The testimony of kevin rebeck

When you approach Kevin Rebeck, you just know that you are about to meet one of the nicest humans walking the planet. He radiates a pleasant ease which surrounds him with an incense of kindness. I’m used to seeing him running around rallies in jeans and a bomber jacket, with a megaphone in his hand as he gets ready to unite the troops.

He’s in a suit for this formal occasion, but he wears it just as well.

Direct Examination – by garth smorang

Most direct examinations start with a general overview of the witness’s background – who are they and what they are doing here. Kevin Rebeck is of course the President of the Manitoba Federation of Labour. 

There’s a partnership of unions involved in this case. Some of them are MFL affiliates, but not everyone. Whatever the arrangements, as the voice of Manitoba’s unions, and with a focus legal matters that affect unions by and large, it is not surprising that the MFL is leading this charge.

When a witness testifies in a trial, their testimony takes place in two primary parts. The first part is called “direct examination”. Your lawyer asks you questions that are designed to get all the stuff your side wants the judge to know about into evidence, and into her mind.

THE MFL STORY

MFL’s story begins in April of 2016, when the Pallister Government came to power. In their first budget, the new Progressive Conservative cabinet made some reference to needing to “reduce costs” in order to “sustain the services Manitobans need.” It’s a little vague, but immediately raises the question – what costs are you planning to reduce guys? Rumours abound in the media and elsewhere that they are going save money by putting limits on wages and benefits of public sector employees.

So, when someone in the government calls Kevin Rebeck in December of 2016, he’s not all that surprised. There’s a problem with the Province’s finances and could the government meet with the MFL and a few other labour leaders. “Shouldn’t there be more of them at the table?” Rebeck asks. Naw, the government wants to keep the group to “a manageable size.”

A preliminary meeting takes place on January 5, 2017. The Minister of Finance (Cameron Friesen at the time), gives a presentation. Minister Friesen says that there has to be a check on government spending, and that the Ministry of Finance wants to implement an 8-year plan to eliminate the deficit and return to balanced budgets.

There is nothing in the presentation about meeting these goals through wage freeze legislation, and although legislation is mentioned, it is described as “just one of the options.” Rebeck wanted to know whether legislation was already planned and being drafted, and the government representatives said (or implied) that no, it was not. Rebeck tells the court that he took them at their word.

Labour thought that they were about to begin a collaborative process of joint problem-solving, with consultation and dialog about the fiscal issues, and input from the unions about finding creative and mutually beneficial ways to address the them. So, they agreed to participate in a “Fiscal Working Group” made up of about 10 unions plus the MFL. They worked primarily with Gerry Irving, Secretary of the Public Sector Compensation Committee of the Provincial Treasury Board, and Rick Stevenson, the Assistant Deputy Minister for Labour Relations. (Quite a couple of Orwellian mouthfuls, those two.)

In preparation for the Fiscal Working Group meetings, Rebeck starts asking for further clarification. The union members need to know what, exactly, the problems are that they are supposed to be solving. Kevin is especially concerned about the potential for draft legislation because there are constant murmurs about legislation being already in the works. But every time Rebeck asks, Irving dodges the question, or simply ignores it.

Just prior to the first official meeting of the FWG on February 10, 2017, Irving sends an email that seems to suggest that the government wants to “change the focus” of the group from general problem-solving to considering ways to accomplish these goals through legislation. This is a little upsetting to the unions, and Rebeck starts the February 10 meeting by saying how taken aback he was by this sudden shift. Apparently, Irving quickly backtracks, and the discussions resume to the original framework – consultation and dialogue on many options, with legislation as just one possibility.

At this February 10 meeting, the MFL makes its own presentation, suggesting ways to “address Manitoba’s fiscal imbalance.” It has been a little hard for the MFL to come up with comprehensive ideas because Irving hasn’t given the Fiscal Working Group very much information about the Government’s finances or what the challenges are. Rebeck has tried, and would continue to keep trying, but for whatever reason, he cannot get any details.

The second meeting on February 17, 2017 is more of the same. Is there draft legislation? No, no, no, legislation is just one option, not the only option, and we should keep talking. Well, can we get more financial information and how about some feedback on our MFL presentation? Oh, yeah, your ideas will be going up through the finance department, to Cabinet, and to the SEC, and then we’ll get back to you.

