March 1, 2011

Governance: The B.C. College of Teachers, the Avison Report, the BCTF defamation suit against council member, Richard Walker, and the election of Christy Clark

Administrative Law
Professional Regulation

Self-governing professions can often replicate the ideological disputes found in society at large, including disputes about democratic process, the particular interests of those who govern, and the meaning of the “public interest.” Such disputes can be seen threaded throughout the governance of the B.C. College of Teachers, as recently illustrated in the recent Avison Report, an associated lawsuit by the BCTF against College council member Richard Walker, and the anticipated actions of the premier-designate, Christy Clark.

Underlying the governance issues highlighted in the Avison Report are the terms of the Teaching Profession Act, which establish the object of the College of Teachers as being to establish professional standards “having regard to the public interest.” The Act also provides for the College’s mandate to be carried out by its council, a majority of which (12 of 20) must consist of members elected by the profession (s. 5(2)). This governance mandate and structure can be found in other professions, such as the Health Professions Act, where the duty of every college is to “serve and protect the public,” and to act “in the public interest” (s. 16(1)), as directed by a board consisting of a majority of elected registrants and a minority of persons appointed by the government (s. 17).

In many professions, the “public interest” mandate of a regulatory body (for example, the Law Society of British Columbia) may be contrasted with the mandate of a co-existing professional association (such as the Canadian Bar Association) which acts to promote, among other interests, the interests of the profession. As in other professions, the regulating body of the teaching profession, the College of Teachers, co-exists with the British Columbia Teachers Federation. The complexity of the relationship between these two entities was, however, brought into sharp relief by the Avison Report, where its author, Don Avison, addressed what he called “an overt campaign by the BCTF to occupy the elected Council positions,” and concluded that “action will be necessary to substantially re-structure the entity, to replace it entirely or to bring the regulatory function back within the jurisdiction of the provincial government.” (Links to the Avison Report and to the BCTF’s response are available below.)

As noted in the Avison Report, governance problems revolve around the extent to which the BCTF has involved itself in governance of the College. This controversy spilled into the courts when, in July 2010, the BCTF commenced a lawsuit against then-Council Chair, Richard Walker, alleging Mr. Walker published statements concerning BCTF’s involvement in College governance in a Vancouver Sun article that was defamatory to the BCTF, taking issue with statements stating or implying the BCTF was unduly influencing the College. Mr. Walker provided a 27-page response detailing assertions of fact in support of his statements. The factual assertions in the pleadings remain to be tried, but they provide fascinating accounts by the parties concerning the governance of one of the largest self-governing professions in the province. (A link to the file at Court Services Online is below as we are not able to link directly to the pleadings in a defamation action.)

The governance issues arising from the Avison Report, and at issue in the Supreme Court action, are many, varied and complex, including but not limited to the scope of the “public interest” served by regulatory bodies, what interests conflict with or are complementary to the “public interest,” the legitimacy of any particular interpretation by a majority of a governing board or council, and the relationship between the purposes or objects of regulatory bodies and exercises of power by democratically-elected office-holders.

The most recent twist to these events is Saturday’s election of Christy Clark to the Liberal Party leadership, thus making her B.C.’s premier-designate. The issues set out in the Avison Report, and by Mr. Walker in his Vancouver Sun article, seem likely to attract government action similar to Ms. Clark’s past legislative action, as Minister of Education, changing the composition of the College’s council to result in more publically-appointed members than elected teachers. Those legislative changes were subsequently reversed after a protest by the BCTF and teachers, including teachers refusing to pay their College membership fees. Ms. Clark was transferred from her position as Minister of Education to Minster of Children and Family Development, and nine months later in September 2004 she resigned from politics. It will be interesting to see what the Liberals will do or not do in response to the Avison Report.

The Avison Report and Related Documents

For a link to the Avison Report, click here.

For a link to the terms of reference, and appendices, click here.

For a link to the letters requesting an investigation, click here.

For a link to the submissions of the BCTF, click here.

For the BCTF’s response to the report, click here.

British Columbia Teachers’ Federation v. Walker, B.C.S.C. Action Number S104978, Vancouver Registry

The link the Court Services Online file on this matter is currently here (at a cost $6 to access the file, and another $6 to download documents, but payment provides access to PDF scans of both the Notice of Civil Claim and the Response to Civil Claim).