THE MANDAMUS APPLICATION 

Although technically a separate proceeding, this hearing is closely connected with the trial of the Public Services Sustainability Act. It’s all about what happened (and what should happen) with the GEMA, the collective agreement between the Government of Manitoa and its employees in the civil service. Evidence on this issue came up during the Testimony of Sheila Gordon.

MGEU v. Minister of Finance was an application for judicial review asking the court for an order of mandamus, to force the Minister of Finance to appoint an arbitration board pursuant to Section 49 of The Civil Service Act, C.C.S.M. Chapter C110.

This is how the hearing on February 27, 2020 before Madame Justice Brenda L. Keyser went.

An aPPLICATION FOR JUDICIAL REVIEW

This was an application, as opposed to a trial. For lawyers, that distinction has all sorts of procedural considerations. For court watchers, it mostly just means that there is a lot less fun. Because all the evidence is taken in written form by affidavit, and any cross-examination occurs out-of-court before the hearing, we don’t get all the interesting people watching that you get with live witnesses at trial.

As a result, you end up seeing just an exercise in advocacy – straight legal argument about what the law is, what the facts are, and then applying the law to the facts, as way of persuading the judge that they should grant the order of mandamus or not.

Susan Dawes and Michael Gerstein, both of Myers LLP were on for the MGEU, while Keith Labossiere and Miranda Grayson of Thompson Dorfman Sweatman LLP, represented the Government of Manitoba.

I’ll get to what they said in a minute, but for now, bear with me as we wade through some law.

THE MIGHT OF MANDAMUS

Judicial review of administration action occurs where someone objects to the decisions made by a public actor. Geeky as it may be, mandamus was always one of my favourite judicial review remedies. It is such a magnificent word – mandamus, mandatory, you must behave. Thus, as you might expect, what mandamus means is that the court is ordering someone to do something that they are required to do, but for whatever reason, they aren’t doing now.

With administrative tribunals, like the Labour Relations Board, or the Manitoba Health Appeal Board, where people are not necessarily lawyers, the court’s input often only becomes necessary because the reason whoever is not doing what they are supposed to is due to a combination of lack of legal expertise and bad drafting (the way the legislation was worded).

But, when it is the Government Manitoba, and particularly a cabinet minister, it is kind of embarrassing that a court would have to spank them for not interpreting a statute properly. Framing statutes is what members of the Legislative Assembly of Manitoba are doing every day, after all. When the government says they are drafting a bill, they are writing the words that will become a law (statute) once the bill is passed. Thus, Ministers of the Government of Manitoba are presumed to know how legislation works, and thus expected to be able to understand and abide by any legal requirements with unquestioned obedience, and without any judicial assistance.

Furthermore, the Pallister Government has amended The Civil Service Act twice since it came to power in 2016, so it is not as though the terms of this Act are new or news to them.

what the honourable scott fielding didn’t do

The Civil Service Act is the primary legislative framework for human resource management in the Government of Manitoba. And the main collective agreement between the Government of Manitoba and its 13,000 employees in the Province’s civil service is known as the GEMA.

The Civil Service Act says that when the GEMA is up for renewal, the parties must begin to negotiate, and if they cannot reach an agreement, either side can ask the Minister of Finance to appoint an arbitration board who will settle the dispute through binding arbitration.

Accordingly, when the GEMA expired on March 29, 2019, MGEU and the Government of Manitoba started negotiating. The MGEU determined that agreement could not be reached, and sent a request to the Minister of Finance to appoint an arbitration board.

Not so fast, said the Honourable Mr. Scott Fielding. I have discretion, that is, the power to decide whether or not the matter is ready for binding arbitration. And, having reviewed the circumstances, I don’t think that the negotiations are finished yet. They haven’t done enough bargaining. So, MGEU and my own representatives, go back to the table and do some more bargaining.

Can he do this? Is this the Minister of Finance’s choice? Well, everything depends on what words are used in the governing statute. The Honourable Mr. Scott Fielding does not have this discretion unless The Civil Service Act clearly gives it to him.

So, what does The Civil Service Act say?

When I first heard of this issue, I thought – OMG, the way this government understands law (as in not very well, or not at all), I bet this is going to be laughably bad, and so bad that I don’t even want to look. It’s actually pretty fun for me to take the law and lawyers and explain it to real people. But, educating the public on how, legally speaking, their government is again playing the role of village idiot with embarrassing enthusiasm? Not so much.

But it came time, and it has come time now, to consider the question – has my government been up to some egregious legal stupidity again?  

The step of the Minister of Finance appointing an arbitration board is set out in Section 49(2) of The Civil Service Act.

OMG. It says shall. And not only that, it says “shall forthwith”.

That’s pretty much about as stupid as it can get.

