Bill 9: We’re gaming again …

Given the number of games that seem to been going on in this case, I suppose the trial of Manitoba’s Public Services Sustainability Act wouldn’t be complete without the Government of Manitoba trying another one. I wish they wouldn’t, because, you know, it’s dumb. But they don’t take advice from me. Don’t worry. I don’t take it personally. smile

THE LATEST GAME – bILL 9

So, it’s Tuesday morning, February 18, 2020 and the players in the Public Services Sustainability Act have reassembled for the final act – the lawyers, their clients, and me.

Before the full final argument fun begins, Garth Smorang has a preliminary objection. The Government of Manitoba has apparently put new facts and information into their argument.

What? New facts not in evidence included in final arguments? What are you talking about? No one does that. Or, rather, if they do, no one reasonably expects to get away with it.

I haven’t seen their written submissions yet, so it takes me by surprise. Not just because I didn’t know they were doing this, but also because I am, yet again, surprised that they would even try.

YOU CAN’T RULE ON THE PSSA YET, WE’RE GOING TO AMEND IT

You might remember that one of the government’s constant and key positions was that it was premature to rule on the Public Services Sustainability Act because it hadn’t been proclaimed.

Now, suddenly, Manitoba is asserting that the judge, Labour, and everyone else should wait because of Bill 9 – a draft bill that might make amendments to the PSSA.

“We aren’t finished with the Act yet,” says the Government of Manitoba. “You cannot rule on the PSSA now because it is not in its final form.”

Bill 9 is going to make it all better, I guess.

Heather Leonoff kindly provided me with a copy of the government’s written argument, so here are the portions where they tried to fit this new information in:

  1. The PSSA is “… already the subject of an amending Bill [Bill 9]: {para. 5}“The proposed amendments will make a number of substantive changes: {para. 19}
  2. There may be many reasons for not proclaiming a statute. Certainly one reason would be the recognition that the statute is not meeting government’s policy goals. By putting forth amendments to the PSSA, the government has signalled its desire for legislation that better meets its policy objectives: {para. 230}
  3. “Given that the PSSA is both unproclaimed and the subject of current amendments, any ruling regarding constitutionality would be theorectical.”: {para. 232}
  4. “Finally, the PSSA has not been proclaimed and is currently in the process of being amended. In the circumstances the case is not ripe for decision and it is submitted that the Court should decline to issue a declaration respecting the constitutionality of the Act.”: {para. 244}

I have highlighted the parts that are all entirely new evidence-based arguments, based on no evidence called at trial to support them. Yeah, no. (You can read their whole argument here, if you like.)

What the? This is all new …

So, after making no mention of Bill 9 (The Public Services Sustainability Amendment Act) at trial, now suddenly, two months later, the government’s lawyers are telling the judge all about it, and claiming that it matters.

The government wants Justice McKelvey to buy that the amendments proposed by Bill 9 make significant changes to the PSSA, and even more, that we should all assume from the mere fact that Bill 9 is there, waiting in its un-final, unknown, possibility-only state, that the Government of Manitoba is changing its mind about the PSSA, and wants to make it better. Thus, we should all wait until they do.

OMG. I wanna hear what The Smasher has to say about this.

Smorang:

This is a new, and distinct ground relating to the government’s claim that it would be premature for the court to rule now on the constitutionality of the PSSA. 

(Yeah. What’s that about?)

The government is adding new factual context and argument beyond that which was heard at trial.

(Yes they are. And every lawyer in this room knows that you can’t do that.)  

Whether Bill 9 makes “substantive changes” to the PSSA is a question of fact. What changes? How substantial are they (if they are in fact substantial at all)? We cannot at this point make those inquiries through testimony, nor rebut these assertions with expert evidence.

(Yep. That’s how it works. Or is supposed to work, and why you cannot do this.)

As for the Bill 9 amendments signalling a desire for legislation that better meets its policy objectives …

(I don’t know what Garth said here. I was too busy ranting to myself. You think any judge is just going to accept some random interpretation of this behaviour, unsupported by any evidence, and egregiously favourable to you? Dream on, doofuses.)

It’s not an argument. It’s just a game.

To raise Bill 9 at this late date for any reason is what we in the legal business call dirty pool.

1. None of this is new

So, this is the rule about new evidence. When you get to final arguments, you can only refer to and argue stuff that actually happened during the trial. It’s a question of fairness (yep, that word again).

