The government’s final argument

As we watch Brian’s Angry Elephants take the field, I feel for Heather Leonoff. What a team. Credibility was traded away at the beginning of the season. Law and Legalities are sitting injured on the bench. Reason has been relegated to cleaning out the locker room, and it has been a long time since Common Sense was allowed in the building.

While Team Labour, led by Smorang and Carson, are kitted out in fresh-faced excellence and doing legal push-ups in preparation for a mashing, Heather’s team is being run by unqualified coaches who’ve copied and pasted from Nova Scotia’s Legal Playbook for Dummies.

The Government of Manitoba’s team has been thrown out on the field without any defence and only the saddest excuse for an offence. And all Heather has is some nice guys on her side to suffer through it with her.

If you were Heather Leonoff, what would you do?

I know what I’d do. I wouldn’t play. I’d say,

Listen you Orwellian mouthfuls. You came up with this nonsense. You argue it. Here’s my helmet. I quit.

And then I’d go up into the stands to cheer for the other side.

Hey Heather, over here. I’ve got a seat right next to me here just for you. We’ll eat pretzels and popcorn, and heckle the Premier – BOOOOO!!!!

Leonoff didn’t do that, of course, although she may have secretly wanted to. No. The government’s team did something else entirely.

They moved the goalposts.

There were a few variations, like revisionist history:

Mr. Smorang’s touchdown doesn’t count. He clearly went out of bounds. I saw him. He vaulted over his bench, drank some Gatorade, fist-bumped a few fans, and then crossed back into bounds at the 30-yard line, and then ran into the end zone. 

No. Mr. Smorang didn’t do any of that. Shannon threw Garth a perfect pass, and then he ran straight down the middle of the field without any opposition because the government’s coaches were too busy with their “communications strategies” to bother putting any defence out to stop him. We all saw it. We were here. And besides, we have instant replay.

Or, how about changing the rules:

After Mr. Smorang hit the end zone, he didn’t jog backwards to the 10-yard line, perform fifteen jumping-jacks, and then stop, drop, and log-roll in a counter-clockwise direction back over the goal line. Therefore, his touchdown clearly doesn’t count.

Sigh. It’s true. Mr. Smorang didn’t do that (although I would kind of like to see it). But that’s not how you play football.

Still, mostly they just moved the goal posts.

BEFORE WE BEGIN

As I said to Mr. Nice Guy (Michael Bodner) outside the courthouse one day, my take on the Government of Manitoba’s legal team was that they got handed a really sh*tty case. “I can neither confirm nor deny it,” he laughed. He doesn’t have to. I’ll do it for him. Legally speaking, this was a playbook of poop.

So, what do you do when you are faced with having to argue this kind of crap? As I stated above. I wouldn’t do it. I would never let my client take this path in the first place, and if they already had, I ‘d be strenously advising them to settle the hell out of the thing, for their own good, and mine. Who wants to be the lead orator in this exercise of public embarrassment?

However, governments tend not to be very good at settling themselves away from a political path that they have already taken, or listening to their lawyers, in-house and out. Pride, hubris, ego, and an attachment to power are the most common reasons. Whatever they were here, Heather and her team seemed destined to be stuck arguing this very bad case, no matter what.

When you are stuck in this type of jam, however, there are some things that you perhaps should never do, at least if you want to maintain some semblance of credibility and dignity, assuming that is something that is important to you.

One of the cardinal rules of advocacy is don’t overstate your case. That is, don’t give the facts or law a better characterization or interpretation than they actually have. Assume that the judge remembers what was said during trial, or that they will be diligent enough to go back and check. (And the last thing you want is for a judge to be fact-checking you and finding you wanting.)

Related to this is the even stronger corollary of – don’t misstate anything. Don’t say black is white, hot is cold, snow is brown, or that you’ll be finished your argument in 5 minutes (you’ll never finish that quickly, so don’t bother promising it).

The reason is, of course, that it is highly annoying for anyone listening to you.

When you are faithfully following the facts, anyone watching will be listening to understand, and if you are doing a good job, they will find the argument so persuasive that the only thing going on is a series of effortless internal nods – yes, yes, yes that’s what happened, yes, that’s what they said, so yes, I agree with you.

When you misstate the case, even a little, you create an additional conversation that runs simultaneously inside the listener’s head – What? They didn’t say that? Did they say that? They would never say that. I don’t think they said that. I’ll have to go back and check. Now what day was that?

That’s exactly what was happening to me throughout much of the Government of Manitoba’s argument – frowning in confusion as I mentally scratched my head. I was sure no one ever said this or that. And I was positive that there were many ways to prove it.

It was so confusing. And it’s so much work. Think about poor Justice McKelvey. Not only does she have to listen to all of this, as the trial judge, part of her job will be to go through each and every point the government made, and say why she approved or rejected them. (No wonder the judgement took 230 pages).

So, to all baby lawyers. Don’t do this. But for the purposes of this blog, this is what the lawyers for the Government of Manitoba did.

i. the pssa is not unconsitutional

A. ONE ISSUE AND ONLY ONE ISSUE

Heather begins with a slow, measured beat:

Leonoff:

There is one issue and only one issue in this case:

Is the Public Services Sustainability Act unconstitutional or not?

One sentence into Heather’s argument and I’m already spinning. What do you mean there is only one issue? There a Section 1 defence – even if the law is unconstitutional, it is justified by Section 1 of the Charter. That’s a separate issue. And both of these broad issues have a million little issues wrapped up within them. So what are you talking about – only one issue?

But that wasn’t my worst worry. You see, this was exactly how Leonoff began her opening statement – there is one issue and only one issue. But back then, the only one issue was the Elephant in the Room and the fact that the PSSA hadn’t been proclaimed. OMG. After all the volumes of evidence demonstrating the damage that the rampage of the PSSA Elephant had already done, are we seriously going to go back and revisit that foolish beast? When I said Bye-Bye Dumbo, it was meant to be for good.

She did this a few times – came close to hinting that she was about to revive the “but it hasn’t been proclaimed” Elephant-in-the-Room, making me catch my breath in dubious anticipation. But, although she made a weaker stab at the not proclaimed stuff later in the argument, her original Elephant-in-the-Room never reappeared. (Yay!)

Anyway, Leonoff went on and the clamouring of my parallel editorial commentary got louder.

Leonoff:

This is an issue of law only, is the PSSA constitutional? And there is a fundamental difference between the Plaintiffs and the Defendant on this single issue of law.

(Ok. So far so good, apart from you know, there are at least two big issues of law.)

And this difference in how the parties view this issue has affected everything about how each party sees this case, and as a result, how each party presented their case – what evidence they put in, and why.

(Uhm, I’m not sure where you are going with this …)

And that issue is that the Plaintiffs are asserting that there is a legal duty to consult with the unions prior to legislating.

Labour claims that the Government of Manitoba is constitutionally required to have collective bargaining and/or pre-legislation consultations before they pass an act like the PSSA.

(What the? They never said that.)

But we say that the government had no legal duty to do anything prior to introducing legislation.

