As was indicated in Oakes:
Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.
The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.
The Government of Manitoba submits that the PSSA does not substantially impact Charter values as discussed in Hutterian Brethren of Wilson Colony, which include liberty, human dignity, equality, autonomy, and the enhancement of democracy.
In addition, the Government submits that many of aspects of freedom of association are maintained, such as: employees can still belong to a union, exercise their rights to associate, and thereby address and influence important non-monetary issues. They still have the right to strike and the legislation does not force any layoffs.
Finally, the Government suggests that public sector employees will benefit from the tax relief and other positive impacts on the Provincial economy that will result from reducing the deficit, and there should be enhanced spending in areas such as healthcare, education, and infrastructure renewal.
The Government argues that these areas are sufficient to tip the final balancing in favour of the PSSA.
I agree with the unions’ conclusion that the government is wrong – the PSSA cannot survive the final balancing.
As demonstrated by the evidence provided by many of the union witnesses, the PSSA has affected the relationships between the unions and their members, as well as between the unions and the employers.
As Dr. Hebdon said, this government’s actions will have a long-term effect, and, perhaps, create a chilling of relationships for future rounds of collective bargaining.
The evidence has shown that the PSSA has substantially interfered with a meaningful process of collective bargaining for over 110,000 Manitobans.
(You are hurting way too many people.)
The Government is facilitating popular tax revenue reduction measure on the backs of public sector workers. Proportionality does not exist.
(I imagine this sentence is especially satisfying to Garth Smorang. It was one of his fiercest massacres – “the government is just limiting public sector wages to pay for tax cuts.” And Justice McKelvey even says “popular” tax reductions as in – you are just pandering to voters, not making reasoned policy choices.)
In his dissent in the Alberta Reference, Chief Justice Dickson said,
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity’ and self respect.
The testimony and evidence provided in this case demonstrated that those fundamental interests have been dramatically impacted by the PSSA.
There was little to no evidence presented to support the Government’s suggestion that public service employees will benefit from a stronger economy and reduced personal income taxes. Further, as the Government’s representative testified, no analysis was performed on the savings that could be attributed as a consequence of the PSSA restraints, unlike what transpired in Gordon (one of the ERA cases), where substantial evidence was put forward.
The comments of Justice Lederer in OPSEU are poignant in this case:
This takes me to the third question asked in the second part of the Oakes test: overall proportionality. This analysis requires the court to weigh the benefits sought through the carn/ing out of the impugned measures against their deleterious effects.
In its desire to reach an end it had defined, Ontario over ran the rights of the employees.
The end sought by Ontario could have been achieved through more targeted legislative or administrative action and fairer, meaningful collective bargaining.
The impact was not just on the economic circumstances of education workers but on their associational rights and the dignity, autonomy and equality that comes with the exercise of that fundamental freedom.
These are the sort of values that attracted the dissent of Chief Justice Dickson at the time of the first trilogy, dissents which are now celebrated as the opening insight to the full breadth of the freedom.
For all these reasons, the deleterious effects of the PSSA far outweigh any advantages, and it thus fails on the final balancing portion of the proportionality test.