In the end, only one analyst in finance, Giselle Martel, looked at the MFL presentation, and her comments were directed to Michael Richards, Deputy Cabinet Secretary, Deputy Minister of Intergovernmental Affairs, and Deputy Minister of Crown Services. (That’s the biggest Orwellian mouthful I’ve ever seen, but it makes sense since, according to the government’s organizational charts, Richards is basically the Premier’s right-hand man.)

Rebeck gave a great clarification here about why the Working Group was asking for the financial information:

“The ultimate goal isn’t (or shouldn’t be) to have wage freeze legislation,” Rebeck says. “The goal is to balance the budget, … at least that’s how the government was framing it. In that case the legislation is just a mechanism. So let’s focus on the goal, and give us more information about it, so that we can come up with meaningful suggestions about legislation and other mechanisms on how to achieve it.”

As Rebeck points out, the union leaders assumed that joint problem-solving was what the Fiscal Working Group was all about, and that the only point of having it was so that the unions could suggest ways to save money to help the government reach its financial goals.

Even though they couldn’t get more information, the unions were still diligently working on ideas. Sandi Mowat, then President of the Manitoba Nurses Union, made a thoroughly researched presentation on how to achieve substantial savings through better management of overtime. It received rave reviews from the government side – “this is amazing, it is exactly what we need …” – and then disappeared into the ether and was never dealt with again.

Things are not going well, and by the time they get to the third meeting on February 24, 2017, it is starting to get ugly. Kevin again asks for details of the draft legislation that seems to be out there, as well as yet another request for more information. There is no answer. It is merely more of the same.

And then Irving said something like “collective bargaining does not always work when it isn’t being conducted in good faith, and we [the government] may have to take a pause from collective bargaining if we cannot count on it being done in good faith.”

It’s an implied accusation, suggesting that either the unions in the Fiscal Working Group aren’t acting in good faith, or that the public sector unions (all 28 or 49 or whatever the number is) cannot be counted on in the future to bargain in good faith in any of the 363 collective agreements to be renegotiated under the PSSA. Considering the context, it’s a little surprising. 

I’m not sure why Irving would say this, but Rebeck and the other union leaders at the meeting found it disturbing.

In nasty legal negotiations, when your opponent accuses you of something that you aren’t doing, have no reason for anyone to think that you are doing it, and would never do anyway because it would be totally out of character, perk up, put your pen down, and pay close attention.

Chances are, this is exactly what they are planning to do to you, if they aren’t doing it already.  

I take it that the last meeting on March 9, 2017 was rather short, and tense.

Irving denied having said the part about how collective bargaining doesn’t always work. “Well I heard it,” said Rebeck, “and so did my colleagues.” Rebeck still tries to get more financial information so that he can understand what it is that the government is trying to achieve, and Irving still dodges the request.

And as for the question, again, about whether there is draft legislation, Irving just says you will find out when the Budget comes out.

The Budget was tabled on April 11, 2019. It contained a reference to Bill 28 (which eventually became the PSSA). Kevin Rebeck again asked for more information about what the Bill would say and who would be affected. Irving never responded to Rebeck’s request for the information and cancelled the next Working Group meeting, which had been scheduled for April 19, 2017.

The PSSA was passed on June 1, 2017, and received royal assent on June 2, 2017. The Fiscal Working Group never met again.

 

but wait, there’s more … and worse

As if that wasn’t a sad tale of a sorry excuse for a so-called collaboration, I left out the worst part.

You know all that stuff about how Kevin Rebeck and the union leaders kept asking and asking about the legislation – was there going to be legislation, was there a draft, and if so can we see it? And the government would always reassure them that there was no legislation planned, there was nothing to see, and legislation was just one of the options? Yeah, none of that was true. Irving and Stevenson were, it would seem, just stringing Labour along, all along.

development of the pssa (Bill 28)
what the government was doing
what the unions were being told

April 2016 (Election) until beginning of December, 2016

Month of December, 2016

Month of January, 2017

Fiscal Working Group Meets:

February 10, 2017

February 17, 2017

February 24, 2017

March 9, 2017

August 9: Advisory Note prepared by Stevenson’s department; recommends legislation

Sept 16-21: Cabinet Committee struck and meets re: legislation; Irving and Stevenson non-voting members.