WHAT ARE YOU TALKING ABOUT!!! They never said that. They would never say that. They would never be arguing something that stupid. OMG. The government’s argument is only 30 seconds in, and my head’s already about to explode.

If you recall from Labour’s Argument, Part I – The Law, I did suggest noting what Labour’s position was on this point actually was. Here it is again. Labour said:

  1. Pre-legislation consultations can never be a substitute for collective bargaining because there isn’t a right to strike. (In other words, pre-legislation consultations are not relevant.)
  2. But, if the court finds that they are relevant, and can be a substitute for collective bargaining, then, the pre-legislation consultations that took place here were not in good faith.

Where, exactly, does Labour say that there is a duty to consult prior to legislating? They don’t. They would prefer that no one would have to bother wondering what happened in these kinds of consultations at all.

I do not recommend this tactic. Do not make up a really ridiculous issue of law, claim that your opponent supports it (when they never said that and clearly don’t), and then say – look at how ridiculous my opponent’s argument is.

Heather was going on without me, saying things like:

It is not about whether the PSSA is a good idea or a bad idea … good policy or bad policy … whether the Plaintiffs like what the government is doing or not …

But I wasn’t listening. I was too busy dreading how much time it was going to take to undo this all when it came time to explain it.

I picked her up again at …

Leonoff:

How any piece of legislation came to be isn’t relevant. The Plaintiffs say it is. The courts have no role in supervising the legislative process.

(True. But the Plaintiffs never said that, and that’s not why pre-legislation consultations would be relevant, if indeed they are relevant, and everybody, including the Plaintiffs, wishes that they weren’t relevant.)

Labour seeks to add a totally new and free-standing obligation, a constitutional requirement that governments consult with unions before enacting laws that may affect them.

They clearly say so at paragraph 333 of their written argument.

(I’m seething at this point. My notes say – They are deliberately misconstruing the Plaintiff’s case by misreading paragraph 1(d) and 1(e) of the Statement of Claim. This is clearly not their case.)

Although I didn’t have Labour’s written argument at the time, I was still certain that this was bull-oney. And I was right.

Paragraph 333 of Labour’s written submissions, which you can find on page 120 of their tome, says:

4. The Consultation Process: “The Die Was Cast

(a) Claims Made in This Action and Evidence Before the Court

  1. Claims made by the Plaintiff unions in this action, as contained in the Re-Amended Statement of Claim, include a violation of the section 2(d) Charter rights of their members by virtue of:

(a) the Defendant’s decision to enact wage restraint legislation, was made well before consultation had occurred, as set out in paragraphs 54 – 59;

(b) the failure by the Defendant to engage in a meaningful process of consultation and dialogue with the Fiscal Working Group, as set out in paragraphs 60 – 84; and,

(c) the failure by the Defendant to engage in any consultation whatsoever with public sector unions who were not asked to participate in the Fiscal Working Group, as set out in paragraphs 85 – 87.

I don’t see any reference to a free-standing constitutional requirement to consult. Yes (b) talks about the failing to consult, but that has got to be taken in its full context (as opposed to out of context so that you can pretend that your opponent is wrong.)

There is no excuse for this misinterpretation because Labour went into reconfirming their position on pre-legislation consultations almost immediately thereafter (paragraphs 335-343):

4. The Consultation Process: “The Die Was Cast

(b) Legal Overview

  1. As is stated above, the Plaintiffs’ primary position is that pre-legislative consultation can never be a replacement for collective bargaining because there is a fundamental distinction between consultation and meaningful, good faith collective bargaining, which includes the right to strike. In a consultation process, workers cannot collectively withdraw their labour if negotiations reach impasse, which is what enables them to negotiate on terms of approximate equality in a meaningful collective bargaining process.

See paras. 111-119 herein.

  1. In the alternative, if pre-legislative consultation can be a replacement for the traditional collective bargaining process, it must be a truly meaningful substitution, wherein the approximate equality between employees and the government can be maintained, and government’s actions and positions during the consultation process can stand up to a probing analysis for good faith.

BCTF, TAB 11, paras. 291, 292, 293

  1. To be a meaningful process, consultation must provide a union the opportunity to meaningfully influence the changes to terms and conditions of employment made through legislation, on terms of approximate equality.

BCTF, TAB 11, para. 287

  1. The courts must inquire into the existence of good faith on the part of government while engaged in consultation, to ameliorate the threat of making the employees’ act of associating essentially futile.

BCTF, TAB 11, para. 298

  1. “Good faith”, in the context of pre-legislative negotiations, requires: 

(a) the parties to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other (BCTF, TAB 11, para. 334);

(b) That each party’s positions must not be inflexible and intransigent, and they must honestly strive to find a middle ground and be open to compromise (BCTF, TAB 11, paras. 334 and 357); and,

(c) that it is not enough for the employer/government to explain the importance of why some changes need to be made to working conditions without explaining why the particular proposed changes need to be made (BCTF, TAB 11, para. 369)

  1. The assessment of good faith is always fact-based and context specific.

 BCTF, TAB 11, para. 335

  1. In order to determine whether the government is bargaining in good faith, it may be necessary to probe and consider the government’s substantive negotiating position.

BCTF, TAB 11, para. 348

  1. It is not good faith to come into negotiations with minds made up and a strategy in place, thereby rendering any disagreement or negotiation by the other party futile, the die already being cast. The parties must approach the consultation process with an open mind.

BCTF, TAB 11, paras. 351, 366

  1. The consultation/negotiation process can be fundamentally flawed where, by its design, it cannot provide meaningful consultation due to the government’s failure to provide individual targets, specific fiscal objectives, costs and savings. Where parameters are given without boundaries, limits, or a range within which meaningful bargaining could take place, meaningful consultation becomes impossible.

OPSEU, TAB 8, paras. 135 – 151

I know. It is long. But I included everything in this section just to prove to you (and to me) that LABOUR NEVER SAID ANYTHING ABOUT FREE-STANDING OBLIGATIONS to consult prior to legislating.

I’m still grumbling about that when Heather starts going on about parliamentary supremacy …

Leonoff:

Parliamentary sovereignty is a deeply rooted constitutional principle that gives governments the powers to formulate, introduce, and pass legislation. I have 40 year-old case law that confirms that while courts may consider, construe, and apply a statute once enacted, they cannot inquire into the circumstances leading to the enactment in order to impugn its validity.

Actually, I have 400 year-old cases that say that, but the 40-year old one will more than suffice.

(Heather makes a half-turn and looks back at me when she says this. Uh-oh, Heather. Have you been reading my blog? Is this an oblique response to my riffs on 555 year-old equitable maxims in Bye-Bye Dumbo? It’s not personal Heather, none of this is your fault.)

Courts review laws after they have been enacted, but not before.

(Ok, but, the PSSA is enacted – they passed it. So … )

She lost me then. I was too annoyed to pay attention. The only thing I wrote down was:

… blah, blah, blah, more case law on not inquiring about the circumstances that led to its enactment, i.e. the development process.

I was blah, blah, blahing throughout this, because I knew under the law she was wrong.

