In a very common judicial CYA (especially at the trial level because the decision might get appealed), Justice Keyser said that even if the Minister of Finance had discretion, he didn’t exercise it reasonably.
First, there is no reason why there should have to be an impasse before arbitration can begin. The parties can still negotiate, and the arbitration board may assist those negotiations. Besides, the duty negotiate in good faith continues on.
Second, Brian Ellis shouldn’t have made that threat. Remember it? Ellis told the MGEU that if they went to arbitration instead of continuing to bargain, the government would play hard-ball and take any gains MGEU had made in the meantime off the table.
As Justice Keyser pointed out, all that did was make sure that there was no point to any more bargaining. Since anything they accomplished would evaporate once an impasse on wages was reached, there was no reason for MGEU to waste time and money discussing anything else.
So discretion or no discretion, knock it off Manitoba, and appoint the arbitration board already.
Mandamus has been issued. You have been told.