Ii. CONSULTATIONS before legislation

THE DECISION

Issue II: PRE-LEGISLATION CONSULTATIONS

does a government have to consult with the unions affected before enacting legislation?

Do I despise this issue as a matter of law more that I despise how the Government of Manitoba went about their so-called “consultations” with the Fiscal Working Group?

Hard to say. It’s a toss-up.

issue II:

Is there a duty for governments to undertake meaningful consultations prior to enacting any legislation that may affect collective bargaining?

A. How the Government of Manitoba “consulted

Although the Fiscal Working Group outrage, outrageous though it was, gets considered here, and then again during the “minimal impairment” part of the Section 1 defence, it doesn’t end up mattering that much.

Makes you wonder. Hey Government of Manitoba, if you were going to do it so badly, why did you bother?

Justice McKelvey:

In its Throne Speech on November 21, 2016, the Government of Manitoba indicated its intention to consult with Labour on the content of the intended wage restraint legislation. Accordingly, Gerry Irving called Kevin Rebeck on December 5, 2016 to set up a meeting for January 5, 2017.

In the meantime, when the Public Sector Compensation Committee met to discuss the PSSA on December 14, 2016, they also discussed how to handle the consultations with Labour (Uh-oh, here comes the communications strategy …):

It can be anticipated that organized labour will want to address the Province’s intention with respect to legislation. It is recommended that the Minister of Finance:

♦    Acknowledge that, as outlined in the speech from the throne, legislation will be introduced, following consultation and dialogue, to ensure that wage costs in the public sector do not exceed Manitoba’s ability to sustain the services they receive in return.

♦    Advise the group that details of any possible legislative options have not been finalized by government. Government is seeking input from and dialogue with union leaders prior to any final decisions by government regarding the legislation.

♦    Propose a further meeting with organized labour and government officials to exchange ideas about possible legislative options. A conceptual outline of possible legislation from the Province’s perspective could be discussed at the meeting. For example, this outline could consist of the concept of pause(s), possible wage increases, and efficiencies. Input and suggestions from organized labour will also be sought throughout the consultation process.

(In other words, our great and wonderful communications strategy is – don’t tell the unions the truth about anything, especially that we are going to legislate no matter what they say, and in fact have already drafted the thing. Lie.) 

Yeah, grrrr. Happens every time I see this communications strategy. You people realize that the honest articulation of this plan is – hey, how can we make it look like we are consulting (in fistfuls of fraud), when we don’t care what the unions have to say because we are just going to do everything we want our way anyway? 

Justice McKelvey:

Labour leaders met with the Minister of Finance, Irving, and Stevenson on January 5, 2017. Although the records of the Public Services Compensation Committee show that the PSSA was already being developed, and any consultations with Labour could only relate to content of the PSSA, the unions were told that the Government hadn’t started drafting any legislation and that the Government was taking a “blank slate approach”.

(Oh holy bullsh*t Batman because look at what they were doing the same day … )

That same day, Stevenson and Irving prepared the Advisory Note that set the final form of the PSSA pattern: 0%, 0%, 0,75%, 1% which was included in the PSSA, whose terms were, by that point, substantially drafted.

Everyone agreed to continue consultations via a Fiscal Working Group. Rebeck was the spokesperson for Labour. Irving and Stevenson attended on behalf of the Government of Manitoba.

The Fiscal Working Group met a number of times between January 25, 2017 and March 9, 2017. The Government’s notes indicate that the unions were committed to helping the Government balance the budget within the next eight years, but did not think that legislation was necessary.

The unions approached the FWG meetings with the belief that there would be meaningful dialogue and that the Government was open to non-legislative options. There was a recognition that Manitoba faced fiscal challenges, and so the unions wanted information so that they could help propose meaningful solutions.

As a result, there were many communications between Rebeck and Irving about the Government’s position. A great many questions were posed by Rebeck, most of which received no response.

The Manitoba Federation of Labour made a presentation entitled “Addressing Manitoba’s Fiscal Imbalance.” It was never responded to, was given a brief (less than 24 hours) review, but was never reviewed with Cabinet. The Manitoba Nurses Union also made a presentation on saving money through better management of overtime hours. Although described by Irving as “amazing,” the Government never pursued it.

