Labour’s final argument –

pART Iii. experts

part iii: the experts


the collective bargaining experts

We are about to cover the collective bargaining experts. Yes, I know. There were also two economic experts. But, since those issues belong to the Government of Manitoba, Garth and Shannon don’t cover them in their initial arguments. They will wait and do that when they get to reply.

For now, it’s a short review of what the expert witnesses did or did not say about the impact of the Public Services Sustainability Act on collective bargaining in the Province of Manitoba.

And so we are back to battle of Dr. Robert Paul Hebdon, collective bargaining expert for Labour, and the Other Guy, he-who-shall-not-be-named, collective bargaining expert for the Government of Manitoba.

a. the testimony of Dr. robert p. hebdon

There was lots of great detail on this during the trial – see Labour’s Collective Bargaining Expert. These are the highlights Shannon wants the court to focus on …


Dr. Hebdon has over 50 years of both practical and academic experience in labour relations and collective bargaining.

        (Oh, that’s a lot. I hadn’t done the math before. Impressive.)

He has been a professor since 1992, and began his career working as a research officer and director for the Ontario Public Service Employees Union (OPSEU) for 24 years. He was also a labour arbitrator for 5 years, where he issued about 40 grievance and issue arbitration decisions.

(This is to demonstrate that Dr. Hebdon knows what he is talking about. It does. He does.)

Dr. Hebdon testified credibly and rationally throughout.

(Left unsaid: Unlike the Other Guy.)

Collective bargaining has certain complexities that make it distinct from other types of bargaining. It is a democratic process because union’s consult with their members to determine priorities.

Once bargaining begins, different issues have different characteristics, which add to the complexity of the bargaining process. Some issues, like wages, are inherently adversarial. Others, such as health and safety, are generally cooperative issues. While others, as for example pensions, are a hybrid of the two.

The whole process functions under the pressure of the possibility of the union’s right to strike. And, the relationship between the parties is always key. There are so many issues on a day-to-day basis that require a positive relationship, and when that relationship becomes negative, you see many more grievances, complaints to the Labour Relations Board, etc.

Monetary issues tend to be high priority. Dr. Hebdon referred to a study which concluded that approximately 77% of strikes in Canada are over monetary issues. The government’s witness essentially admitted that monetary matters are one of the most important to the parties.

Parties to collective bargaining typically leave monetary issues to the end. There are good reasons for this. Because the issue is inherently adversarial, it is more difficult to get agreement. Thus, it is common practice to start with non-monetary issues to generate goodwill, and avoid preliminary impasses.

The bargaining power unions have in collective bargaining allows them to trade on wages – accept lower wages for higher job security for example. Thus, since they use monetary matters to leverage gains on other matters, once monetary matters are settled, that leverage is gone

Shannon now goes into precise point form again. I like it so much. It makes it so effortless for me. Of course, that’s not the point. It’s just good advocacy. Spelling everything out with such summary clarity makes it as easy for the judge to follow as it is easy for me.


In the opinion of Dr. Hebdon, there are a number of ways that the Public Services Sustainability Act, both independently and cumulatively, ensures that there can be no collective bargaining in the Province of Manitoba:

1. Wages are out. Unions cannot even table proposals. Wages are already set. This causes cynicism about the process. Bargaining power is reduced when wages are not available for trade off. As a result, any bargaining is unlikely to be meaningful.

2. When wages are out, employers give nothing else. When employers ask for wage restraints on the basis of financial problems, it often works if the employer opens the books, and lets the union see it for themselves. This way, it is clear that the employer is not just posturing, and if the union is convinced, they can accept lower wages in exchange for other concessions.

Under the PSSA, however, the employer doesn’t have to do anything except point to the PSSA. To illustrate, three unions – College of the North, Red River College, and Assiniboine Community College – all agree to wage restraints in 2010 in exchange for better job security. When the same unions came to negotiate under the PSSA, their employers got wage restraints without giving anything else up, because it was clear that trade-offs for wage restraints weren’t necessary.

