Labour’s final argument –

pART I. THE LAW

Part i: the law

the arc of the law Bends increasingly towards workplace justice

Finally, we begin the finality. We start with the law, and since this is Shannon Carson’s area, she stands up first. 

the law bends towards workplace justice

When Shannon starts by saying that she will begin with an overview of the law, I groan silently to myself because the lawyer that still lurks within me thinks that a whole lotta talk about a whole lotta law is my cue to hit the snoring-boring button in my brain and snooze until it’s over.

But I don’t because this “Rule of Law at work” stuff is making me curious.

What’s all this about the arc of the law bending towards workplace justice? Who’s idea was this? Is it a good one?

Is workplace justice so important that we should arm it with Charter rights and protect it with the Charter flak-jacket of fundamental freedom?

It’s a question I ask not just as a lawyer, but as a citizen. And I only ask it now, because I was too focused on the details during the trial to ponder about this bigger picture. As a result, I had pretty much accepted Charter protection for collection bargaining as a given.

But now, I could sit back, listen to how the courts got there, and say to myself – all right, so why exactly is workplace justice so constitutionally important? Gimme your reasons. Convince me.

a. some background for the uninitiated

Shannon didn’t go this far back, but for labour law newbies, me included, it helps to dig a little into some legal history.

Labour has been labouring to get workplace justice in one form or another since the labour movement began. But it wasn’t until the Canadian Charter of Rights and Freedoms came along that it looked like labour rights were finally going to be enshrined in the highest law of the land. Section 2(d) – Freedom of Association, is inherently and especially applicable to unions after all.

It was not surprising then that some of the earliest Charter cases cases dealt with labour issues. Still, in the early days, the Supreme Court of Canada wasn’t particularly sympathetic to Labour’s attempts to put some meaningful meat on the Charter‘s Freedom of Association bones.

This first wave of Charter activism crested with the first Labour Trilogy in 1987:

Although there were three cases, they all basically said the same thing (in fact, most of the judges in the latter two cases just said – hey, see that stuff I said in the Alberta Reference.)

This first wave didn’t make it over the levee of judicial reluctance. The Alberta Reference basically said, nope, sorry, no protection for the right to strike or collective bargaining under the Charter’s Freedom of Association.

And why? Well, four judges relied on the analysis of Mr. Justice McIntyre, who went through six different approaches to labour relations, and then came to a very narrow conclusion:

Freedom of association under the Section 2(d) means the freedom to engage collectively in those activities which are constitutionally protected for each individual. It means also the freedom to associate for the purposes of activities which are lawful when performed alone.

Freedom of association, however, does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess.

And so,

The freedom of association in Section 2(d) of the Charter does not give constitutional protection to the right of a trade union to strike as an incident to collective bargaining.

Essentially, Justice McIntyre was saying if the right or freedom isn’t something that an individual has on their own, then a group cannot have it either. And since, collective bargaining and a right to strike have no individual counterpart, then ipso facto, no Charter rights for you.

As a result, while Freedom of Association was said to protect your right to join a union, it didn’t necessarily protect anything unions normally do.

In his dissent, (majority judgements make the rules, while dissents are the disagreeing judicial minority), Chief Justice Brian Dickson had little use for this approach:

If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, indeed vapid. [Paragraph 81 of The Alberta Reference]

Ha, ha, ha, ha. That’s some serious judicial shade.

But Justice Dickson has a point. Freedom of Association wouldn’t mean much if all it protected was your ability to  join a union, without also protecting a union’s collective activities, which is the only reason why you bother associating into a union in the first place.

Great, you can join a union all you want, but they cannot do anything useful for you.

B. B.C. HEALTH SERVICES CHANGES EVERYTHING

So that’s how it stood – Freedom of Association doing nothing much good – until twenty years later, when B.C. Health Services came around.