At no time during the consultations with the Fiscal Working Group were the unions told that the PSSA was already in development, its terms were being worked on as they spoke, and that those terms were, already substantially determined, even when Kevin Rebeck specifically asked.

For example:

 … according to media reports, draft legislation is already prepared and is already being prepared … If there is draft legislation outlining the Government’s preferred options, we would be eager to review it as soon as possible – and early in the process, in order that we may provide thoughtful and constructive input. [Email from Rebeck to Irving, January 10, 2017]

As a result, Labour was never given any opportunity to provide input on the terms of the PSSA. In fact, Labour was never told those terms existed.

During the four meetings of the FWG that took place from January to March of 2017, the unions expressed their frustration about the lack of financial information and the status of the PSSA (was there going to be legislation or not?).

Rebeck summarized these concerns in a letter to Irving dated March 7, 2017:

♦    Labour is completely in the dark about what specific fiscal goals the Government is seeking to achieve with the legislation and why goals could not be achieved through collective bargaining.

♦    There is no information about the specific legislative goals.

♦    This is an incredibly short time frame.

♦    Labour has worked in good faith and made proposals with respect to returning to balance over an eight-year period, without response.

♦    The Minister assured Labour that all options were on the table.

♦    Labour never declined to provide feedback on the Government’s legislation. Labour was never told with certainty that legislation was going ahead, nor was a draft ever provided.

♦    The Government has been providing inconsistent information.

Irving’s answer was not wholly responsive.

Irving’s answer was not wholly responsive?

That’s a wa-a-a-y too nice way of putting it. Based on the evidence I saw, Irving’s response was a bunch of non-answer answers, garbage-y mumbo-jumbo, designed to look as though they were saying something without saying anything. The snooty, erudite way we in the legal world would refer to it is – dissembling. Lying con-men. 

In fact, here’s a sampling of some of the things Irving said when Rebeck asked Irving these questions at the Fiscal Working Group meeting two days later on March 9, 2017.

Not wholly responsive, or downright rude and dismissive? Decide for yourself.

Irving: Can we move on to another subject? You are not getting that number. Presumably finance knows that number. Presumably on budget day the Government will reveal its plan.

Irving: I do not know, Government knows, not in my scope. Let’s carry on with this game..

Irving: I cannot answer that. I am not Government.

Irving: We have been through this game before. Are you saying you are not willing to meet anymore?

————

Irving: As I understand, you are asking, requesting, you are demanding to know the goals of Government.

Rebeck: Asking.

Irving: (writes more info) Got that noted. Anything else?

Back to Justice McKelvey …

Justice McKelvey:

During the February 24, 2017 meeting Irving also said:

Collective bargaining does not always work. It is not always done in good faith. We might be required to take a pause if collective bargaining is not working, even in the long term. The Government prospective is looking for progress and efficiencies. We cannot bank on good faith.

(Oooh it’s stuff like this that makes me hate them so. You cannot bank on good faith? You are the scumbags who are gaming and lying. It’s called projection people, when you accuse everyone else of being as sleazy as you are.)

It is clear that the Government did not believe that collective bargaining would give it the certainty it wanted. The unions contended that there was no good faith intention to consult, that the government was not forthright in its dealing with the unions about whether there was legislation, the unions’ presentations, the need for legislation, the unions’ requests for information, as well as other matters. As a result, the unions say that there was no good faith surrounding these consultations.

It is also clear that the Government of Manitoba wanted to consult with Labour before bringing the legislation. But this court is not satisfied that the Government was ever willing to consider any options other than legislation and does not believe that the Government would have ever considered any variation to the PSSA’s content.

(Take that Government of Manitoba. You bad.)

The evidence revealed that the Government recognized that it must consult, but this court concludes that throughout the limited and perfunctory consultation process between the Government of Manitoba and the unions, the Government never had a serious intention to consider anything other than legislation.

(You were consulting, but you didn’t mean it. Jerks.)