Section 49(2): Where the minister has been requested to appoint an arbitration board, he shall forthwith, by notice in writing, require each of the parties to the dispute, within seven days after receipt by the party of the notice, to nominate one person to be a member of the arbitration board, and upon receipt of the nomination within the seven days, the minister shall appoint that person a member of the arbitration board.

legislative commandments

Legislative commandments, like their biblical counterparts, by establishment of very long-standing practice in common-law countries around the world, are signified by the word “shall” and for the same reason – it is meant to ordain that there is not and never will be a space for wiggle room.

Imagine old Moses up on Mount Sinai, receiving the ten commandments from God speaking out of the burning bush. After God finishes with all that fire and brimstone, and warnings of smiting, and then writing the commandments with a finger of fire …

“Well,” says Moses, “that’s done, so now let’s talk about when and how my people can safely ignore these commandments. I’ve got forty days and forty nights; we’ve still got time.”

“Yeah, sure,” says God, “I know, let’s add a star and a footnote to the bottom of the stone tablets that says:

*For exceptions and exclusions, please see other side.”

Maybe they did, and maybe we’ll never know, since Moses went and smashed the originals when he found his people in the midst of some wild revelry when he got back. (I always thought Moses was a bit of a party-pooper at this point in the story. So, Ok, they shouldn’t have been worshiping the golden calf, but a little debauchery never hurt anyone, and nowhere in the ten commandments did it say – thou shalt not have fun.)

Be that as it may that so much may have been lost to the sands of time in some very ancient human history, the story as it has been told for thousands of years is that when God sayeth thou shalt, it means that there shalt not be any question of whether you can or cannot do it. You must do what the commandment tells you to do, or in the negative, you must refrain.

And, having adopted this language for essentially the same reasons, when a law sayeth “thou shalt” (or “thou shalt not”), the implication of an absolute duty requiring unquestioning compliance is exactly the same.

And Forthwith?

That’s all bad enough, but the “forthwith” part makes it even worse. When someone is commanded to do something “forthwith” that is an unequivocal demand that you do what you are required to do, and you do it NOW.

Thus, when a statute says “shall forthwith” what it is really saying is:

Thou shalt do this job immediately exactly as stated, and there shalt not be any specious excuses for dicking around.

Moreover, since the word “shall” is usually sufficient by itself to connote the requirement to do something, the only reason anyone ever adds forthwith to it (or to any obligation in fact), is when they are worried that the person obligated to do something will want to defer, dawdle, and procrastinate for improper purposes. Thus, adding forthwith is precisely meant to pre-empt any temptation for dicking around.

So, what the Minister of Finance ought to have done upon receiving the MGEU’s request to appoint an arbitration board was appoint an arbitration board, and immediately. The Minister’s letters to the parties asking for their nominees should have gone out the same day. Yet, when Minister Scott Fielding received MGEU’s request, not only did he not do that; he definitely dicked around.

A Textbook Demonstration of Dicking Around

According to both parties (though they may differ on how to characterize it), this is what happened:

  1. MGEU made a request to the Minister of Finance to start binding arbitration, pursuant to Section 49(2) of The Civil Service Act.
  2. The Minister of Finance wrote back saying that there was no statement of difficulties, and furthermore, the request was, in his view, premature, and that he had the option to consider whether good faith bargaining had occurred and whether it had truly resulted in an impasse.
  3. MGEU replied saying, here is our statement of difficulties, and by the way, the Minister does not have discretion in this section of The Civil Service Act.
  4. The Minister still refused to appoint the arbitration board, claiming again that he had the discretion to decide whether it was warranted, and in his view, it was not warranted because there had only been 1 ½ days of negotiation, and thus he was confident that there was more to discuss.

The green bits are what the Minister of Finance claimed to be his discretion.

Section 49(2): Where the minister has been requested to appoint an arbitration board, he shall forthwith, by notice in writing, require each of the parties to the dispute, within seven days after receipt by the party of the notice, to nominate one person to be a member of the arbitration board, and upon receipt of the nomination within the seven days, the minister shall appoint that person a member of the arbitration board.

Oh really? Let’s take another look at the section. Just where in those words do you get the power to do any of this?

It’s not only not up to you. Mr. Minister of Finance, to decide whether or not to appoint an arbitration board, you don’t get to even think about it.

what statutory discretion looks like …

One thing the law abhors is a great waste of time. Thus, avoiding all arguments over what the words in a piece of legislation means is devoutly to be wished. As a result, just as it has become the practice to use “shall” to designate mandatory duties, i.e. no discretion whatsoever, people who draft legislation generally indicate discretion by using the word “may”.

However, since “may” implies some choice in the matter, and since we are talking about delegating the choice to use or not use public power, when someone gets handed discretionary powers, it is also accompanied by usually strict) directions on what that choice is and how they get to make it.

Prescribed and described, baby. That is how discretion is delegated in modern Canadian statutes.