Discussion with legislation drafting lawyers begins.

December 5: First Draft of PSSA is prepared.

December 14: Cabinet Committee approves preliminary version.

Irving and Stevenson continue working on legislation. They are largely in charge and liaise with others as necessary, i.e. legislative counsel, and SEC.

January 5: Irving and Stevenson prepare an Advisory Note on the draft legislation. 

January 25: Cabinet Committee meets re: ongoing drafts of legislation. Irving makes presentation based on the Jan. 5th Advisory Note. 

Irving and Stevenson continue to develop draft legislation.

Irving and Stevenson work towards a deadline of March 20, 2017 to make sure that the legislation could be passed before the end of 2017.  

March 8: Irving and Stevenson meet with the Cabinet Committee to review the draft PSSA in detail. 

Nothing.

December 5: Someone calls Kevin Rebeck to set up a meeting with labour leaders to discuss fiscal problems.

Nothing is said about draft legislation.

January 5: Irving and Stevenson, along with the Minister of Finance, have a preliminary meeting with Labour, but say there isn’t any draft legislation being proposed.

Rebeck asks about the possibility of legislation, but the government says it is only one of many options.

Unions continue to ask to comment on draft legislation and for financial information so that they can provide input.

Irving and Stevenson continue to say that legislation is merely one option of many.

At no time do Irving or Stevenson tell the unions that the legislation was being developed, nor that the legislation had to be completed by March 20.

March 9: When Rebeck asks about legislation, Irving does not confirm that it exists, and says only “you will see when the Budget comes out.”

Well, that’s a little surprising, to say the least. Turns out, the PSSA was being planned and developed months before anyone even called Kevin Rebeck.

To add insult to injury, the very people in charge of drafting this legislation were also the people meeting with Labour. Gerry Irving and Rick Stevenson’s names are all over the reports made about the PSSA as it evolved from bill to law, and they were the ones attending meetings with Rebeck and the others essentially saying “well, maybe legislation, but nothing concrete is planned.” Gonna make it hard for the Government of Manitoba to claim one of those “the right hand didn’t know what the left hand was doing” things. Same fingers, same hand, all at the direction of the Public Services Cabinet Committee, I assume.

It was all a just an act. The government never intended to do anything but bring in wage-freeze legislation, and the whole Fiscal Working Group was just an exercise in disrespectful misdirection. Rebeck only found out about all this when the government had to cough up all the PSSA drafting documents in preparation for this trial. I wonder whether he would have been happier if he had never known.

I’d say the Government of Manitoba has taken a thorough thrashing here, exposed as the expounders of some significantly bad faith. Let’s see if Heather Leonoff can repair some of the damage on cross-examination.

CROSS-EXAMINATION – BY HEATHER LEONOFF

Leonoff begins by asking Rebeck to confirm which of the 28 plaintiffs in the lawsuit are not MFL affiliates. She goes one-by-one and it quickly gets tedious, too tedious even for her, and she sort of gives up. She then gives a half-hearted try at going through which public sector unions are affected or could be affected by the PSSA but did not join in the lawsuit.

I think it was probably an intimidator tactic, seen often on cross-examinations, especially at the beginning. The idea is to put the witness on the defensive right from the start by confronting them with negative facts. Going one by one through each union that isn’t an MFL affiliate and each union that could have but didn’t join the lawsuit would have been a way to not only get Rebeck in the habit of agreeing with her, it would also have been a trail of negative facts, if, in fact, those facts were indeed negative.

Now it is time for the other lawyer’s turn. They are your opponent, so they are not there to help you. They want to get information from you that helps them not you. They also try to trip you up and challenge whatever you have said on direct, so that the judge doesn’t believe you, or at least doubts what you say.

Cross-examination is classically described as the “greatest engine of truth.”  That’s a little ostentatious in its pomposity, but cross-examination can be extremely effective in making your case nonetheless.

However, nobody in the room can figure out what the point of any of this is because there isn’t one. The status of any union as MFL affiliate or part of the lawsuit is entirely inconsequential. The answer to Leonoff’s questions does end up being a series of “no, they are not an affililate” or “no they are not a plaintiff” but that doesn’t make the answers negative. Who cares?