3. Other impacts. Without wages on the table, there is a decreased possibility of settlement, higher resort to formal legal proceedings, and decreased amounts of monetary benefits overall. This has a chilling effect into subsequent rounds, a reflection of the reduced bargaining power than continues on into the next round.

Free negotiation is always better than legislation in both the public and private sector. The Government’s collective bargaining expert admitted that legislating wages is an easy tool (i.e. a tool for the lazy).

There are many examples in this case, including Westman Labs., which show how the PSSA has harmed the relationship between the union and their employer, as well as between the unions and their members.

Strikes become futile because employees cannot change anything, and have no impact on their workplace issues. As a result, you see more underground conflict in day-to-day operations.

Thus, the PSSA has made a great big mess in labour relations in the Province of Manitoba.

4. Sustainability Savings. According to Dr. Hebdon, Section 14 makes no sense and is unlikely to ever be used.

The employer has no incentive to use Section 14. If the measure involves a management right (and therefore outside the collective agreement), the employer isn’t going to want to change it into something now covered by the collective agreement, because it would then no longer be in their exclusive control. Furthermore, if there are any savings in these areas, the employer is better off keeping the matter out of the collective agreement; that way, they can keep all the savings for themselves.

The unions don’t have any incentive to use Section 14 because anything they negotiate for in the collective agreement ends up being a net loss. Because the amount the union can receive under Section 14 is capped at 50%, the most unions can receive is 50 cents on the dollar. It makes no sense for the unions to agree to measures, like reduced overtime, which result in reduced, wages when the employees will only get half of it back at most.

Furthermore, nobody knows whether the Treasury Board will approve of passing the sustainability savings on to the unions, or how much. The Treasury Board has absolute discretion; they can decide whatever they want, including giving the unions nothing at all.

Section 14 is merely a reminder of how little thought the Government put into the development of the PSSA(Indeed.)

There haven’t been any collective agreements that successfully included any sustainability savings under Section 14. The only time it was tried was in the GEMA, where the Government made a number of proposals. They were all on monetary issues which would result in lower wages, and thus were all concessions that, if the union had agreed to them, would be a loss to members that they could at most only get half back.

5. Conditional Ballots. Dr. Hebdon testified that these are very unusual and a result of the “bizarre world” the unions now find themselves in. In all cases, the conditional ballots were the only way the collective agreements could be ratified, and thus are a potent demonstration of protest against the PSSA.

6. Biased. Dr. Hebdon was of the opinion that the PSSA was biased, unfair, and unnecessarily heavy-handed. He was not challenged on this opinion in cross-examination.

7. Employer loses bargaining power too. Although it is true that Dr. Hebdon admitted that when wages are taken off the table, the employer can lose bargaining power too, that doesn’t mean that the employer’s loss of bargaining power is equal to the unions.

(In fact, the unions almost always lose more. Thus it is probably better to say that while taking wages off the table may change the bargaining power of both sides, it almost always tips the balance of bargaining power in favour of the employer at the expense of the union.)

8. Non-monetary trade-offs. While it is possible to trade non-monetary benefits for each other, the gains achieved tend to be very slight. For example, BUFA thought that the gains it was able to obtain were very minor, and they too had a conditional ballot and section-specific reopeners which called for monetary issues to be reopened if the PSSA was found to be unconstitutional.

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All of these opinions of Dr. Hebdon were credible and were not challenged on cross-examination.

B. the testimony of the other guy

Now Shannon has to go through the Government’s expert testimony on collective bargaining. Hmmm, this is going to be hard for her. It was laughably inept, but you have to be careful about how you describe something this awful in argument. You want to be accurate, and as critical as possible, but you don’t want crap so hard on the witness that the court starts to feel sorry for them.

However, when the testimony was as bad as this testimony was, any description of it cannot help but seem mean.


The Other Guy’s testimony was remarkably biased and lacking objectivity. He was an advocate for the Government “prepared to do or say anything to defend the PSSA.” As a result, his testimony had no value whatsoever.

(Ok, I’m chuckling now. That’s about as nice, and as diplomatic as she could have possibly put it, and it’s still pretty caustic.)

His own academic writing included statements that wage restraint legislation:

Impacts and undermines the labour relations system.

