aside: Butt-first Buffoonery

At last. Final arguments finally clarified something for me – where did the Government of Manitoba get such bad legal advice from? What lawyer approved this “let’s do something indirectly that you cannot do indirectly” strategy? Who took a law that was intentionally being passed but not proclaimed, so that they could argue that it couldn’t be challenged because it had no legal effect, and then went and made it so that it couldn’t do anything except have an actual effect? Who would use such a (questionable) strategy and then immediately and so effectively ruin it?

The answer is – no one. This legal inanity might be where the Public Services Compensation Committee ended up, but it’s not where they started.

So how did they get to this unbecoming buffoonery?

They backed into it.

SCOFFING AT SCOUNDRELS

I came to the trial of the Public Services Sustainability Act with only a little background information, and no real plans to do much with it. I was interested in the interplay of power between unions and employers in the public sector, and thought it might give me a post or two and a few pages in a chapter for my book and blog – Democracy by Design (both currently in development).

It didn’t take long before I started scoffing at my government, muttering and grumbling in repellent surprise.

THE ELEPHANT IN THE ROOM

It took about two minutes, actually. The passed-but-not-proclaimed business reared its ugly head in one of the first few sentences of Labour’s opening statement:

“The Public Services Sustainability Act has not been proclaimed yet,” Shannon Carson said.

What are you talking about? I was thinking, shaking my head and frowning in incredulous perplexion. Whaddya mean, the PSSA hasn’t been proclaimed?

While it is true that some laws aren’t proclaimed right away, there is nothing about the PSSA that suggests that it should wait until some misty contingent day. Besides, my lawyer’s instincts said that when you have a law that is about to be challenged with 13 days of evidence, then that law is certainly something that should have already been proclaimed. Why? Because that kind of confusion is usually cleared up and clarified before you bother a judge with trying to rule on it.

THE NAME OF THE GAME

Since this confusion was obviously still operating, I started my legal wondering. So, why hasn’t the PSSA been proclaimed? The only reasons I can think of are bad ones. Are they playing games? Are they deliberately not proclaiming the PSSA so that they can then tell the judge that it can’t be challenged yet? Are they insane?

Well, I don’t know about insane, but it is certainly sleazy. I wouldn’t recommend participating in such games. Whether they work or not, it makes you a squib.

In fact, I found this idea so inappropriate (and silly), that I wasn’t ready to believe at first that this is what the Government of Manitoba was actually doing. I figured that they might have some other explanations for not proclaiming the PSSA, based on some other extraneous factors. In fact, I was sure they must have them, because this was, on its face, so clearly a scam. (Of course, not only did we eventually find out that this was exactly what the Government of Manitoba was doing, they were also bragging about it to the Winnipeg Free Press – see Bye-Bye-Dumbo. But I didn’t know that, then.)

Nonetheless, I was still unimpressed. There was an inner dialogue rumbling along in the background as I listened to Shannon, in which I kept trying to think of legitimate reasons for this passed-but-not-proclaimed business. I couldn’t think of anything. Nope. No good reason for not proclaiming the PSSA. Therefore, I guess, they must have the only obvious bad one – my government is playing stupid legal games.

By this point, Carson had explained how collective bargaining is protected by the Charter, and so if the PSSA substantially interfered with collective bargaining then it would be struck down as being unconstitutional. Ok, so is that the game:

Are you, a duly elected provincial government in Canada in the 21st century, really and truly, enacting a law that you know is unconstitutional, and therefore illegal, but intentionally not proclaiming it so that you can pretend that it isn’t officially a law, and therefore cannot be legally challenged? Where did you get that one from? The Guidebook for Governmental Goofuses? Statutory Scheming for Sociopaths?

(Actually, turns out, they got it from Nova Scotia.)

I couldn’t believe it. Brian and company playing not-proclaiming games so that they could violate the Charter without being held accountable for it. This cries out for public scrutiny. And it was then that I started thinking about how I might provide it.

CHUCKLING AT the CHUMPS

My scorn turned to amused ridicule, when, about a half an hour into Labour’s opening statement, Shannon Carson started reciting the details of the draconian retroactivity provisions.

Here’s a reminder about what they look like:

THE RETROACTIVITY PROVISIONS

SECTION 15

Act Prevails

15. If a collective agreement or arbitral decision, whether entered into or made before or after the coming into force of this Part, provides for

(a) a restructuring of rates of pay contrary to section 11;

(b) an increase in a rate of pay contrary to section 12; or

(c) an increase in additional remuneration or new additional remuneration contrary to section 13;

the provision of the agreement or arbitral decision is, to the extent of the inconsistency, of no effect and deemed never to have taken effect, and the parties are deemed to have agreed to the maximum increases in compensation permitted by this Part for employees represented by a bargaining agent.

