Aside: Bye Bye, Dumbo

Time to revisit this passed-but-not-proclaimed business, and take one last long look at the Elephant in the Room.

in effect, an effect, no effect, what?

If you recall, Heather Leonoff’s Elephant in the Room was that the Public Services Sustainability Act “is having no legal effect on anybody.”

Heather is right. The Public Services Sustainability Act has not been proclaimed yet, and so it has yet to have any legal effect on anybody. That’s how it works. That is a fact.

But what anyone who thinks that this matters probably doesn’t understand, is that as a matter of law, nobody cares.

The “well, it’s not a law yet, and so it’s hypothetical” does indeed apply to draft bills before they are passed.

But that’s because while they are still just bills, they are still subject to any number of revisions, and so it can truly be said that no one knows what any bill will eventually do before it is passed, or whether it will even be passed.

But that is not the case with the PSSA. It is passed. Its terms are fixed, and thus its contents are no longer hypothetical. So, maybe we don’t know when the PSSA will be proclaimed and then have formal legal effect, but we certainly do know what will happen when it does.

During opening statements, Leonoff said the only question is “What does the law do?” And she is correct. But, in this kind of review, courts don’t blind themselves to any question other than what the law might do legally. The question is – what does the law do factually.

I am certain that there are any number of cases that would illustrate this, but we don’t have to look far, because the Supreme Court of Canada clarifies this in B.C. Health Services [2007] 2 S.C.R. 391. You know, the Supreme Court decision that started all this case. See here in Paragraph 92 of that judgement:

  1. To constitute substantial interference with freedom of association, the intent or effect must seriously undercut or undermine the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer that we call collective bargaining. Laws or actions that can be characterized as “union breaking” clearly meet this requirement.  But less dramatic interference with the collective process may also suffice.  In Dunmore, denying the union access to the labour laws of Ontario designed to support and give a voice to unions was enough.  Acts of bad faith, or unilateral nullification of negotiated terms, without any process of meaningful discussion and consultation may also significantly undermine the process of collective bargaining.  The inquiry in every case is contextual and fact-specific.  The question in every case is whether the process of voluntary, good faith collective bargaining between employees and the employer has been, or is likely to be, significantly and adversely impacted.

Now, as it happens, Labour already has an admission that the government intended to impact collective bargaining in the Province when they drafted the PSSA. But, they don’t need to rely on just that, when they have a mighty strong case to be made that collective bargaining in the Province has already been and will continue to be significantly and adversely impacted by the PSSA, whether it is proclaimed or not.

We will get to see all those details collected and presented in Labour’s final arguments. But for now, it doesn’t matter whether the PSSA has legal effect or not. All that matters is whether it has actual impact.

And that is the whole problem with this passed-but-not-proclaimed gambit. You cannot claim that the PSSA will not have any impact while it remains un-proclaimed limbo, when, by the drafters’ own hands and careful planning, it is specifically designed to do just that.

It is all about the retroactivity provisions, which are found in 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.

It’s the part in bold that causes the problem. Section 15 is like a giant eraser looming over collective bargaining. It may not be active now, but the instant the Public Services Sustainability Act is proclaimed, Section 15 will swoop down on any agreement that dared to defy the PSSA’s limitations and wipe it all out.

It gets worse. Take a look at 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.

Yep, you read it right. If anyone gets any money in the meantime, they have to pay it all back – to their employer or the government. 

What these sections do is make sure that everyone has to follow what is set out in the Public Services Sustainability Act even before it is proclaimed, because it will all have to be undone and paid back anyway. 

Is the PSSA in effect? Legally? No, it is not. But when the whole calculation behind passing the PSSA with retroactivity provisions is so that there will be an inevitable impact on collective bargaining during the passed-but-not-proclaimed interim, the government cannot legitimately complain that the PSSA isn’t already operative, isn’t already having an impact, and isn’t already having an actual effect on collective bargaining in the Province.

This is all also over and above the question of whether any judge in good conscience would decide a case of this magnitude on the basis of such bare technicalities and legal semantics.

you cannot do indirectly…

We were barely an half an hour into the trial when I first heard about the retroactivity provisions in the Public Services Sustainability Act. My immediate reaction was – Didn’t anyone ever tell these people that you can’t do indirectly what you can’t do directly? It’s one of those old sacred equity maxims that you learn, oh about the first week of law school.

