Aside: what have we learned?

I’m not sure what all this meant for you, but I learned a lot about the constitutional protection for Freedom of Association. I bobbled back and forth between wondering why collective bargaining was protected, and wondering why, if it was, the Government was so thoroughly disrespecting it.

I have the answer to the first question. And the second? I’m still thinking about it …

In any event, going through The Decision confirmed and reinforced my already firm belief that trials can provide exceedingly good  opportunities to correct governmental action (as long as the public finds out about it, of course). It is not just what happened, it is what we discover about what is going on, and what it all means …

So, let’s take a look at the question at hand:

What Have We Learned?


I. passed-but-not-proclaimed bunkus

When Heather Leonoff started off her opening statement with the Elephant-in-the-Room – the argument that the PSSA couldn’t be challenged because it hadn’t been proclaimed, I remember thinking – What? You had better have a better excuse than THAT (scoff, scoff, snicker, snicker, eyeroll). Speciousness has that effect on me.

Apparently, Justice McKelvey thinks this is specious too. She called the passed-but-not proclaimed argument “disingenuous”. It wasn’t the only time she used that word, and each time she did it was, as far as I can tell, a way to call out “Bullsh*t!”

The passed-but-not proclaimed business was a Dumbo that never going to fly. Why? Because the Government of Manitoba was already applying the PSSA, even though it hadn’t been proclaimed. When PSSA offers were made and insisted upon, these were not mere mandates, friendly guidelines, a softly set-out starting point. These were hard, heavy commands, with the threat of claw backs and punishments if you dared to not comply.

So, congratulations, Government of Manitoba, you have proven to us all that a law does not need to be in effect to have an effect. And Justice McKelvey confirmed that once a law has an effect and as seriously a negative effect on reality as the PSSA did, the resulting wrong is no longer hypothetical. The constitutional challenge is really ripe (and very stinky), and so the lawsuit can proceed.

As for the 555-year-old equitable maxim that “you cannot do indirectly what you cannot do directly,” Justice McKelvey didn’t mention it (probably because the parties didn’t argue it). But, thanks to the Government of Manitoba’s overenthusiastic quest for certainty, I still say it applies. And it just might continue to arise …

ii. pre-legislation consultations

Here, we mostly learned how very annoying pre-legislation consultations are. Blame Christy Clark’s Liberal Government of British Columbia. It was their grand plan.

You see, the only reason anyone ever wondered whether a government should consult with the unions prior to legislating, because they had to or because it might help them, is because, in B.C. Teachers Federation, the B.C. Government argue that their substantially interfering unconstitutional law had been cured by pre-legislation consultations.

A reminder of the timeline. First, the trial judge found that the law was unconstitutional. Then, the trial judge gave the B.C. Government one year to fix it. During that year, the B.C. Government met with the unions, but whatever discussions they had, they certainly weren’t meaningful, and, in the end, the Government didn’t change anything. The second version of the legislation was exactly the same as the first.

And that was the plan. As Justice Donald described it:

… the Province came into these negotiations with its mind made up and a strategy in place. The Province intended to re-enact equivalent legislation to what was struck down in the original decision. Any disagreement or negotiation on the part of the union was futile; the die was cast.

Yes, this is where Labour’s the die was cast comes from. And yes, the Government of Manitoba seems to have copied the B.C. Government’s strategy – go through the motions of consulting, but do what ever you want to anyway.

However, thanks to the Government of British Columbia, and the governments who keep trying to play the same game, the law on pre-legislation consultations remains a snarly mess.

A. No Duty to Consult

I think we can be reasonably certain that there is no duty to consult before legislating. Labour never said that there was. The Government of Manitoba argued that there shouldn’t be, and Justice McKelvey agreed with them.

Nobody wants this, and there are good reasons why. Governments don’t want to have to consult before legislating, and unions don’t want a process where they lack the bargaining power to be able to have any meaningful input (because they cannot strike).

Besides, both sides hate the idea, because no one knows what kind of consulting would ever be good enough, and so they all risk inevitably fighting about the quality of the consultations in court.

What’s less clear is whether a government should or could consult before legislating, even if they don’t have to.

B. Substituting Consultations for Collective Bargaining

In my view, the whole “our law is constitutionally Ok because we consulted first” defence is rotten legal refuse that belongs on the garbage pile, because it was never anything but a phony attempt to do an end run around the constitution. The B.C. Government was merely going through the motions of consulting with the unions. They had already decided to bring in exactly the same legislation, and nothing the unions said was going to change their minds.

Con games do not belong in a courtoom, especially a consitutional one. So, boo British Columbia Court of Appeal for not booting this B.C. Teachers Federation B.S. out with the swiftest kick of disapproving rejection.

Because they didn’t, we’re stuck with the question of whether pre-legislation consultations can be a substitute for collective bargaining for a while yet. But, I think that it is highly unlikely that any court would ever find pre-legislation consultations to be an acceptable replacement for meaningful negotitation. Because the unions can’t strike, they don’t have any way to encourage a government to change its mind. As Smorang pointed out, this is “collective begging, not collective bargaining.” And collective begging is never going to be good enough.

C. A Question of Consent

Stepping back from all the legal verbiage, I still wonder why anyone should ever care whether the unions were consulted before the law came in. Whether a law is substantially interfering or not is a question of fact, which depends on the terms of the law and its context. Whatever the unions said or didn’t say about the terms of the law during the consultations, whether adopted or not, shouldn’t be that relevant. It’s just their opinion, and the government might have their own. Doesn’t mean either of them have it right.

The only way I can see this being useful, is if a government could claim that it doesn’t matter whether the law interferes or not because the unions consented to it, via consultations that took place prior to brining the law in.