First of all, nobody is asking anyone to interfere with the Government of Manitoba’s parliamentary supremacy. They can draft all the legislation they want, in any way they want. The only reason we looked at the timing of how the Public Services Sustainability Act came to be was to demonstrate the government’s scumbaggery, as in their bad faith pretend consultations with Labour when the thing was already drafted and done.

Secondly, the whole point of the Charter is to overrule parliamentary sovereignty when Parliament or provincial legislatures enact a law that violates its terms. That’s exactly why the Provinces were so opposed to the Charter when Pierre Trudeau was negotiating to bring it in (and threatening to do it anyway). And, the Government of Manitoba even admits this, see paragraph 45 of their written submissions:

  1. Policy decisions and fiscal decisions are wholly within the purview of the democratically elected legislative branch. Absent an infringement of the Constitution, courts do not inquire into the wisdom or efficacy of legislative decisions …

Hey, people. It’s your words – Absent an infringement of the Constitution. That means, when the issue is whether there is an infringement of the Constitution, like, here (and every other Charter case), then courts certainly DO inquire into the wisdom and efficacy of legislative decisions. It’s totally tied up in both the question of whether any law violates the Charter, or whether it is saved by any Section 1 defence.

Finally, and most of all, SHANNON NEVER SAID THAT. And she argued the law. And Labour never said anything about it in their pleadings, no matter what they say. I know they didn’t. I have them.

Actually, I was so irate and irritated by this stuff about what Heather was saying Labour wanted, when I knew that it wasn’t true, that I gave up taking notes and started rustling through my bookbag for the pleadings. (Garth had sent them to me for the blog, and I was carrying them around just in case). I found the Re-Amended Statement of Claim and started flipping through it. And no. None of this nonsense is there. You can see it for yourself here.

Ok. So at this point, I have two whole pages of notes. And 2/3 of it contains grumbling editorial comments. And most of the third page is more of the same – more bunk about how courts don’t look into how a law is developed and repeating that Labour wants Justice McKelvey to do that, and create a free-standing requirement to participate in pre-legislation consultations.

It goes on. Blah, blah, blah – no duty to consult. Blah, blah, blah – you cannot challenge process by which a law is enacted. The government covers this in their written argument in pages 3-14, and then repeats some of it again on pages 14-16.

But nobody cares how the Public Services Sustainability Act was enacted. We never inquired into the legislative process behind it. It is not what Shannon and Garth argued and it is not relevant to this case. Yes, we looked at the timing of the PSSA’s development, but that wasn’t to complain about the development itself. That was to show how the Government of Manitoba was pretending to consult with Labour, pretending to be considering all options, pretending to be open to input from the unions, while all along they were finalizing the terms of the PSSA anway. The die was cast.

And then …

Leonoff:

As a result, none of the discussions with the Fiscal Working Group are relevant. There is no such thing as “bad faith legislation”.

(Indeed. But there is such a thing as legislation made in bad faith.)

“Is this a play to the media?” I started wondering. Is the Government of Manitoba hoping that the reporters who are here won’t know or won’t be in a position to check the accuracy of this gunk, and will just blindly report it, not realizing how wrong it is?

Well, that would be really cheesy, although I wouldn’t put it past them.

Leonoff (channelling outrage):

Of course Mr. Irving and Mr. Stephenson didn’t provide financial information to the Fiscal Working Group. It is privileged information and protected “Cabinet Confidence”. 

(Cabinet Confidence? Man, that’s weak. Budgetary considerations, if real, are facts, not privileged deliberations on whether to PSSA or not. The only thing about the financial basis for passing the PSSA that might qualify as Cabinet Confidence is that there wasn’t any financial reason for it and the Pallister Government was just playing games.)

And look at all of this financial information that Kevin Rebeck asked for. Rebeck demanded that the government provide it. Labour thought they were entitled to it.

(Deep breaths, Kim. I’m really angry now. That is so not true. Rebeck asked for this information and was more than polite about it. Entitled to it? As if.

Besides, you guys called them to set up the Fiscal Working Group, ostensibly to ask them for their input. What kind of input were you looking for if you weren’t planning to give Labour any data on the fiscal situation that they were supposedly considering?)

I gave up trying to capture the argument in the rest of this part. I was too annoyed and overwhelmed by the quantity of errors that needed correcting. Here are a few snippets I managed to grab nonetheless …

Leonoff:

The Government of Manitoba consults all the time with Manitobans, it’s just good and common practice. In fact, we are the only the only Province in Canada that gets input from citizens on our budgets.

(Ha, ha, ha, ha … Leonoff looks like she’s flinching when she says this. Maybe she knows how much I’m snickering inside. If you have read the aside – Bean Counters, Businessmen, and the Business of Government, then you’ll know what I think of their interactive budgeting tool. Totally useless.)

The only fetter on a government’s ability to enact legislation is the Constitution.

(Yep, and Freedom of Association is in the Charter and therefore in the Constitution. So, the Government of Manitoba’s ability to enact the PSSA can be fettered by the Constitution if the PSSA substantially inteferes with collective bargaining.)

Justice Donald’s reasoning in B.C. Teachers Federation is convoluted at best, and is contrary to what the Supreme Court of Canada has said in other cases, including B.C. Health Services. There is no duty to negotiate before you legislate and there shouldn’t be one.

(Ok, but we all agree it’s a mess. But, we also all agree that there is no free-standing duty to negotiate, so please stop claiming that Labour said that there was.)

There is no evidence to support Mr. Rebeck’s claim that the Fiscal Working Group was lied to.

(Wrong. The only evidence that was tendered – Rebeck’s testimony and the documents, demonstrates absolutely that Labour was lied to, especially about whether the decision to legislate had already been made and whether the law was already drafted.

There is, however, no evidence from the government side to rebut this. If you wanted to prove that the representatives of the Public Services Compensation Committee didn’t lie to Labour, then you should have had those people show up and testify. You didn’t. So you can’t claim this. Too bad.)

Then Leonoff says she is moving on to something else. Oh thank god. Please let this be over.

It isn’t quite. There is a little more rambling on about no such thing as bad faith legislation (you said that already) and then, finally, 

Leonoff:

The test as set out in B.C. Health Services is whether the PSSA substantially interferes with collective bargaining in the Province.

This is a high bar.

(Really? That’s news to me. I never saw any court say that. And besides, you’re quibbling.)

And somebody said at paragraph 444 of some decision that the interference has to be so substantial that it inhibits the unions ability to achieve its objectives.

(Yeah, you’re really quibbling now. Yes, substantial interference occurs if a union’s ability to achieve its common goals is thwarted. You add the “so” part.)

We don’t need any help from decisions from the International Labour Organization. We already got all the input we needed from them when the Supreme Court of Canada created the test.

(Ok, but, that doesn’t mean these decision can’t also help us understand the test, does it? I mean, why not? Why would it stop there? Ok. We used ILO decisions to make the test for violating Freedom of Association in Canada. Now, forget you ILO. We don’t need to hear any more from you.)

Ugh. Writing this is so tiresome. And it was even more tiresome to listen to too. It was so hard to follow these arguments along, when all I could think about was all the reasons why they were so very wrong.

So, let’s change tack, and run through the next part in summary.