The maxims of equity are like legal proverbs, wise sayings of well-established principles. Equity arose out of the Courts of Chancery, created by the Roman Catholic Church. As a result, equity maxims were orginally written in latin, although these days it is considered a little pretensious to use that form.

In any event, all lawyers know:

Quando aliquid prohibetur ex directo, prohibetur et per obliquum.

Literally: What is prohibited directly is also prohibited indirectly.

Commonly stated as: You cannot do indirectly what you cannot do directly.

blowing the dust off legal history books

I didn’t know where exactly this maxim came from. I just knew it was old. So I did some tip-toeing through the tulips of some dusty old legal books.

I found this old guy from around 1919, and then another old guy way from the early 1800’s. (They were all old guys back then.) But almost everyone cited the original source as Coke on Littleton.

Coke on Littleton? OMG now that is old.

The book’s actual title is:

The First Part of the Institutes of the Laws of England,

Or,

A Commentary upon Littleton,

Not the Name of the Author only, but of the Law itself.

But everyone calls it The Institutes or Coke on Littleton, for obvious reasons.

(There’s lots of good latin stuff on this title page, and throughout the book.)

Wanna know when this baby was published? 1628. Like almost 400 years ago.

Sir Edward Coke is one of the great legal legends, whose various writings, including The Institutes, as well as fundamental decisions he made as a judge, have influenced the common-law and constitutions of countries around the world, including Canada, the United States, and of course England.

To put Coke in context, he lived, judged, and wrote during the reign of Charles I, famously known for causing the English Civil War with his abuses of power, and then losing the war to Oliver Cromwell and the Roundheads. (Charles I would lose his head shortly thereafter, in 1649.)

Interestingly enough (or maybe not), Coke’s rulings on the limitations of power are supposed to have contributed to the conflict.

But although Coke mentions this maxim, Coke apparently wasn’t the one who came up with it. In The Institutes, Coke is of course writing on another work by an even earlier legal titan – the Treatise on Tenures by Sir Thomas de Lyttleton, or just plain Thomas Littleton (1401-1482). Littleton’s life overlapped with the War of the Roses between the House of Lancaster and House of York, which began in 1455. However, Littleton did not live long enough to see who won (Henry Tudor of Lancaster, who became Henry VII of England, otherwise known as Henry VIII’s dad).

It is not known when exactly the Treatise on Tenures was written, but estimates put it around 1465-66. It is most likely the first legal textbook ever written in English, and was also one of the first books ever printed. You know, after Gutenburg finished with the Bible after he invented the printing press in 1440.

What the sources say is that this is where Coke got:

Quando aliquid prohibetur ex directo, prohibetur et per obliquum

You cannot do indirectly what you cannot do directly.

Littleton’s treatise was on property law, and everything seems to suggest that he gave this example:

A tenant was prohibited from assigning his interest in his lease with his landlord to any of the tenant’s creditors. So, the tenant tried to get around it by assigning his interest to someone else, who would then assign it or otherwise transfer the interest to the creditor to pay off the tenant’s debt.

Quando aliquid prohibetur ex directo, prohibetur et per obliquum” is what Coke says Littleton said.

So that’s all fine and funny, and useful only  for entertaining legal historians. But for our purposes, do you know what this means?

About 555 years ago, some chucklebuster thought that they’d be ever-so-crafty and try to get away with doing something indirectly that the law wouldn’t let them do directly.

And the law has been saying – nice try, doofus, denied – ever since.

Doing it indirectly the pssa way

So let’s work this through.

The Government of Manitoba wants to bring legislation to restrain public sector wages. The Supreme Court of Canada has said that you cannot do that if it will substantially interfere with the collective bargaining process. Since wages are so important in almost all collective agreements, the chances that the PSSA’s wage restraints won’t be an unconstitutional interference in collective bargaining are pretty much zero. It freezes wages; it interferes.

Therefore, if the PSSA is both passed and proclaimed, and the unions take the Province to court, apparently even the government thinks that they are going to lose.

This is the prohibited from doing it directly – if the PSSA was in effect, as in legally in force, they would be prohibited from doing it because it is unconstitutional.

Ok. So you could just leave it as a bill. But then, as we have already seen, everyone could safely ignore it and it wouldn’t do anything. The unions couldn’t challenge the bill, because it hasn’t been passed. But the unions wouldn’t have to, because no one would care.

And now, this is where the supposed strategic genius comes in. I know, let’s pass the PSSA – so people have to pay attention to it. And let’s put the retroactivity provisions in it, so that everyone has to comply with it, because no one can risk what will happen to them if and when the PSSA is proclaimed. But, let’s not proclaim it, and then make our lawyers argue that the unions cannot challenge it because it has no legal effect.