I suppose you could try it, and I suspect that was what the B.C. Government was up to in B.C. Teachers Federation, as in the apearance of consulting would give the appearance of consent. But, if you are planning to substantially interfere with collective bargaining, or doing other dastardly unconstitutional things, the unions are never going to go for it anyway. So, why waste your time?

D. Consultations and Minimal Impairment

It is true that the case law says that if you consult before you legislate, then this might help you with your Section 1 defence. I guess I can see the possibility of this helping you demonstrate that you considered other options, and you heard from the unions about which options would be the most minimally impairing.

But this is just one factor in the minimal impairment analysis, and in my view, a minor one. Here too, unions, as well as the government, might have their own opinions about what options make sense, and which ones have the most or least negative effect on collective bargaining. But these are just opinions, and opinions aren’t facts.

Besides, once you get to court, the judge decides whether the law meets the standard of minimal impairment, a legal conclusion based on the evidential context, and the judge’s opinion is the only one that matters.

E. A Final Word

Notwithstanding all of the above, the one last pearl of wisdom on the pre-legislation consultations string is that, if you are going to bother consulting before legislating, then don’t be a dickhead, do it properly. Make sure you are actually consulting. Don’t pretend to care what the unions think when you have already decided that you don’t.

Rule of thumb in litigation – he or she who behaves most like a jerk is the he or she who is most likely to lose. Besides, if you are a government at any level in Canada, we expect better from you.


Nobody really argued the question of collective bargaining before legislation. Although Labour included it their pleadings, they didn’t say much about it except as a principle of International Law. And, although it seems mostly arise as an attempted defence – our law isn’t unconstitutional because collective bargaining took place before we legislated, the Government of Manitoba didn’t rely on it. 

So, the only thing I learned about the pre-legislation collective bargaining defence is that I don’t see how it would ever succeed. Nova Scotia tried doing this, sort of. They passed their Public Services Sustainability Act, and then tried to hold collective bargaining before proclaiming it. And I think they were tying to duplicate the approach the Federal Government took with the ERA.

It didn’t work because, from what I can tell, what Nova Scotia did was say – hey give us what we want (wage freezes), and if you don’t, we’ll just legislate them in under the PSSA. That’s not exactly conducive to what would generally be considered free, fair, and meaningful collective bargaining.

I don’t really know how the ERA collective bargaining went, because the ERA cases tend to simply conclude that the collective bargaining was free, instead of telling us why. But, whatever it was, the courts in the ERA cases (MeredithCBCDockyardsGordon) held that the collective bargaining that took place was “free” enough to be good enough, even though everyone knew that if they didn’t get a deal they’d be getting legislation anyway. 

I suppose if pre-legislation collective bargaining is indeed going to be free, i.e. without the threat of legislation pressuring it to go a certain way, it might be Ok. But, free collective bargaining isn’t likely to get you any consistent level on compensation, and it certainly isn’t going to give you certainty, so, I can’t see what’s in it for  a government.

Besides, it couldn’t have worked here, because the 363 collective agreements affected by Manitoba’s PSSA expired at different times over a four or five-year period. So, unless the Government of Manitoba was going to force every single collective agreement to be reopened and negotiated at the same time (itself substantial interference), waiting four or five years to allow everybody to complete their collective bargaining prior to legislating wouldn’t have been practical anyway.

Note: Hard Cases Make Bad Law

I think that in any other context the ERA would have been found to have been unconstitutional, but saved by Section 1, as opposed to being constitutional, and not needing to be saved by Section 1. And that, if there hadn’t been a global financial meltdown, whatever collective bargaining that took place prior to the ERA would not have been called “free”. Hard cases make bad law, and in my view, the courts were looking for any justification they could find for the ERA. Given how serious the financial crisis was in 2008, they were pretty much going to excuse anything the Government of Canada did to address it, no matter what.

While there isn’t any difference in fact between being unconstitutional but saved by Section 1, and not being unconstitutional in the first place, there is a big (political) difference in perception between doing something illegal under the constitution, but with a good reason, and not doing something constitutionally illegal at all. And, since the global financial crisis of 2008 was really big, really scary, and not at all the Government of Canada’s fault, I can see the courts not wanting to make them wear the hair shirt of constitutional bad guys.

But, because the Supreme Court of Canada and three Courts of Appeal did this, I predict that the ERA cases will continue to lead governments into the temptation to play the pre-legislation collective bargaining game –

Hey look, we may have brought in unconstitutional labour legislation, but it’s all Ok, because we held collective bargaining first, just like the ERA.

But not to worry. Thankfully, the courts have, at the same time, given every other judge a distinguishing out:

Sure, you conducted collective bargaining before you legislated, like the ERA, but unlike in that case, the collective bargaining you did was not free.

It’s already happening. It’s how Labour and Justice McKelvey distinguished the Meredith/ERA cases – cases finding that the wage restraints in the ERA were still constitutional don’t apply here because there, collective bargaining was allowed to go first, and it was free. And I suspect that, unless we find ourselves in an as extreme posistion as we did in 2008, the ERA defence is unlikely to ever succeed again.

IV. SUBSTANTIAL INTERFERENCE and the Section 1 defence

There wasn’t much new here legally, as Justice McKelvey faithfully applied the substantial interference test from B.C. Health Services, and she didn’t do anything new when she applied the Oakes Test.

But, this was a relatively new situation – wage freezes outside of the global financial crisis that seems to have saved the ERA, so Justice McKelvey’s analysis shows us what this law looks like when applied to a new reality.

