760 THE ADVOCATE
VOL. 76 PART 5 SEPTEMBER 2018
On her two subsequent appearances, Diane represented the respective
appellants and received favourable rulings from the bench.
In 2014 Diane appeared for the appellant in British Columbia Teachers’
Federation v. British Columbia Public School Employers’ Association. This case
addressed the discriminatory denial of parental benefits to birth mothers.
The arbitrator had ruled in the union’s favour, but the B.C. Court of Appeal
overturned that ruling. The Supreme Court of Canada allowed the appeal
from the bench and reinstated the arbitrator’s award. This was the first sex
discrimination case decided by the Supreme Court of Canada under s. 15 of
the Charter in favour of a woman claimant.
In 2016 Diane appeared for the appellant in British Columbia Teachers’
Federation v. British Columbia. This case had a long history and raised important
freedom of association issues for her client and for Canadian workers
generally. The factual background was the provincial government’s use of
legislation in 2002 to remove provisions from teachers’ collective agreements
and place a prohibition on bargaining a variety of matters, mostly
related to class size and composition. When this legislation was ruled
unconstitutional, the provincial government interpreted the ruling to say
that its error was procedural because it had not consulted with teachers
before passing the 2002 legislation. The government then engaged teachers
in consultations and subsequently passed legislation nearly identical to the
2002 unconstitutional legislation. Consequently, the legal proceeding
addressed the novel issue of whether pre-legislative consultations can be
relied on by governments to partially justify what would otherwise be an
infringement of fundamental collective bargaining rights.
Given the long history, complexity and importance of the case, several
interveners participated in the Supreme Court of Canada. All involved
expected the court to reserve its judgment. As counsel for the appellant,
Diane had been working tirelessly with her co-counsel, John Rogers, Q.C.,
to prepare for the hearing. It was anticipated that Diane would get a wellearned
break after the hearing concluded. When the court ruled from the
bench, Diane had to start working immediately to implement the decision!
The phrase “no rest for the weary” certainly came to mind, but Diane continued
to work diligently to address the issues remaining after the ruling.
In addition to her academic and professional achievements, Diane was a
mentor to many women in the profession. She mentored women with
whom she worked and through the CBA Women Lawyers Forum.
Diane’s diligent preparation, careful and considered reflection and
thoughtful feedback will be missed by her former colleagues. We can only
take solace in knowing that the judiciary has gained a great jurist.