Any evidence you want the judge to consider has to be put through a witness during the trial, to give your opponent the opportunity not only to cross-examine on it, but also to bring their own evidence to contradict it. Attempting to slide in some new facts months after everyone involved in the trial packed up and went home, is, well, cheating.

In this case, Bill 9 received its first reading on November 19, 2019 (the second day of trial), and then its second reading on December 3, 2019 (the 11th day of trial, and while the government’s witnesses were still testifying). So, it is not at all “new” in the sense that it is something that arose in the period after the trial concluded and arguments began.

If the government wanted to have the existence and intention of Bill 9 included in Justice McKelvey’s consideration of constitutionality of the PSSA, then they should have, and could have called a witness to testify about it at some point between November 19th and December 5th, when we were all there and available to address it.

2. You can’t refer to facts not in evidence

Whether Bill 9 makes “substantive changes” to the PSSA or not is a question of fact. The government cannot make a claim like that without giving everyone, especially Labour, to take a look at it, and get testimony about whether those changes are actually “substantive” much less whether it makes the PSSA any less interfering.

They didn’t. They could have, but didn’t. They missed their proper opportunity and so they cannot just state it as some truth it now.

3. Signalling? You’re kidding, right?

The most bogus-y b.s. is this bit about Bill 9 “signalling [the government’s] desire for legislation that better meets its policy objectives.”

There may indeed be many reasons for why an act isn’t proclaimed right away. But, the government side, in their infinite wisdom, has led exactly ZERO SECONDS of testimony on why they haven’t proclaimed the Public Services Sustainability Act yet. (My guess is that’s because the only reason they have isn’t a very good one – tactical scheming to get the PSSA to be actually effective without having legal effect.)

It’s too late to start claiming that you have a reason now – oh, actually, we didn’t proclaim it because it isn’t meeting our policy needs. Really? So why don’t you just un-pass (repeal) the PSSA then? Could it be because then it would no longer be a law, and then everyone could just ignore it?

If you are serious, and are actually going to make the PSSA better, then, by all means, go ahead and do it. Make Bill 9 law already.

If the government wanted to make the argument that they want amend the PSSA to make it better meet their policy needs, then fairness dictates that they would have to give The Smasher the chance to rev up the chainsaw and have at this new sad assertion on cross-examination. And yes, then he would also get to dig into ALL the possible reasons for not proclaiming the PSSA – asserted, suspected, dubious, and otherwise, and thus it would be bound to be another massacre.

Furthermore, “signalling”? You’re kidding right? There could also be any number of reasons why the government would be making amendments to the PSSA. And no reason why anyone would infer as a fact that the amendments are made to “signal” the government’s intention to get legislation that “better meets its policy objectives”. That’s a leap, not a logical conclusion, and a very unlikely one.

The better and more likely reason is that the government introduced amendments in Bill 9 simply as a specious excuse for trying to get Justice McKelvey to delay her decision in this trial.

The Pallister Government simply cannot resist playing games.

THIS ISN’T THE FIRST TIME

OMG. Now Smorang is telling us that this is not the first time that the Government of Manitoba has played this game. 

Apparently, back on October 7, 2019, the government introduced Bill 2, also called The Public Services Sustainability Amendment Act. That same afternoon, the government’s lawyers wrote to the case management judge asking for this trial to be adjourned because the pending amendments meant that the PSSA was not yet in its final form.

According to the court records, a motion to delay this whole trial was supposed to be heard on October 31, 2019 (two weeks before the trial was scheduled to begin).

According to Garth, however, the government abandoned the motion on October 25, 2019. and, as a result, the trial went on as scheduled – November 18-December 5, 2019.

At least they gave up. Good thing too because they were never going to win.

A Lost Cause

The trial dates were set on August 31, 2018, so a year and a month before Bill 2 was introduced. That’s lots and lots of time to be making changes to the PSSA, and, if the Government of Manitoba wanted to improve the PSSA, all of those improvements should have been done before discovery started in June-July of 2019. (Note: “Discovery” is a long tedious process where each side gets to ask the other side what their evidence is going to be. The purpose is to allow you to “discover” what your opponent has so that you will not be surprised at trial.)

Since the government didn’t make any changes whatsoever, and only introduced Bill 2 a mere six weeks before the trial was supposed to begin, one can assume that genuinely improving the PSSA in good faith wasn’t really what the government was up to.