Due to the overlap in issues, I’m going to deal with what we learned about unconstitutional substantial interference and Section 1 defences together.

A. The Importance of Wages

The evidence was strong on this point, and it is perhaps self-evident, but wages are almost always the most important issue to unions, and almost always important enough that messing around with them will matter. It is a very rare case where wages are a minor issue, or irrelevant. So, if you are a government thinking about legislating some wage freezes in, think again. Wages matter so much that even mentioning them is probably going to take you past the first part of the substantial interference test – how important is the measure?

It’s not the end of ot, of course, because part 2 of the substantial interference test requires the court to look at the impact of the measures.

B. What the Impact of the Measures Doesn’t Mean

There’s a distinct lack of credibility in how the Government of Manitoba tried to characterize this analysis. The crux of their argument, made through the Other Guy’s testimony, was that there was no negative impact on collective bargaining because the unions could still bargain. This means, in effect, that the process of bargaining in its purest and utterly context-free form could still take place – here’s an offer, here’s a counter-offer, here’s the difference between what you and I want, let’s trade.

The inherent flaw in this analysis is the assumption that what is on or taken off the table has no effect on the bargaining process – the whole If you take out the turkey and stuffing, it’s still Christmas Dinner because you can still eat” gambit.

Unfortunately, taking wages off the table does have an effect, a big one. How you bargain, when, what for, and what trade-offs you make are all shaped by what is on the table. You can still bargain with what’s there if wages are not on the table, but the probability of any union being satisfied with trading off the turds that are leftover is pretty much nil.

C. What the Impact of the Measures Does Mean

The impact of the law, as the Supreme Court of Canada, and Shannon Carson made clear, is determined by comparing the situation before the law with what happens after. Thus, contrary to the legal sleight of hand the Government of Manitoba was getting the Other Guy to argue, you look, in fact, at what was taken out, not what is left over. That’s how you tell what the impact is.

Actually, you look at the effect of what is taken out. Thus, here, you compare what collective bargaining looks like with the PSSA’s wage restraints, with collective bargaining look like without them. In this case, Labour had all sorts of great evidence where bargaining with employers who thought they were bound by the PSSA was horrible, angry, and stalled, which then bounced back into happy harmony (sometimes instantaneously) once they found out they weren’t.

Although that was the clearest indication of substantial interference, all of the damage was of course relevant, and on the whole is probably best illustrated by Smorang’s summary of the collective bargaining numbers post-PSSA:


There are about 111,6000 employees in the public sector.

Less than 9,000 have a current collective agreement (and this includes agreements that could only be ratified with a conditional or otherwise objecting ballot).

Which means that around 103,000 workers in Manitoba do not have a current collective agreement.

D. Dictating Terms

Interestingly enough, neither B.C. Health Services nor B.C. Teachers Federation had anything to do with wages. In B.C. Health Services, sections setting out terms on bumping and contracting out were struck, and in B.C. Teachers Federationit was provisions on class sizes and workload.

Nonetheless, what these cases have in common with Manitoba Federation of Labour v. Government of Manitoba is that all three laws dictated certain terms of collective agreements. And, once a government dictates any terms of a collective agreement, those matters are pre-determined by the legislation, and thus taken off the bargaining table.

There are of course other ways to interfere with collective bargaining – for example: prohibiting it entirely, removing the right to strike, or setting out limits on the numbers and/or lengths of bargaining sessions. But once you start dictating the terms of anything normally covered by a collective agreement, you are by definition interfering with collective bargaining.

Whether it is substantial interference depends, of course, on how important the terms you are dictating are, and what the impact is of pre-determining them by law, instead of allowing the parties to bargain.

You can see the difference in B.C. Health Services. Bumping and contracting out sections were unconstitutional, because their impact on collective bargaining was too great. But other provisions on transfers and reassignment of duties weren’t because most of the protections were preserved, and thus those sections weren’t that important, nor did they have much of an impact on collective bargaining.

This does tend to suggest, however, that as a practical matter, if you are going to dictate wages in legislation, you are by definition interfering with collective bargaining, and it will be a rare case indeed when taking wages off the table won’t be important or will not have a significantly negative impact on the bargaining process.

So, don’t do it, or if you do, you had better have your Section 1 defence out for the ready, because you will be substantially interfering almost every time.

E. Constitutional Costs Cutting

Oh brother. I can already here the whining – Waaahhh … wage restraints are always unconstitutional? But we are the government, are you telling us that we can never cut costs? But what are we supposed to do if our labour costs too much? How will we ever manage our budgets? Us poor old governments, we need flexibility if we are going to be fiscally responsible.

Boo-hoo. I don’t feel sorry for you. But not to worry, as it happens, the law and reality already have an answer for you. If you want to cut costs in the public sector, then budget for them. Set the budgets for each entity, and then let everyone bargain it out. Don’t dictate what the wage increases are to be in each agreement. Give each public sector employer a budget and let them figure it out, including what wage arrangements make sense for their individual situation.

This isn’t my idea. Labour argued it and Justice McKelvey agreed that it was an option, and a good one:

Justice McKelvey:

Other options might have included a plan to reduce the budgets of Government-funded employers. Such a reduction would have required the employer to carefully consider monetary proposals at the bargaining table — hard bargaining could have transpired. [Paragraph 410]

The legal advantage of this is, of course, that if you aren’t dictating wages, you aren’t dictating terms, and you aren’t therefore, by definition, interfering with a matter that is almost always going to be very important.

The practical advantage of doing this is that it allows public sector employers to act in accordance with their own needs. When it comes to wage increases, one size does not fit all, as we have seen.