B. ASSORTED ARGUMENTS

1. Deleting Existing Terms = Substantial Interference

Leonoff:

If you delete a term in a collective agreement that has already been negotiated and signed, then that will be substantial interference. We don’t do that.

(Yes, but who cares? There are a lot of ways to substantially interfere in collective bargaining. The Government of Manitoba should know. They’ve done enough of it.) 

2. Structural Aspects and Substantial Inteference.

Heather points out that another thing the Government of Manitoba doesn’t do is change any of the structural aspects of the bargaining process. For example, the right to strike is preserved, unlike cases like Sask. Federation of Labour, where removing the right to strike was found to be substantial interference.

Sure. If the legislation affects something structural in the collective bargaining process, it is probably more likely that it will amount to substantial interference. But, a legislative measure doesn’t have to involve part of the bargaining structure before you can find substantial interference.

See the leading case, for example. B.C. Health Services wasn’t a structural case. It was about taking stuff off the table (changing the scope of bargaining), specifically: contracting out, layoffs, and bumping rights.

These arguments seem to be all about the substantial inteference the Government of Manitoba could have done, but didn’t do. Well, good for you, but you’re not getting any points for that.

3.Repeat: Labour Wants a Free-Standing Duty to Consult 

Repeat: No they don’t. Ok, that’s the short version. Here’s the one with the details.

This was probably one of the most confusing parts of the entire argument. Leonoff started in on Meredith, and how the parties differed on its meaning and implications for this case. And then suddenly we were back to this weird (and false) accusation that Shannon and Garth are advocating for a separate duty to consult. There were some pre-legislation consultations in Meredith, but that wasn’t really the point, because there, the process itself was a consultation process, not full-on collective bargaining.

And then Heather flipped back to the ERA (Expenditure Restraint Act), the law at issue in Meredith, and how it was different or the same as the PSSA, and then back again to the accusation that Labour wants pre-legislation consultations as a precondition to any legislation that impacts bargaining.

This is what I was thinking (because this is what I wrote, as opposed to taking notes on what she was actually saying):

Grossly misleading statement of their argument.

This is, most emphatically, NOT what you want anyone watching you to be doing.

Leonoff noted that B.C. Health Services never said anything about pre-legislation consultations being a prerequisite and that such consultations are only relevant to the second part of the substantial interference test. (She is absolutely right about that).

She then went into some detail on how Justice Donald in B.C. Teachers Federation (at the Court of Appeal) was wrong to say that pre-legislation consultations are required. (Well, he would have been wrong if he had actually said that, but he didn’t.)

And then she started bleating:

I repeat, the Supreme Court of Canada does not overrule itself by accident.

That is, when the Supreme Court ruled from the Bench in B.C. Teachers Federation, they did not accidentally overrule themselves in B.C. Health Services, and make pre-legislation consultations mandatory.

Yes, agreed. But …

Leonoff:

Paragraph 1(d) of my friend’s Re-Amended Statement of Claim clearly say that Public Services Sustainability Act cannot be constitutional unless there is negotiation beforehand.

No it doesn’t. You can read it here.

Without getting too technical, there are all sorts of ways that you plead things. You cover all the bases. That’s all they are doing in clauses 1(d) and 1(e), and they only have to do it because the Supremes went and ruled from the Bench in B.C. Teachers Federation.

Labour’s main and fundamental request is found in clause 1(f):

1. The Plaintiffs claim: 

(f)   A declaration that sections 9 – 15 of the PSSA violate the rights and freedoms guaranteed by s. 2(d) and s.7 of the Charter, cannot be justified under s. 1 of the Charter, and are invalid and of no force and effect.

(Ignore the reference to Section 7 of the Charter. They dropped it at trial.)

Straightforward, clear, and concise. Labour may have had to deal with pre-legislation consultations out of an abundance of caution (the risk would be that the Government of Manitoba would try to use the consultations with the Fiscal Working Group as a defence, in the same way the B.C. Government argued that their legislation was Ok in B.C. Teachers Federation.) But, nowhere in the pleadings, the evidence, or their final arguments, did Shannon or Garth ever say that there had to be pre-legislation consultations. In fact, they wish the whole issue would just die and fade away. (See paragraphs 111-119 of the Plaintiffs’ Written Argument)

This is moving the goalposts, plain and simple. Even the Government of Manitoba seems to think that Smorang and Co. have achieved a full-blown beautiful touchdown on the question of whether the PSSA is unconstitutional.

So, the government has to pretend that Labour was engaging in another play (or another game), with goalposts moved so far out into fantasy land that there is no way anyone in this realm could ever score.

4. And Meredith …

I’m not going to go into Meredith in detail yet. I will (although I am dreading it). But now Leonoff brings up Meredith to make two points:

First, that the ERA was found to be constitutional in Meredith (or, rather, the strange abbreviated consultations that the ERA gave to the RCMP in Meredith were constitutional).

Leonoff:

And my friend’s view of the law is that if the ERA was brought in 2020, it would be unconstitutional.

(Ok, that’s not their view of the law. And besides, no one would say that, because everything is contextual, and the context of the PSSA in Manitoba in 2020 is not the same as in Canada in 2010, just after the 2008 global financial meltdown.)

And second, to again waffle on about unworkable it would be if governments were required to consult with the unions before they legislated.

Leonoff:

( … blah, blah, what is consult, blah blah, when would it take place, blah, blah, what would be good enough … etc., etc., etc. …)

And besides, the duty to consult would give the unions an opportunity to manipulate the consultation process, pretend that they are “discussing” the content of the legislation, but only pay lip service, so that they can thwart the legislation, and claim that the consultations were inadequate.

Grumpy face! I was fuming.

It is such an outrageous accusation – the unions are going to try to game the consultation system? Puh-lease. There is a 1,000,000% probability that this will never happen and there is no evidence that the unions were or would even think of doing such a thing. In contrast, the Government of Manitoba has been running its own Olympic Statutory-Scheming Games, and entering every event.

This is total monkey feces, I wrote. And your munga monkeys are throwing it at me. Stop it.

5. The Three Court of Appeal Cases

There were three cases, decided after Meredith, and which also dealt with the ERA:

I’m not sure why these were being mentioned here. I was too busy dodgy the poop. Something about how they were about the ERA, and the ERA was upheld as constitutional. Again, I’m not going to get into the details of these cases. Yet. I’m going to do them with Meredith, once and only once, and then be done with all of them.

I think, however, that Leonoff was using these cases to support whatever she was saying about Meredith. More evidence of the danger of doing things this way. Throw monkey poop at people and they’ll soon stop paying attention to you.

6. Section 14’s Sustainability Savings Provisions Work Great

According to Leonoff, there is no reason to doubt Section 14 because:

→ Dr. Hebdon’s chilling effect on negotiations is just his emotional reaction.

(No it’s not. It’s a factual description.)

→ You cannot say that the sustainability provisions in Section 14 will never work.

(Actually, Dr. Hebdon said almost never. And you didn’t put in any evidence that showed that they could or ever would work.

→ The deal the Government of Manitoba made with Doctors Manitoba demonstrates willingness to ignore the PSSA, and take it on good faith that savings will be made.