They were gaming again. Let’s come up with a fallacious excuse to put off this trial, because, well, I’ll you fill in your own blanks about why they would want to. (Mine say – because they are, quite rightly, afraid they are going to lose the trial, big time.)

I imagine that Mr. Justice Edmonds, the case management judge, might have had some strong butt-burning words about this gambit (wish I would have been there). But in any event, they gave in and went on.

SO LET’S TRY IT AGAIN!

Ok, so I’m trying to follow the logic that says – crash and burn once, with pre-trial shenanigans, well, then, now that the trial is over, let’s try it again. 

Funny thing about Bill 9 and Bill 2:

Exactly the same amendments.

Exactly the same arguments.

Take a look. Bill 2 (1st Session of the 42nd Legislative Session) is identical to Bill 9 (2nd Session of the 42nd Legislative Session).

Again with the games. Again with the specious excuses.

Smorang ends with:

“It is too late for the government to argue this now.”

I think he’s right.

CONNER RESPONDS

Because of where I was sitting (Courtroom #230 is almost as acoustically challenged as Courtroom #210 was), I heard almost nothing of what Michael Conner said in reply.

Fron what I could tell, however, he seemed to be encouraging Justice McKelvey to take judicial notice of Bill 9. (Judicial notice is a way for judges to say Ok, this wasn’t in evidence, but I know it exists, so I am going to take note of it.)

According to the law, it is not really clear whether a judge should take notice of a draft bill, since it is so un-final. Besides, judicial noticing of the existence of Bill 9 is a far cry from making any factual conclusions about its contents, the nature of the changes it makes, or what intention of the government it might signal.

SMORANG’S LAST WORDS

As the bringer of the motion to erase all mention of Bill 9 from final arguments and the trial, Smorang gets to reply to Conner’s arguments. He points out that Bill 9 has nothing to do with the legislative history of the Public Services Sustainability Act, which has been passed and received royal assent long before Bill 9 (or Bill 2) ever came around.

And, he mentions that one of the cases Conner brought up specifically found that the new stuff was not available and could not be available before the hearing, which goes to letting it come in, as opposed to here, which goes to keeping it all out.

This wasn’t new evidence that came up in the meantime between trial and argument. The government could have covered all of these arguments during the trial. There was still time. Lot’s of time in fact.

The parties had scheduled an extra day, in case anything came up. Nothing did, so they didn’t use it. But they could have. Bill 9 was ready and waiting to be testified on.

Thus, Garth ends by asking for Bill 9 not to be considered for any purpose not properly before the court, i.e. not at all.

DECISION

 Justice McKelvey reserved, and ruled the next day.

The court will take judicial notice of the existence of Bill 9 but it will not be considered in any way to do with determining whether the Public Services Sustainability Act is unconstitutional or not.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Game played and lost. Par for the course. Another desperate appeal to random deities in lost causes.

When you are finished with all those pages, I have a little aside - BUTT-FIRST BUFFOONERY - before we move into the real fun in THE GOVERNMENT'S FINAL ARGUMENT - the final advance of Brian's angry elephants ... smile

The Trial Begins

Setting the scene in Courtroom #210 as the trial of MFL v. Manitoba begins. We get some background and meet the players.

Opening Statements

The proceedings begin with opening statements. Here, the lawyers for each side give us an outline of the course they are going to take (and why it is going to take 13 days to get there).

The Testimony of Kevin Rebeck

The President of the Manitoba Federation of Labour testifies about consultations between the government and some Labour leaders prior to the PSSA being passed. They weren’t very fruitful, and there seems to have been some question as to whether the government was being truthful.

Passed but Not Proclaimed?

Why is the government waiting to proclaim the PSSA? I thought there was a financial emergency, and dire warnings of our precarious fiscal position. But it has been 2 1/2 years. Don’t they need it yet?

The Testimony of Elizabeth Carlyle

Elizabeth Carlyle gets cross-examined about what happened in a negotiation between CUPE and the Winnipeg School Division. It wasn’t a lot, and it doesn’t sound as though it was very good.

The Testimony of Dr. Mark Hudson

Remember when the faculty at the University of Manitoba when on strike in November of 2016? Dr. Mark Hudson is here to tell us why it happened. And he fills us in on what was happening between the University and the Province behind the scenes.