The most striking example is the University of Manitoba and UMFA. Both sides recognized how hard it was to recruit and retain staff when the University of Manitoba’s salaries were so low. The University had the money and had budgeted for significant wage increases. Slapping the University’s offer of a 17.5% wage increase over four years down to a 1.75% increase over four years, was totally unnecessary from the Government’s point of view, and totally destroyed a bargaining process where both parties trying to get a deal that everyone wanted.

There were of course other examples, including the unfairness of some groups getting slammed by the PSSA restrictions, while other groups doing the same work weren’t, simply due to unlucky timing.

Set the budgets and let the public sector employers bargain it out. These employers are used to it. They know their budgets, they know their limitations, they know their situation, and they know their labour needs. Not only do you, Government of Manitoba, not have any idea what those labour needs are or what wage levels would be appropriate over 363 different collective bargaining contexts, setting the wage increases in each and every one at:

freeze, freeze, miserly increase, miserly increase,

seems counterproductive, overreaching, and patently irrational.

And don’t give me your certainty nonsense. You don’t need certainty in wage levels. You just need certainty in costs. What do you care how the money is spent, whether public sector employer A gives an 8.5% increase while public sector employer B gets a 0% freeze, as long as each public sector employer meets their budget after reaching collective agreement?

Furthermore, what’s it to you, if, in the process, those public sector employers trade off better job security for lower wages? I cannot see how that would matter to a government’s interest in fiscal responsibility as long as everyone is still meeting the prescribed bottom line.

So, don’t tell me you need to fix wages at a prescribed level sector-wide to save money. You’ll almost always be substantially interfering with collective bargaining, and you’ll never get past minimal impairment in your Section 1 because there is, already and inevitably, a less impairing option open to you.

Grow up, and then fix the budgets accordingly.

F. The Problem is Political 

So, if governments don’t need to interfere with collective bargaining to save costs, because they can just limit budgets accordingly, then why don’t they just do that? The problem, I think, is political.

The reality is that setting limited budgets, really means making cuts to the public sector. And I gather that is usually politically unpopular, or at least controversial. Oh no, your opponents will criticize you.

Good. It would mean that you would have to be honest with the public – we are in a financial crisis, and so we have to make cuts to the public services we provide. I realize that it will always make some people unhappy. Oh well. You’re a politician. You must be used to that. Besides, at least then the measures would affect the public generally, and it really would be “all hands on deck.” Oh, but selling it to the public takes work? Too bad.

If, on the other hand, you weren’t really in a financial crisis (cough, cough, Brian), then I expect, the savvy politician wouldn’t even bother trying. After all, you’d be saying – I’m cutting public services to save money even though we don’t need to. We just want to cut, cut, cut because we feel like it. Ok-a-a-y, but maybe you should have mentioned that before we elected you.

It’s even worse here, because once all the economic dust settled, we found out that the only reason that the Pallister Government wanted to cut labour costs was so that they could reduce taxes. They cut the PST, and they cut income taxes. So, they didn’t need to save money, they just wanted to, so that they could keep their campaign promises and be tax heroes.

Again, I’ve got no sympathy for you people. If you couldn’t fulfill your campaign promises without cutting public services, then, you should’ve told people that before they voted for you. And, once you got to power and realized what keeping those promises might mean, then, get your big boy and big girl pants on, and take responsibility. Tell people – hey, public services cost money, so if you want to save yours and pay less in taxes, then, we have to cut public sector services. After all, sacrifices have to be made.

Well, the Government of Manitoba did say that sacrifices had to be made. Problem is that the only ones who have to make them are public sector employees, and they have to make those sacrifices so that everyone else in Manitoba can benefit . Truly, then, the Pallister PC’s are cutting taxes on the backs of the public sector employees. I don’t care how you slice it, that kind of unfair burden is always going to be at least illegal, if not also always unconstitutional.

The whole “sustainability” aspect of the Public Services Sustainability Acts, both in Nova Scotia and in Manitoba, are merely sad attempts at magic tricks without any smoke or mirrors. Nova Scotia said – we want to maintain the level of public services that Nova Scotians can afford. Manitoba said – we want to sustain the level of public services that Manitobans have come to expect.

In both cases, what they are really saying is – we want to maintain the same level of public services that the province is currently providing, but we need (or rather want, for political reasons) them to cost less. Huh. Well, that’s interesting. Sounds like you are dreaming in an alternative reality, because at the present time in this dimension, if you want something to cost less, you kind of have to accept that you will get less. You know, that old “having your cake and eating it too” saying? Yeah, it’s meant to indicate an impossibility.

But you might think – well, I’m the government, I have the power, and so I can achieve – It’s just good policy, you know. Ok-a-a-y. Yes, you have the power to make laws. But, if all you are going to do is just make it law that your public services are going to cost you less, then, why don’t you apply that to all of your costs equally? Why, pray tell, are you only picking on your employees?

Congratulations, Big Telecommunications Company, you have the privilege of serving the Government of Manitoba, so, you are going give phone, internet, and yeah, let’s throw in TV services to everyone in the public sector at a low, fixed cost. We’ll pass on the savings to all Manitobans by reducing their taxes, but we will be sure to thank you. What? You don’t like your profits being slashed and transferred to Manitobans in the form of tax cuts? We don’t care. We don’t want people who don’t like it doing business in Manitoba anyway.

Yes, I’m echoing my comments in A No Compete Treat for the Labour Market. The point is that if you are going to start setting market prices by law, because the government wants to save money, picking on only one market – the labour market – doesn’t seem defensible.

