aside: what’s this passed but not proclaimed business?

The lawyers keep referring to the fact that the Public Services Sustainability Act has been passed by the Legislature, but it hasn’t been proclaimed yet.

This means that the Government of Manitoba has created a law, but not made it law yet, in the sense that it would be operative and thus require all Manitobans to follow it.

Who does this? 

I don’t know but it sure is weird.

I was already wondering about this when Leonoff first mentioned her Elephant-in-the-Room. The PSSA received royal assent on June 2, 2017. But it’s November 18, 2019 now, two and a half years later, so why hasn’t it already been proclaimed?

In the words of Gwen Stefani – “whatcha waiting, whatcha waiting, whatcha waiting, whatcha waiting, whatcha waiting, whatcha waiting for?” 


Manitoba Legislative Chamber

Besides, we heard in Kevin Rebeck’s testimony that the two guys responsible for developing the legislation – Gerry Irving and Rick Stevenson – were in a hurry to get the drafting done so that the Public Services Sustainability Act could be passed in 2017 in time to start the savings for the next budget year.

But, uh, how can the PSSA be saving anything if it has no legal force or  effect? Or rather, if you wanted and needed it to start the savings in 2017, wouldn’t you want to have the PSSA in force and effect right away?

how a law becomes a law with legal force and effect

As in all of Canada, legislation in Manitoba goes through various stages before it becomes law. It originates as a bill which gets processed through various bureaucracies and committees, gets debated in the house during first, second, third readings, and then is passed by the legislature by majority vote. If the government of the day has a majority, this is essentially a gimme.

After the legislature passes it, the bill gets taken to the Lieutenant-Governor who gives it royal assent (her version of the official rubber stamp). As soon this royal assent is given, the bill is officially a “law” (as opposed to just a bill).

New laws are almost always automatically “in force” once they receive royal assent. But there are times when portions of, or perhaps the entire law, are not proclaimed into force right away. There are various reasons why a government might do this, and it usually relates to the contingent outcome of some future event.

status of the public services sustainability act

Here, the PSSA has been passed by the legislature and has received royal assent. However, it has not been proclaimed, and thus, in legal parlance, the PSSA currently has “no legal force or effect.”

However, whenever laws like this are placed in passed-but-not-proclaimed limbo, there’s always a reason, and generally a good one. For example, if the government is going to make changes to the personal income tax code, they will make sure that the law isn’t in force until the first of the year to avoid confusion with any mid-year changes. But I don’t see any reason nor any explanation for why the Government of Manitoba would wait here.

The PSSA is supposed to save Manitobans money by limiting costs of public servants’ salaries. It was passed in 2017 as part of the Government’s stated fiscal objectives for both 2016 and 2017, so, then, why wouldn’t it also be immediately proclaimed? Are you saying that you actually don’t know whether these measures are necessary yet? And if so, are you waiting to see whether you can achieve your financial goals without it? Then why even bother passing the PSSA, because isn’t that tantamount to saying you don’t know if you need it yet?

On the other hand, if you already knew that you had to have the PSSA in 2017, and you seem to be saying that you did, then why not go ahead and proclaim it the minute you passed it? Do the deed and use your defence of necessity if that’s your rhyme and reason for having the legislation in the first place.

A bad feeling

Yeah, I’m getting a bad feeling about all this and it has everything to do with that elephant in the room.

If the Government is claiming that the unions cannot challenge the PSSA because they haven’t proclaimed it yet, then is the Government deliberately waiting to proclaim the PSSA, just so that they can then claim that the unions cannot legally challenge it?

 Eeewwww. This case gives me the icks.

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.