Relying heavily on Chief Justice Dickson’s reasoning in his dissent in the Alberta Reference, the Supreme Court of Canada overruled the original Labour Trilogy. Now, and supposedly forever more, the process of collective bargaining and other activities of unions are protected under Section 2(d).

This is where Shannon began her version of the story, so let’s pick up her argument here …

What Chief Justice Dickson said in The Alberta Reference – It’s Good Stuff

Shannon Carson is rather diminutive, and about a foot and a half shorter than Garth Smorang. When you see them together, they look like Lilliput and Brobdingnag out for a walk.

And while Shannon seems to be as quietly introverted as Garth is exuberantly extroverted, that’s where the contrast ends. When it comes to advocacy, The Hammer hits just as hard as The Smasher. They both impale you with the ferocious points of their unrelentingly cogent arguments. And what Shannon may lack in physical size, she more than makes up for the caustic clarity of her organized thought.

As I listen to Carson, I’m reminded of how it felt when she was doing cross-examinations. She is so on point and pointed, that I can almost see the outline of her argument being printed out in the air in front of me, a ticker tape of topics, passing persuasively before my eyes.

A a result, I’m guessing that her notes in this section looked something like this:

A Prairie Giant – Chief Justice Robert George Brian Dickson

When it comes to chattering about the Charter, no one looms larger and with more authority than Justice Brian Dickson, Chief Justice of the Supreme Court of Canada from 1984-1990.

The Charter was meant to define the idea of a “just society” as a matter of law, which means that judges, and especially Supreme Court of Canada judges, had to decide what our social ideals were and then adapt them to the Rule of Law framework. A tremendous challenge, of course, but Chief Justice Dickson took it as an opportunity, writing with dedicated determination to provide a thorough and thoughtful analysis of every new Charter case that came before him, no matter which side he was on.

And where did this man come from? Saskatchewan. He was born in Yorkton, grew up in Wynyard, and went to the same high school my parents met at in Regina (although not at the same time – they weren’t even born yet).

Justice Dickson studied law at the University of Manitoba, served in WWII, practiced a bit, taught some law school, and then was appointed a judge in Manitoba in 1963. He went up to the Supreme Court of Canada in 1973, and became its Chief Justice in 1984, just as Charter challenges started hitting the court.

Made in Saskatchewan, matured in Manitoba. Now that’s a legal life story that I can more than relate to.

Carson:

In his dissent in the Alberta Reference, Chief Justice Dickson said that:

  1. Freedom of Association gives individuals the potential to participate in society, and have a voice in shaping their circumstances according to their needs.
  2. Labour law arises out of the inherent inequalities of power in the labour context, because workers are dependent on their wages and vulnerable to arbitrary actions by their employer.
  3. Freedom of Association recognizes the profoundly social nature of human endeavours (i.e. when we do things, we are almost always doing them together.)
  4. This allows people who would otherwise be vulnerable and ineffective to meet on more equal terms with those with more power and strength.
  5. Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a way to contribute to society.
  6. Collective bargaining is the most significant occasion on which workers can impact their daily working conditions, including wages, health & safety issues, plus others.
  7. Good collective bargaining tries to subject the employment relationship and the work environment to the “Rule of Law”.

It was for all these reasons, Carson reminds us, that the Supreme Court in B.C. Health Services decided to undo the original Labour Trilogy (from 1987) and substitute the newly enshrined protection for the process of collective bargaining under Section 2(d).

They added a few of their own reasons too, albeit very similar to the ones Justice Dickson gave:

  1. Collective bargaining in the labour context is the most significant collective activity relating to the Freedom of Association.
  2. Protecting collective bargaining is consistent with International Law (uh boy, are we going to have to revisit this one when we get to the Government’s turn).
  3. Protecting collective bargaining is consistent with other Charter rights and freedoms, including equality, democracy, personal autonomy, dignity, and liberty.

Carson concludes by repeating that this is about inserting the Rule of Law into the workplace, and we do that to prevent abuses of power and maintain individual rights and dignity.