I’m guessing that Heather realizes that this is going nowhere, and so she moves on.

Leonoff then moves to a series of questions, propositions that she keeps putting to Kevin Rebeck. They change with the context, but they are all variations on the same theme:

You unions just wanted everything your way, didn’t you, and you were not going to co-operate unless you did, right?

While it is true that in consultations and negotiations people can be difficult on both sides, the problem is that there is no evidence anywhere in anything Rebeck was saying to show that the unions were doing anything but trying understand the issues and figuring out how to help. And if the government has any evidence to show that they weren’t – well then, take Kevin to the documents or testimony that shows that, and stick them in his face. If you don’t do that, we’ll assume you don’t have any.

In any event, here are some (paraphrased) examples of how it went down.

 

Attempted point: Generally uncooperative unions

Leonoff:   You knew, Mr. Rebeck, that there was some sort of legislation planned as early as May 31, 2016, right?

                  Well, of course, he knew; he had heard the rumours. It’s not like that’s news. He already testified to it on direct. That’s what a smart-ass would say to that question asked in this somewhat accusing tone. But Kevin Rebeck is not a smart-ass, so he just says yes.

Leonoff:    And you thought that legislation was heavy-handed didn’t you?

                  She’s trying to lay the foundation that the unions were just mad about there even being legislation, and that’s why they were so uncooperative. Except that didn’t happen. Rebeck answers pleasantly that they thought that the legislation was unnecessary and wanted to understand the government’s goals so that they could help look at other options.

Can’t do anything with that answer, move on.

 

Attempted point: We “consulted” you

Leonoff:   The government asked for your input, didn’t they?

                  Well, they said that wanted the unions’ input, but they didn’t give Rebeck or anyone else the kind of information that would allow the unions to provide useful suggestions.

Leonoff:   And you don’t have a 100-person finance department do you?

                  Holy Hannah, that’s rude. What, so there is no point in explaining the fiscal challenges to the unions because they wouldn’t understand it anyway? Then why ask for their input, because you are saying no matter what it would be useless anyway?

I went up to Kevin Rebeck after he testified to tell him what a great job he did, and it was because of how he responded to questions like these. No matter how twisted the interpretation inherent in the various questions, Kevin was consistent – the unions were trying to understand the problem, and wanted to see the draft legislation so that they could comment on it, and all so that they could help the government pursue other options if possible. And not only that, he was always so patiently polite about it.

 

Attempted point: Back to “uncooperative” unions

Leonoff:  In your mind legislation was premature, true?

                         And you needed to be satisfied that legislation was necessary, right?

                  And you were not going to discuss the legislation or its contents until the government proved what the problem was, isn’t that true?

                  It was nearing the end and Rebeck had been agreeing to some extent, but he always qualified with the qualifiers – that the unions didn’t know what the goals were and couldn’t provide input unless and until they understood the situation. Still, Leonoff was actually getting somewhere, even though a little unfairly. But then she crossed a bridge too far.

Leonoff:   And the government gave you the opportunity to comment on the legislation, didn’t they, you just chose not to use it, right?

                  And that’s when Rebeck blew her up with the truth. The unions were not actually given the opportunity to comment on the legislation, because even at the last meeting on March 9, 2017, when Irving and Stevenson knew the draft bill was being prepared to be published as part of the upcoming budget, no one on the government side would even admit that it existed.

Nasty is sometimes necessary in litigation but I wouldn’t have used that approach on this witness. The more Leonoff attacked him, the clearer and clearer it became what an honest, sincere, and helpful guy he was. Not only did this make him an exceptionally credible witness, it is also 100% consistent with his testimony about how much of an effort the unions made in what was supposed to be a joint problem-solving process.

Thus, when Kevin Rebeck tells me that Labour did what they could to work with the government, even as the government danced around dodging direct questions and giving non-answer answers, I believe him.

When you are finished with all those pages, I have a little aside - BUTT-FIRST BUFFOONERY - before we move into the real fun in THE GOVERNMENT'S FINAL ARGUMENT - the final advance of Brian's angry elephants ... smile

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?

I was just mad.