Incidentally, if the Government of Manitoba did try this with any of the big telecommunications companies or anyone else in the private sector, I assure you that the Government would be in court defending a constitutional challenge faster than you can say P-S-S-Stupid-A. The objections would be for indirect taxation – which a provincial government cannot do, and for discriminatory taxation – we earn less than our competitors for providing the same services, just because our customer happens to be the Government of Manitoba who wants to cut taxes. They would be making the same argument that I suggested for the public sector in Indirect Taxing and Discriminatory Taxation, because, of course, it is exactly the same thing, just different markets.

Leaving taxation law aside (no one understands it anyway), if you were only going to single out one market to cut your costs in by fixing the price in your favour, it’s pretty dumb to do it in the labour market. Because, you know, we have all these labour laws, which protect people where they work. And, when you are attacking the people who work for you, you are attacking people with Charter rights. The labour market is not just any market, it’s a heavily regulated market, and crucial aspects of this market, like collective bargaining, are constitutionally protected.

We have labour laws because there is an inherent power imbalance – employers have more. And we, as a free and democratic society, decided long ago that it wasn’t acceptable for employers to use that advantage to beat up on their employees. Employers in the private sector have to put up with unions and labour laws that are there to prevent abuse. So, uh, governments? Why are you surprised that the law has stepped in to stop you from abusing your power over your employees too?


I’m kind of disguested about what I learned about my government. Under the leadership of Premier Brian Pallister, the current Government of Manitoba has never met a game it wouldn’t play.

I. The games people play

It gets tiresome listing all the games these people have played, and every list I make, I keep thinking I’ve missed one or two. But here’s a few:

  1. Not proclaiming the PSSA “for tactical reasons” in the hopes that the unions would not be able to challenge it.
  2. Putting the sustainability savings sections in only to give the appearance of a defence to substantial interference, when it seems pretty clear that the Government always knew they would never work.
  3. Pretending to consult with the Fiscal Working Group to check off some legal box they thought would help them, when they had already essentially finished drafting the PSSA and weren’t going to listen anyway.
  4. Making public sector employers apply the PSSA and threatening to fine or cut funding to any employer who didn’t, but not letting those employers tell their unions that all of this was at the direction of the Government of Manitoba. (You have to apply and comply but don’t tell anyone.)
  5. Dicking around on the Mandamus Application – not only did the Minister of Finance not refer the GEMA to binding arbitration, they tried to speciously argue that they didn’t have to, even though the law says: THOU SHALT FORTHWITH.
  6. Gaming the financial statements. When the numbers were too good, and they wanted to still be in a deficit (presumably because they would be out of financial excuses for the PSSA), they put $407 million into the Rainy Day Fund (with a budgeted deficit of $360 million for the following year) and, then because even that wasn’t enough, THEY COMMITTED ACCOUNTING FRAUD by taking the MASC Trusts and the Worker’s Compensation Board out of the Province’s balance sheet.

I used to tell my clients that these kinds of games are for people who think they are smart. The kind of people who really aren’t, because, when these games get exposed in a courtroom, and they always are, you end up looking really, really stupid. And sleazy too.

ii. and the way that they play them

We all know what I think of all this, but it’s Justice McKelvey’s opinion that matters the most. And, while she may not be as free to be as cutting as I am, I was happy to see that she was just as unimpressed.

A. Pretending to Mean What They Say

Do you know how many times Justice McKelvey called the Government of Manitoba “disingenuous”? Four:

Justice McKelvey:

  1. It is disingenuous to suggest that Government’s negotiating mandates and policies are simply that and not the PSSA sword of Damocles hanging over the unions with respect to wage restraint and the retroactivity claw back provisions. [Paragraph 276]
  2. The Other Guy warned of the dangers of wage restraint legislation and the possible erosion of the collective bargaining process. However, such damage was said to be restricted to Ontario or Federal legislation. It is apparent that Ontario has resorted to and relied upon restraint measures more frequently than Manitoba. That being said, it is disingenuous to suggest that the ramifications of restraint legislation would not similarly impact public sector workers in this Province. [Paragraph 327]
  3. Further, it is disingenuous on the part of Government to argue that it is operating by policy and mandate on monetary issues and not by virtue of this legislation. The PSSA is the legislative enactment of those mandates and policies, albeit not proclaimed. Government has the ability to set mandates and instruct public sector employers with respect to compliance. It has done so under the auspices of PSSA wage restraints. [Paragraph 333]
  4. The evidence in this case demonstrates that very soon after its election, this Government became fixated on the legislative model. Indeed, Government had a draft in place before consultation even commenced with the unions. While Government representatives indicated an openness to other options and a clean slate was being considered, the evidence showed otherwise. Indeed, 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 with no other options evaluated. [Paragraph 417]

And do you know what “disingenuous” means? Here’s what some dictionaries say:

Disingenuous (definition):

Not candid or sincere, typically by pretending that one knows less about something than one really does.

Disingenuous (definition):

Lacking in candour; also giving a false impression of simple frankness.

Disingenuous (definition):

Lacking in frankness, candour, or sincerity; falsely or hypocritically ingenuous; insincere.

False, hypocritical, pretending, insincere.  These are not adjectives you want to be said about your legal arguments. Saying crap to a judge and only pretending to mean it is the legal equivalent of throwing monkey poop around a courtroom.

I haven’t reached Government’s Notice of Appeal yet, but when I do, I’m betting that it will be full of the same monkey feces too.

B. Bad, Bad Faith

Reading between the lines, I like to think that Justice McKelvey was appalled as I was about stringing the unions along in the Fiscal Working Group process – sure, we would love your input, let’s meet (aside amongst ourselves – we’ve already drafted the thing, so who cares what they say, we just need to make it look like it matters).