In non-lawyer terms, this means taking all that Charter stuff about fairness and just treatment and importing it into where we all work.

C. the new legal test

Sigh. Tests. Silly pesky tests. Sorry to do this to you again, but this is what judges do when they are making new rules. They create tests which look like this: with these conditions, if this or not that, blah, blah, blah, then this is the rule/result/consequence/conclusion. It’s an unfun part of being a lawyer.

Anyway, having found that collective bargaining is covered by Section 2(d), the Supreme Court in B.C. Health Services then had to decide when, where, and in what way parts of collective bargaining should be protected. They arrived at the “substantial interference” test.

I know. We have seen it before. But here’s a reminder:

The question is whether the government has, through legislation or actions, substantially interfered with the right under Section 2(d) to a meaningful process of collective bargaining.

That’s the general statement. In practice, the test boils down to two questions:

  1. How important is the measure?
  2. How much damage does the measure do to the process of meaningful collective bargaining?

It’s a little mushy, especially the second part. What exactly do you mean by “meaningful collective bargaining” and what precisely would be considered “damage”?

Luckily, as Shannon is about to tell us, the Supreme Court has had ample opportunity to explain, expand, and expound upon this new test.

D. WHAT DO YOU MEAN BY “DAMAGE”?

It’s a little irritating (and somewhat inefficient), but every time the Supreme Court of Canada comes up with some new legal concept, everyone and their pony has to saddle up to sort out what it all means, and this generally means more cases going back to the Supreme Court for further directions.

That’s exactly what happened with the New Labour Trilogy, decided in 2016. Three more cases on what the right to strike and the right to collective bargaining look like when you start applying Section 2(d) to more and more new realities. They were:

For labour lawyers and constitutional scholars, these three cases are full of some really great stuff. I got a little sidetracked, reading them and pondering the various combinations and legal permutations that may result. What? A bunch of law that I still find interesting. Hmmm ….

Anyway, for these purposes, these cases decided that when a union’s bargaining power is reduced, this upsets the balance of power and tips the scales in favour of the employer, and this will always be considered “substantial interference” with the collective bargaining process.

It makes sense, of course, since the whole point of collective bargaining is to even the playing field for employees, in situations where employees would otherwise be vulnerable due to an imbalance of bargaining power.

This whole idea of upsetting the balance of power being substantial interference with collective bargaining has been followed in a number of other cases in lower courts, and thus, it is safe to say that maintaining equality of bargaining power has become a touchstone for determining whether something does or doesn’t go too far under Section 2(d).

E. SO, ARE YOU CONVINCED?

I think Shannon is right, in that the law’s arc does seem to be bending increasingly towards justice in the workplace, and it is doing so by elevating collective bargaining, the right to strike, and other labour fundamentals to the high holy heaven of Charter protection.

But that’s what the law is doing. The question is do you agree? Did the Supreme Court of Canada convince you? Is collective bargaining something that should be protected as a fundamental value of Canadian society?

My answer is yes. Yes, because it is true that work is such an important part of our lives. Yes, because it is true that there is a significant power imbalance between employers and employees. And yes, because while I think most employers are savvy enough to know better, the law is there to protect employees from those employers who engage in the whims and outrageous actions of the bad, bad boss.

As it happens, protecting the vulnerable due to power imbalances or any other reason, is one of the things the Rule of Law is meant to do. So, legally, it fits.

But, that’s my take. What do you think?

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

I’m going to leave the rest of law for now. Some of what Carson said related to specific issues, which I’ll deal with when we get to them.

But, most of it was really reply to cases and assertions that the government will be replying on (another pre-emptive legal strategy – destroy your opponent’s case before they even get there). Thus, it is easier to deal with these points when we get to Heather Leonoff’s turn.

In the meantime, you can follow through to the next section of Labour’s argument:

PART II. THE EVIDENCE  →

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.