v. can section 1 save the pssa?


Issue v: the section 1 defence

Is the Public Services Sustainability Act reasonably and demonstrably justifiable in a free and democratic society?

issue v:

Is the PSSA justifiable under Section 1 of the Charter?

A. the law

Welcome to the analysis of the Government of Manitoba’s Section 1 defence of the Public Services Sustainability Act. It is as always conducted according to the Oakes test. Justice McKelvey, take it away …

Justice McKelvey:

Section 1 of the Charter reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In Oakes, Chief Justice Dickson said:

Section 1 performs two functions. First, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, second, it states explicitly the exclusive justificatory criteria… against which limitations on those rights and freedoms must be measured.

Accordingly, any Section 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms – rights and freedoms which are part of the supreme law of Canada.

(I.e. whenever you are dealing with a Section 1 defence, you must always remember that you are only here because you have a law that violates rights and freedoms protected by the supreme law of Canada. So, tread carefully, and good luck.)

Furthermore, as set out at paragraph 66 of the Oakes decision,

The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonably and demonstrably justified rests upon the party seeking to uphold the limitation.

(You wanna violate the Constitution, you bear the burden of proving that you should be able to.)

It is clear from the text of Section 1 that limits on the rights and freedoms enumerated in the Charter are exceptions to their general guarantee. The presumption is that the rights and freedoms are guaranteed unless the party invoking Section 1 can bring itself within the exceptional criteria which justify their being limited. This is further substantiated by the use of the word “demonstrably” which clearly indicates that the onus of justification is on the company seeking to limit.

(Oh yuck, Supremes. This is a very long and complicated way of saying – and by the way, the burden on you is heavy, and the standard is high.)

The components to the Oakes test are:

    1. The objective of the law must be pressing and substantial; and, 

    2. The restriction imposed by the law must be proportional to the pressing and substantial objective.

    For there to be proportionality:

    (a)    There must be a rational connection between the pressing and substantial objective and the means chosen to achieve that objective;

    (b)    The law must be minimally impairing; and,

    (c)    The benefits of the law, or salutary effects, must outweigh its negative consequences, or deleterious effects.


    Justice McKelvey:

    All components of the test will be evaluated in order to ensure a complete Section 1 analysis. These decisions must again be considered in a factual and contextual environment.

    The implications of Section 1 were discussed in a number of the cases referred to in this trial, including B.C. Health Services where Chief Justice McLachlin noted:

    … limitations of Section 2(d) may be justified under Section 1 of the Charter, as reasonable limits demonstrably justified in a free and democratic society. This may permit interference with the collective bargaining process on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks, and national crisis.

    Yeah, I forgot about this. If you even want to talk about a Section 1 defence, you need a really big problem, with exceptional impacts.

    1. Pressing and Substantial Objective

    Justice McKelvey:

    According to Section 1 of the PSSA:

    The purposes of this Act are:

    (a)    to create a framework respecting future increases to compensation for public sector employees… consistent with the principles of responsible fiscal management and protects the sustainability of public services;

    (b)    to authorize a portion of sustainability savings identified through collective bargaining to fund increases in compensation or other employee benefits; and,

    (c)    to support meaningful collective bargaining within the context of fiscal sustainability.

    According to paragraph 34 of the Amended Statement of Defence, the primary objective of the PSSA was to curtail upward pressure on public sector compensation costs, and to provide predictability for such costs in order to manage the deficit and contribute to fiscal stability.

    (Note: what this last bit really means is that it is easier to budget if we can fix the labour costs. Waaah, it’s too hard to manage our Province’s finances unless we know for certain what our labour costs are, and that they are certainly fixed, frozen, and limited. Nice work if you can get it.)

    The Government of Manitoba argues that the objectives of the PSSA were very similar to those of the ERA.

    In Gordon, the Ontario Court of Appeal held that “the court should generally accept government objectives at face value, unless there is an attack on the good faith of the assertion of those objectives or their patent irrationality.” And, government objectives were found to be pressing and substantial in Gordon, Meredith, and Syndicat canadien.

    But here, Labour contends, the Government has not acted in good faith.

    (I might have gone for them being patently irrational as well.)

    Labour submits that the stated objectives of deficit reduction and fiscal stability were insufficient to establish a pressing and substantial objective under Section 1 for the following reasons.

    First of all, there wasn’t a global financial crisis like the one that led to the ERA.

    Secondly, the Advisory Note dated January 5, 2017, prepared by Gerry Irving for Mike Richards admitted that: “the pauses do not address the deficit problem, they simply do not make it worse.”

    And, finally, according to the Executive Summary of the PSSA prepared for the Minister of Finance:

     Placing restrictions on compensation increases will produce certainty for the Manitoba government and allow for the sustainability of [the costs of public services]. A 1% increase in compensation across the public sector adds an estimated $100 million in public sector compensation costs, which is why defining compensation is necessary.

    However, Labour submits that the government provided no evidence to show how the PSSA would protect public services or act to balance the budget, and that the PSSA is only about controlling costs and budgetary considerations.

