I. passed but not proclaimed

THE DECISION

Issue I: the original elephant in the rooM

The Public Services Sustainability Act hasn’t been proclaimed yet. does that matter?

issue I:

Does this court have jurisdiction to rule on the constitutionality of the PSSA, as it is unproclaimed legislation without legal effect?

A. STATUS OF MANITOBA’S PUBLIC SERVICES SUSTAINABILITY ACT

Again, all of my discussion of Justice McKelvey’s decision is my editing, but mostly her words, and so, I bolded and underlined sentences that I thought were most relevant. Thus, this is my emphasis, not Justice McKelvey’s.

As always, the smart-ass comments in bracketed italics are all mine.

Justice McKelvey:

The PSSA was introduced in the Legislature on March 20, 2017. It was passed by the Legislature on June 1, 2017, and received royal assent the next day, June 2, 2017. The PSSA has not been proclaimed into force and no one knows whether it ever will be.

According to Sullivan on the Construction of Statutes:

24.13 Effect of enactment. The enactment of a statute occurs at the completion of the formal enactment process when a bill is assented to by the sovereign. At this point the statute becomes law in the sense that it forms part of the body of rules that are recognized by the courts as law. The meaning of the statute is determined as of this day and the statute may be taken into account in interpreting other legislation from this day on. However, unless the statute has commenced or come into force, it is not binding on the public nor is it able to produce beneficial legal effects.  It is also incapable of conflicting with other legislation.

Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ontario: LexisNexis Canada, 2014).

Legislation may be proclaimed upon enacted, or proclamation may be delayed. There are many examples, including in Manitoba, where proclamation has been delayed, and in some cases, has never taken place. The courts cannot proclaim legislation, nor order that proclamation take place.

B. THE EFFECT OF THE AMENDING BILL, BILL 9

Justice McKelvey:

Bill 9 was introduced in the Manitoba Legislature in November of 2019. While it is possible to amend legislation that is not in force, the amending legislation does not become law until the law it amends is proclaimed (Sullivan on the Construction of Statutes, Section 24.68.)

Judicial notice is taken of Bill 9, but no weight or consideration will be given to it since there was no evidence of its meaning or intent. Furthermore, the PSSA has not been proclaimed, and Bill 9 has not yet been enacted.

C. THE GOVERNMENT’S ARGUMENT

Justice McKelvey:

The Government of Manitoba contends that the PSSA has no legal effect and may never become law, and claims that all collective bargaining by public sector employers has: (1) been in accordance with mandates, and (2) has not been affected by nor been in accordance with the provisions of the PSSA.

Thus, the Government argues that the PSSA is not ripe for a decision on this constitutional challenge because it has not been proclaimed. Any decision on the effect of the PSSA would be theoretical until it is proclaimed.

It is unusual for a government not to have proclaimed any part of a law, now three years after it was passed.

(Yeah. It makes no sense, not without some excuse. What’s yours?)

The Government of Manitoba claims that this may be because the PSSA does not meet its policy goals, as demonstrated by the Bill 9 Amendments. However, there was no evidence as to why the PSSA was not proclaimed, and the evidence is that the PSSA was copied from Nova Scotia, whose PSSA also remained un-proclaimed for a year and a half.

According to Rick Stevenson, Nova Scotia thought that:

… not proclaiming the legislation worked well in setting the framework of what it believes is its ‘ability to pay’ is.

(In other words, Nova Scotia thought that hey, if we pass but don’t proclaim it, we can get all we want and the unions can’t challenge it in the courts. Tee-hee-hee. Eyeroll.)

D. ANALYSIS

Justice McKelvey:

According to Peter Hogg, “a case is not ripe for decision if it depends upon future events that may or may not occur. … For example, a challenge to the constitutionality of a bill that has not been enacted would not be ripe: the bill may never be enacted or may be significantly amended before it is enacted.” (Peter Hogg, Constitutional Law of Canada (5th Ed.) Vol. 2 at p. 59-21)

This does not apply because the PSSA has been enacted. The PSSA is law, albeit without legal effect.

The test for ripeness is related to the test for mootness. Where a live or real controversy exists, the court has the discretion to determine the case: Borowski v. Canada [1989] 1 SCR 342.

The PSSA has played a significant and substantial role in what has happened in collection bargaining in Manitoba since 2016.

(Anyone reading this already knows that the government is going down, bigly.)

Whether it is proclaimed or not, the Government and public sector employers have governed themselves in accordance with the PSSA. It is clear from the evidence, both in statements made during negotiations, and in the conduct of government, that the government has proceeded as if the PSSA had already been proclaimed and was already in effect.

(Yep. A law doesn’t have to be in effect to have an effect, and the evidence shows that the effects of the PSSA have been substantial, even though it remains unproclaimed.)

It is disingenuous to suggest that the Government’s negotiating mandates and policies are simply that, and not the PSSA Sword of Damocles hanging over the unions’ heads.

(Oh yeah, smack them around some more Justice McKelvey.)

Furthermore, the retroactivity aspect of the PSSA has been repeatedly referred to throughout the various bargaining scenarios, and described as an omnipotent threat hovering over negotiations that would be realized once the PSSA is proclaimed.

(That damned Elephant of Damocles. )

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.

It’s fairly self-explanatory, but she basically said that the issue is ripe for decision because the PSSA is already having a substantial effect on collective bargaining. This is at least in part because the Government of Manitoba is already applying the PSSA, even though they haven’t proclaimed it yet.

And oh yeah, that B.S. about this being just mandates? “Disingenous” says Justice McKelvey. You can take that as specious, silly, and in the “shouldn’t have been tried” category.

In any event, the Elephant-in-the-Room passed-but-not-proclaimed nonsense is rejected. Justice McKelvey just kicked that Dumbo out of the courtroom. Hooray!

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previous Post

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.

What Have We Learned?

There’s lots to discover from considering Justice McKelvey’s decision, and not just for labour lawyers. Let’s take a look at what we have learned.