the trial begins …

This is the story of MFL v. Manitoba, a case where Manitoba’s public sector unions are challenging a law known as The Public Services Sustainability ActThe unions say it is unconstitutional because it interferes with their collective bargaining rights. The Government of Manitoba says, not so fast, and besides the Act hasn’t even been proclaimed into law yet.

We are scheduled for 13 days of witnesses, whose evdience will help the court, and us, work this all out.

background

Let’s start off with the basic question – why are we here?

What we know generally, and are about find out more in very great legal detail, is that the Public Services Sustainability Act freezes the wages of employees in the public sector in Manitoba. Most of these people are represented by public sector unions, who object to this as an unconstitutional interference with the collective bargaining process, where negotiations over wages and benefits are almost always the main events.

The Government of Manitoba claims that the wage constraints are necessary “to protect the sustainability of public services” in accordance with the principles of “responsible fiscal management.” In other words, if Manitobans are going to be able to continue to receive the same level of public services they expect, the Government won’t have enough money to keep providing those services, unless they are able to cut back on the costs of public labour.

Hmmm. Well I suppose, that may be true, but it does of course depend on what other fiscal choices are being made. Not to second-guess the experts in the Ministry of Finance, but, as a matter of public policy, and the public interest, if you are going to cut, freeze, or limit the income of 123,000 people (about 20% of the workforce), and you are claiming that it’s because we, the people of Manitoba, need it, I’d like to see some clear and compelling reasons to justify forcing just this one group of people to make this kind of sacrifice for the benefit of us all.

The Manitoba Federation of Labour and the public sector unions say that the PSSA is unconstitutional because governments cannot legislate their collective bargaining rights away. Apparently, the Supreme Court of Canada agrees with them, but we will find out what the Government of Manitoba has to say about that. There has to be something. That’s why there’s a trial.

let’s got to court!

So here we all are in the big fancy courtroom, Courtroom #210, around 9:30 am on Monday, November 18, 2019.

It’s all marbled and columned. And it’s so big! That high vaulted ceiling must make this room about two stories high. It goes to the top of the courthouse anyway, because that’s a stained glass ceiling that lets the light in. Impressive indeed, as it is undoubtedly meant to be. But as we will soon learn, it is acoustically challenged. The dome that caps the courtroom off is a perfect sound absorption chamber, a place where human voices go up to get dampened and die.

It takes approximately two seconds for the lawyers to start complaining that they can’t hear anything. And they aren’t alone. Hooray, another courtroom may be ready later this week.

Adrenaline is pumping and excitement is high, although none of the lawyers look like they’re about to upchuck their breakfasts, like I always did. Garth Smorang, lead counsel for the Plaintiffs (the Manitoba Federation of Labour and 28 unions) is running here and there, playing pleasant host. He’s chatting with clients, the other lawyers, and spectators, and showing Kevin Rebeck and Michelle Gawronsky where and how they will testify. It’s good client management and a little adorable.

The Government’s head lawyer, Heather Leonoff, sits solidly in her chair, silently waiting for the show to begin. She watches closely and carefully, but says very little. It’s a position of power, and it telegraphs – beware. Like her namesake, the lion, this is the crouch of a predator, patiently waiting for any weakness signalling that it’s time to pounce.

I’m sitting roughly in reporter’s row, the second last row on the right-hand side of the room. This happens to be on the Government’s side, behind their lawyers, but that doesn’t mean anything. In criminal matters, people usually sit on the side of victim or accused, depending on who they are supporting, but no one cares that much in civil cases. In any event, reporter’s row has nothing to do with sides, but rather sitting in the best place to see and hear everything clearly. A young man, who I think is from the Winnipeg Free Press, is sitting a few seats over in my row, recording the proceedings and furiously taking notes in his double-action duo of black-bricked cell phones. He’s probably a little miffed because my seat is better.

here come the judge

Our judge for this trial is Madame Justice Joan G. McKelvey who has been a judge on the Manitoba Court of Queen’s Bench since September 27, 2001. She’s one of the most experienced judges on the Court of Queen’s Bench, and it shows. She enters with a quiet, calm dignity. This is good news. Lawyers can be noisy. It’s the trial judge’s job to turn the volume down. No better way to control that then setting the baseline tone at muted, and mild.

introductions

The first order of business is to introduce the legal teams. Garth Smorang for the Plaintiffs does the honours. I can’t hear him, so I don’t actually learn their names until later, but let’s meet them all now anyway.

For the Unions, the Myers Team:

  • Garth Smorang, lead counsel.
  • Shannon Carson, second chair, whose main responsibility is the collective bargaining experts.
  • Joel Deeley, junior counsel, who has the best seat and probably the best experience in the house.
  • Kristen Worbanski, a junior, junior, who isn’t actually in court all that much; she probably spends her time back at the office, arranging for copying, finding documents, and doing last minute research in the middle of the night.

For the Government of Manitoba:

  • Heather Leonoff, lead counsel.
  • Alan Ladyka, who like Carson, handles the collective bargaining experts.
  • Mr. Nice Guy (who’s real name is Michael Bodner); I called him Mr. Nice Guy because he was always talking to anyone and everyone in the room, including Smorang and Carson; I gather that his job was to liaise with them to organize the trial; it was a good choice.
  • Mr. Note-Taker (aka Michael Conner) who’s actually just as nice as Mr. Nice Guy, but I didn’t find that out until his turn came up at the end; before that, he mostly just took notes.

With the preliminaries over, it is now time for some opening statements …

previous Post

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.