Let’s play with an example –

Section X(1) of Y Statute: The Sheriff may shut the courtroom window if in their opinion it is too cold.

  • Who? The Sheriff. Not the Registrar, not the lawyers, not observers, just the Sheriff.
  • What? Can shut the window. Not close the door, pull the blinds, or kick out obnoxious observers (although Sheriffs may have been given that power in another statute).
  • Why (or on what basis)? If they think it is too cold. Not if it is windy, nor if they just feel like it, nor, apparently even if it’s too sunny out and it is becoming too hot.

[Note: Maybe this is poor drafting and the section should have read – if in their opinion, leaving the window open makes it uncomfortable. But, if the drafters only said cold, then only cold it is.]

People who have been given the power to make discretionary decisions aren’t always required to have a good reason for exercising their discretion. Where a statute says “may in their absolute discretion” that is statute-speak for – whenever the person feels like it for whatever reason, and no one can object. Because, however, this is so intentionally arbitrary, absolute discretion is used very sparingly and in limited contexts, like for example, when the matter isn’t that important and any arguments would be too trivial to bother with.

Contrast all that with what our hypothetical statute might look like with a mandatory obligation:

Section X(2) of Y Statute: The Sheriff shall shut the courtroom window if a judge asks them to.

No passing go or collecting $200 here. The Sheriff must shut the window, and has no space to ask the judge why. (You could add forthwith to it, but in the context, it’s probably implied. Judges rule the roost in courtrooms. We all do what they tell us to, without demur, delay, or denial.)

Not to totally annoy you with just how nit-picky statutory interpretation can be, but in this example, it doesn’t have to be the judge that is presiding over the hearing, nor even a judge that is in the courtroom or even the building. The section says “a judge” so, theoretically any judge could phone it in. Yep. It is that bad. Now you know why I always hated statutory interpretation.

Real-Life Examples of Duty v. Discretion

Thank you to Susan Dawes for these real-life examples of the difference between mandatory duties (thou shalt) and discretionary options (thou mayest). These are all taken from The Labour Relations Act.

Board to determine if good faith bargaining

87.1(3)   On receiving an application, the board shall inquire into negotiations between the parties and determine

(a) whether or not they are bargaining in good faith in accordance with subsection 63(1); and

(b) whether or not they are likely to conclude a collective agreement within 30 days if they continue bargaining.

87.1(4)     The board may delay making a determination under subsection (3) until it is satisfied that the party making the application has bargained sufficiently and seriously with respect to those provisions of the collective agreement that are in dispute between the parties.

Here, not only can the Labour Relations Board look into the negotiations, they have to – shall (in Section 87.1 (3).

After they do look into the negotiations, the LRB can delay until they are satisfied that there has been enough serious bargaining.

But, they aren’t required to delay. They get to decide. Because the statute says may”

 Minister may require ratification vote

72.1(2):     If at any time before or after the commencement of a strike or lockout the minister is of the opinion that it is in the public interest for employees in the affected unit to be given the opportunity to accept or reject the offer of the employer last received by the union respecting all matters remaining in dispute between the parties, the minister may, on any terms and conditions that he or she considers necessary, order that a vote of the employees in the unit to accept or reject the offer be held immediately.

In this section, the relevant minister (I’m pretty sure it isn’t the Minister of Finance in this statute) may order the union to hold a vote on the employer’s latest offer (but the minister doesn’t have to). But only if the minister is of the opinion that it is in the public interest.

Thus, in the public interest only, not if, say, the minister is doing it because they play golf with the employer’s CEO.

Appointment of mediator on joint request

95(1): Where collective bargaining has commenced, if the parties jointly request the minister, in writing, to appoint a mediator, the minister shall appoint a mediator to endeavour to bring about agreement between them. Where the request names a mediator that the parties have selected jointly, the minister shall appoint that person.

Appointment on request of one party

95(1.1): Where collective bargaining has commenced, either party may request the minister, in writing, to appoint a mediator, and the minister may appoint a mediator to endeavour to bring about agreement between them if he or she considers it advisable to do so.

Appointment on minister’s initiative

95(2): Where collective bargaining has commenced, and where, in the opinion of the minister, it is advisable to do so, notwithstanding that the parties have not jointly requested the appointment of a mediator in accordance with subsection (1), the minister may appoint a mediator to endeavour to bring about agreement between the parties.

Look at all these nice clear distinctions between when the minister can, or must, appoint a mediator, as well as when or why.

If both parties ask for a mediator, the minister has to appoint a mediator. The minister has no choice or space to question the matter: Section 95 (1).

If only one party asks, then the minister can appoint a mediator if he or she considers it advisable: Section 95 (1.1).

Even if neither party has asked for mediation, the minister can on their own initiative appoint a mediator, if in the opinion of the minister it is advisable to do so: Section 95(2).

 

 

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

So those are examples of the kind of verbiage you would expect to see if a statute grants discretion to someone.

