of the BC school system and outlines general policies , rights and responsibilities to advance that purpose. For example, parents have “a primary responsibility to ensure that children are provided with the healthy and supportive environment necessary for learning”.
Much of the literature promoted by the Ministry of Education appears to be consistent with the approach advanced by the professors in the New York Times article: teach children the importance of standing up for each other, sharing with each other and promoting a sense of community. It remains to be seen whether the legislative approach they critique will produce the right results.
Wanting money back from a university? Be careful what you wish for
Jul 5th
Many readers have expressed outrage (or, at the very least, mild dismay) at the legal principle set out by the BC Court of Appeal in Barbour v. University of British Columbia (CanLII) and discussed in a recent post on this blog: namely, that the legislature can pass laws that have the effect of retroactively altering the rules applicable to a dispute. As one person put it:
Someone’s driving on the highway at 100 km/hr in a 100 km/hr area. A cop pulls him over and accuses him of speeding for breaking the speed limit. He is given a big, fat ticket, which he contests. By the time the driver and the cop get before a judge, the speed limit has been changed to 90 km/hr. The judge hears them argue about how fast the driver was going, only to shut them up and find against the driver because, well, even if he was going 100 km/hr he was still breaking the law.
In the case of Mr. Barbour, UBC had imposed fines for breaking parking rules that had exceeded the powers of the university under the provisions of the University Act (BC) applicable at the time. UBC tried to enforce those parking rules, Mr. Barbour refused to comply with them, and a BC Supreme Court judge agreed (CanLII) with him about the lack of authority. After that decision was released, the provincial legislature passed amendments to the University Act that specifically granted UBC retroactive authority to impose the parking rules. As a result, even though Mr. Barbour was ordered to pay fines because he broke rules the university (at that time) had no authority to make, he has to pay those fines regardless because of the change in the law.
After the legislature got involved, Mr. Barbour argued that these changes should not apply to his case because of the principle of judicial independence. Effectively, the legislature was using its law-making power to overrule the decision of the Supreme Court, while the courts are supposed to serve as a check on the legislature and not the other way around. The BC Court of Appeal disagreed with this view:
We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.
The court pointed to several other decisions showing the legislature is not prevented from passing legislation that applies retroactively to change the laws applicable to events at issue in a lawsuit:
- Air Canada v. British Columbia (CanLII): In 1980, several airlines sued the provincial government for reimbursement of amounts paid in the mid-1970s as gasoline taxes. The law allowing the collection of these amounts was struck down by the courts because it was beyond the province’s constitutional authority. The legislature subsequently amended the law to make it within provincial jurisdiction and extended its application back to the time the airlines paid the taxes, which legalized the retention of the funds. Mr. Justice LaForest of the Supreme Court of Canada cited numerous policy concerns specific to enforcing retroactive legislation in the face of an unconstitutional statute, many of which were unique to a taxing authority (e.g. if these amounts had to be returned, then the government might have to introduce a new tax to recoup its losses).
- Highland Valley Copper v. British Columbia (CanLII): In the mid-1990s, a mining company paid certain amounts in PST on electrical consumption and claimed a portion of it back as a refund. When the government denied the claim, the company obtained a declaration by the BC Supreme Court that it was entitled to the refund. Legislation was brought in as an immediate response to the court’s decision and to deny that right. Mr. Justice Hall of the BC Court of Appeal agreed with the province and rejected the refund, commenting as follows:
One can, I suppose, feel a measure of sympathy for the appellant and its advisers, who had achieved some success under existing legislation only to see this success reversed by subsequent legislation. However, if the legislative will is clearly manifested in legislation, the courts are bound to construe it according to its language and tenor.
In British Columbia v. Imperial Tobacco Canada Ltd. (CanLII), Mr. Justice Major of the Supreme Court of Canada dealt with this issue by setting out the appropriate relationship between the courts and the legislature:
It follows that the judiciary’s role is not, as the appellants seem to submit, to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators, whether that reform consists of a new cause of action or procedural rules to govern it. Within the boundaries of the Constitution, legislatures can set the law as they see fit. “The wisdom and value of legislative decisions are subject only to review by the electorate”: Wells v. Newfoundland, 1999 CanLII 657 (S.C.C.), [1999] 3 S.C.R. 199, at para. 59.
The moral of the story? First, this principle of law, right or wrong, points to the supremacy of the legislature and the limits of the judiciary. Courts exist to interpret and uphold laws and to make sure those laws are consistent with each other, specifically with the constitution. The legislature is elected to make the laws (or revise them, as the case may be). Second, this should be considered whenever anyone decides to go up against a public body like a university, particularly when there is a refund at stake. The exercise may be futile and counter-productive. If you claim the public body had no authority to do something, and there is the political will to allow them to do it, then all you might get at the end of the day is an explicit change to the law, stating that the public body does in fact have that authority.