    In several cases, courts have found that, unless there is a financial emergency, budgetary concerns alone will not be sufficient to justify violating a Charter right. In Newfoundland (Treasury Board), the Supreme Court of Canada said:

    …courts will continue to look with strong sKepticism at attempts to justify infringements of Charter rights on the basis of budgetary constraints. To do otherwise would devalue the Charter because there are always budgetary constraints and there are always other pressing government priorities.

    Nevertheless, the courts cannot close their eyes to the periodic occurrence of financial emergencies when measures must be taken to juggle priorities to see a government through the crisis.

    In OPSEU, Justice Lederer said:

    It is only in exceptional circumstances that a breach of rights under the Charter will be justified based on economic concerns. In this case, there is no suggestion that any social program was in any proximate peril…. The impetus for restraint in wages and benefits was prudence and not any immediate fiscal emergency.

    It would be an unusual state of affairs where economic and fiscal circumstances were not an issue with any province or any government in this country. In Manitoba, 55% of the budget is comprised of public sector costs, which grow by $200 million each year, without increased compensation.

    (Oka-a-y, but, uh, why aren’t you cutting costs in the non-compensation costs areas as well then? Because you just want to whack salaries in the public sector? Because …?)  

    But it remains necessary to determine whether the current fiscal challenges and budgetary constraints are the kind of exceptional circumstances that would support a claim of a pressing and substantial objective for the PSSA.

    Ok, general principles on pressing and substantial objective set out. What follows is a summary of the mashing Smorang the Smasher delivered on the economic issues. Although the government offered up the goose to him, Garth did indeed succeed in thoroughly cooking it.

    a) No Financial Crisis

    Justice McKelvey:

    Dr. Beaulieu, for Labour, and Dr. Di Matteo, for the Government of Manitoba, testified on this issue. It is noteworthy that neither opined that Manitoba was in a financial crisis.

    (Gonna be hard to find exceptional, pressing, and substantial circumstances without a crisis.)

    Dr. Di Matteo testified that:

    1.     Manitoba had a robust economy, and was essentially in the middle of the Canadian pack.

    2.     Net debt had increased in all jurisdictions, said to be affected by political choices. Such choices may be not always be economically sound, but are popular politically.

    (Kudos to Smorang on this point. This damning admission from Di Matteo was his doing.)

    3.     All governments should make plans with fiscal prudence, and from among the many options available.

    Dr. Beaulieu testified in a similar vein:

    The conclusion from looking at government deficits over time and across provinces and other jurisdictions in Canada and in the OECD is that Manitoba has managed its fiscal position responsibly and in line with other jurisdictions. There is no evidence of a fiscal crisis in Manitoba.

    It is noteworthy that Groen, who has been Assistant Deputy Minister, Fiscal Management and Capital Planning since 1990, could not recall a time where there were not budgetary constraints and debt in Manitoba.

    (Na, na, na, na … na, na, na, na … hey-ey-ey … Good-bye …)

    The situation in Manitoba is nothing like what existed at the time of the ERA. A global recession caused the ERA. Manitoba largely escaped the consequences, having had positive GDP growth every year since 2009.

    You know, if you are going to start complaining that you need to cut costs because the finances are so bad, you should first take a look at the finances to make sure that they are actually bad. 

    b) The Unequal Burden – Cut Public Sector Wages to Reduce Taxes

    Justice McKelvey:

    It is important to compare and evaluate the costs reductions of the PSSA with steps the Government has been taking to reduce revenue at the same time. Without question, a government is entitled to make these types of policy choices. However, is it appropriate to have public sector employees shoulder the burden of reducing the Province’s deficit, when choices are being made that reduce available revenues?

    (Na, na, na, na … I’m singing again. This is practically a rhetorical question. Cast in that characterization – is it fair to make public employees earn less so that everyone else can save more on taxes – what else can you say? No. Of course not.)

    The 2016 budget lowered tax revenue by lowering tax revenue by $24.2 million by freezing taxes and indexing basic personal exemptions and tax brackets. The Government continued these measures in subsequent budgets. These tax cuts have been referred to as the largest in Manitoba history.

    The Government of Manitoba also reduced the PST by 1% effective July 1, 2019. Manitoba is alone across the country in reducing a consumption tax.

    (Remember that Dr. Beaulieu testified that reducing consumption taxes is a bad idea. They are “very efficient” and thus I would say “good” taxes, economically speaking anyway. Politically, of course, they are very unpopular.

    In any event, one can assume from this and all of the other economic wisdom, that reducing the PST was a stupid economic move, and that the Government of Manitoba is the only one doing it because everybody else knows better.)

    Groan testified that this will means a loss of $305 million in 2019/2020 and $325 million in 2020/2021, and that, had the PST not been reduced, the deficit would have been eliminated entirely. Dr. Di Matteo concluded that these were political choices, and not based on economic rationale. Dr. Beaulieu testified that reducing the PST went in the wrong direction, noting that:

    … the Public Services Sustainability Act is a drastic action that places an undue and extreme burden on public sector employees.

    A prudent and measured economic response to the fiscal situation at the time would take actions to reduce the deficit over time. This … is what bond rating agencies see as a sound economic response to the long run of budget deficits in Manitoba.  … it is economically prudent for the budgetary adjustments to be undertaken gradually and effectively.