Anyway, she put it this way:

Justice McKelvey:

The FWG met for a final time on March 9, 2017. Rebeck, again, asked specific questions but was not afforded with responses. The PSCC had reviewed the PSSA the prior day in virtually its completed form. The need for such a meeting of the FWG is, at best, speculative, as surely the die was cast.

The bona fides of this process must be queried. [Paragraph 404]

“The bona fides of this process must be queried” is, in my view, an understated, judger-ly way of saying – what a bunch of a**holes.

C. A Slimy Strategy

Actually, I think all of their strategies were slimy, but I hadn’t noticed it before.

Justice McKelvey:

It is arguable that the lack of information provided to the unions was purposely to block the search for alternative measures. [Paragraph 410]

It’s so-o-o gross, but I guess it’s consistent. There was no way they wanted the Fiscal Working Group to be meaningful or effective. The unions might come up with some good alternatives, and if they did, then they would take away all of the Government of Manitoba’s excuses for bringing in the PSSA.

D. A Strident, Inflexible, and Rigid Approach to Labour Relations

As a matter of public policy, and reasonable, responsible, and respectful good government, this is probably the worst condemnation of the Government of Manitoba’s behaviour in this case.

Justice McKelvey:

The Government, through Stevenson, indicated on examination for discovery that it chose to legislate wage restraint through the PSSA despite having negotiated public sector wage pauses in the past. This choice was made to achieve certainty. If collective bargaining had instead transpired, it is likely that there would have been agreements to no layoff provisions, no contracting out provisions, job security or like measures in exchange for the wage freeze. This hypothetical result would recognize trade offs in the collective bargaining process. At this juncture, Government has sought wage restraint without having to make any concessions.

It is a strident, inflexible and rigid approach to labour negotiations. [Paragraph 334]

Translation? The Government of Manitoba is terrible at labour relations, and they don’t care.

E. An Illegal Attitude

Lawyers tend to have a somewhat more flexible approach to illegality. When a normal person asks: Can you do that? What they really mean is – is it illegal – because to the generic good citizen of Canada, not doing it and it being illegal are the same thing.

I first noticed the difference in lawyers when I found myself answering the question like this: well, you can do it, but it is illegal. To lawyers, it seems, doing something illegal is always possible (it is of course what keeps us in business), the illegality is merely a consequence, although generally something to be avoided.

I think politicians, some politicians anyway, have a different attitude entirely. Either they never ask themselves whether something is illegal, or if they do, or someone mentions it, they don’t seem to care.

Political junkies who were following the Mike Duffy case might recognize this attitude from the emails that were flying around between the Prime Minister’s Office and the Senate, apparently encouraging the Senate Committee investigating Duffy’s expenditures to go easy on him. At some point, a young man, Chris Woodhouse (who was from the Senate side I believe) said – hey guys, should we be doing this? Aren’t we interfering with the Senate Committee, and isn’t that illegal?

What was most striking was the reactions from the rest of Tiny Tories, the political operatives from the PMO and elsewhere – Illegal? What are you talking about? Shut-up. And who cares? In what would appear to be in accordance with the long-standing political tradition of shooting the messenger, Woodhouse left for the private sector shortly thereafter.

Although we don’t have any tee-hee-heeing about their strategies here, at least not in the public portion of the documents, it seems pretty clear that whenever the Government of Manitoba encountered a legal barrier to their strategy, they either smashed right through it, or didn’t see to notice that it was there.

Interfering with collective bargaining is unconstitutional? We don’t care. Nova Scotia’s got a great idea how to get around that. We just won’t proclaim it, so that we can say it cannot be challenged because it isn’t a real law yet.

Someone said we should or have a legal reason to consult with the unions? Let’s not meet that legal requirement. Let’s plot out how we can make it look like we are consulting, when we aren’t, and have no intention of doing anything of the sort.

What? Our numbers are too good? Uh-oh, what to do. I know, let’s take out the MASC Trusts and the WCB from the financial statements, that’ll do it, even though as we do it, and do it again, we should know, and are eventually told, that THIS IS ACCOUNTING FRAUD.

These are serious violations of serious legal issues. Hey people, just because you are the government and you can make law, doesn’t mean you don’t have to follow it.

In fact, one might argue, and it’s certainly something I believe, that any government in Canada, being there to govern and make laws for the proper functioning of our democracy, has a duty to the Rule of Law and whatever deity they may believe in, to know what the law is, and follow it with excrutiating and devoted obedience.


The short version of this section is: we learned that what happens in a courtroom actually does matter, especially where the behaviour of our government is involved and our democratic rights are at stake.

Eternal vigilance, baby. It’s the key to keeping the keepers of our democracy on the straight and narrow, and out of the thickets of folly and error.

Checking in on the charter

One of the strongest knocks against the Charter, and I believe it to be valid, is that we are, in effect, giving the power to define our fundamental values and set out their scope to the nine unelected, (mostly) old lawyers in Santa Claus suits that sit on the Supreme Court. How, exactly can these people presume to know what we, the people of Canada, think is good for our country?

Although it is a tremendous power, no one is more aware of the Rule of Law than the judges in the highest court in the land, and most of our Supremes tend to take their Charter responsibilities pretty seriously. Chief Justice Brian Dickson did us such a service. He laid out the tools and the path for applying the Charter, and the standard he set is exceedingly high.

Furthermore, any power that judges of the Supreme Court of Canada judges have is intensely constrained by its context. The long history of the law on the Charter, the even longer history of law and equity and fairness and responsibility, and a legal system where judges act in a highly polished fishbowl combine to create a heavy burden of professional responsibility. The Supremes can’t just say stuff, they have to give lots of good, solid, well-thought out, and defensible reasons, and lawyers, other judges, politicians, academics, and others not only in Canada, but around the English common-law world, are watching, and commenting, and will be calling them idiots if they don’t do their job.