SECTION 28

Debt due

28. Every amount paid — including amounts paid before the coming into force of this Act — to any person in excess of the amount that should have been paid as a result of this Act is a debt due to the employer, in the case of an excess rate of pay, or to the government, in any other case.

OMG. A debt owed to the employer or the government if you get anything over the PSSA? A whole whack of money that employees will have to pay back, money that they have probably already spent?

And yes, that’s exactly what my notes look like. Except not censored. It was probably the first time this appeared. It was definitely not the last.

These provisions are so gross. And mean. And heavy-handed. What a**holes.

You guys are really going at this game hard, aren’t you? Because these retroactivity provisions will, without question, force everyone to follow the PSSA whether it is proclaimed or not.

Oh, wait. I guess that’s the point.

But that’s the point that also started me laughing, because by making sure that everyone will have to abide by the PSSA whether it is proclaimed or not, you are, in effect, already making the law have actual effect. And once the law has an actual effect, is already essentially operating, already has an actual impact on current reality, it is as if it already has legal force and effect, whether it is technically proclaimed or not.

Bye-bye specious excuses for not being proclaimed. The PSSA is for all intents and purposes “in effect” anyway, and as such, wide-open to all legal challenges. No one has to wait.

Way to go, Government of Manitoba. By adding the retroactivity provisions, you ruined your own foolish “don’t proclaim it” game.

PONDERING THE PROBLEM

The Government of Manitoba’s problem is that, if your law has retroactive application, then it’s basically as good as if it is operating today. Let’s examine why.

Think of legal effect as a line, on a time line. Like this:

Technically speaking, the law has no legal effect until it is proclaimed. But, if the law has retroactivity provisions, then once it gets proclaimed, the law’s legal effect goes back, fills in the blank, and retroactively applies to all points in time since it was passed. Like this:

Therefore, when the law applies retroactively, even if you are in the interim period of confusion (after the thing has been passed but not yet proclaimed), you still have to follow the law anyway. It may not presently cover this particular instant in time, but, the second the law is proclaimed, it will.

As a result, as soon as you add in retroactivity in these circumstances, boom, for all intents and purposes, the law is already operating, already has legal force and effect, and is already practically equivalent to already being proclaimed.

In this case, the Government of Manitoba may not be PSSA-ing directly, but adding retroactivity in is, without question, an indirect way of getting the PSSA to apply as soon as it is passed.

It may take lawyer to see that immediately. And I did. Hence my reaction of – didn’t anyone ever tell these people that you cannot do indirectly what you cannot do directly (as discussed in Bye-Bye-Dumbo).

I was still really surprised that they had falled into this trap. I was sure that lawyers had to have been involved at some point, in both Nova Scotia and Manitoba.

So how did it happen? Who messed it up? Was it actually a lawyer, or was it someone in government who thought that they understood the law, or didn’t realize that they didn’t?

BACKING INTO BUFFOONERY

The answers to these questions came during Labour’s final arguments, as Garth Smorang canvassed the evidence on the development of the Public Services Sustainability Act. The Government of Manitoba didn’t start with passed-but-not-proclaimed PLUS retroactivity. They backed into it.

Nova Scotia’s game

Nova Scotia started the whole Public Services Sustainability Act stupidity. According to the evidence, some senior bureaucrat in Nova Scotia told Rick Stevenson that the Government of Nova Scotia believed “that not proclaiming the legislation has worked well in setting the framework of what it believes is its ‘ability to pay’.

What this guy was saying is that Nova Scotia passed the Nova Scotian PSSA so that they could get wage restraints, but didn’t proclaim it, so that no union could challenge it.  

I still think this is really sleazy, although it might be defensible, depending on how they went about it. As long as the Government of Nova Scotia didn’t do anything except point to their PSSA wage pattern as a “general guideline” or “starting point” as opposed to a “legally binding mandate”, they wouldn’t necessarily be already applying their PSSA, or doing indirectly what they cannot do directly.

It’s risky, however, because in the doing, if any employer treated the Nova Scotia PSSA as binding even though it wasn’t proclaimed yet, Nova Scotia would rapidly approach the practical reality that their PSSA was being actually applied whether it was proclaimed or not.

Everything would depend on the how each employer tip-toed around the danger. And counting on everyone stepping on the right stones to avoid falling into the frothy river of legal folly is not something I would recommend.

Besides, contrary to whoever it was that said to Rick Stevenson that “it worked well for us”, it turns out that the passed-but-not-proclaimed strategy didn’t actually work that well in Nova Scotia. In fact, from what I can tell, it doesn’t seem to have worked at all.

