Question: When will the Alberta Teachers’ Association launch a legal challenge against the provincial government’s hijacking of teachers’ pension assets?
Answer: One of the first steps the Association took when Bill 22, the omnibus legislation enabling the transfer of control of Alberta Teacher Retirement Fund (ATRF) assets to the Alberta Investment Management Corporation (AIMCo), was tabled in the legislature was to have our legal firm, Field LLP, identify any possible avenues for legal response.
Unfortunately we have not identified any credible legal challenge that would enable us to potentially overturn or block the amendments to the Teachers’ Pension Plan Act provided for in Bill 22.
“The Association will take steps to hold government to these promises.”
It is natural to assume that when a government undertakes some action that seems to be inherently unfair and procedurally objectionable, there must be some way to raise a challenge in court. In reality, under our system of democratic, parliamentary government, the judicial branch generally defers to the legislative branch, allowing Parliament and provincial legislatures to pass laws concerning matters within their jurisdiction as they see fit. The exception is when a law violates the Constitution of Canada, which sets out the powers of the various levels of government and the rights of citizens.
After close examination, our lawyers have concluded that the provisions in Bill 22 concerning the ATRF, while offensive in many ways, are constitutional. There is no cause for action on that basis.
Some savvy observers may speculate about the possibility of challenging the government’s subjugation of ATRF assets to AIMCo control because of its failure to consult with the party most affected, Alberta’s teachers. Given that the sum total of consultation undertaken by the government with the Alberta Teachers’ Association, co-sponsor of the $16.6 billion teacher pension plan, was a 10-minute telephone call with me just before the bill was tabled, these savvy observers have a point. Unfortunately, it’s not a valid legal point.
While there exists in common law an expectation that government must act fairly, which includes some expectation of consultation, the Supreme Court of Canada has established that legislative decision making is not subject to this duty of fairness. The court has ruled that to impose such a duty would place a fetter on an essential feature of democracy. As noted above, legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. Ultimately, the wisdom and value of legislative decisions are subject to review only by the electorate. Further, while the expectation that government will behave fairly is an unwritten constitutional principle, it cannot be used as a basis for invalidating legislation based on the content of that legislation.
This does not mean that the Association is throwing in the towel. Our focus must now pivot to ensuring that the arrangements that are established between ATRF and AIMCo emerging from Bill 22 are fair, reflect the ownership and moral rights of teachers as contributors and beneficiaries, and contribute to the long-term sustainability of the plan.
In the course of the debate on Bill 22 and in response to the overwhelming response from teachers, active and retired, Finance Minister Travis Toews and government MLAs have made all manner of assurances and promises. The Association will take steps to hold government to these promises. To achieve this, we will engage in representation, advocacy and member mobilization. And, to quote our lawyer Jim Casey, “if necessary, we still know our way to the courthouse.” ❚
Questions for consideration in this column are welcome. Please address them to Dennis Theobald at Barnett House (firstname.lastname@example.org).