Teachers, Board Elections and the Charter: Case Summary of Baier v. Alberta

By Brian Hanulik

On July 28, 2006, the Supreme Court of Canada granted four teachers and the Teachers’ Association of Alberta leave to appeal the decision in Baier v. Alberta, [2006] A.J. No. 447 (C.A.). In May of this year, the Alberta Court of Appeal rejected the Association’s allegation that amendments to the Local Authorities Election Act (LAEA) violated the Canadian Charter of Rights and Freedoms (the “Charter”).

In 2004, the Alberta government amended the LAEA. Prior to this date, Alberta teachers were allowed to hold the position of school board or district trustee, provided they did not teach in a school in the district concerned or the area that elected the board. As a result of the 2004 amendments, teachers were precluded from running for any board or district trusteeship while they were employed as a school teacher unless they took a leave of absence. The amended Act also deemed any teacher who was elected to the position of school board or district trustee to have resigned their teaching position at the moment they took the oath of office as an elected official of the school board or district.

Mr. Baier, three other teachers, and the Association claimed that running for office was an expressive activity that fell within s. 2(b) of the Charter, which guarantees freedom of expression. The teachers and the Association argued that forcing teachers to quit their jobs as a condition of being elected to the much lower paid post of school board trustee was tantamount to preventing them from carrying out this activity. The legislative amendments, they argued, effectively amounted to a total ban on the teachers’ expressive rights. In the lower court decision, a judge of the Alberta Court of Queen’s Bench upheld the teachers’ claim and found that the effect of the amendments resulted in a violation of s. 2(b). Specifically, the judge stated that:

“...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.”

However, the Court of Appeal reversed the lower court’s decision and ruled that “seeking election to a school board is not a constitutionally protected fundamental freedom” under s. 2(b) of the Charter. The Court of Appeal found that while seeking election was a form of 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. Excluding teachers from seeking election to a school board did not “interfere with a fundamental freedom or with the exercise of a constitutional right.” The Court of Appeal found that the Alberta government could choose to extend this platform of expression to teachers or remove them from the benefit of the platform that had previously been extended to them without infringing s. 2(b) of the Charter.

The Court of Appeal also rejected the teachers’ claim that their occupational status as teachers was analogous to that of groups protected by the prohibition of discrimination in s. 15(1) of the Charter. Specifically, it was held that:

“...teachers are highly trained, skilled professionals who enjoy societal recognition and respect. Their training and skills should facilitate employment mobility. Teaching is therefore not an immutable characteristic changeable only at unacceptable cost to personal identity.”

This case, and the future Supreme Court of Canada decision, will be important not only in respect of deciding whether a teacher’s seeking election to a school board or district is an expressive activity protected under the Charter, but also in respect of issues regarding “occupational status” under the s.15 equality provisions. Although this case originates in Alberta, these constitutional issues could have significant implications for all teachers in Canada.