And is this type of language or anything like any of this found anywhere in the relevant sections of The Civil Service Act? No, it is not. So, does the Minister of Finance have discretion to decide whether or not he should appoint an arbitration board? No he does not.

If The Civil Service Act had intended to give the Minister of Finance the power to decide whether, in his opinion, MGEU and the government weren’t ready for arbitration because he wasn’t satisfied that there had been good faith bargaining, or that there was actually an impasse, or whether in his opinion there hadn’t been enough bargaining (because 1 ½ days is not enough),

THEN THE CIVIL SERVICE ACT WOULD

HAVE SAID SO!!!!

lawyers make their case

One of the many things I like about Manitoba is that our courts are a lot more civilized than Toronto’s. While I listened to Susan Dawes and Keith Labossiere I was imagining what would happen if this application had been brought before one of the Ontario Superior Court’s Mr. or Madame Justice Crotchety’s. Butts would have been burning with some energetic judicial smiting. (Anyone who has litigated in Ontario has the scars and the stories about how they got them. You grow a thick skin.)

In any event, in my opinion, the law is so very clear, and the Minister of Finance’s excuses so incredibly specious that this case shouldn’t be here. If I were Keith Labossiere, I would tell the Minister of Finance knock it the [bleep] off, and order the arbitration to go forward already, with deep apologies to the MGEU and the government employees. But when your client is stubborn, and foolish, and also the Government of Manitoba, overruling them on something like this is really hard to do.

Anyway, the lawyers are here on behalf of their respective clients, so Justice Brenda L. Keyser has to give due consideration to what they have to say.

in the jaws of the dawes

It would have been open to Susan Dawes to just say that since the statute says SHALL FORTHWITH, the court should order the Minister of Finance to start the arbitration proceedings now, and then sit down. Lawyers never do that, however, and I’m glad that she didn’t, because I wouldn’t have wanted to miss the show she put on.

Instead, Dawes went through each and every point that Keith Labossiere was going to argue on behalf of the government and ruthlessly ripped each and every one of them apart.

It’s not a strategy that I’ve ever used, and I was intrigued. When you are up first, you always have the option of taking your opponent’s argument away from them before they even speak. Sometimes, however, you can risk making your opponent’s case for them and better than they would have made it themselves, and, it might give their points more attention than they actually deserve.

I usually took the general attitude that my opponent didn’t have a defence, and so I took no notice of their arguments, because I already “knew” they would be worthless. I would save my bashing for reply (which you always get when you go first), which would be presented with an implied – “oh, see, it was worthless, told you.”

There is no right or wrong in this. It is a question of style and preference, and when you are an advocate, you pick whatever works for you. I was chuckling as I watched Keith Labossiere shift uncomfortably in his chair, while the Jaws of the Dawes gnashed and gnawed at all of his submissions, savagely shredding them. It was so nasty. And it certainly worked.

The Many Ways the Minister’s Lawyers Got it Wrong

I should preface all this by saying that in court you would refer to your opponent as “my friend” or “my learned friend” and to their arguments as “the Minister’s submissions”. Although your opponent may be saying these things, it isn’t personal, and we are all aware that these are not his personal opinions.

So, although Dawes was in the midst of trashing Mr. Labossiere’s arguments, it is in no way a slam at him nor did she refer to him personally. I’m only using his name here because it’s easier in this context.

1. Facts Mr. Labossiere Forgot to Mention

Dawes could have just said “here is the factual background” for this case. But, in line with the all-out pre-emptive attack on the Minister’s defence, she instead phrased it as:

These are the salient facts that the Minister’s lawyers glossed over in their arguments. (So mean. I love it.)

Even if the Minister had the power to look into the GEMA negotiations to determine whether there was actually an impasse or whether it was possible for more bargaining to occur, AND HE DIDN’T, there are two salient facts that, taken together, make it abundantly clear that there was nothing either party could do. The parties were deadlocked and there was no point in any more bargaining, which was exactly why the MGEU asked to move to binding arbitration.

a.) PSSA Impact

The first was of course due to the dreaded and not-so-dormant Public Services Sustainability Act (making another oppressive appearance as another Elephant-in-the Room).

Brian Ellis, Assistant Deputy Minister of the Labour Relations Division, was negotiating on behalf of the government with Sheila Gordon on behalf of the MGEU.

The MGEU wanted to know whether the Government of Manitoba was going to stick to the PSSA 0%,0%, 0.75%, 1% wage freeze pattern or not, because if they were, then there would be no point in bargaining. MGEU’s negotiators had instructions from their members – if the new GEMA is not going to include wage increases, then it will not be ratified.

There is no honest answer to this question that Brian Ellis can give, so in the time-honoured tradition of not-so-artful dodgers, he tried not to. And we already know why Ellis was acting so dodgy. It’s what the government was doing with the PSSA again.