The consultation was not meaningful in respect of the legislation or its content. The communications between Rebeck and Irving demonstrate the tension between the two groups, with the unions receiving little to no response to their requests for information and feedback on their proposals.

Furthermore, there were 18 unions that were not part of the Fiscal Working Group who did not take part in any consultations prior to the PSSA at all.

Although we aren’t there yet, it seems pretty clear that Justice McKelvey thinks that the consultations that took place between the Government of Manitoba and the Fiscal Working Group were not undertaken in good faith, and were, rather, a shift scam. 

B. the law – is there a duty to consult?

Readers may recall from the Government of Manitoba’s Government of Manitoba’s Final Argument how mad I was about this. Heather Leonoff suggested that Labour was alleging that there was a duty for the Government to conduct good faith consultations prior to negotiating.

This is not true. This was, rather, Labour’s defence to the possible defence of the PSSA by the Government of Manitoba based on the consultations.  That is, Labour was trying to preempt any argument by the Government that the consultations that took place prior to the PSSA could be a substitute for collective bargaining.

Such an argument would have looked like this: 

“Because we consulted prior to legislating, like the B.C. Government in the B.C. Teachers Federation case, we can say it no longer matters whether the legislation substantially interferes with collective bargaining; the pre-legislation consultations can substitute for collective bargaining afterwards, so that makes it all Ok.”

In fact, I am quite certain that the only reason the Government of Manitoba bothered with their ridiculous attempts at pretending to “consult” was because the law was unclear, and they thought either they had to (because of the Court of Appeal’s decision B.C. Teachers Federation) or, to create the the substitution defence – pre-legislation consultations can be a substitute for collective bargaining. 

Either way, the pre-legislation consultations were never Labour’s idea, never part of their case, and Labour never said anything about there being a duty to consult before bringing in legislation. 

1.Labour’s Actual Position

Correctly stated, Labour’s pleading on this point is:

We say that pre-legislation consultations cannot be a defence to a constitutional challenge on the basis of Section 2(d) freedom of association. But,

If the court finds otherwise, and pre-legislation consultations can be a defence to a constitutional challenge, then those consultations must be conducted in good faith.

Because the consultations with the Fiscal Working Group about the PSSA were conducted in about as bad faith as there could be, they would not be sufficient to meet a standard of meaningful consultation, and therefore do not qualify.

2. How the Government of Manitoba Mangled this Position

The Government of Manitoba mangled Labour’s position, twisting it into the suggestion was that Labour wanted there to be a duty to consult before legislating, and that Justice McKelvey should reject this position because it was stupid. (It was stupid. But Labour didn’t say that.)

They did this by misrepresenting paragraph 1(e) of Labour’s Re-Amended Statement of Claim in their written submissions, via some questionable excerpting.

This is how the government “quoted” Labour’s Re-Amended Statement of Claim:

The statement of claim claims as follows:

1(e) in the alternative … (skipping a huge part containing many conditions and qualifications)

(a) a declaration that a declaration that the Defendant violated the s. 2(d) Charter rights of employees represented by the Plaintiff Unions who participated in the Fiscal Working Group, by failing to engage in a good faith process of negotiation and meaningful consultation process prior to enacting the PSSA

And this is how paragraph 1(e) actually reads:

Paragraph 1(e) Re-Amended Statement of Claim:

1(e) in the alternative to paragraph (d), IF a process of meaningful consultation between the Plaintiff Unions and the Defendant about the PSSA is a constitutionally adequate substitute for the process of timely, good faith collective bargaining between the Plaintiff Unions and their respective employers in the circumstances of this claim, WHICH IS DENIED, then:

(a) a declaration that a declaration that the Defendant violated the s. 2(d) Charter rights of employees represented by the Plaintiff Unions who participated in the Fiscal Working Group, by failing to engage in a good faith process of negotiation and meaningful consultation process prior to enacting the PSSA

So very clear, at least to lawyers:

We do not want nor do we think that pre-legislative consultations can be a substitute for collective bargaining (that’s what “is DENIED” means),

BUT, IF you, Justice McKelvey think that they can, then these consultations weren’t conducted in good faith and so weren’t good enough to matter.

