opening statements

Every trial begins the same way – opening statements. And in civil trials, plaintiffs go first.

labour’s case

Opening statements are how the lawyers give us their maps – this is the route we are taking, and this the law we are using for navigation. Shannon Carson, counsel for the Plaintiffs, is giving me a good one.

The Public Services Sustainability Act is Unconstitutional

The unions say that the Public Services Sustainability Act (“the PSSA”) is unconstitutional under Section 2(d) of the Canadian Charter of Rights and Freedoms: Freedom of Association.

Section 2:

Everyone has the following fundamental freedoms:

(a)   Freedom of conscience and religion;

(b)   Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c)   Freedom of peaceful assembly;

(d)   Freedom of association.

Where did they get that idea? Well, it took 30 years of persistence by the labour movement, but in 2007, the Supreme Court of Canada finally held that collective bargaining is protected by Section 2(d) – Freedom of Association.

It happened in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, (or B.C. Health Services for short). According to the Supreme Court, from then on, if a government does anything that “substantially interferes” with the collective bargaining process, it will violate Section 2(d) and be punted and punished accordingly.

According to the unions, since the PSSA limits, and in some instances eliminates, wage increases, as well as all other potential monetary gains, and since these are crucial matters any time they sit at a collective bargaining table, there is not only substantial interference, it makes it almost impossible for there to be any collective bargaining at all.

Lessons from History

The Pallister PC’s are not the first government in Manitoba to encounter conflict between its laws and labour protections.

In 1991-1992, the Filmon Government passed legislation that forced government employees to take days off and did some other things. (I missed what they were; they were probably bad.) “This is a violation of internationally accepted labour principles,” the International Labour Organization declared. Manitoba made changes, but those changes didn’t make the law any better. The ILO still called the legislation a big fat fail.

Two themes came out of these ILO decisions: (1) that collective bargaining should be given priority; and (2) that there should have been consultation with the unions affected prior to even drafting the legislation.

On the flip side of the equation, Carson points out that Manitoba’s public sector unions agreed to temporary wage freeze legislation in 2010, because everyone was in financial trouble after the world-wide financial meltdown of 2008. The unions were willing to help out, and they did, through collaborative consultations that took place before anyone wrote any bills or passed any laws.

Carson says this case is totally different. There was no attempt to have meaningful discussions with the unions prior to the launch of the Public Services Sustainability Act, and besides, the current financial situation is not at all like what was going on in 2008.

Unconstitutional Activity Associated with the PSSA

We will hear more about this when the evidence comes in, but it looks as though in 2016, when government officials were still just whispering about the possibility of something like the PSSA, there were two unions in the middle of bargaining new collective agreements: UMFA (the University of Manitoba Faculty Association) and members of the MGEU working in the DSM (Westman Laboratory) unit.

I’m guessing that the Government is going to deny all of this, but Shannon is suggesting that the evidence will show that the Province applied pressure to both the University of Manitoba and DSM to “encourage” them to stick to the wage freeze pattern that would eventually be adopted in the PSSA. even though there wasn’t even a law, or a draft bill. UMFA’s experience was particularly disastrous and resulted in a strike, but in both cases, the Plaintiffs will argue, there was substantial and unfair interference in the bargaining process.

In addition, although there were some discussions with a group of union leaders prior to the passing of the PSSA, they did not in any way meet the standards of good faith necessary for it to have been a meaningful exercise.

Finally, there is the PSSA itself, which enforces a freeze on wages and all monetary benefits for two years, followed by two more years of relatively modest increases (0.75% in the third year, and 1% in the fourth). This alone, say the unions, amounts to substantial interference with the collective bargaining process, and the pattern has been imposed in some collective bargaining agreements even though the PSSA has yet to be officially proclaimed into law.

the PSSA cannot be saved by Section 1

Even if the unions are right about all that, Public Services Sustainability Act might still be saved by what’s called a “Section 1 defence.” Section 1 of the Charter, often called the “notwithstanding clause,” allows a law to stand even it if is unconstitutional, but only where it is “reasonably and demonstrably justified in a free and democratic society.”

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

There are a set of tests that the Government must pass in order to succeed in this defence that are set out in what is known as the Oakes Test, named after the case where the Supreme Court of Canada first crafted it.

It is essentially a defence of necessity – we have to do it this way, there is no other choice, and no other way, even though we can see that it is indeed unconstitutional. Governments always argue it, but they rarely succeed. And in any event, Shannon Carson tells us that by the end of this trial, we will all see that Section 1 cannot save the Public Services Sustainability Act.

the government’s case

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.

the elephant in the room

“I want to finish by pointing out the elephant in the room,” Leonoff says. The Public Services Sustainability Act has not been enacted. It is not in force and thus it has no legal effect on anyone. And, because it is not in effect, the trial judge has no jurisdiction over this law.” (Uhm, you’ve said this, or something like it before. I guess you’re saying that the elephant has always been here, so let’s stop pretending we don’t see it.)

Uhm, Ok, so there’s an elephant, but I’m not sure what it’s doing here.

Saying that judge cannot do anything with the PSSA because it is not “in effect” is equivalent to saying that the trial judge cannot erase something that doesn’t exist.

But of course the PSSA does exist, it’s a law even, an unproclaimed law, but that’s more than just a bill, which is just a draft of ideas that may never be passed.

Although in legal terms, and technically speaking, unproclaimed laws have “no force or effect”, or are not “in effect”, this only means they have no legal effect – i.e. these are not formal rules that the people of Manitoba have to follow.

But that is different from the general meaning of the word “effect”, in the sense of having an actual affect on what is happening in the real world.

This is why I keep wondering about this approach. Is the government going to stake its entire case on the argument that the Public Services Sustainability Act cannot be challenged because it has “no legal effect” on anyone, regardless of whether or not in reality anyone is actually being affected, i.e. an actual effect? But what if the PSSA is already damaging collective bargaining in Manitoba, even while it is in unproclaimed limbo? Are they suggesting that the trial judge should just throw up her hands and say, “oh well, there’s nothing I can do about it because the law hasn’t been proclaimed”?

I would have to look at the case law, and I’m sure there is some, but my initial reaction is that this is just mixed-up legal semantics, a confusion between how the word “effect” is used in two very different contexts. Does a law have to be in effect before it can have an effect? I don’t think so. but I guess we’ll see.

In any event, Leonoff has to argue the case she is given. And if that’s the path the Government has chosen, then that’s the one she’ll have to take.

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.