The PSSA has been passed but not proclaimed apparently so that the government can pretend it isn’t active. But that won’t work if anyone, especially the government itself, abides by it or takes a position that they are bound by it. (So, do the PSSA, just don’t admit it.)

However, it is clear that the government wants the PSSA to apply to all employees in the public sector, and has been willing to threaten, coerce, and otherwise thrash employers to do so, even if it means forcing the employers into committing an unfair labour practice. After three years of inflicting such harm on public sector employers, the government is therefore somewhat obliged to impose the PSSA on their own employees and not make PSSA exceptions for themselves.

After a few non-answer answers, Sheila Gordon basically said – I know you are not saying so, but we get it anyway; the PSSA wage pattern applies, and we are going to proceed on that basis, unless you tell us otherwise.

b.) The Threat

Kids, if you want to learn how to be a good negotiator, don’t ever make threats. If you are at a bargaining table, do not, ever, in any way, shape, or form, suggest to your opponent that you or someone else will hurt them in some way if they do not give you what you want.

It’s for practical reasons, not moral ones (although, morality may generally agree with the stricture). Threatening someone to get what you want is a good way to guarantee that not only won’t you get what you are asking for, you won’t get anything at all (except maybe a figurative punch in the nose, and I say you’ll deserve it).

Anyway, I’m pretty sure I know why Brian Ellis did this, and it again goes back to that passed-but-not proclaimed business.

In the words of my friend Mr. Smorang, the government wanted to be having its cake and eating it too. They wanted, it would seem, to have all the benefits that the PSSA would give them – wage restraints, without having to face any of the consequences, legal and otherwise. I gather that they got this idea from Nova Scotia, but I generally advise against any plan that is essentially – well Nova Scotia is getting away with behaving like idiots, so let us then behave like idiots too.

While at the outset, this strategy might have seemed to be smart, it became almost immediately apparent in every single instance, that this wasn’t at all workable in any actual application.

In this situation, the government would have a real problem if the GEMA negotiations went to binding arbitration, because as long as the PSSA remained unproclaimed, it would be open to the arbitration board to ignore it, award wage increases, and their decision would be statutorily binding. Retroactivity in the PSSA be damned. It wouldn’t mean anything unless the government finally proclaimed the stupid thing, and they really don’t want to do that.

In short, the government was desperate to avoid binding arbitration by any and all means, and Brian Ellis was stuck trying to do everything he could to keep MGEU from triggering their rights to it. (Yet another reason not to use threats. Although an inherent play to power, they are typically an indication that you are desperate because you don’t actually have any power, or any legitimate power anyway.)

In any event, Brian Ellis threatened that if MGEU went to binding arbitration, then each and every gain that the MGEU had already obtained through any collective bargaining that had already taken place, would be off the table. And, furthermore, the MGEU could expect that any nice-guy aspects of the governments initial proposals would be removed. It’ll be hard-ball time. And we will be out to get you.

Well, in that case, said the MGEU, there’s no point in talking about anything outside the PSSA either, because even if we get some agreement, we won’t get there on wages, and when we get to binding arbitration, you’re just going to erase any other gains we have made in the meantime. Alrighty then. Binding arbitration it is.

Yet one further lesson on why you should not use threats – unintended consequences. By making this threat, Ellis gave the MGEU a guaranteed reason not to bother bargaining at all. They couldn’t bargain on wages because of the PSSA, and there was no point in trying to negotiate on anything else, because the bullies on the Public Services Cabinet Committee were just going to evaporate them all when they went to binding arbitration.

2. The Test is not Reasonableness, it’s Correctness

Why is this relevant? It’s a pesky technical legal issue. So, to be honest, although I know why, I’m not going into it, because I don’t care. But, a very good point came out during this discussion, and that is a question of jurisdiction.

You see, in Manitoba, the Labour Relations Board has been delegated the power to determine all aspects of whether bargaining has been conducted in good faith. That would include all matters relating to the GEMA collective bargaining.

What this means is that the Minister of Finance’s reasons for stalling on appointing an arbitration board – not enough negotiation, not ready, etc. – are matters that are not any of his business. Legislatures are assumed not to be giving the same decision-making to two different people in different places and contexts, as this would result in the potential for unworkable conflicts.

Thus, suggests Susan Dawes, no one would or should even try to suggest that the legislature would intend to give the Minister of Finance overlapping jurisdiction with the Labour Board as Mr. Labossiere is about to argue when it comes time to present his defence.

3. But even if the test is reasonable, it wouldn’t be reasonable in this case

When the test is whether the decision was reasonable or not, Dawes takes us to some case law that talks about what unreasonableness might look like:

A court should not infer an increased scope of authority beyond what the legislature intended to prevent someone extending powers to themselves that were not in fact delegated to them.

It would be wrong for someone, like say a Minister, to adopt an interpretation that they know infringes on someone else’s powers, even if the interpretation is plausible.