(No. This demonstrates the government’s willingness to make special deals for its preferred people. None of the unions were given this kind of opportunity. And you should get no credit for breaking your own law for doctors when, at the same time, you are forcing employers to apply the PSSA to everybody else.)

→ The unions are assuming that the government will take an arbitrary, capricious, and uneven approach.

(Yes, they are. And based on this government’s behaviour, it is more than a reasonable assumption. I’d say it’s so bad, that it is almost a certainty.)

C. YOU CAN ALWAYS STRIKE …

The nicest thing I can say about this argument is that it is unbelievably ridiculous. My head was shaking so hard and so repetitively that I was getting carpal tunnel syndrome in my neck. Naturally, of course, I found this distracting.

It really is too bad. Another problem of flinging feces around is that people are so busy dodging it, that they miss whatever good stuff you might have to give.

Anyway, here’s how the argument goes:

All the government did via the un-proclaimed PSSA was to set bargaining mandates. And while the employers were engaging in hard bargaining in following the mandate, there was nothing to stop the unions from doing a bit of hard bargaining themselves by going out on strike.

Ok, so yes, it is true that the PSSA doesn’t take away the unions’ right to strike. What it does do, however, is make going out on strike useless.

First of all, strikes are meant to persuade the employer to move towards the unions’ goals. If the employer is not the government, then the union can strike all they like. If the employer feels legally bound by the PSSA (thanks to the certainty of the retroactivity), then all the striking in the universe isn’t going to change that. Besides, the government was threatening to retaliate against any employer if they didn’t follow the PSSA by removing their funding. So, no employer could afford not to comply, even if they didn’t want to.

Besides, while striking has an impact on the employer, it has only an indirect effect on the government, who isn’t at the table, if it has any effect at all.

Secondly, striking isn’t really hard bargaining. It isn’t really bargaining at all, and is rather what is known as a BATNA – best alternative to a negotiated outcome. If bargaining doesn’t work, we’ll strike until it looks like it might.

Technicalities aside, no one wants to start at striking. And it is better for everyone if the parties never get there.

And finally, if the PSSA is already being applied whether it is proclaimed or not, no one on the employer side is engaging in “hard bargaining” according to any “mandates”. All of that would imply that, however hard the mandates are, there is some possibility for movement. Once you have legislation, and once that legislation is perceived as legally binding, then any attempt to pretend that anyone can negotiate any changes to anything covered by the Act is pure poopy-poppycock.

The only way that any strikes would be effective would be for the entire public sector to go out on strike, with a demand for the Government of Manitoba to repeal the Public Services Sustainability Act. Not only would that be risky, and unlikely to succeed, I think Premier Pallister would like it. Confrontational power plays are a great way to feed the ego and feel important.  And we would predict that the government would hold out as long as possible to dominate and force the unions to back down.

In any event, public sector employees are far too responsible to engage in this kind of nonsense that would cause so much crisis and controversy for the people of Manitoba they serve. And it is, in my opinion, thoughtlessly reckless for the Government of Manitoba to suggest or practically encourage it.

No. The appropriate legal response to an illegal law is to take it to the courts to challenge it. You don’t strike against it. You take it to court to get it struck down. And that’s what Manitoba’s public sector unions did.

 

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

That’s enough. I’m done for that day. Heather was pretty much done too.

INTERLUDE

For anyone who was following my daily updates during final arguments, you might remember this from this day, Day 2:

dAY 2 – fEBRUARY 19 

Today was a day that can only be described as variable. 

THE GOOD …

Shannon the Hammer spent the morning pounding all the points home on the many ways that the Public Services Sustainability Act inteferes with collective bargaining.

It was pretty fun to watch. She has a distinct rhythm – point, point, point, whack … point, point, point, smack.

And she ended Labour’s submissions with a nice summary, tying all the evidence and arguments into the law that she started with.

THE BAD …

It was still bitingly cold outside, and I forgot my warm mittens.

THE OUT OF THEIR MINDS …

Everything else. As Heather Leonoff started in on the government’s submissions, I couldn’t wait to hear more about the Elephant in the Room. It was, after all, going to be the government’s whole case, at least that’s what she said during opening statements. 

Nope. Apparently the Elephant has left the building. 

That would have been good news, except for the fact that it has been replaced by flying monkeys, who bunch and munch evidence and law from fact into fiction, creating mangles of wildly inaccurate legal arguments and analysis, to be injested, digested, and then thrown out with their feces.

Now, there is a whole new legal proposition, based on what Leonoff now says Labour says, and what the one and only issue in the case is, and always was, except it never was, not is, and should have never been mentioned.

It was three hours of inaccurate and bizarre logical contentions, many of which my response to was – well, you would be right that the law wouldn’t say that, and it wouldn’t be right if it did, but no one in their right mind would have ever argued it, and certainly Labour never did.

All news outlets in attendance get a free pass. Even getting a lawyer to vet what you’ve written on this probably won’t help. You would need someone who has seen the all the pleadings, and heard all the evidence, as well as having heard every word Carson and Smorang said in their arguments. Without all that background, there is no way to separate reality from poop.

I’m going to have to get the legal scrubbing gloves out, clean all this up, and throw back the feces (hours of loud cursing, which I will have to do sober). 

Nonetheless, like the Elephant in the Room, I don’t think this is Leonoff”s fault. (I like Heather’s lionine ways; she doesn’t deserve this.) This is government lawyers struggling to create something, anything, to hang their legal hats on, after their ministerial bosses handed them a very large pile of crap.

So, Mr. Premier, since it was you and your Elephant in the Room that started all this, and made it necessary to replace it with these other, more ridiculous animals, I’m nominating you for the position of Wicked Witch of the West. 

If only all it took was to throw a bucket of water on this wickedness to make it all melt away. 

Yeah. You can tell. I wasn’t impressed.

i. the pssa is not unconsitutional … cONT.

D. EXPERT EVIDENCE

1. Preliminary Points

Apart from a general approach of “our expert was right and yours was wrong”, Heather had a few specific points to make about the expert evidence.

The main one was that the Government of Manitoba’s definition of bargaining power was different than Labour’s. True. The government defined bargaining power not to include the scope of bargaining (what’s on the table) and not to be dependent on the legal context. Problem is, that is all wrong, and it was the attempts to make that case that brought so much derision down upon the Government of Manitoba’s expert on collective bargaining. I mean, his own writing contradicted almost all of this to start with.

Heather also repeated the Other Guy’s suggestion that because removing an issue affects both sides’ bargaining power, then the relative bargaining power remains the same. Ok, but anyone with some basic math can combat this, in that, that is only true if the impact on each parties’ bargaining power of removing the issue is exactly the same. In other words, the issue that is taken off the table has to be of equal importance to them and in the same way.

In the real world of collective bargaining, that’s pretty rare. Almost all issues have different values depending on which side of the table you are on, and it’s because this is true that so much trading and trading-off happens on the way to agreement. As for wages, this is an issue where the parties’ interests are almost diametrically opposed. Thus, taking this issue off the table not only changes the relative bargaining power, it tilts it sharply in favour of employers. The unions lose lots of leverage, and employers reap the benefit.