That’s why this is doing it indirectly. The government is getting all the benefit of the PSSA indirectly, because the retroactivity provisions compel everyone to follow it even before the law is officially in force with full legal effect. 

If you aren’t a lawyer, this might seem to be a smart sneaky trick. Hee, hee, hee. Look at me and my glee. It might unconstitutional, and therefore illegal if I proclaim the PSSA. But if I just pass it and make people follow it with the threat of retroactivity, I can get all I need, and because it is not proclaimed, the unions can’t stop me. 

But courts tend to take a very dim view of such schemes. Games might be amusing, but trying them in courtroom leaves Lady Justice generally unamused. Besides, the law wouldn’t be very useful if people could just get around its rules by  deliberately violating them through indirect schemes.

bye bye, dumbo

This whole – you can’t do indirectly what you can’t do directly – is so legally obvious, that I was sure that there had to be some other explanation for this situation. I waited and waited throughout the whole trial, and even went up to Heather Leonoff to ask whether the government had a reason for not proclaiming the Public Services Sustainability Act yet.

“No,” she said, “not a formal one.”

And then I read this article by Tom Brodbeck article from the Winnipeg Free Press of November 19, 2019.

I discuss the contents of the article on my page – Covering the Media Coverage, where it is also reproduced in a form that is easier to read.

If you do read it, you will see that Brodbeck says the government did not proclaim the PSSA

 … for tactical reasons.

And what exactly was this brilliant tactical strategy?

The Pallister government was trying to avoid the risk of an unfavourable court ruling while still having the bill influence contract talks.

 Not only that, 

It worked to some degree.

 

Premier Brian Pallister has not proclaimed the Public Services Sustainability Act.

I assume Brodbeck got this information from the government, because I don’t know where else it would come from. It was probably set out in some communications release. So, not only is the government doing indirectly what they cannot do directly, they certainly seem to be touting it as some genius legal ruse.

Whose elephant is this?

I wanna know whose elephant this is. Heather may have to take it out and parade it around the ring all the time, but it is definitely not hers. So whose is it? Who is responsible for bringing the elephant to this circus?

Well, we have heard about lots of contributors from various parts of the government – the Province’s Labour Relations Division, the Treasury Board Secretariat,  the Public Services Cabinet Committee. etc. But, lucky for us, someone at the top has stepped up to acknowledge his claim.

The whole tenor of the Brobeck piece is that the government is playing tactical legal games by having the PSSA be passed but not proclaimed. And as you can seeing, appearing next to the article, and in equal size, is a ginormous picture of the Premier, with the caption:

Premier Brian Pallister has not proclaimed the Public Services Sustainability Act.

All right then.

I know whose elephant this is, Mr Premier.

It’s yours.

next exit, please

Now we can all see the true colours of the Elephant in the Room. It’s not so pretty and pink anymore, and legally speaking, it’s kind of a joke.

As a word game – in effect, an effect – it is simply not sound. And as a potent demonstration of the maxim – you cannot do indirectly what you cannot do directly – it is doomed to deletion, as well as derision.

So, I’ve had enough of this irritating abstraction.

Bye Bye, Dumbo. It’s time for you to get lost.

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

You know Mr. Premier, I wondered why you wanted to have the Provincial Election early in 2019, even if it meant breaking the law to do it. I figured you had some shyster-y reason. It certainly wasn’t the excuse that you gave. All those Manitoba 150 Celebrations that were just going to be so-o-o intensive, that we could never have an election in the middle of them? There haven’t been any, and the list isn’t even going to be finalized until mid-February. I think we could have handled it.

But, it wouldn’t surprise me if the reason you did it was to avoid the risk of embarrassment from this case. Wouldn’t have gone so well for you I expect, with all of this coming out a few weeks before the election cycle would have started.

So, if moving the election was a game, and farting around with the Province’s financial statements was a game, and the whole passed-but-not-proclaimed business was yet another game, it makes me wonder. It has been almost four years since you first came to power, so when is this government going to stop playing games and start governing?

If all this government has to offer Manitobans is games, then maybe all that proves is that you don’t belong there.

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? It’s a pretty simple answer.

I was mad.

The Decision is In!!!

The Honourable Justice Joan McKelvey has ruled. Labour won. The PSSA is unconstitutional.

This is what she decided and why.