And, it is improper to reverse engineer the wording of a statute to achieve your desired outcome.

With respect to Mr. Labossiere, when the Minister of Finance tried to squeeze in words like the Minister has the power to concern himself with the status and/or quality of the collective bargaining that had occurred,

He was taking the power to have an opinion on the state of the negotiations between the MGEU and the government, as well as the power to act on that opinion, and neither of those powers have in fact been delegated to him;

He was increasing his scope of authority and encroaching on the jurisdiction of the Labour Relations Board (and his interpretation is not plausible in any event); and

He was reverse engineering Section 49(2) to the desired outcome – prevent binding arbitration.

Yep. Sounds pretty unreasonable to me.

4. Saskatchewan’s labour laws are completely irrelevant

No, no one is dissing the people of my home province. The point here is that the Minister’s lawyers have relied on some statutes from Saskatchewan, which are entirely unhelpful because Saskatchewan’s labour relations legal framework is different and so is the wording of their statutes.

This order for mandamus ends up being a question of what the words in some sections of Manitoba’s The Civil Service Act mean. Whatever words are used elsewhere are entirely immaterial if they arise in a different scheme.

So, yes, there is a duty to do some bargaining in the Saskatchewan statute the government’s lawyers cite, but that’s because those words are there. Take a look at ours – Section 48(1)(a) – they aren’t. All the MGEU needs to do is start. (No, that is not a typo. The section does read “where negotiations have been begun ..”)

Section 48(1): Where

(a) negotiations have been begun under subsection 47(2) and no agreement has been reached; or

(b) a collective agreement entered into under subsection 47(3) is in force between the association and the government and a dispute arises with reference to the revision of any provision thereof that is, by the provisions of the agreement, subject to revision during the term of the agreement, between the association and the person authorized;

the association or the person authorized may, in writing, request the minister to appoint an arbitration board for the purpose of making an award and settling the dispute respecting the matters on which agreement cannot be reached and as set out in the request.

And true, there is a requirement in Saskatchewan that there has to be an impasse, but nobody read that in on some interpretation that might suit them. Nope, the word “impasse” appears itself in the Saskatchewan legislation. Read Sections 47-56 of The Civil Service Act of Manitoba. You will not find the word “impasse” mentioned.

5. Saskatchewan Labour Cases are irrelevant too …

One flows from the other, of course, since whatever Saskatchewan courts have to say about what should or should not be happening in the Saskatchewan labour context, depends entirely on the content of the Saskatchewan statutes.

There was actually quite a bit here, some interesting intricacies and clear distinctions. But I don’t have enough of the details to do any of it justice. (One of the cases was about the Swift Current fire-fighters union though – go home town!) And, when Dawes started in on this, I was kind of wondering why, since it was so clearly from another labour planet. She told us as she finished this part of her argument:

In paragraph 31, page 27 of the Minister of Finance’s written arguments, they say that these Saskatchewan decisions are compelling … and synonymous with an objective interpretation that before you proceed to arbitration, bargaining must reach an impasse.

Well, yes that might all be true. In Saskatchewan. But Manitoba’s laws are different and so none of this applies. Rip, rip, shred, shred. I think that argument is done before it has begun.

Even if …

Ok, so, regardless of how very right your case seems to be, you are almost always, as a lawyer, required to address all alternatives. So, Susan Dawes concluded by pointing out that even if you can read discretion into Section 49(2), it was unfairly applied. Whatever reasons Minister Fielding gave, they weren’t the real ones. This was just a sad excuse to defer the problem of what to do about the PSSA pooping all over everything.

So, even if Minister Fielding did have discretion, AND HE DIDN’T, he was exercising for the wrong reason. Agreed.

LET’S HEAR FROM MR. LABOSSIERE

Keith Labossiere was a year behind me in law school, so I kind of know him, if that slight connection some time ago counts. But I do know of him. And what I know is impressive. Everything suggests a most excellent reputation, well-earned and well-deserved.

As I watched him begin, I thought – yep, this guy is professionally polished from the top of his argument to the tips of his expensive Italian leather shoes. (Actually, I don’t know anything about men’s footwear, or whether Labossiere’s shoes were expensive or Italian leather. They looked really nice and I just assumed.)

I had considerable sympathy for Labossiere, because from where I was sitting, he was tactically doomed. I was pretty sure that the Jaws of the Dawes had masticated every aspect of the legal arguments he was about to make, and that he would not have had time over lunch to come up with something new.

But give him credit where credit is due. Keith Labossiere did what he could and he led with his strongest suit. Problem was, it wasn’t that strong.

1. The Minister’s Decision was Reasonable

According to Keith Labossiere, the Minister of Finance had some really good reasons not to allow the parties go to binding arbitration. Hmmm, I’m not sure about that, so let’s see …

   ⇒ Both parties agree that they have an obligation to continue to bargain in good faith; it is the MGEU who is avoiding their duty in this case. 