2. Conflating Process and Outcome

This got pretty convoluted and repetitive, but it was a relatively simple point, albeit wrong in my view.

Remember that the Supreme Court of Canada said in B.C. Health Services that the constitutional protection of Freedom of Association protects a process, but not specific outcomes. This means that a union cannot complain that their Charter rights were violated simply because they didn’t get what they want.

But that doesn’t mean that you cannot look at the outcomes as a way of trying to assess whether the process is breaking down.

Simply put, if the outcomes are really poor, such as not getting any outcomes at all, or very marginal, pitiful improvements, or getting a deal under protest, then that can be, and often is, very strong evidence of negative impacts on the bargaining process and thus substantial interference.

3. More Revisionist History

This started waking up my internal warrior – where are my blades, I feel the need for some slicing. It’s because the way this was coming across, it seemed as though Heather Leonoff was attacking Shannon Carson personally.

Leonoff:

My friend, Ms. Carson (I think she actually used Shannon’s name, which is a no-no), thinks that wages have to be available because of the effect on the process. If wages aren’t available for trade-offs there can’t be any bargaining.

Sigh. No, she didn’t say that. Everything is contextual, which means that no one says that taking any one issue off the table by itself necessarily leads to substantial interference. In the words of Professor Butch Nepon, it depends. It depends on everything else that is going on in the situation.

So Ms. Carson is saying that no government can ever legislate anything in the labour relations context unless they have a Section 1 defence (i.e. labour laws always substantially interfere with collective bargaining, are always unconstitutional, and so cannot stand unless they are reasonably and demonstrably justified in a free and democratic society).

Ok, so no, Shannon definitely didn’t say that. And besides, it’s a ginormous leap. A few ginormous leaps actually. You would have to start at the dubious position that removing wages will always substantially interfere, to removing anything will always substantially interfere, and then to all laws in the labour relations context being prima facie unconstitutional and thus needing Section 1 protection.

No said that. No one would. Because we’ve all read B.C. Health Services. And that’s not the test and it’s not how the test works.

4. They Got Stuff

I think this argument boils down to – because there were some outcomes, there couldn’t have been anything wrong with the process. I don’t see why that would be. As I said above, marginal outcomes may be an indication of a mangled process.

But in any event, this is how Heather put it:

Leonoff:

If you look at Appendix 3 of the Defendant’s written argument you can see all of the non-monetary gains that the unions were able to achieve, even though wages were off the table because of the PSSA.

They got things, and whether those things were small, medium, or big doesn’t really matter. It is in the eyes of the beholder. The point is, gains were made.

Uh what? Of course it matters whether the gains are slight or significant, because that will help tell you whether there has been substantial interference in the collective bargaining process.

Outcomes are not in issue in this trial (because outcomes aren’t protected by the Charter). So the outcomes don’t matter.

I disagree. The outcomes do matter. They are relevant. And besides, if Labour can’t point to the outcomes to demonstrate how wretched bargaining was under the PSSA, then you can’t point to the outcomes as evidence that bargaining was still fruitful anyway.

Look at the BUFA agreement. They got things. And the agreement was ratified.

Yeah, under duress, in strong protest.

And UMFA, they managed to get job security for librarians, and other stuff.

Yeah, like an increase in permitted number of members from 1045 to 1100. Oooh boy, wow. Besides, remember that Dr. Mark Hudson testified that it was the best they could do “in the circumstances”. Striking was totally useless, and union members were really unhappy. It was a really negative outcome, all cyncism and dissension.

I’m not sure what else Heather mentioned because I was reminding myself about how specious any suggestion that these gains were meaningful was. I think it was Dr. Hebdon who said that the limited gains reflected the paucity of the unions’ capacity to bargain. And eeesh. Don’t mention the Hospital Trades Agreement as a “major gain”. It protected a grand total of seven people. I wouldn’t call that meaningful.

E. THE MANDATE MANTRA

Or, in other words, the “not me” defence.

Remember the many ways that the Public Services Sustainability Act interfered with collective bargaining as itemized by Shannon and Garth in Section E of PART II: THE EVIDENCE? Heather’s response to this was to say that in each and every case this wasn’t interference and wasn’t even the Government of Manitoba’s conduct at all because the PSSA wasn’t proclaimed and thus all it did was set a mandate, a starting point for hard bargaining.

Now you know why I was mocking them so much in Butt-First Buffoonery. Sure, merely making a mandate was the Government of Nova Scotia’s cover for their passed-but-not-proclaimed game, flimsy as it was. But mandates and hard bargaining imply that it is possible for the employer to move from them, with the right encouragement (i.e. if the unions bargain hard enough in return). And, in its odious quest for certainty, the Government of Manitoba added the retroactivity provisions, which indirectly made its PSSA binding, and reinforced it by threatening employers with retaliation if they didn’t follow it.

Thus, Manitoba’s Public Services Sustainability Act became in effect, as in effectively binding, the minute the Government of Manitoba passed it, whether they proclaimed it or not. As a result, the Government of Manitoba’s lawyers can repeat the limited impact of mandates all they want. This wasn’t a mandate and so the mandate mantra is, in the vernacular, total crap in all contexts.

That didn’t stop Heather Leonoff from going through each and every context, and saying each time – this was a mandate only, and only a mandate.

About the third or fourth time in, Heather actually said:

Leonoff:

You are going to hear me say this 50 times in the next hour, the Government of Manitoba only set a mandate for hard bargaining. This was a policy only.

(Implying that, as merely a policy, it was not binding.)

No-o-o-o-o-o-o-o- … You are going to make the same argument 50 times in the next two hours? Please don’t.

She did. In fact, it was so repetitive and so long, that about an hour and a half in, I left to go to the washroom, and when I came back twenty minutes later, she was still going through the various negotiations and still saying the same things about each one.

But, the good part of her doing this is that I’m going to skip all the detail. She might have made the same argument fifty times (and yes, she always made it the same way), but I see no need to say how wrong it was every time. Once is enough for me. The PSSA did more than merely set mandates. Due to the retroactive claw back provisions, the insistence on employers following these mandates, etc., the Government was already applying the PSSA, giving it actual effect, whether or not it had been formally proclaimed.

Although there are a few details and comments on other issues that came up here and there in the slightly varied verses that came between the droning chorus of the mandate mantra, I am just going to skip about ten pages of notes. But, in the end, I think this works for Leonoff as opposed to against her, since most of those comments arced increasingly towards the negative.

 

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

Yay, we did it. Part I is done. Onward to the Government of Manitoba’s Section 1 defence.

PART II. THE SECTION 1 DEFENCE 

Finally, we got to the government’s Section 1 defence, you know the part where the Government of Manitoba says, even if the Public Services Sustainability Act is unconstitutional, it is still Ok, because it is reasonably and demonstrably justified in a free and democratic society. Luckily for us, it was mercifully short.

A. THE OAKES TEST

I told you about this before, when I was explaining how Charter challenges work. I didn’t bother going into it then, not because I am lazy (I kind of am), but because it wasn’t time. Now it is. This is the Oakes Test, which is how Canadian courts analyze whether a law that violates the Charter can still be justified.