    The Government has further reduced the PST by eliminating its application to certain services.

    In the 2019/20 budget, the Government plans to increase the deficit from $163 million to $360 million. The 2019 Throne Speech discussed more tax rollbacks, as well as increased spending on highway construction, capital projects, and Idea Funds for healthcare workers and teachers. That Throne Speech did not express any concern about the size of the deficit or plans to reduce debt.

    (“Does that surprise you?” as the Smasher said to Dr. Di Matteo about the 2019 Throne Speech. Yeah sure, Government of Manitoba, you are crying debt and deficit to this court, but you don’t seem to be actually that concerned about it, since it’s not even mentioned in your latest budget. Can you hear me laughing?)

    c) The Rainy Day Fund

    Justice McKelvey:

    The Rainy Day Fund is generally used to pay down debts and cover emergency situations. The Government of Manitoba allocated $10 million to the Fund in 2017, with a further $50 million in each of the following two years. However, in 2018/2019, the Government transferred $407 million into the Rainy Day Fund instead, lauding it as the largest investment ever made into the Fund.

    (Gaming again. It is presumed that they did so because they had way too much money to justify continuing on pretending that they needed to reduce costs via the PSSA. Justice McKelvey doesn’t say so, but I suspect from her “lauding” crack that she doesn’t think much of this gaming either.)

    According to Dr. Beaulieu, contributions to the Rainy Day Fund are increases on the expenditures side and are incongruous with the idea of reducing expenditures via the PSSA:

    It is surprising and difficult to understand how a government taking draconian actions like the PSSA would contribute to a fund designed to help with budgetary’ shortfalls when they are trying to reduce the deficit and limit debt accumulation.

    It is ironic that the fund was created to try and help balance out government borrowing requirements over time. The intent is to grow the fund during times of surplus and contract it in times of deficit to lessen the requirements for external borrowing. Instead this action in the budget borrows $110M to contribute to a savings fund. This action adds directly to the deficit and runs counter to the objectives of the Government and their aim to balance the budget.

    Dr. Beaulieu also pointed out that if the Government of Manitoba hadn’t contributed to the Rainy Day Fund, the deficit to GDP ratio would have been even lower that forecast in the Budget, and would have been reduced to 0.7% by 2019/2020:

    For a government intent on balancing the budget, it is unclear why they would plan to borrow an additional $110 million over three years, adding to the debt, in order to hold cash within the Rainy Day Fund.

    Tell me again, why are you putting money meant to pay off the deficit into a savings account, when that will increase the deficit? Why don’t you just eliminate the deficit, and if you can, use the rest to pay down the debt?

    Who ever heard of making more debt by holding the cash you need to pay your bills into a savings account, and then having to borrow more money to make up of the difference? Hold cash at low interest, incur borrowing costs at higher interest? Doesn’t sound like fiscal responsibility to me.

    d) Bad Budgeting

    Justice McKelvey:

    There have been significant discrepancies between the Government’s forecasted deficits and the actual deficits each year since 2015/2016:

    2015/16:              BUDGETED: $1.012 billion              ACTUAL: $844 million

    2016/17:              BUDGETED: $911 million                ACTUAL: $764 million

    2017/18:              BUDGETED: $840 million                ACTUAL: $695 million

    2018/19:              BUDGETED: $521 million                ACTUAL: $163 million

    According to Dr. Beaulieu, constantly overstating the size of the deficit is “a disturbing trend”, a concern that is amplified by additional actions taken that lower government revenues, including diverting funds into the Rainy Day Fund and reducing the PST.

    If you have read Justice McKelvey’s decision, you might have noticed that when she is discussing the issues that make the Government of Manitoba look the worst, she does what she’s been doing a lot in this part  – she puts in long quotes from the experts. Although those quotes are very negative, it allows her to avoid having to directly crap on the Government herself.

    But, since by putting the quotes into her decision, she is effectively adopting and approving them, I take this as Justice McKelvey’s diplomatic and delicate way of saying – hey people, either you don’t know what you are doing, or you do, and you’re just throwing monkey poop around to distract from the fact that you have no defence.

    Anyway, she gets a little less circumspect as we reach the final economic point – the testimony of Aurel Tess and Politicizing the Provincial Comptroller.

    e) Material Misstatements in the Province’s Public Accounting

    Justice McKelvey:

    The Auditor General of Manitoba (Norm Ricard at the time), provided a qualified opinion on the public accounts and other financial statements for 2018 and 2019. The AGM’s office had significant concerns about whether the Government had complied with Generally Accepted Accounting Principles (GAAP). A qualified opinion is expected to be rare and should be taken seriously.

    The two problematic issues identified by the AGM were (1) removing the Workers Compensation Board from the list of GRE’s (Government Reporting Entities); and (2) an unauthorized government transfer recorded relating to trusts made in association with MASC (the Manitoba Agricultural Services Corporation).

    The AGM discussed these concerns in a news release dated September 28, 2018:

    “The result of these two errors is that the summary deficit is overstated by $347 million. That’s half the reported deficit,” says Ricard.