                   Yes, they both have a duty to bargain in good faith, but whether they are complying with this duty or are not is none of the Minister’s business. The Civil Service Act doesn’t give him that right and The Labour Relations Act gives exclusive jurisdiction on that question to the Labour Relations Board.

   ⇒ And there is no doubt that the authorities require there to be an impasse before binding arbitration is appropriate. And no doubt that the plain and ordinary words and phrases used in The Civil Service Act imply that an impasse is a precondition. 

                  Uhm, no. Not so. Not at all. The authorities are from Saskatchewan and they don’t apply. And if an impasse was required by The Civil Service Act, the sections on binding arbitration would have said so, and the plain, clear, and obvious word they would have used would have been “impasse”, or one of its close synonyms. So there is doubt, and it is considerable.

   ⇒ There is also no doubt that bargaining had barely begun – only 1 ½ days of bargaining occurred before MGEU pulled the plug. But GEMA collective bargaining is usually long and extensive, with the parties meeting 25-30 or more times over a period of 15-16 months. If the parties had done that here, it may be at that stage that binding arbitration is required.

       Neither Susan Dawes nor I needed to point out the problem with this argument; Justice Keyser did it for us.

      Justice Keyser: But the PSSA, it’s the elephant in the room.

OMG. Not another elephant in another room. I’m tired of elephants mucking legal matters up. A pox on all elephants in the room. They belong in the wild. Set them free.

The implication is of course, that there isn’t any point in having 25-30 meetings or in fact any meetings at all because the PSSA makes it practically impossible to do anything, at least that is the MGEU’s position.

Labossiere replies by saying, but no, the PSSA is a red herring. The PSSA is not law and therefore there is no elephant in the room.

Yeah, I’m not sure I would have put it that way, especially when the judge herself just said she sees it. Besides, merely denying its existence does not mean that the elephant isn’t there.

Labossiere’s final “good” reason was based on his take on the discussions between Sheila Gordon (for the MGEU) and Brian Ellis (for the Government of Manitoba) about the PSSA patter for wage increases.

   ⇒ The parties have positions, and all Ellis said was that the 0,0, 0.75,1 (PSSA pattern) was a reasonable position. Sheila Gordon wanted to know – Could there be any situation where the government would move off from it? Well, Ellis said that there very well could be, so let’s sit down and talk about it. Yet, all Sheila Gordon said to that was that she did not like that answer and then decided that the MGEU didn’t want to bargain, and so the MGEU is avoiding its obligations to bargain in good faith. 

                   Oooh. I would not have put any of this this way. You are entitled and you should as a lawyer characterize the facts in the way that best supports your case. But, when you do that, you have to make sure that the gap between your description of what happened and the truth is neither large, nor obvious, nor obviously large.

                  The truth was that Sheila Gordon concluded that Ellis wasn’t going to give an answer because the answer was that the PSSA pattern was going to apply no matter what, although it was inconvenient to say so. That was a reasonable conclusion in the circumstances, and not dismissing legal obligations with a careless shrug. As for the MGEU’s obligations to bargain in good faith, they say they can’t, not that they won’t. Besides, that is a question for the Labour Relations Board, an uninvolved independent third party, not the Minister of Finance who is essentially one of the parties sitting at the table. 

Labossiere’s ultimate conclusion on this point? For all of those reasons, it was reasonable for the Minister of Finance to conclude that the parties “had barely scratched the surface” and so it was premature to go to binding arbitration, and therefore proper for the Minister to decide not to start the process and instead urge both sides to return to the table to bargain some more.

And for all of the reasons I mentioned, I remain unconvinced.

2. The Minister had the Right to Make this Decision

Oh this is going to be good, I thought. How is Labossiere going to argue that The Civil Service Act gives this discretion to the Minister?

Well, he gave it a good try, going through the law on how statutes are normally interpreted. But eventually he had to make the big leap – what words are there in any of the relevant section in The Civil Service Act that suggest, imply, or even plausibly hint at any ability for the Minister to have any opinion on anything to do with going to binding arbitration, much less exercise a decision on it.?

He picked up a phrase from the last part of the sentence in Section 48(3):

Section 48(3): Where

(a) negotiations have been begun under subsection 47(2) and no agreement has been reached; or

(b) a collective agreement entered into under subsection 47(3) is in force between the association and the government and a dispute arises with reference to the revision of any provision thereof that is, by the provisions of the agreement, subject to revision during the term of the agreement, between the association and the person authorized;

the association or the person authorized may, in writing, request the minister to appoint an arbitration board for the purpose of making an award and settling the dispute respecting the matters on which agreement cannot be reached and as set out in the request.

Besides, even if section said anything remotely like that, the MGEU has already proven that there is nothing left to discuss, so there aren’t any outstanding matters upon which agreement can still be reached.

