The testimony of elizabeth carlyle

Elizabeth Carlyle’s testimony is a little out of order as it relates to issues that happen later, but they are calling her now for scheduling reasons. We will be hearing a bit about some negotiations between a CUPE local and the Winnipeg School Division.

There is no direct examination because Elizabeth Carlyle is only here to be cross-examined on her affidavit filed earlier in the proceedings.

Affidavits are sworn testimony prepared in writing. They count just as much as regular testimony, and if they already exist, then you can shorten the trial by simply submitting them into evidence.

However, if you are going to file an affidavit, the other side has the right to cross-examine the person who swore it. In fact, they have to cross-examine if they are going to disagree with anything in the affidavit. Otherwise they are deemed to have accepted the testimony as all perfectly accurate and all perfectly true.

Garth Smorang has nothing to add to Carlyle’s affidavit, which means Heather Leonoff is up.


Elizabeth Carlyle’s affidavit was about the negotiations that took place between a CUPE local (I think it is support staff, but I’m not sure) and the Winnipeg School Division from February-May, 2017, just before the Public Services Sustainability Act was passed. Carlyle was the chief negotiator for the local, and she negotiated with Eric Barnaby, who is with the Human Resources department of the Winnipeg School Division.

CUPE started the bargaining process after the existing collective agreement expired on August 29, 2016. At the first meeting on February 21, 2017, the Winnipeg School Division began by saying that due to reduced funding from the Province (a cap of 1.4%), they had limited room to bargain.

Leonoff asks Carlyle to confirm that it is “not unusual” for employers to give mandates to their negotiators – a set of parameters that management wants the results to fit within. Carlyle says that it does happen, but it depends on the context (sounds like a little less than “not unusual” and more like “not that often.”)

I’m sure there is more in Carlyle’s affidavit about what happened at that meeting, but that isn’t what Heather wants to talk about, so she moves on to the second meeting, which took place on May 23, 2017.

“It is not unusual for there to be a three-month gap, right, bargaining can be slow?” she asks. Carlyle agrees.

Then we get into why Leonoff really wants to ask Carlyle about. Apparently, one of the things that was discussed at the second meeting was the elimination of Article 11.09, a provision about sick leave. This would save money (and under the PSSA might qualify as “sustainability savings” which the unions might get credit for – more on that later.)

Somewhere in someone’s notes about this meeting, there was a suggestion that they should cost this elimination of sick leave out, and see whether they can engage in some creative problem-solving.

“But you didn’t cost it out, did you? You didn’t get creative …” Leonoff puts to Carlyle. Like Rebeck, this is another round of “you unions just wouldn’t cooperate would you?”

I’m chuckling inside, because Elizabeth Carlyle dismisses this point with one of the best legal back-hands I’ve seen in awhile.

“We were told by the Winnipeg School Division that because the PSSA was coming, we weren’t going to talk about money until later. So, since money was not on the table, no one was going to be talking about any monetary issues at all.

This question was sort of a trap. Since the costing was not done and no one got creative, Carlyle could have answered by simply saying no, we didn’t.

And that’s most likely the answer Leonoff was looking for.

But to be fair to the facts, and the witness, the full and most accurate answer is the one Carlyle gave – nobody costed anything because nobody was talking about anything to do with money. Even if she had just said no, Garth Smorang would have corrected it on redirect. He didn’t have to because Carlyle replied so effectively. (Elizabeth Carlyle, you should go to law school.)

As Leonoff goes on, she ends up giving Carlyle every opportunity to illustrate how the PSSA was affecting collective bargaining negotiations even before it was passed. In short – it was impossible to negotiate on monetary issues because of the PSSA, and because of they couldn’t negotiate on money matters, it was hard to negotiate on non-monetary issues too.

“But the PSSA was not in force,” Leonoff reminds her.

Yes, indeed, but apparently the Winnipeg School Division was relying on the PSSA anyway, and because they were, nobody could do nothing.

Carlyle adds that she has never heard “we won’t be negotiating over any monetary issues because we don’t have any money” before, and her understanding is that it was happening this time only because of the PSSA.

We don’t know anything more about what happened with negotiations after the second meeting because Carlyle switched positions and is no longer involved. Apparently, they are still working on it (almost three years later) and it is on its way to conciliation.

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Hmmm. Well, that didn’t go very well for the Government. Cross-examination is always a risk, and hindsight is of course 20/20, but they might have been able to make the point, that the unions didn’t cost out the sick leave savings or engage in any creative problem-solving, by arguing it based on the facts in Carlyle’s affidavit, and if not, it probably wasn’t worth it.

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.