    Ricard notes there have been no relevant changes to the Workers Compensation Act that would indicate a loss of control. His Office’s analysis of the Government’s relationship with the WCB (as defined in the WCB Act), against the criteria of control set in accounting standards, confirmed that the Government continued to control the WCB.

    “The exclusion of an entity from the government reporting entities that are still controlled by the Government does not provide a complete picture of the financial position and results of the Government,” said Ricard.

    The removal of the WCB as a government reporting entity means the WCB’s net revenue was not recorded in the summary financial statements, overstating the reported deficit by $82 million.

    The second error involves the transfer of $265 million from the Manitoba Agricultural Services Corporation to a trust account. Ricard notes the transfer was recognized as an expense for the 2017-18 fiscal year, yet was not authorized until after the fiscal year had ended.

    “The transaction should not have been recorded in 2018,” said Ricard.

    There were conversations between the AGM (Auditor-General of Manitoba) and Tess on these issues. However, no resolution was reached and a qualified opinion was rendered in 2019 for a second time and for the same reasons.

    According to the AGM’s September 26, 2019 news release (re: the second qualified audit opinion):

    Had Public Sector Accounting Standards been properly applied, the Province would have recorded a surplus of $9 million, rather than a deficit of $163 million, and that the net debt would be $1.1 billion lower.

    There is no evidence that the Government has any intention of changing its position. Tess testified that these decisions were made by the Government (the politicians, not the bureaucrats like Tess, then the Provincial Comptroller). Tess also acknowledged that the Government is likely to receive another qualified opinion for the 2019/2020 fiscal year.

    As Dr. Beaulieu commented:

    Keep in mind that a main focus of this government is to reduce the debt. Excluding these entities from the government books removes the reserve assets of both entities and increases net debt by $1 billion (that is, removing the WCB in its summary financial statements understated government assets by $632 million, and removing the MASC trusts in the financial statements understated assets by $490 million.)

    In brief, the habitual overstatement of the budget and the Government’s departure from accepted accounting practices raises concerns.

    (In testifying-expert speak, “raises concerns” is a nice way of saying – this is bullshit.)

    Dr. Di Matteo testified that the Government of Manitoba should follow the advice of the AGM with respect to accounting practices.

    (Ok Government of Manitoba, even your own economic expert says the Auditor-General rules, not you.)

    f) CONCLUSION: Is there a Pressing and Substantial Objective?

    And now comes the hammer. It’s a pretty hard hit for a judge with such a tendency for the soft touch …

    Justice McKelvey:

    These areas all represent, in a substantive way, policy choices made by Government, along with what might be considered as manipulation in areas such as the WCB and MASC exclusion from public accounts. Arguably, the deficit is made to appear more substantial than actually exists, along with the fact that revenues have been significantly reduced.

    Further, increased expenditures reflected in the budget of 2019/2020 have demonstrated spending rather than contraction. The only substantive area in which this Government has, through its policies, indicated a substantial pull back is public sector compensation.

    (You are screwing around with the public accounts, and doing other questionable things to make the deficit look larger than it is. And, you’re only cutting public sector wages. You’re spending on every thing else.

    In other words, you’re liars, you’re scammers, and you’re mean.)

    I am satisfied that the Government’s stated objectives in pursuing this legislation and mandate do not support a pressing and substantial objective that would justify it pursuant to Section 1 of the Charter because:

    ♦   The Government relied on fiscal circumstances which did not constitute a crisis or emergency situation.

    ♦   The Government made political choices were to reduce income taxes and lower the PST, all of which reduced revenue and slowed deficit reduction.

    ♦   They made significant contributions to the Rainy Day Fund, diverting funds that could have been utilized for deficit-reduction purposes.

    ♦   The issues raised by the AGM’s qualified opinions are contrary to the Government’s case.

    ♦   Funding capital projects, new initiatives and increasing deficit spending are inconsistent with reducing expenditures to reduce the deficit and debt.

    ♦   The expert testimony and other evidence at trial did not establish that Manitoba’s financial circumstances were exceptionally impacted or in a dire situation.

    ♦   In fact, the Government of Manitoba did not even argue that a financial crisis existed. (Snicker, snicker, scoff, scoff.)

    ♦   The evidence demonstrate that this Province is in the middle of the Canadian provincial experience and this Province’s financial situation was very different to that which existed at the time of the 2008 global crisis.

    ♦   An October 3, 2017 KPMG report entitled A Fiscal Performance Review did not include any recommendations for public sector wage or benefits restraints. It did recommend an eight per cent reduction in the workforce.

    The pressing and substantial objective of the Government must be considered in the context of other policies it has adopted since 2016. These include reducing personal taxes, reducing the PST, and making massive injections of resources into the Rainy Day Fund. It is not for a court to mandate policy for government. However, such policy “choices” raise questions concerning the Government of Manitoba’s claims to need the PSSA to reduce the expenditures, combined with its revenue reducing measures in other areas.

    Therefore, I am satisfied, based on all the evidence, that a pressing and substantial objective has not been established in this case. The infringement of Section 2(d) rights cannot be justified by the fiscal condition of the Province during the relevant timeframe — no evidence was presented to support the existence of a financial crisis nor exigent circumstances.