Here, the PSSA elephant is not only just in the room, it is sitting on the bargaining table squashing everything, or at least everything to do with any monetary issues. And thanks to Brian Ellis’s threat, there is no point in coming to an agreement on anything else, because once arbitration starts, the government is going to go back on it. (Told ya threats are risky and bad.)

As a result, all matters are outstanding, and there are no matters upon which agreement can be reached.

So, what are the parties supposed to do? Spend a year and a half going to the table 30 times saying – still that @#$%$ PSSA elephant? Still the threat? Ok, we’re done here. See you in two weeks.

Ok, whacky tabacky time. For this argument to work, you would have to read in a whole lotta of tortured interpretation. Something like,

Where no agreement has been reached, and the association or the person authorized had made a request in writing, the Minister may inquire as to whether the parties have negotiated in faith, and may require the parties to return to the bargaining table if he is satisfied that there are some outstanding matters upon which agreement can still be reached.

[Hypothetical imaginary discretion in green, and prescribed and described via underlining.]

Susan Dawes had already destroyed this in her initial argument, but when she did, I didn’t believe her, or rather I couldn’t believe what I was hearing, so I assumed that I had just missed something. They gotta have something better than that. Oh no. They don’t.

Any way, no, the section doesn’t say anything about having to wait on matters on which there is or can be agreement, much less provide any guidance to the Minister of Finance to do anything about them

Thus, even if any of this wasn’t wild rambling nonsense, please take note Mr. Minister. Matters on which agreement can be reached = zero. Matters on which no agreement can be reached = everything. Put that in the direction to the arbitration board, and let’s move on.

3. Stating or Misstating the Law?

Keith Labossiere is very good on his feet. He is clear, organized, and the words he used were beautifully elegant. But sometimes, with too much polish, your smooth turns to slick, and slick is ick. It makes you look like you’ll say anything as long as people pay you. (For some lawyers, that may be true, but even then, you’ll want to do all you can to not make it obvious.)

In any event, this is what happened when Labossiere got to the law.

   ⇒ The Section clearly says that there is discretion … 

                  Uhm, no. The section clearly says – shall forthwith – and nothing else, which means there is no discretion whatsoever.

   ⇒ The Saskatchewan cases clearly say that there must be an impasse, objectively speaking, not in the subjective opinion of one of the parties … 

                  Well, yes, the Saskachewan cases do say that, but that doesn’t mean a damn thing, because we are not in Saskatchewan.

   ⇒ Ok, but even if the words in the Saskatchewan statutes are different, we can still rely on the principles set out in the case law …  

                  Sigh. No. Not here. This is a case on interpreting a section of the statute, and when you are doing that, the words used are absolutely crucial. If the sections in the Saskatchewan laws aren’t exactly identical, or almost exactly the same, then whatever those cases say is about as relevant to Manitobans as the people of Saskatchewan’s unfulfilled desire for their own NHL team. Sure they want one, but we’ve got the Jets so who cares.

When you have got a bad case, and this one was a very big stinker, you gotta do whatever you can do. But, in my view, you still gotta be careful not to overstate your case. There were some hints of it earlier, but it was particularly prevalent in this part on the case law. It’s not that you cannot make the arguments. I just wouldn’t make them with such definite confidence that your client’s position is right, when it is so abundantly clear that your client is full of crap.

This doesn’t mean you take it all lying down. If you have to go to court with this garbage, you have to do something. But not like this. For example, when Justice Keyser mentioned the PSSA Elephant in the Room, Labossiere bounced back with – no, there is no elephant at all. Better? Try – well, obviously we don’t agree with that characterization. See? Just a quiet understated disagreement, and move on.

Anyway, that was it for Labossiere. Time for reply.

the dawes in reply

Susan Dawes smacked Labossiere around a bit more in reply, as she is entitled to do. One of the best parts was when she was talking about how the Minister of Finance suggested that there hadn’t been enough bargaining because they’d only met for 1 ½ days:

“What does the amount of time have to do with it?” she said. (Ooh, a good point and some snarl to boot. Yes, yes, we like this ferociousness.)

And then she ended with the same point I began with. Section 49(2) says that the Minister SHALL FORTHWITH appoint an arbitration board.

Yes, I agree Susan. Only nincompoop would take this to mean that they could make up reasons for not doing this duty without the slightest delay. And although Keith Labossiere had to argue it, I guarantee to you that this was not his interpretation.

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

That’s what I think. But, since Justice Keyser reserved her decision, we don’t know what she’ll make of it. We’ll all just have to wait.

When you are finished with all those pages, I have a little aside - BUTT-FIRST BUFFOONERY - before we move into the real fun in THE GOVERNMENT'S FINAL ARGUMENT - the final advance of Brian's angry elephants ... smile

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?

I was just mad.