opening statements

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 Freedom: 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 be punted for violating Section 2(d).

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 Government is not the first 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 a 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 their 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 the “Notwithstanding Clause”

Even if the unions are right about all that, the government still might be able to save the Public Services Sustainability Act with 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.”

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? She seems to be 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.)

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.