    Given this conclusion, I do not need to continue the Section 1 analysis, but will do so for the sake of completeness.

    Yeah, I don’t really need to continue either. But I have been faithful in the fullness of this review, so …

    2. Proportionality

    Part 2 of the Oakes test is itself a three-part test. (Don’t you just love judges and lawyers? Go to law school and you had better be ready to get used to lots of headings and sub-headings for all those parts and sub-parts.)

    To determine whether the measure is proportional, it must have a rational connection to the goal, it must be as minimally impairing as possible, and, in the final balancing the negative effects of the law must not be greater than its benefits.

    Personally, I think that the third prong is a waste of time. Any analysis that might fall within this part is almost always going to have been already considered. Besides, and maybe because of that, no one ever makes it through all of the previous parts of the Oakes test up, only to fail here. You got a bad law that isn’t going to make it past the final balancing, and I guarantee you that you’ve already failed elsewhere.

    Anyway …

    a) Rational Connection

    Justice McKelvey:

    If a pressing and substantial objective has been found, there must be a rational connection between the objective and the means chosen to achieve it. A reasonable inference must be that the means adopted by the government will assist in securing the objective.

    The courts in both Gordon and Syndicat canadien held that it was self-evident” that the legislative initiative of the ERA would “have positive impacts on expenditures and would meet the rational connection test with respect to ensuring the ongoing soundness of the Government’s fiscal position…”

    The Government of Manitoba maintains that the situation with the PSSA, where public service compensation costs are about 55% of its budget, is the same. Controlling such costs would be expected to have a positive impact on deficit reduction and contribute to the Province’s fiscal stability. Thus, the measures undertaken in the PSSA were rationally connected to the Government’s objectives of controlling public sector compensation costs. While other policy choices were available, the Government elected to follow the PSSA course to support its objective.

    In contrast, the unions rely on the comments of Justice Lederer in OPSEU:

    The measures which limit the right (in this case, to freedom of association) should not be arbitrary and should be based on care of design. In this case, they were not.

    The process was arbitrary because it was unilateral. Even though it was very different from past sector-wide negotiations… the process was put in place by the Government without consultation or discussion.

    Ontario’s representatives professed to be open to review of the process, but introduced it during a conference call the day before substantive discussions were to begin as an overview of the next steps without the opportunity for questions … When ETFO asked questions about the process, Ontario’s team either could not or would not answer. The questions asked were basic to the process: how would the negotiations proceed, could additional issues be raised and would other cost saving measures be considered….

    OSSTF, having been told Ontario would consider alternative terms to meet its fiscal goals, asked for the financial target that any alternative proposals it made would have to satisfy. OSSTF was told the information would be provided. It was not. Evidently, this sort of information was not available.

    In other words, Ontario devised a new and different process on its own. It failed to or was unable to answer questions as to how that process was to be conducted and professed to be open to changes in circumstances where it could not provide information.

    According to the evidence at trial:

    ♦   The only option the Government considered and was going to consider was legislation.

    ♦   The Minister of Finance did not make it clear whether all options were on the table or not, although in fact there was only one option: legislation.

    ♦   Although one of the PSSA‘s stated objectives was to support meaningful collective bargaining, the cost certainty the Government wanted could not be achieved through collective bargaining.

    ♦   The issues raised by the AGM’s qualified opinions are contrary to the Government’s case.

    ♦   The Government had no cost projections to illustrate the savings that the would be realized. Groen testified that the Ministry of Finance was never asked to make such calculations and Stevenson admitted that they were never done.

    ♦   The Finance Minister stated publicly on April 11, 2017 that they did not have any “estimates of the financial and employment impacts of wage control.” And, the Minister of Education stated on February 8, 2018 that they didn’t know how much freezing teachers’ wages would save on the Government’s costs.

    ♦   The limited increases in years three and four of the PSSA pattern (0.75%, 1%), were not based on a financial analysis. Irving and Stevenson established these figures without the benefit of any financial analysis.

    ♦   The PSSA and its terms were arbitrary. There was no financial investigation as to the consequences of the measures, including whether savings or costs reductions would be achieved.

    ♦   The PSSA was largely copied from Nova Scotia’s equivalent act.

    It could be because this discussion on The Decision is getting long, and I’m getting tired, and really who cares because we know the law is going to fail anyway, but man I’m hating this part of the test. And, for once, I really hate what Justice McKelvey did with it.

    Here’s the problem. If a rational connection is going to be anything more than just – hey, here’s the objective, and logically taking this step should help to achieve it, then, how do you tell when the rational connection criterion is met? Courts have been all over the place on this, but the stuff Lederer talked about re: careful design and not being arbitrary, is exactly the kind of thing you would need to give the rational connection analysis more practical, evidence-based meat.

    All right. That makes sense. So, when Justice McKelvey refers to the Lederer quote and then rips the PSSA and how the government developed it apart, I’m thinking – ok, no rational connection either, because the design was terrible, not careful, and everything about the PSSA was arbitrary.

