Labour’s Read-ins and one last reveal

One of the last things lawyers do before they close their case is read-in testimony that has already occurred in other earlier parts of these proceedings. It is exactly what it says – the lawyer gets up and reads aloud a portion from whatever transcript they want to put in.

And yes, it is one of the most boring things to sit through, but, sometimes, it pays to be paying attention …

reading in the read-ins

You usually read-in things from other places so that you can get admissions from the other side into the record that you aren’t sure you’ll get in another way.  This is exactly what much of what Garth Smorang reads-in for the Plaintiffs is.

Garth and Heather have a spat about one of them, and it is easy to see why. Smorang wants it on the record that during discovery, Rick Stevenson admitted that the people who drafted the Public Services Sustainability Act intended it to have the effect of constraining collective bargaining. That’s going to be a problem for Leonoff and the Government in any attempt to argue that the PSSA doesn’t at least interfere with collective bargaining. How can you say it won’t interfere when that’s what you intended for it to do?

They raise the usual legal technicalities, and Justice McKelvey reserves her decision (athough in the end Garth wins, and so that admission is in).

But that wasn’t the most interesting thing that happened during read-ins. That was a portion of some testimony about a negotiation that took place between a CUPE bargaining unit and the Provincial Health Labour Relations Services (PHLRS) over an agreement relating to services provided to a retirement residence known as “Arlingtonhaus”.

the arlingtonhaus negotiations

I’m not entirely sure what all Smorang read-in on this point, because he was going quite fast, and I had no idea what he was talking about. But I remember something about Teri and this all not sounding very good. So, I found some background on this in the Agreed Statement of Facts.

March-April, 2017 – PSSA not Passed, Still Bill 28

Before negotiations began, the Government told someone that Arlingtonhaus was not covered by the PSSA. Apparently the employer at Arlingtonhaus still wasn’t so sure, so in late March of 2017, they asked the PHLRS to clarify (PHLRS = Provincial Health Labour Relations Services).

Teri Kindrat replied on behalf of the PHLRS and said that on fact, the PSSA does apply, and Arlingtonhause has to comply. When Arlingtonhaus asked for more details, Kindrat wrote:

We have been advised that as long as there are any public provincial dollars funded, all settlements must comply with all of the monetary and other parameters of Bill 28. If you do not, the provincial public dollars that flow from the [Regional Health Authority] could be in jeopardy.

Your bargaining with CUPE must take Bill 28 into account.

Uhm, ok, so the Government is blackmailing employers, or rather extorting their compliance with the PSSA, by threatening to remove their funding if they don’t follow the PSSA wage pattern? Really? Are we in Manitoba or Zimbabwe?

August 3-4, 2017 – PSSA now Passed

As bargaining begins, CUPE’s representative, wanted an answer to the same questions – is Arlingtonhaus bound by the PSSA and has Arlingtonhaus received a mandate from the Government?

The CEO at Arlingtonhaus asked Kindrat for help in responding to this request, and attached a copy of their opening statement to CUPE that had already been made at the bargaining table, where Arlingtonhaus had apparently already told CUPE that:

  1. Their funder had told them that they were bound by the PSSA.
  2. The maximum the salary increases they could offer were the 0, 0, 0.75, and 1% PSSA pattern. And,
  3. All other additional remuneration are frozen at current rates and non-negotiable.

Uh-oh, looks like Kindrat wasn’t too happy about that. She replied:

The discussion that we are having over email and on conference calls to look at the potential impact of Bill 28 are very different discussions than how I would have suggested you actually verbally present the current reality to the union at the bargaining table.

[This part makes me barf. She’s telling Arlingtonhaus what we are telling you should have been very different than what you tell the unions. In short, whatever you do, don’t tell the unions the truth.]

I would definitely have preferred to have had some input on that opening statement and how you would have specifically presented these issues at the table.

In my brief conversation with [the Employer’s Director of Human Resources] the other day, I did make a comment about not actually referencing Bill 28 to the union, but I did not realize that your bargaining was actually happening in the next day or two, so I did not push the issue further or provide more clarity. I did reference that at other bargainging tables we had started with a reduced mandate of something like 0%, 0%, and 0.75% to talk about the financial challenges.

At the other tables that the PHLRS has been doing we have been speaking about the “provincial financial challenges” and the “available funded mandate”with no actual reference to Bill 28 at the bargaining table so that we would avoid this type of response.

Your opening statement is quite likely an unfair labour practice.

I am going to give some thought to possible next steps on this one to try and get this back on track in the right vein of messaging.

Uh, what? Thou shalt comply with the PSSA in all and every way, but in bargaining with CUPE, the PSSA shall not be named?

The CEO replied:

I can understand your perspective, Teri, although seemed disingenuous not to acknowledge that this Bill is driving negotiations and the ceiling for wages increases.

Disingenuous indeed.

Now, in the end, this all gets worked out when the Government later confirms that in fact the PSSA does not apply, and so in June of 2018, the parties reached an agreement with wage increases better than the PSSA constraints.


This is really bad for the Government, I mean really dark and bleak. According to Teri Kindrat, everybody at the PHLRS seems to be well aware that the Government is forcing all public sector employers to follow the terms of Bill 28, and the passed-but-not-proclaimed PSSA it becomes. And if they don’t comply, they might lose their funding.

Eesshh. Compare that to all the other testimony already where the government seems to have gone to great lengths to avoid admitting that the Public Services Sustainability Act is being pushed on employers, no matter how much the unions ask about it.

So let’s see, you, the oh not-so-wise Government of Manitoba, are extorting public sector employers, and telling them to lie, as in commit fraud, to cover for you? I’m finding it hard to take you seriously.

Presumably, the reason the Government wanted everyone to avoid all those questions was because admitting it would mean that the Government itself was already, by its own actions, “applying” the PSSA, whether it has been proclaimed or not.

Yet, here it is in black and white – that is exactly what the Government was doing, applying the PSSA every day, by threatening employers that they will lose their funding if they don’t play along. I don’t understand. Why wouldn’t you just proclaim the damn thing if you want it to apply so much? Whatever the consequences, they probably would have been better and far less embarrassing than this disgraceful behaviour.

The Government might try to argue that well, maybe that was just the PHLRS getting it wrong, it wasn’t happening anywhere else. Good luck with that. Every time the unions asked about whether the PSSA applied, the employers just refused to answer. And refusing to answer the question – are you following the PSSA here – is not only not the same thing as denying it, it also tends to strongly suggest that the answer was yes all along.

Besides, Teri Kindrat says the strategy is – comply with the PSSA wage restrictions because you have to, but just don’t tell the union about it. That would fit with every other experience the unions have had that they’ve talked about in this trial.

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The CEO at Arlingtonhaus is right, this is all disingenuous. But someone should tell Teri Kindrat, the PHLRS, and whoever in the Government of Manitoba who happens to be involved in this, that you don’t get away with an unfair labour practice just because you don’t talk about it.

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.