And, since this is a legal test, crafted by the mightiest court in the land, you know what it’s going to look like – tests with parts and sub-parts with definitions and conditions. 

the oakes test

To determine whether a law includes  reasonable limits that can be demonstrably justified in a free and democratic society, you ask:

  1. Is the legislative goal pressing and substantial? That is, is the objective sufficiently important to justify limiting a Charter right?
  2. Is there proportionality between the objective and the means used to achieve it? Proportionality has its own three part test:

(a)   Rational Connection: The limit must be rationally connected to the objective. It must not be arbitrary, unfair or based on irrational considerations.

(b)   Minimal Impairment: The limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective.

(c)   Final Balancing: Is there proportionality between the effects of the measure that limits the right and the law’s objective in terms of the greater public good?

For those of you who want to know more, you can read everything the Supreme Court of Canada said in Oakes here.

For the rest of you, a little legal translation.

As per the first part of the test, if you want the court to let you get away with violating something as important as a Charter right, you had better have a damn good reason. As for the second part, even if you have a good reason, whatever you have done better be directly connected to your objective, and not go any further than you have to.

Whether an objective is pressing and substantial enough is pretty much a question of fact and depends on the evidence. Is it important? Then prove it. Failing the second part of the test can be illustrated by a few examples.

First, there is Oakes itself. There, the Government of Canada had added a section to the Narcotics Control Act that said if you were found in possession of a certain amount of a drug, you were presumed to be a trafficker, and thus automatically presumed to be guilty of this greater offence with its more onerous penalties.

Although the Supreme Court of Canada agreed that narcotics trafficking was a pressing and substantial concern, they held that there was no rational connection between possessing a narcotic and assuming that the person is a trafficker. Which is true. Doing drugs doesn’t make you a dealer.

Another leading case is RJR MacDonald, a challenge to governmental limitations on cigarette advertising. Found to be an unconstitutional violation of Freedom of Expression, the Government of Canada failed on both the rational connection and minimal impairment part of the proportionality test.

Why? Because, while the majority suggested it might be possible that prohibiting all positive advertising and forcing producers to put harmful heath warnings on all packages could achieve the pressing and substantial goal of reducing smoking, the Government of Canada hadn’t put in enough evidence to proved that it would reduce smoking (rational connection). Similarly, the Government of Canada hadn’t shown that they couldn’t reduce compensation by doing things that had less of a limiting impact on the tobacco companies’ Freedom of Expression. (In subsequent rounds, the Government of Canada got its evidentiary act together, and we have both the advertising ban and the dire health warning on cigarette packages today.)

With that background, let us turn to what Heather had to say about the Government of Manitoba’s Section 1 defence of the PSSA.

B. A New pressing and substantial objective

Uh-oh. Here we go. Moving the goalposts again. After three and a half years of litigation, and thirteen days of trial, Heather Leonoff is now arguing that the pressing and substantial objective behind the Public Services Sustainability Act was upward pressure on wages in the public sector.

Oka-a-a-y, but, uh, reducing upward pressure on wages in the public sector isn’t a reason by itself. It is, rather, the mechanism through which the Government of Manitoba is achieving what it has clearly said is its actual pressing and substantial concern – the financial situation in the Province, as in deficit management and debt reduction.

And when I say that this economic stuff is what the Government of Manitoba has always said is the justification for the PSSA, we need to look no further than the government’s pleadings, see their Amended Statement of Defence:

From the amended statement of defence

The 2016/2017 Fiscal Environment

 

  1. At the time of taking office, the government determined that there were significant financial challenges facing Manitoba. The actual deficit for the financial year ending March 31, 2016 was $846 million dollars. This was more than double the deficit of $422 million dollars estimated by the previous government in Budget 2015.
  2. Further, the government was concerned about sustainability since expenditures were growing at a faster rate than revenue. Between 2008/2009 to 2015/2016, revenue grew by 2.2% and expenditures by 3.6%. Based on this trend, the deficit was projected to grow to $1.7 billion dollars by 2019/2020.
  3. At the same time, the province’s net debt grew significantly. From 2009/2010 to 2015/2016 the province’s net debt increased by 84%, or 10.7% annually. The cost of servicing the debt also rose significantly and amounted to over $855 million dollars in 2015/2016. The level of debt was a key factor in three downgrades that the province received from credit rating agencies. The three downgrades in 2015, 2016 and 2017 were the first times in thirty years that Manitoba received a credit downgrade. There was also concern that rising interest rates could have a major impact on Manitoba’s debt financing costs.
  4. In its throne speech delivered on November 21, 2016 the government pledged its commitment to responsible fiscal management. This included the reduction of the deficit in each year of its mandate, with the objective of bringing revenue and expenditures into balance within eight years. In support of this goal the government adopted a multi-pronged strategy that was directed at ensuring that front-line services would be maintained, that budgets would be balanced and that the economy would continue to grow. These strategies include: ….
  5. The government also advised in the throne speech that it intended to introduce legislation “following consultation and dialogue to ensure that the province’s public sector costs do not exceed Manitobans’ ability to sustain the services they receive in return”.
  6. Following this announcement, the government directed that consultations be undertaken with representatives of public sector employees to obtain input on approaches the government could consider to address the issue of public sector costs.

Money, money, money, money. Fiscal responsibility and deficit management. Sorry people. You are totally stuck with this. You only ever said that all this was about controlling the deficit and reducing the debt. You can’t change your mind now.

Of course, I can see why Leonoff and her team wanted to argue this narrow conception. While it may be presumed that the PSSA would indeed reduce upward pressure on wages in the public sector, none of the evidence, including from the Government of Manitoba’s own experts, came anywhere close to proving that the fiscal environment in 2019/2017 situation was so bad that there was a pressing and substantial financial objective that the PSSA was meant to achieve.

C. Proportionality? Never mentioned

I had to check and recheck my notes, but from what I can tell, Heather never said anything about there being a rational connection or minimal impairment of the PSSA. It’s because if the government actually had just upward pressure on wages as their so-called pressing and substantial objective, they wouldn’t really need to prove it.

If rising wages are the problem, then it logically follows that capping wages is a solution. And, it is hard to think of any other way to solve that problem, much less a more minimally impairing one.

That’s why Leonoff was arguing the new narrow view. Because, if you were going by the ultimate problem, and the one the Government of Manitoba always said was its reasons – managing the deficit and reducing the debt, they were going to lose.

It wasn’t just that they didn’t prove that the economic situation was as dire as it would need to be to be a pressing and substantial concern, the Government of Manitoba was also doing a bunch of irrational things, like giving the biggest tax cuts in Manitoba’s history and increasing expenditures elsewhere. And as for selecting the least impairing possibility, good luck with that. The Government of Manitoba didn’t consider anything except legislation.

This is probably the only aspect of the government’s tactics that I might agree with in the difficult circumstances they found themselves in. While it will never work, because the whole trial was focused on the broader economic issues, it is at least factually correct – the words “upward pressure on wages” were indeed used. [See paragraphs 34 and 35 of the Amended Statement of Defence, for example].