    But instead, as she says in the next part, she finds that there is a rational connection, because even though the measures in the PSSA were not taken with care of design, and were arbitrarily chosen, it is clear that wage restraint legislation will help control public sector costs,

    Except this is only clear if you take a purely logical approach – finding a causal link – to the rational connection test, ignoring everything Justice Lederer in OPSEU and the cases that followed him said about needing more than that. And no one wants this bare-logic approach, except maybe people like the Government of Manitoba when they need it (because they cannot pass the rational connection test any other way.)

    In any event, here’s Justice McKelvey’s conclusion in her words. Even though she is a judge, we don’t necessarily have to agree with it …

    Justice McKelvey:

    While I find the steps taken by the Government of Manitoba to be arbitrary, and taken without care of design, a rational connection between a pressing and substantial objective, and the means adopted to achieve that objective, has been established. This is because this government, on a broad basis, has demonstrated a causal link with the pressing and substantial objective

    b) Minimal Impairment

    Uh-oh. It’s those [bleeping] pre-legislation consultations, again.

    So, we know that there is no duty to consult before legislating, and we know that there is no duty to conduct collective bargaining before legislating.

    We don’t really know whether pre-legislation consultations can replace and substitute collective bargaining and so allow legislation to go through later, as per B.C. Teacher’s Federation (although it is likely that the Supreme Court of Canada will eventually reject this). In the end, the Government of Manitoba didn’t even try to rely on this as a defence, and, since there was so much bad faith surrounding the Fiscal Working Group discussions, it is unlikely that it would have gotten anywhere anyway.

    We do know, however, that the Supreme Court in B.C. Health Services and other cases have found that pre-legislation consultations are relevant to a Section 1 defence, arising most often in the question of minimal impairment. Thus, Justice McKelvey finally has a change to really have at the Government of Manitoba about what happened with the Fiscal Working Group.

    But first, some generalities …

    i) Overview

    Justice McKelvey:

    This step of the proportionality test requires that the PSSA should impair the unions’ freedom of association as little as possible.

    As the court said in B.C. Health Services:

    The Government need not pursue the least drastic means of achieving its objective. Rather, a law will meet the requirements of the third stage of the Oakes test so long as the legislation “falls within a range of reasonable alternatives” which could be used to pursue the pressing and substantial objective…

    And, as per Justice McLachlin in RJR MacDonald:

    The impairment must be “minimal”, that is, the law must be carefully tailored so that the rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it over broad merely because they can conceive of an alternative which might better tailor objective to infringement …

    Essentially, the question is were there less drastic or less damaging means of achieving the objectives? Were those means the minimum necessary? There is some tolerance in choosing the least drastic means, as legislators are not required to be perfect.

    The Government of Manitoba submits that the PSSA was the least impairing alternative because there are only two ways to control the costs of labour compensation: (1) reduce the workforce; or, (2) control wages through legislation. Furthermore, the ERA and Nova Scotia’s PSSA were both directed at the same goal. The Government claims it did seek union input prior to legislating, but the union declined to provide it. (Humphf, right.) Finally, the PSSA is minimally impairing because it allows merit and step increases to continue, it includes the possibility of increased compensation from sustainability savings, and it is time-limited.

    Labour maintains that the Government’s actions were not undertaken in good faith, meaningful consultation was denied, and information was not provided as requested. There were reasonable alternatives that were not explored, and thus a high degree of judicial deference should not be afforded.

    I accept much of what the unions have submitted with respect to this area in concluding that the evidence establishes that the Government did not meaningfully consider any alternatives other than legislation, because:

    ♦   The Government didn’t tender any evidence to show that they considered any other alternatives.

    ♦   The Government simply copied the Nova Scotia model.

    ♦   Within months of being elected in April of 2016, the decision to legislate was raised and essentially adopted.

    ♦   Although the November 21, 2016 Throne Speech indicated that “legislation will be introduced, following consultation and dialogue”, the unions had not been consulted and consultations were to be on legislation only. There was no apparent room for collective bargaining even though it had been possible to negotiate wage freezes in the past.

    Justice McKelvey now turns to what happened in the so-called consultations, the horror of how disrespectful and deceitful the discussions with the Fiscal Working Group were. She’s not as caustic as I was, but still, she’s not impressed.

    ii) The “Consultations”

    Justice McKelvey:

    It is clear that before “consultation” with unions commenced, the government had already taken the following steps towards legislation:

    1. August 9, 2016 — the Nova Scotia legislation was under review with consideration to undertake a similar model.
    2. September 21, 2016 — the Public Sector Compensation Committee approved using the Nova Scotia legislative model and directed the exploration of legislative options to be discussed at the next meeting.
    3. October—November 2016 — a legal opinion on the legislation was sought and received.
    4. November 2, 2016 — the PSCC was verbally advised as to the nature and contents of the Nova Scotia legislation.
    5. November 21, 2016 — the Throne Speech announced that restraint legislation would be introduced.
    6. December 5, 2016 — first draft of the legislation prepared.
    7. December 14, 2016 — Cabinet approved in principle a public sector compensation legislative model which was to extend over four years, with a two-year wage freeze. There could be additional compensation if sustainability savings were identified and negotiated in years three and four, with Treasury Board approval. Further, arbitrators’ rights were limited.
    8. December 21, 2016 — the first draft of the legislation illustrated two years of zero per cent increases.
    9. January 5, 2017 — recommendations were made on what workplaces and individuals should be included or excluded from the legislation. The four-year compensation mandate was determined to be zero per cent, zero per cent, 0.75 per cent, and one per cent.
    10. Despite what the unions were told in early January 2017, there was no “blank slate” of alternatives. The Government gave no indication that the legislation was already drafted at the first meeting of the Fiscal Working Group on January 5, 2017, and provided none of the information requested. The unions provided two proposals draft of the legislation illustrated two years of zero per cent increases to help save costs and return to balance– one from the MFL and one from the MNU on overtime. Although Irving called the MNU initiative “amazing”, little analysis was done on these proposals (under 24 hours) and Cabinet never saw them. When Rebeck suggested that collective bargaining could be undertaken to achieve a balance, Irving replied that “collective bargaining doesn’t always work” and is “not always done in good faith.”

    The final draft of the PSSA was completed on March 8, 2017 and presented to the PSCC. The unions were never told that the legislation had been finalized. When the FWG met for the final time on March 9, 2017, Rebeck again asked specific questions, but received no response. The need for this meeting of the FWG is, at best, speculative, as surely the DIE WAS CAST. The bona fides of this process must be queried.

    (Don’t look now, Government of Manitoba, but Justice McKelvey has just called you scumbags.)

    The four FWG meetings from January to March of 2017 were an exercise in futility as the government continued to develop the PSSA in preparation for introducing it into the legislature in its final form. Union representatives were not informed as to what was truly transpiring, information was not provided, nor were they given an opportunity to review the draft legislation for feedback purposes. Furthermore, the Government did not respond to the unions’ initiatives to achieve balance.

    (That’s what happens when your idea of consulting is – let’s pretend we are open to input and discussions, but let’s go ahead and do whatever we want anyway. Again, scumbags.)

    Information, when requested, was not provided, which negated the unions’ ability to participate in meaningful discussions. I acknowledge that some information was subject to Cabinet privilege and thus appropriately withheld, but, in hard or co-operative bargaining situations, it is imperative to divulge information and goals.

    So, the Government of Manitoba certainly sucks at pre-legislation consultations.

    But now, what about other options, you know, ones that might be less impairing? Because, of course, if you are going to claim that you have chosen the minimally impairing option, you kind of have to show that you considered other options …

    iii) Other (Less Impairing) Options?

    Justice McKelvey:

    The government has the burden of proving that the PSSA was the least impairing method available to achieve its objectives, and it has failed to do so.

    At no time did the Government consider a “blank slate” of options. The Government failed to explain why they didn’t consider less intrusive measures or show whether other alternatives were even considered.

    The evidence is clear that from August, 2016 onwards, the only alternative was a made-in Nova Scotia legislative restraint model. . Indeed, this legislation was a copy of the Nova Scotia model and adopted without financial analysis of its consequences.

    The pre-legislation consultations between the unions and the Government did not demonstrate a meaningful discussion of any options, even legislative options.

    Although the unions provided an alternative of collective bargaining, the Government’s mind was closed to such options. The Government’s mind was closed to everything; they only sought certainty. Collective bargaining was never an option, even though it had been successfully used in the past to obtain wage freezes.

    It is arguable that the lack of information provided to the union was purposely to block the search for alternative measures.

    (What? That’s the hardest whack yet! Ha, ha, ha, ha, ha, ha … You people were being so sleazy about the FWG discussions, and so hell-bent on bringing in the PSSA, you didn’t want to give information to the unions because, oh-oh, they might come up with some good and better ideas to solve the problem, and who wants that?)

    Other options might have been to reduce the budgets of government-funded employers, which would have required the employer to carefully consider monetary proposals at the bargaining table.

    Hey, take a look at that last bit again:

    Other options might have been to reduce the budgets of government-funded employers, which would have required the employer to carefully consider monetary proposals at the bargaining table.

    It would mean that instead of saying – hey, all government employers, all of your wage increases are fixed and frozen, the Government could have said – hey employers, here’s your limited budget, so, go ahead and negotiate away. This would force the employers to take a wholistic view of their budget, and try to reduce costs in all possible ways, not just on labour.

    And, if labour was the only or prime area where the necessary savings could be achieved, the employer would have to “open the books” and demonstrate that, and then bargain for it, which would necessitate a trade-off of something else like job security.

    This made me stop and wonder – why didn’t the Government of Manitoba do this? If reducing the deficit and balancing the budget was really the goal, then this would work. It would reduce costs and also be legal, as in constitutional, because it would respect collective bargaining.

    There doesn’t seem to be any need for the Government to go around to every bargaining table in the Province for the next eight years (remember that the PSSA period floats to the future) and say – hey Ok, employer and employee, here are your wage increases and you cannot talk about anything else to do with money.