Although that’s pretty good, and most of the time, the Supreme Court of Canada gets it mostly right, I don’t think that we, the people, should ever just assume that everything is always in order, even in our highest and most venerated court.

That’s one of the reasons why this exercise is so great. We get to check in on the Charter, and check in to see what the Supreme Court of Canada is doing with it. And it’s not from a position of whether this is good for me. It’s a question of whether we the people think that this is good for our society.

This case made me go back and wonder why Freedom of Association is even in the Charter in the first place. It’s there, it seems to me, because, like the other freedoms – of religion, of expression, of peaceful protest – the freedom to associate is a fundamental aspect of democracy. Power in a democracy is meant to be dispersed; it’s an excellent way to counter autocracy and tyranny. And, joining together to pursue common goals is a way for the people to express their collective desires and, if it works, to give them the power to achieve them.

For unions, we should protect the freedom of association because it means that employees will always have the power to come together to influence how they are treated. And for me, and because of this case, I have come to heartily agree. Work life is fundamentally important to all people, an essential aspect of self-esteem and dignity. And, as I saw here, the public sector is always uniquely vulnerable. Because governments always have the power to make laws excusing themselves from standards of fairness to their employees, with its checks on that power, the Charter is the place to stop them.

Besides, you know why we keep having constitutional court cases on whether or not a government is interfering with collective bargaining, or violating some other aspect of labour relations protection? Because governments in Canada keep doing it. I know of at least three other pending court cases, one in Nova Scotia (on their PSSA of course), one in Ontario, and at least one in Alberta, that could use a thorough flogging in a blogging on the unconstitutionality of their labour legislation.

And I agree with Shannon Carson that when the Supreme Court of Canada ruled from the Bench in B.C. Teachers Federation they were sending a message:

We have said that this is unconstitutional. So, STOP IT!!!

Maybe after the trial of Manitoba’s PSSA, governments in Canada will finally get the message. Well, we can dream.


I don’t think that there is anything I hate more about democratic discourse than uninformed debate. You know, the kind of simplistic, pat statements that you see far too often on Facebook. When it comes to labour relations, this far too often appears as “unions are good” versus “ unions are bad”. People are entitled to their opinions, but I don’t find them particularly useful unless they are backed up with sound reasons. In courts, we call this evidence. And, as a debate over whether something is good or bad, the quality of proof required to make your case to a judge, is actually the best engine of truth (unlike cross-examination, which is merely part of the fuel).

I think that unless you have worked in a unionized shop, or in a place that really needed one, it’s hard to know, or see, what unions do, much less be in a position to judge them on value. But, now, thanks to Chief Justice Brian Dickson, and B.C. Health Services, and the PSSA on trial, I’ve had lots and lots of time to think, and look, and think, and think again.

I’m a compulsive people-watcher and the one constant that ran through the unions’ testimony was sincerity. From Kevin Rebeck, to Dr. Mark Hudson, to Tom Paci, Michelle Gawronsky, Sheila Gordon, and each one of the Super Six (seven with Elizabeth Carlyle), there was a consistent focus on an ultimate goal of meaningful collective bargaining and fair dealing – and not for them personally, but rather for the union members they represented. It was all so very democratic, and with a clear understanding of the responsibility of democratic leadership.

In contrast, the Government of Manitoba was scamming around, playing endless games, most of them illegal, unconstitutional, and/or just plain embarrassing (OMG. And these are the people who represent me, as they wield the democratic power of running my government.)

Still, the litmus test for me on unions wasn’t just because union were genuinely striving, but rather what they were genuinely striving for:

Restoring the balance of power between employer and employee.

Reflecting back on the places I’ve been an employee (as opposed to being my own boss, which I definitely prefer), I can see how vulnerable employees can be, even if they aren’t always. In certain industries, where, for example, skilled labour is in short-supply, the problems unions solve don’t usually arise because managers and businessmen aren’t stupid enough to abuse their employees. In fact, this is consistent with general analysis behind the purpose of unions, because in these labour markets, the balance of power isn’t tilted as much in favour of the employers, and can sometimes actually be tilted towards the in-demand very skilled employees.

But, and I’ve been there, power imbalances plus bad managers equals toxic workplaces, polluting the lives of anyone unlucky enough to be working there and even more unlucky enough to be unable to get out.

The only argument that I’ve heard against unions that didn’t seem to boil down to the business owners’ basic object that “unions cost us too much” was that we don’t need them any more. We already have all these legal protections, and good business people don’t abuse their workers.

While I think the last bit is true – good bosses no longer do the things unions prevent bad bosses from doing – I don’t think the conclusion that therefore we don’t need unions follows through. We’ve got laws against driving too fast, but that doesn’t stop the speed demons. We’ve got laws against tax evasion, but that doesn’t seem to have stopped all those people in the Panama Papers. And, of course, murder is illegal, but killing others still happens in Canada too.

Having laws against it, doesn’t change anything. In fact, in one way that’s why we have laws against things – people have done them, we’ve decided we don’t want them to, and, humans being humans, we cannot count on it not happening again. Laws may stop most people; for the others, there are consequences.

As human endeavours, I’m sure there are numerous examples of unions making mistakes and falling short of their ideals and making mistakes. I’m sure that happens. But it’s not happening here.

So, I now accept based on observation and reasons that unions are a good thing, a very important thing in our society, because as long as we have a market economy, I think the labour market, where most of the we the people work, needs this protection for the good of our society and our democracy. I mean, isn’t the whole point of democracy to make life better for we the people anyway?