The Testimony of Tom Paci

Tom Paci appears on behalf of the Manitoba Teachers Society. His story? A quest for justice for Manitoba’s 15,000 teachers and an appeal to the gods of justice – how can we be bound by the PSSA when it is not law?

Indirect Taxing & Discriminatory Taxation

If a tax by any other name would be as taxing, could wage freezes be indirect taxation? And if members of public sector unions are paying more in taxes to support public services, would this qualify as discriminatory taxation?

The Testimony of Michelle Gawronsky

The leader of the Manitoba Government and General Employees Union recounts her experiences since the advent of the PSSA. Everything she says about her automatic approach to understanding concerns and finding ways to solve problems makes me think ” leader, leader, this is a great leader.”

The Super Six Speak

Six experienced union negotiators come to tell us about what has been happening in their collective bargaining worlds. We learn more about what the PSSA means for public sector unions and their collective agreements.

Labour’s Collective Bargaining Expert

Dr. Robert Hebdon testifies about the impact of the PSSA on collective bargaining in Manitoba’s public sector. It isn’t good.

The Testimony of Sheila Gordon

We end the union tales of collective bargaining under the PSSA in passed-but-not-proclaimed limbo with MGEU’s GEMA. Sheila Gordon, MGEU’s senior negotiator was there. And she is here to tell us how those negotiations did not go anywhere.

Labour’s Read-ins and One Last Reveal

You never know what read-ins from discovery might reveal.

The Testimony of Richard Groen

Richard Groen, an Assistant Deputy Minister from the Ministry of Finance, testifies about the Province’s budgets and such.

I was expecting him to demonstrate what all the financial fuss in 2017 was about, you know, why our financial ship was sinking so much that we needed all hands on deck. But …

A No-Compete Treat for the Labour Market?

I don’t understand why the government doesn’t think it should have to compete in its own labour market. It does everywhere else.

The Testimony of Garry Steski

Is it wrong to admit that before this I didn’t really know what a bond market was? Well, I do now, and we learn a little about how Manitoba’s bonds were affected by the fiscal challenges in 2016. Or not.

Bean Counters, Businessmen & Business of Government

If businessmen go into government to bring the principles of good business to government, then shouldn’t they act like good businessmen when they get there?

The Government’s Collective Bargaining Expert

It is best to talk about what happened here as little as possible. So we’ll talk a bit about the importance of turkey instead.

The Testimony of Aurel Tess

How a short day of seemingly tedious technical testimony on Manitoba’s Summary Financial Statements turned into a most unpleasant surprise.

Politicizing the Provincial Comptroller

Ok, Manitoba. Politicizing the Office of the Provincial Comptroller?

That takes the poop-cake.

The Government’s Economics Expert

The government’s economics expert, Dr. Livio Di Matteo, has a motto he lives by: Agimus Meliora – Let us do better.

It makes me wonder, Manitoba, can’t we do better than the PSSA?

Labour’s Economics Expert

Dr. Eugene “the Earnest” Beaulieu testifies that the PSSA is not only not necessary, it is a harsh measure that puts an unfair burden on public employees.

Bye Bye, Dumbo

Let’s take one last look at the Elephant in the Room, and then say goodbye.

The Mandamus Application

A day of argument about whether a statute that says “the Minister SHALL FORTHWITH” means that the Minister can decide not to do something and make up his own reasons for why he shouldn’t.

Decision on the Mandamus Application

Justice Keyser, the judge on the Mandamus Application, has spoken. Here’s a hint – MGEU wins.

Bill 9: We’re Gaming Again …

Before we begin all the good stuff, Garth Smorang has some objections to yet another litigation game the Government of Manitoba is playing.

Labour’s Final Argument

Labour’s last stand. Shannon-the-Hammer and Smorang-the-Smasher pull it all together and wrap it all up.

There is an awful lot of it, so Labour’s final arguments have been separated into four separate posts, which start here …

Butt-First Buffoonery

How did the Government of Manitoba get to such an embarrassing PSSA place? They backed into it.

The Government’s Final Argument

Forget the Elephant-in-the-Room.The Government of Manitoba has got many other ways to try to move the goalposts, as they try to change the game.

Kind of seems like they know they are losing.

Labour Replies

The Finale of the Finale. Labour replies.

(This means we are finally done. At least with the evidence and arguments.)

The Onion of Outrage

Why am I here? Why spend so much watching lawyers and judges and reading endless cases?

I was just mad.