    If limiting the budget forces the labour costs to be reduced, why do you care how each table gets there? And, if you stay out of it, every table can come up with a deal that suits their individual circumstances. Some will freeze their wages, some might not, but as long as the numbers work out to the right amount of necessary savings, why does it matter to you, the Government of Manitoba, where the reductions in expenditures occur?

    I don’t think it does. Hmmm. Hold that thought. I’ll be returning to it in the Aside that follows – What Have We Learned? For now, let’s finish minimal impairment …

    iv) Other Considerations

    Justice McKelvey:

    The evidence from such entities as Revera and Arlingtonhaus, illustrated that once they received (delayed) advice from the Government that they were outside of the PSSA’s jurisdiction, wage increases above the PSSA’s restraints were successfully negotiated. Thus, it cannot be suggested that the PSSA reflects the going rate for collective bargained agreements. This was also demonstrated by what the University offered UMFA before the Government got involved (and wrecked everything).

    Permitting negotiation on non-monetary matters doesn’t support minimal impairment, as removing all monetary matters causes a significant reduction in bargaining power.

    The sustainability savings provisions have yet to be used and likely will not be. Such savings would result in a concession by employees. The exemption in Section 7(4) of the PSSA (for unionized public employees) has also not been used. This demonstrates control by the Government, and are plausibly enacted in an attempt to protect against a constitutional challenge.

    (That is, you knew that what you were doing was unconstitutional, so you just threw those provisions in to point to as a feeble excuse for a defence when you got to court. Gaming! No time for it. Not here. Not in the law. Not by a government. Not when it comes to the constitution. If you are a government in Canada, it makes you absurd.)

    Like the Government of British Columbia in B.C. Teachers Federation, it cannot be said that the Government of Manitoba “took any approach to minimally impair in this context, let alone a reasonable one.”

    The fact that the PSSA is time-limited doesn’t reflect its actual operation. There is no indication that the PSSA would be lifted or revoked in the event of economic prosperity, and since sustainability periods come into effect at different times for different groups, the PSSA’s effects will not expire until 2025.

    And now for the big finale on minimal impairment …

    v) CONCLUSION: Minimal Impairment

    Justice McKelvey:

    I am satisfied that the Government has failed to meet its onus under the minimal impairment branch of the Oakes test. There has been no evidence put forth as to why collective bargaining for wage restraints was not possible, as previously occurred in and around 2010. Further, there has been no explanation as to why other less intrusive and, perhaps, equally effective measures, were not chosen or explored, even those of a legislative nature.

    The Government chose not to call any member of the PSCC or government decision-maker to explain why such measures could not have been adopted or were even considered in these circumstances. As in B.C. Health Services, the evidence has demonstrated that there was, ” no consideration by the Government of whether it could reach its goal by less intrusive measures, and virtually no consultation with unions on the matter.”

    The evidence in this case also demonstrates that very soon after its election, this government became fixated on the legislative model. Indeed, the Government had a draft in place before consultation even commenced with the unions. While the Government’s representatives indicated an openness to other options and said that a clean slate was being considered, the evidence showed otherwise. Furthermore, Irving stipulated collective bargaining does not always work, nor is it always done in good faith. It was disingenuous to suggest that anything but this legislative model was being considered, or that any other options were to be evaluated.

    (Liars. You were only ever going to legislate, and you were never going to do anything else.)

    The Government has not satisfied the onus of demonstrating what alternatives were considered prior to forging the legislative course. There were no attempts to collectively bargain, no meaningful consultation or discussion of other options, and no evidence as to why the PSSA afforded the only recourse.

    Therefore, the PSSA cannot be regarded as minimally impairing in these circumstances, and travels far beyond what was reasonably necessary to procure the objectives of the legislation.

    Okey-dokey. That was long, and unexpectedly illuminating. That part about just setting the budget and then letting them bargain it out was an eye-opener. You see, that could be the balanced answer to everything. After you clear away all the legal mess, the fundamental question is how can governments control (labour) costs without interfering with collective bargaining? The answer is – by setting budget limits, and letting the parties figure it out at the bargaining table.

    I’m sure Shannon and Garth argued that somewhere along the way, but amidst all the verbiage, I missed how significant that is. More on that in the Aside: What Have We Learned?

    Anyway, one last issue, and then we are done. smile

    c) The Final Balancing

    Justice McKelvey:

    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

    Righty-o. C’est tout. Final balancing in favour of the Government of Manitoba? I don’t think so.


    Well, that analysis of the Section 1 defence based on the Oakes test went: Part 1 – fail, and then Part 2 –  fail, fail, and fail. So, not surprisingly, Justice McKelvey’s conclusion on the Government of Manitoba’s Section 1 defence is clear, obvious, and short:

    Justice McKelvey:

    I am satisfied that the PSSA has significantly impacted the associational rights and protections of public sector employees. Such an infringement cannot be demonstrably justified in a free and democratic society.

    Accordingly, the PSSA is not saved by virtue of Section 1 of the Charter.

    • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

    Now that we are done with the Decision, let’s move on to a summary of what we have learned. However, by now we all know that the Government of Manitoba has appealed Justice McKelvey’s Decision. Thus, it would appear, to me anyway, that the Government hasn’t learned anything …

    Aside: What Have We Learned?

    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.

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