C. JUSTICE McKELVEY’S OPINION

Justice McKelvey fell for this moving of the goalposts, following the Government of Manitoba’s misrepresentation and misinterpretation of Labour’s position that there is a free-standing duty to consult prior to legislation.

It’s not Justice McKelvey’s fault. She would have had to go back and check the original pleadings to be sure, and I ‘m sure that it never occurred to her that she needed to. Lawyers are presumed to be bound by an implied undertaking that everything they say to a judge will always be as truthful as possible. So, when a lawyer says anything in court or in writing, the judge can take them at their word.

Whether this kind of misrepresentation is technically unethical or not, I don’t think much of taking advantage of an overworked judge who does not have the time to be fact-checking counsel on a proper reading of their opponent’s arguments.

In any event, having accepted that Labour was arguing that there was a duty to consult with Labour prior to legislating, Justice McKelvey then had to decide whether there was, or not …

Justice McKelvey:

The decision in B.C. Health Services held that “legislators are not bound to consult with affected parties prior to legislation” (paragraphs 157 and 179). This was reiterated by Justice Rowe in Misikew Cree who said that the imposition of a consultative process:

… could effectively grind the day-to-day internal operation of a government to a halt. What is now complex and difficult could be drawn out and dysfunctional. Inevitably, disputes would arise about the way that this obligation would be fulfilled. This is why the separation of powers operates the way it does. The courts are ill-equipped to deal with the procedural complexities of the legislative process. [Paragraph 164]

This court concludes that Justice Donald’s reasons in B.C. Teachers Federation did not create a duty to consult prior to legislating and that the Supreme Court of Canada did not embrace such a position when they adopted Justice Donald’s reasons.

This court agrees with the court in Misikew that policy and law-making functions should be left to the legislators. To hold otherwise could resultin an inappropriate inhibition of the legislative process. To incorporate consultation into the process could have many unforeseen and, perhaps, limiting consequences. As Justice Karakatsanis stated in Misikew:

[2] Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process. The process of law-making does not only take place in Parliament. Rather, it begins with the development of legislation. When ministers develop legislation, they act in a parliamentary capacity. As such, courts should exercise restraint when dealing with this process. Extending the duty to consult doctrine to the legislative process would oblige the judiciary to step beyond the core of its institutional role and threaten the respectful balance between the three pillars of our democracy. It would also transpose a consultation framework and judicial remedies developed in the context of executive action into the distinct realm of the legislature. Thus, the duty to consult doctrine is ill-suited to the law-making process; the law-making process does not constitute “Crown conduct” that triggers the duty to consult.

[32] For the reasons that follow, I conclude that the law-making process — that is, the development, passage, and enactment of legislation — does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the lawmaking process. Therefore, the duty to consult doctrine is ill-suited for legislative action.

[36] Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. While the adoption of the Canadian Charter of Rights and Freedoms transformed the Canadian system of government “to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 72), democracy remains one of the unwritten principles of the Constitution (Secession Reference, at paras. 61-69). Recognizing that the elected legislature has specific consultation obligations may constrain it in pursuing its mandate and therefore undermine its ability to act as the voice of the electorate.

Although it is not unusual for governments to consult with groups that will be affected by upcoming legislation, that doesn’t mean that there is or should be a legal duty to consult. If there was, governments might never consult at all, because those consultations might open them up to objections to the legislation that the consultations weren’t good enough via judicial review.

Any duty to consult that has been established by International Law does not create such a duty in Canadian law.

Therefore, this court finds that there is no legal duty to consult with unions prior to bringing legislation that might impact on a union’s rights to Freedom of Association.

However, these consultations may be relevant to a defence under Section 1 of the Charter and will be considered then.

Ok then. No duty to consult prior to legislating in Canada.

Well, no, not quite. So far we have one trial judge saying that there is no duty to hold pre-legislation consultations in Canada. The law on this point will not be “settled” as we say in the legal business, until someone takes a case to the Supreme Court of Canada and asks them to rule on it, finally. 

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

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.