Which reminds me of a second thing this case taught me about unions and collective bargaining. It was the stuff about workers being able to influence their working conditions. Although wages are usually the most obvious and important condition, it was interesting to see the other examples various unions were raising, things like job security, workload, and overtime.

What struck me most about these kinds of concerns, as illustrated by the variety of unions affected by the PSSA, is how individual and variable they are. What may be more important to one group may be less important to another group doing the same thing in the same province. Collective bargaining allows each group to arrive at whatever mixed soup of benefits and concessions that meets their group’s individual wants and needs. And, incidentally, that is something that law can never do. The law sets a minimum standard, one that applies equally to all of you.

All that aside, what I love most about this train of thought, is that to me, it is a way for me to truly be participating in my democracy. I’m looking around. I’m paying attention. I’m not taking anyone’s word for it, not even the Supreme Court of Canada’s. Nope. I am a citizen. This is my Province. And I get to decide whether what is going on here is Ok with me.

And I would never had realized any of this if it hadn’t been for this trial. So, thank-you Manitoba Federation of Labour, the Partnership to Defend Public Services, Garth Smorang, Shannon Carson, the Government of Manitoba, Heather Leonoff and the Nice Guys, and Justice McKelvey, for giving me this opportunity.

And of course, following along the orbit of eternal vigilance, I hope I have helped other Manitobans and Canadians do a little of their own thinking about unions too..

Closing the circle of correction

There’s an unfortunate attitude of politicians that goes something like – since you voted us in, we can do anything we want unless and until you vote us out. Thus, what you find is that governments tend to take the most politically unpopular actions as early into their mandates as possible, hoping, one supposes that by the time the next election rolls around, it’ll all be forgotten.

But it seems to me that too often this morphs into something far more malevolent. Any government trying to game the legalities of public business can usually take comfort in the fact that chances are, they’ll never get caught. Anyone aware enough to be doing it deliberately is probably counting on it. But I suspect that the most common scenario is that political operatives get used to not having to face consequences for legal shenanigans, and so they stop paying attention to whether something is legal or not. It never matters if no one is watching.

This all falls apart, however, as soon as the public can see what is going on. You’d be surprised at how much consternation one random member of the public (me) in the courtroom caused in this trial. I certainly was. It gave the government side fits. And their anxiety seemed to spiked ever higher when they found out that I used to be a lawyer, and that I was going to write a blog to spread the news of the trial far and wide. They were polite enough during the trial, but by the time of final arguments, people sitting on the Government’s side were well into hating me. Not Mr. Nice Guy, of course. He was too nice. But there was a poorly concealed venom in the way one of them said; “Oh, you’re here again.”

It’s shooting the messenger of course. And I’m sure the only reason the Government wanted to shoot this messenger is because this story is embarrassing for them. To me, the case against the Government of Manitoba and what they did and didn’t do with their Public Services Sustainability Act illustrates a problem that is crying out for some correction. In my opinion, paying for tax cuts on the backs of workers in the public sector, is unfair, unnecessary, and, as it happens, ridiculously illegal. And all the gaming nonsense and monkey feces that has accompanied it, seems to be just the way the Pallister Government does business. Just stop it, already.

The Government of Manitoba, my government, is behaving very, very badly, and while the public sector unions are the primary and direct victims, this bad behaviour is something that should matter to the rest of you and me.

Maybe it’s because you believe in fairness, and expect your government to act appropriately. Maybe it’s because you, like me, find buggering around with financial statements, and lying to Manitobans about our fiscal situation, especially alarming – of all the places we have to be able to trust you, it’s where and what you say about what you are doing with our money. Or maybe, you are just too aware of the practical reality that, any time any government starts picking on one group, denying their rights, and ripping them off, it’s only a matter of time before they starting picking on you and yours too.

Such concerns are always heightened in a crisis, and COVID-19 is exposing the cracks in the facades of political responsibility in this Province, and the country. Given what the Pallister Government has been doing to our public services and public service employees, our finances and false fiscal responsibility, all to supposedly solve a problem that wasn’t even there to begin with, can we even begin to trust that they will do the right thing when they encounter a real problem?

I don’t. And the history of this trial demonstrates that no one should. Not from a partisan, political perspective, but rather, from the point of view of a discerning public, informed by the high quality of proof courts require.

And that’s the point of the Circle of Correction. Politicians may not care what judges or lawyers say, but they do and always care about public opinion.

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

I wrote this blog to give the facts of the Public Services Sustainability Act to the people of Manitoba. But this information won’t help close the Circle of Correction, unless and until it is generally seen. Sure, according to my website host, the blog has been seen by some hundreds of people. But I don’t think it is enough.

In fact, I know it isn’t enough. Why? Because despite the very fierce public spanking that two judges and the facts I describe have given to the Government of Manitoba, they still haven’t given up the game. They have appealed Justice McKelvey’s decision, and as I write this, bus drivers for the Winnipeg School Division are on strike because the Government of Manitoba is still interfering in their collective bargaining by trying to dictate wages

So, what can you do? Help me close the Circle of Correction. Spread the existence of this blog far and wide. The more people that know about it, the more effective the accountability for these actions. And, while politicians may not listen to judges or laws, I guarantee that they will listen to the voters, the public, the people, you and me.

You can share it to Facebook and Twitter using the icons below. Email it, post it, share it, spread it. Tell everyone you know. Not to believe it. But rather – just read it. And decide for yourself.

 That way, you too can take action, doing your part for the democratic duty of eternal vigilance.

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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