Significantly limits collective bargaining affected by such legislation. 

And, causes collective bargaining to be suspended in many cases.

(Yeah, but none of this was in his report, and on cross-examination he tried to pretend it wasn’t true.)

Furthermore, the Other Guy’s report omitted all mention of conclusions he made in his own textbook that the legal environment, including wage restraint legislation, is a significant factor in collective bargaining, and that when something, like wages, is taken out, that can significantly impact the bargaining process.


In case you think Shannon and I have been a little too harsh in our asssment of the poor Other Guy, here is how a couple of labour board decisions described him:

In the first case, the tribunal said:

The Other Guy “failed to come to grips with the primary assumptions” contained in the report he was responding to.

His report contained “a great deal of legal and policy analysis that was not part of the O’Grady Report and is more appropriate as counsel’s submissions on behalf of his client rather than an expert (and theoretically independent) opinion.”

(I see. The Other Guy was playing lawyer. undecided)

Furthermore, he “failed to compare two competing models at issue in the case, and instead attacked the logic in the O’Grady report.”

In the second decision, the tribunal said that: 

The Other Guy’s cross-examination showed “significant weaknesses in the extent of his review of interest arbitration awards, and his understanding of the principles (replication and comparability in particular) on which they were premised was revealed. We do not therefore accept his conclusions on this point.”

Makes you wonder why and where the Government of Manitoba got this guy. Could it be that he was the only one who would say the obviously silly things the Government wanted to have said? I’m pretty sure no legitimate expert on collective bargaining would have been willing.

Anyway, back to Shannon …


When the Drummond Report came out and held that wage freezes shouldn’t be used (as well as also commenting that the Other Guy’s evidence was useless), the Other Guy deleted all references to the Drummond Report in his affidavit.

(How does Shannon know that? You have to produce all of the drafts of the expert’s report as part of their testimony. You would be surprised how much that reveals.)

During his testimony, the Other Guy commented on the economics of the PSSA, even though he admitted that he knew nothing about the economics issues, and had only read the PSSA itself in making these broader conclusions.

The Other Guy claimed to be able to conclude that the PSSA would have no impact at all on collective bargaining in Manitoba. None of the social science literature on collective bargaining (including his own) supports this conclusion. All he did in coming to this conclusion was to look at the PSSA on its face, and then say – yep, no impact. He did not read any of the evidence that demonstrates otherwise.

Unlike Dr. Hebdon, the Other Guy knows nothing about how collective bargaining works in practice. He has never sat at a bargaining table.

The Other Guy’s opinion on Section 14 was a superficial conclusion that it would “encourage” savings, without giving any examples of how it would work, and without responding to Dr. Hebdon’s 15 pages of explanation of why Section 14 would never work. The Other Guy seemed surprised to learn on cross-examination that no one had ever used Section 14, although he did not have any explanation as to why that might be.

You might recall that when I covered the government’s collective bargaining expert, I decided to say as little about what he said as possible. It was because, of course, the Other Guy’s testimony was indeed as terrible as Shannon says. Worse, in fact.

Anyway, now for the sum-up …


In conclusion, the Other Guy’s evidence was highly partisan, and of little use. The Other Guy had no knowledge of how collective bargaining works, both in terms of the social science literature and in practice.

Although the Government points out that the Other Guy has acted for unions in the past, it is clear that whenever he has testified, he has misunderstood his role, and has been of little to no assistance.

The Other Guy’s evidence demonstrated bias, a lack of impartiality, and a willingness to act as advocate for the Government. As a result, the entirety of his evidence is unreliable and ought to be given little to no weight by this court

Most of the time, even an incompetent expert is better than no expert at all. This was one of those glaring exceptions. The Other Guy’s testimony was so surprisingly specious that, in my respectful view, the Government of Manitoba wasted our time and our taxpayer money on him.

The best thing that could happen for the Government of Manitoba in connection with whatever the Other Guy said, wherever he said it, would be for Justice McKelvey to quietly ignore him.

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Ok, we are almost finished. Click through for the grand finale of Labour’s final argument:


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.