And, if the government side had confined their pleadings, evidence, and argument to this very limited vision all along, they would have probably passed the second part of the Oakes Test. Problem is, they would never have gotten to the second part, because upwards pressure on wages is one of those run-of-the-mill budgetary concerns which have consistently been rejected as not being important enough to meet the first part – a pressing and substantial objective.

iii. wrap-up 

Whenever you move the goalposts, the observer gets sidetracked trying to remember where the posts originally were, where they should be, and how far off into unreality you are trying to take them. So, I’m not really certain what points Heather was trying to make, nor what topic heading they would come under.

But she seemed to be summarizing and wrapping it all up, so here’s what I have:

Leonoff:

Kevin Rebeck demanded all this information because on Labour’s view of the law, they though they were entitled to it.

(Grrrr … He didn’t demand. They weren’t acting like they felt entitled. They asked. Nicely.)

The die wasn’t cast. The government was willing to listen to Rebeck. They wanted Labour’s input. Labour declined to give it.

(False, false, false. And insulting.)

The unions could have used Section 14 to get sustainability savings, they just didn’t try hard enough.

(Garbage. Section 14 is so stupid that there is no point for the union to ever bother with it. I know, let’s give up a bunch of monetary stuff because we might get half of it back if the misers at the Treasury Board decide to give it to us. Not.)

Legislation was just one of the options. The unions could have suggested others.

(B.S. The unions couldn’t suggest solutions to a problem that they didn’t understand. Futhermore, they did make suggestions. Irving and Stevenson just stone-walled and shrugged them off. Besides, the legislation was already done and drafted, even as the government lied to Labour about it. Nothing they would have said could have made any difference anyway.)

We only copied Nova Scotia’s PSSA because there was no need to reinvent the wheel.

(Yeah, but if you are legislating legitimately, you make at least some attempt to at least ask whether it needs to be adapted to the Manitoban context. You didn’t because you didn’t care about that. You just wanted to play the passed-but-not-proclaimed game.)

Besides, this wasn’t cookie-cutter legislation transplanted from one province to another. 

(Ok, but the two PSSA’s are almost identical, the government’s own notes say that the Public Services Compensation Committee adopted and approved legislation based on the Nova Scotia model, and some unnamed bureaucrat in Nova Scotia said it worked rather well, so … looks pretty much cookie-cutter to me.)

This was just like MeredithThe way the Government of Manitoba approached the development of the PSSA was exactly like how the Government of Canada approached the development of the ERA in Meredith

Oh-oh, Leonoff is going way too far into unsubstantiated facts about how the Public Sector Compensation Committe developed the PSSA. You didn’t put those people on the stand, so sorry, you can’t. So at that, Smorang gets up with his scary mad face on, and starts biting off words of forceful objection …

Smorang:

This is too far. I have been very patient throughout my friend’s submissions, but this has gone too far. I object to this. The government hasn’t led any evidence on the development of the PSSA or on how Meredith affected its choices in how it arrived at the terms. It is absolutely inappropriate for my friend to be arguing this as fact without that evidence.

(Yeah, it’s so obviously outrageous, Justice McKelvey doesn’t even have to say anything. Heather just shrugs and moves on.)

It still amazes me how such good-natured affability can coexist with such cutting contemptuousness in one person. This guy is friendly by default, but fierce when riled.

Leonoff:

The Auditor-General might have held that there were material misstatements in the government’s financial statements. But the Treasury Board makes the numbers, and they are non-partisan civil servants. They just got it wrong.

(Ok, but the Treasury Board takes their orders from the Minister of Finance, and this is all in furtherance of the goals of a Cabinet Committee – the Public Services Compensation Committee. Are you suggesting that the Treasury Board gamed the deficit all on its own, without any input at all from their political masters? I don’t believe you.

And, they didn’t just get it wrong. They were told they were so wrong that they were making material misstatements which made the financial statements unreliable. And then they just did it again the next year, and tried to persuade (and/or pressure) the Auditor-General to change his mind. This is not how honest mistakes work. This is what goes on when non-partisan civil servants are being forced to play partisan political games.)

Contrary to my friends’ objections that the time-frame is too long, we never said anything about having the PSSA apply as part of an eight-year plan.

(But, the eight-year plan to balance the budget is all over the government’s speeches on the PSSA, and is specifically mentioned in paragraphs 9 and 37 of the Amended Statement of Defence.)

And, again, all the government is trying to do is control upward pressure on public sector wages. (And it has nothing to do with the deficit or debt– I don’t think she said this outright but she certainly implied it.)

(What about Section 34 of the Amended Statement of Defence?

34. The objectives of the PSSA are set out in s. 1 of the Act. The PSSA is one element of the government’s integrated response to challenging economic and fiscal conditions. By reducing the upward pressure on wages, the Act will contribute to the government’s ability to balance its budget and protect services, and will foster public confidence in the economy. These are pressing and substantial objectives.

Did you amend your pleadings when everybody else wasn’t looking?)

Hooray! Heather says she has one last point. Uh-oh. It’s about how the PSSA hasn’t been proclaimed yet …

Leonoff:

Does the court have the jurisdiction to rule on a law that hasn’t been proclaimed?

(Hmm, sounds like the original Elephant-in-the-Room argument, although said Elephant isn’t mentioned.)

There are many reasons why the government might wait to proclaim the PSSA.

(Indeed, there might be. But you haven’t tendered any testimony on this issue, so you can’t make any claims about what those reasons might be. Besides, all the evidence we do have suggests that this is just some specious Nova Scotian scheme.)

The Government of Manitoba is speaking through its amendments that there might be a better way for the PSSA to read. It may not be meeting its policy objectives, and thus need to be changed.

(Ok, you are getting dangerously close to arguing the Bill 9 amending game, the one that’s already been objected to and rejected.)

Furthermore, this government has already shown that it is willing not to disregard its own law, by not following the PSSA when it is not meeting its policy objectives.

(Sorry, but you get no points for breaking your own law whenever you feel like it, but forcing others to follow it when you don’t. If the PSSA isn’t meeting your policy objectives, then by all means, demonstrate that to us and delete it.)

Because the PSSA hasn’t been proclaimed, it has no legal effect yet.

(Indeed, but it sure has had a whole lotta actual effect, and those actual effects have been significant and awful.)

When will the PSSA be law? Nobody knows. What will its terms be? Nobody knows that either. We expect them to be different, because Bill 9 exists. And, we can assume from the government’s willingness to amend the PSSA that it wants to make the terms better.

(Oh brother. When will the PSSA be proclaimed? No one gives a sh*t. The damage is already being done, and it is extensive.

And, while the Government of Manitoba might amend the PSSA in the future, I’m not willing to assume that they will at all make it better. The way they’ve behaved thus far, I’d expect it to be worse.

Besides, they were never amending the PSSA to make it better. They were just trying to delay this trial by playing yet another specious game.)

Figures. My running commentary couldn’t even be silent at Heather’s last words.

 

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Up next? What Garth and Shannon will have to say about this in Reply.

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.