Decision on THE MANDAMUS APPLICATION 

Justice Brenda Keyser released her decision on the Mandamus Application on April 16th, 2020. Keeners can read the whole thing for yourself here. For the rest of you, here are her reasons in brief.

the only two issues

Everyone agreed that there were only two issues:

  1. Were all the preconditions for arbitration met?
  2. Did the Minister of Finance have discretion to refuse to appoint an arbitration board, and if he did, did he exercise it fairly?

MGEU’S POSITION

Take another look at Sections 48(1) – when a party can ask for arbitration, and Section 49(2) – what the Minister has to do when they receive that request.

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.

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.

MGEU’s position was that all they had to had to do was show that:

  1. Negotiations over a new collective agreement had started and no agreement had been reached. (Check √.)
  2. The MGEU had made a written request to the Minister Finance asking for arbitration to begin. (Check √.)
  3. The MGEU provided a statement of difficulties, describing why agreement had not been reached. (Although missing initially, MGEU immediately provided one. So, Check √.)

Check, check, check, so MGEU’s argument goes. So, give us arbitration by mandamus please. 

The government of manitoba’s position

Manitoba says, oh no, there are a couple more pre-conditions. MGEU must also show that they bargained in good faith and that the negotiations had reached an impasse. Implicit in this position is that the Honourable Scott Fielding is entitled to an opinion on whether there has been good faith bargaining, and/or whether the parties have actually reached a legitimate impasse.

In the process of making this argument, the government relied on the case law from Saskatchewan which not only suggests that there must be an impasse, also finds that one party cannot just decide for themselves (subjectively) that there is an impasse. And, as we saw at the hearing, Keith Labossiere also suggested that the Public Services Sustainability Act doesn’t matter because it has not been proclaimed.

Justice Keyser did not like this at all. From paragraph 19 of her reasons:

In my view, this position is disingenuous at best.

The PSSA proposals were the starting points of Manitoba in the negotiation process, and it is Manitoba that is in the position to have the PSSA proclaimed into effect at any time and to make its provisions retroactive, despite any advances in negotiations.

[The PSSA] is the sword of Damocles hanging over the bargaining process. 

Ok, so I had to look that one up.

The Sword of Damocles hangs by a single hair of a horse’s tail over Damocles as he sits on Dionysius’s throne. 

A precarious position in constant peril. At any moment, the horse’s hair may snap, impaling poor Damocles right through the top of his head. 

Of course, given all the Elephants in the Room in this application as well as the PSSA trial, the PSSA’s retroactivity provisions, including Justice Keyser’s, are probably more like the Elephant of Damocles. 

Another Elephant in the Room, this one hanging by a single horse hair of the government’s fancy, threatening to squash everyone covered by the PSSA any time the Government of Manitoba decides it is time to proclaim it.

But Damocles aside, Justice Keyser was of the opinion that:

  1. All MGEU has to do is make a request for arbitration, and supply a statement of difficulties. 
  2. The Saskatchewan cases are irrelevant; Saskatchewan’s labour relations scheme is much different than Manitoba’s.
  3. The Civil Service Act does not require the parties to bargain in good faith bargaining or reach an impasse before one can ask for arbitration. 

All right then. On that basis, MGEU met all of the statutory preconditions, and so the Minister of Finance didn’t have any discretion to refuse to appoint an arbitration board.

Boo hiss, Mr. Minister of Finance. You are hereby directed to appoint an arbitration board for the GEMA negotiations.

Justice Keyser didn’t add that this should be done forthwith because it is time for Minister Scott Fielding to stop dicking around. I don’t think she had to. It is reasonably implied from reading between the lines. smile

Even if there had been discretion …

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. 

did the mgeu really win?

Is this really a win? Justice Keyser pointed out that this might be a pyrrhic victory, given the COVID-19 pandemic.

But, I’m not sure the cause is entirely lost. At a minimum, Justice Keyser’s decision forces the Government of Manitoba to make their case for wage restrictions properly and with proper justification – i.e. “through the arbitration and bargaining process” as opposed to willy-nilly unsupported random acts of government misconduct, and unconstitutional laws.

We will have to wait to see whether the Government of Manitoba has learned its lesson. Given what has been happening with the COVID-19 relief – or lack of relief, as Manitoba stands alone in not supporting any of its citizens through this challenging time – I’m not holding my breath.

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.