The Government of Manitoba is effectively applying the PSSA to collective bargaining in the public sector.
(Yep. The PSSA may not have legal effect yet, but that isn’t stopping the Government of Manitoba from applying it in the meantime.)
The Government may refer to its position as a mandate or policy, but the content of the mandate is consistent with the PSSA and particularly its retroactive claw back provisions.
There is no question that the PSSA provisions have impacted negotiations between unions and employers in Manitoba. The evidence of the impact was clearly established by the testimony of the Plaintiffs’ witnesses at trial, and in the affidavits filed.
This court is satisfied that appropriate and substantive evidence has been put before the court to establish that a constitutional challenge of the PSSA is not premature, because a real and live controversy exists as a result of its impact.
In British Columbia (Attorney-General) v. Alberta (Attorney-General), 2019 ABQB 121, a constitutional challenge to an un-proclaimed law was found to be premature. However, that was a case where the pleadings were struck on the basis that the action related to a hypothetical future right which hadn’t yet arisen. In contrast, this proceeding was a full trial based on thirteen days of evidence and the Government never tried to strike the pleadings on the basis that this action was hypothetical. Furthermore, there is a significant body of evidence in this case which demonstrates that this is not a hypothetical situation.
Professor Hogg also said that “probably the rule for ripeness is the same as for mootness, namely, that the court should generally not decide a case that is not ripe for adjudication, but has the discretion to do so”. (Peter Hogg, Constitutional Law of Canada (5th Ed.) Vol. 2 at p. 59-21) Therefore, even if this case was hypothetical and not yet ripe for adjudication, this court would still exercise its discretion and rule on the constitutionality of the PSSA regardless.
Finally, in the injunction that took place in this case, Justice Edmond said that even though the PSSA had not been proclaimed, the government’s bargaining positions have been consistent with the PSSA, and the PSSA restraints were already being applied.
This court agrees with those conclusions of Justice Edmond, and for all of the reasons mentioned above, finds that this court has jurisdiction to consider the constitutionality of the PSSA and will rule accordingly.