Labour’s final argument –

pART Iv. wrap-up

Part iv: wrap it up

with a nice big bow

in conclusion

Now we come to the final thrust and parry in this, Labour’s final argument. Shannon Carson gets to do the honours.

a. the pssa interferes in collective bargaining

Oh yes it does, substantially, extensively, egregiously …


The Public Services Sustainability Act substantially interferes with collective bargaining in Manitoba in so many ways:

  1. All wages are fixed to a four-year pattern of 0%, 0%, 0.75%, and 1%.
  2. Section 14 doesn’t and cannot work, and so cannot offer any form of collective bargaining.
  3. There was no free and fair or in good faith bargaining that occurred before bringing in legislation.
  4. The Government legislated first, and let “bargaining” happen after, which meant that there couldn’t be any bargaining at all because of the PSSA‘s terms.
  5. The Government failed to give priority to collective bargaining, as required by Canadian law and international law, and as governments did successfully in 2010 in response to a genuine financial crisis.
  6. Wages, which are almost always a top priority for unions, are all off the table.
  7. The PSSA upends the entire process, fixing wages and pre-determining all monetary issues, which are usually left to be agreed on at the end.
  8. Eliminating all monetary issues reduces the unions ability to trade for other concessions, reduces the unions’ bargaining power, and most significantly, prevents them from being able to trade lower wages for better job security.
  9. The Government intended to alter collective bargaining, giving itself and all publicly funded entities guaranteed wage freezes without having to give anything up.
  10. As a result of the PSSA, collective bargaining in the Province has become futile.
  11. Under International Law, three years of wage limitations is too long. The PSSA lasts for four.
  12. There are no ease-up provisions – sections to reduce or end the PSSA restrictions if the economic situation gets better before the four-year term is over.
  13. Because the PSSA period floats to whenever the next collective agreement comes up for renewal, the PSSA acts well into the future. For example, the final agreement the PSSA will apply to will not come up for renewal until 2021, and will cover the period from 2021-2025. (How can the government possibly know that they will still need PSSA restrictions this far off in the future?)
  14. The whole Fiscal Working Group process was disrespectful to unions and designed not to do anything useful.
  15. All the PSSA has done is create dissatisfaction and considerable cynicism about collective bargaining and labour relations in the public sector.
  16. Not only is the PSSA likely to have a chilling effect on collective bargaining after the PSSA period is over, as Dr. Hebson tells us, we have already seen the Government of Manitoba “applying” the PSSA to the fifth year, by not allowing employers to negotiate wage increases in the year following any PSSA pattern.

I think she had more, but I think that this is more than enough.

Her conclusion? There is no question that the PSSA interferes with collective bargaining, and that interference is substantial. I concur in this opinion. We’ll have to wait to see what Justice McKelvey thinks.

B. It doesn’t matter that the pssa isn’t proclaimed


The Government of Manitoba has let the PSSA linger in its passed-but-not-proclaimed state for more than 2 ½ years. They based it on the Nova Scotia model, as well as Nova Scotia’s strategy: passing but not proclaiming the PSSA is a way of getting what they want without having to proclaim it.

As long as this strategy works, as people comply with the PSSA even though it has not been proclaimed, the Government of Manitoba need never proclaim it, because the Government can get everything it wants without having to face a legal challenge.

If so, the PSSA will never be proclaimed, and can never be challenged.

(Yeah, that seems to have been the shady point of this passed-but-not-proclaimed business in the first place.)

Yet, there is extensive evidence that the PSSA is already having an actual effect on collective bargaining processes throughout the public sector.

As we saw in the Arlingtonhaus negotiations, the PSSA speaks loudly through the Province, and requires immediate compliance with its wage restraints due to the retroactivity provisions, even though it has no legal force or effect.

Bringing legislation was a strategy. And not proclaiming the PSSA was also a strategy.

The Government of Manitoba is acting through the machinery of the unproclaimed PSSA, not through some unenforced “mandate”. All so-called “mandates” are exactly equivalent to the PSSA.

Everyone refers to the PSSA at the bargaining table. Employers, believing that they are bound by it, comply with its sections. In the case of Manitoba Liquor & Lotteries, the evidence shows that the employer was following the PSSA months before they received their official (and equivalent) mandate from the Province.

There are no employers in the public sector who have put forward anything other than the PSSA pattern since it was passed.

Furthermore, in his reasons in the injunction hearing, Justice Emonds said that the Government of Manitoba was already applying the PSSA, even though it wasn’t yet proclaimed.

The PSSA is more than a draft bill. It has been enacted; it has been passed. According to Sullivan on the Construction of Statutes, once a law has been enacted it becomes a body of rules, rules which are recognized as law, and the meaning of the law as of the date it is passed can be used to interpret people’s rights and obligations.

Once passed, a law is, therefore, fixed and complete, a fully articulated intention of the legislature. Thus, an un-proclaimed law can be the subject of an injunction, something Justice Edmonds also held in the injunction hearing in this case in 2018. As per Tlicho Government v. Canada, 2015 NWTSC 9:

The deliberative stage has ended and the law has been enacted …

… therefore, there are no barriers to the court granting injunctive relief.

As the Supreme Court of Canada found in B.C. Health Services, the question is what actual impact the law is having, quite apart from its technical legal status.

There is nothing theoretical or hypothetical about the actual impact the PSSA is already having right now.

For all these reasons, the PSSA is already acting and impacting Manitobans, and it is therefore not premature to rule on it now.

C. final words …

Final words, and they are good ones …


The Constitution of Canada is the supreme law of the law and the Charter is a statement of our most fundamental values.

The Province of Manitoba cannot insulate itself from the restrictions of the Charter through legal technicalities, and cannot hide behind its own strategy decision to avoid accountability.

Based on the law before you, and all of the facts, the conclusion must be that the Public Services Sustainability Act violates Section 2(d) of the Charter – Freedom of Association.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

So that took four posts in four parts, 305 pages in Shannon & Garth’s version, more than 50 pages for my written summary. Long. Good. But long.

I gues that’s to be expected. When there as many disreputable facts as there are here, it takes a long time to talk about them.

In any event, we are finally finished with Labour’s final argument. You can:

Go to the next post – Aside: Butt-First Buffoonery  →

Go straight to the Government of Manitoba’s Final Argument  →

Or, go back to The Story and jump around  →

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.

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