I don’t have all the details, but it seems that the unions objected to the PSSA pattern being used as a club, or a threat – if you follow the PSSA pattern, great, if you don’t, then we’ll go ahead and proclaim it. Right. Sounds to me like the Government of Nova Scotia is still holding a gun to the unions’ heads. Robust collective bargaining? I think not. And apparently, as a result of all the confusion, conflict, and controversy, all collective bargaining in Nova Scotia’s public sector ground to halt, even though its PSSA was also only passed but not proclaimed.

The Government of Nova Scotia eventually had to proclaim their PSSA, but only because one of the unions triggered binding arbitration. Once that happens, there is a risk that there will be a conflict between the wage limits in the un-proclaimed PSSA and the wages the arbitrator may award.

This is probably why the Government of Manitoba tried so desperately to avoid appointing an arbitration board for the GEMA. (See The Mandamus Application and the Decision on the Mandamus Application.) The Government of Manitoba would have been just as worried that having an arbitration go ahead would force them to proclaim the Manitoban PSSA, and take away Heather’s Elephant-in-the Room defence, the one she opened with at trial.

Brian goes one better

In the Government of Manitoba’s version of passed-but-not-proclaimed poker, they said – Ok, Nova Scotia, I see your unproclaimed mandate and raise you to certainty. That’s how the Government of Manitoba backed into this buffoonery. They wanted certainty. And the way they choose to get it was to add in retroactivity provisions, sections which aren’t in the Nova Scotian version.

I can’t tell when exactly Gerry Irving and Rick Stevenson added the retroactivity provisions to Manitoba’s Public Services Sustainability Act. (It’s probably somewhere in the secret privileged documents that the public cannot see.) I do know, however, that by the time the PSSA reached its final form on March 8, 2017, Irving and Stevenson were working to implement the Public Services Compensation Committee’s ultimate goal – to obtain certainty.

Here’s how the Detailed Legislative Proposal for Ministerial Signature, prepared for the March 8, 2017 meeting, reads:

Growth in government expenditures continues to outpace growth and revenues and cannot be sustained. A significant portion of government expenditures relate to public sector compensation, therefore any plan to return to fiscal balance requires certainty and sustainability in negotiated increases in the public sector.

The surest means of establishing certainty in relation to increases in compensation in the public sector is to set out expectations and legislation.

And when Rick Stevenson was cross-examined (on the injunction hearing), he agreed that the paragraph, put another way, fairly says:

If we leave it to collective bargaining, we may not get the certainty that we get if we impose it by legislation.

There’s the motivation for the leap from passed-but-not-proclaimed to → passed-but-not-proclaimed-PLUS-retroactivity.

HOW IT HAPPENED

So, how did it happen? This is what I think.

The Government of Manitoba thinks that Nova Scotia’s passed-but-not-proclaimed strategy is a genius one – Yes, yes, let’s get what we want without having to proclaim it and be challenged, too. But Manitoba also looks over at Nova Scotia’s experience and notes that its soft, persuasive “mandate won’t necessarily result in the certainty they crave.

So, someone comes up with the great idea to make the PSSA wage patterns apply retroactively once the Act is finally proclaimed, and for greater certainty, make any overages a debt payable by the employee to the employer.

Well, it is certainly more certain that everyone will follow the PSSA, even while the Government of Manitoba is playing the passed-but-not-proclaimed game. But it also effectively guarantees that Manitoba’s Public Service Sustainability Act will have an actual effect in the meantime.

It’s the retroactivity that causes the inevitable problem. Nova Scotia never had those provisions, so they could at least try to play the “we’re not applying it yet” game. But, once the Government of Manitoba added these retroactivity sections to their version, they effectively made their PSSA legally operative anyway.

Thus, the Government of Manitoba was now unquestionably trying to do something indirectly (have wage restraints fixed by law) that they were afraid they could not do directly (because this kind of law is unconstitutional under Section 2(d) of the Charter – Freedom of Association).

And so came the merriment on my part about the Government of Manitoba violating equitable maxims that have been in existence for over 500 years (see Bye-Bye Dumbo).

conclusion

Well, that’s all mightily embarrassing. And I don’t doubt that the explanation I gave in Bye-Bye-Dumbo of why this was so foolish and obvious, caught most of those on the government side by surprise. I bet they didn’t realize that this was what they were doing. They backed into it, after all.

I would almost feel sorry for them, except for one thing. This all happened because they were up to some no-good legal scheming in the first place:

The Government was trying to have their cake  – unconstitutional wage restraints,  while eating it too – not proclaiming the PSSA to as a way to avoid challenges to it on the basis that it is unconstitutional.

You always try skipping the subterfuge, and focus instead on doing constitutional things, you know, like making legal laws, laws that don’t need insulation from legal challenges because they are designed to meet all known constitutional requirements, and/or are not deliberately enacted with the knowledge that the Supreme Court of Canada has said that you can’t do it.

So, I ask you once again, Mr. Premier,

When are you and your flying monkeys going to stop with the stupid games?

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.