Heather Leonoff begins in a slow, measured way – there is one issue only, and only one issue in this case, and that is: is the Public Services Sustainability Act unconstitutional?
She says that this is a factual-based matter, which can only be answered by considering one question – what does the law do?
I lose her a little when she starts talking about B.C. Health Services, but is probably because I have never read the case. In any event, what she seems to be arguing is that although the Supreme Court of Canada has decreed that no government can “substantially interfere” with any Canadian’s collective bargaining rights, the PSSA is not a problem because even with the wage restrictions, the unions can still bargain.
She goes on to suggest that everything that took place before the PSSA was passed is irrelevant because the judge cannot do anything connected to the law before it is enacted. (This will be a technical question of fact and law that we probably won’t understand until we see her final arguments)
But then she makes a point I already know she is going to have problems with. She says that all that stuff about the International Labour Organization is irrelevant. “We are in Manitoba,” she says. Yes, indeed, but Canada, and by extension Manitoba, is generally expected to abide by internationally expressed democratic principles, especially when they are set out in treaties that Canada has agreed to.
Leonoff then starts in on something that will keep me pondering for days. She returns to the beginning – is this law unconstitutional – and notes that the law is not “in effect” because it is not proclaimed yet. And then she repeats that we have to look at the law’s effect. This starts me spinning, because these two types of “effects” are not the same thing. One is a legal technicality – is the law in force or in effect (i.e. has it been proclaimed yet)? The other is a factual question – what, if anything is happening because of the law (i.e. what impact is it having on reality)?
She suggests that this whole challenge is premature and improper, and should have been done by way of constitutional reference. Why? I think she is saying that it’s because the PSSA is not law, and we don’t know when it will become law, and so we should all wait until it becomes law, whenever that might be.
I’m not persuaded that this makes any sense. It’s the Government’s law after all, and can be proclaimed into force whenever they feel like it. Sure, there is uncertainty about when and whether the PSSA will finally be in force, but since it is the Government itself who is causing this confusion, and since they have the exclusive ability to put everyone out of this misery immediately, it seems an odd thing for them to be complaining about.
In any event, Leonoff goes on as expected with her Section 1 Defence – even if the PSSA is unconstitutional, Section 1 of the Charter will save it. There was, the Government claims, a serious financial situation in 2016 and all they were trying to do with the PSSA is be fiscally prudent.
After touching again on points that even if the negotiations in the UMFA and Westman Labs had issues – there were still negotiations and deals were made, Leonoff moves on to her final pitch.