News You Can Use: Bill 28/PSSA
January 18, 2023
UPDATE: MB Court of Appeal hears provincial government's appeal of remedy award
In February 2022, the Court of Queen’s Bench (as it was then called) ordered the Government of Manitoba to pay UMFA members $19.4M in damages for secretly imposing a wage-freeze during the 2016 round of bargaining. The government appealed this decision. On January 11, 2023, Manitoba’s Court of Appeal heard arguments on that appeal.
Background: Collective bargaining in 2016
During collective agreement negotiations in 2016 the Government of Manitoba interfered in the bargaining process by secretly directing the University administration to reduce their salary offer to 0% and to limit the duration of the new collective agreement to one year. In June of 2020 the Court of Queen’s Bench ruled that the government’s actions in 2016 were a violation of your rights as protected by the Canadian Charter of Rights and Freedoms. You have the right to freely associate for the purposes of bettering your working conditions.
In February of 2022 the Court ordered the Government of Manitoba to pay $19.4 Million in damages to UMFA Members and the Association itself. Those damages were awarded based on the finding that the government caused the 2016 strike and that you should be compensated for the four years of salary increases that would have been negotiated without the government’s secret interference. Though the government ultimately conceded that it violated your Charter rights, it appealed the ruling that it should pay over $19 Million in damages.
The full timeline of legal proceedings since the 2016 round of bargaining is available on UMFA’s website.
What arguments were heard at the Court of Appeal?
The government’s legal counsel argued that in making her remedy award, the trial judge:
1. Should have focused only on the issues with the bargaining process, instead of focusing on the outcomes of bargaining. Since the potential outcome, and not the process, was a 17% salary increase over four years, UMFA Members should not receive the $15 Million in compensation for that salary loss, but instead receive nominal damages to acknowledge a violation of the process protected by the Charter;
2. Did not take into account that your 2017 Collective Agreement was freely bargained, and therefore that the remedy should only consider the lost salary from 2016, not salary lost from 2016 – 2020 as per the judge’s ruling;
3. Should not have assumed that UMFA and the university’s administration would have signed a four-year agreement in 2016, which was the university’s last offer prior to the government’s secret interference; and,
4. Erroneously found that the government’s secret interference caused the strike and therefore that the government should not be responsible for the costs of the 2016 strike.
Though the government conceded that it violated your Charter rights, it ultimately argued that $19.4 Million in damages was not an appropriate remedy and suggested $500-$1,000 per UMFA member was more appropriate.
In rebuttal, UMFA’s legal counsel argued that the trial judge’s assessment of the issue was legally correct:
- The judge did not only look at the outcomes of the 2016 round of bargaining but instead took into account the totality of circumstances: this included the fact that the government not only directed the university’s administration to keep the government’s directives secret, but also in many ways directly inserted itself into negotiations.
- The judge did not ignore the facts of the case, but demonstrated an in-depth understanding of the plethora of evidence and testimony provided to the court. The evidence showed that not only did the government infringe on your Charter right to freedom of association, but also infringed on university autonomy in doing so.
- Counsel reminded the Court that the university’s administration warned the government that if the secret bargaining mandate was not withdrawn it would likely cause a strike.
- Counsel also reminded the Court that the government provided little evidence to justify its actions in 2016.
UMFA’s legal counsel reiterated the severity of the government infringing on university autonomy and violated your Charter right to freedom of association. They argued that the $19.4 Million damage is appropriate and should be upheld to compensate you for the salary you lost because of the governments' unlawful actions, to compensate for the infringement of your Charter rights, and to deter this government, or any government, from interfering in collective bargaining again.
When will we know the Court of Appeal’s decision?
We don’t know exactly when the Court of Appeal will issue its decision but it is likely in 4-6 months, if not longer. The Court of Appeal could issue the final decision on the remedy, or it could send this case back to the Court of King’s Bench with an order to reassess appropriate damages. We will keep you updated on any developments.
Can I read the documents submitted to the Court of Appeal?
You can read the legal factums that were submitted to the Appeal Court judges:
October 27, 2022
Supreme Court will not hear Labour’s Appeal of wage-freeze legislation (PSSA)
This morning the Supreme Court of Canada (SCC) announced that it will not hear arguments on the constitutionality of the Public Services Sustainability Act (PSSA).
What was the Public Services Sustainability Act?
The PSSA was introduced by the Pallister government in 2017 to implement wage freezes of 0%, 0%, 0.75%, and 1%. In response, the Manitoba Federation of Labour (MFL) created the Partnership to Defend Public Services (PDPS), a coalition of unions, including UMFA, impacted by the legislation. In June 2020, the Court of Queen’s Bench (as it then was) ruled that this legislation was “draconian” and unconstitutional. The Manitoba Court of Appeal overturned that decision in October 2021, ruling that the PSSA did not violate any constitutional rights. With the Supreme Court dismissing the appeal application, the Appeal Court’s ruling now stands.
What does this mean for our $19.4M remedy?
In addition to the primary focus of the PDPS – that the PSSA is unconstitutional – a separate element of the lawsuit was specific to UMFA members. Both the Court of Queen’s Bench and the Court of Appeal agreed that your Charter right to freedom of association was violated by having a wage-freeze secretly imposed during bargaining.
The Supreme Court’s decision to dismiss the PDPS’s appeal application therefore does not affect the remedy for UMFA members. In February 2022 the Court of Queen’s Bench ordered the Government of Manitoba to pay $19.4M to UMFA members in damages. The government appealed this decision.
On Wednesday January 11, 2023 beginning at 09h30, Manitoba’s Court of Appeal will hear arguments on that appeal. Anyone who wishes to attend the remedy appeal is free to do so and we will communicate more information in January.
What do we do now?
Wage-freeze legislation was only one part of Brian Pallister and Heather Stefanson's attack on education and the public sector. The Court of Appeal upheld the ruling that UMFA's professors, instructors, and librarians had their Charter right to free association violated when a wage-freeze was secretly imposed on them by the government. Despite stating that they value education, the actions of the Pallister and Stefanson governments have shown otherwise. It's time for workers and students to be prioritized and supported in Manitoba.
Manitoba’s provincial election is less than a year away and it is vital that post-secondary education be a priority issue. During their tenure, the PC Government has frozen or cut the UM’s operating grant, frozen research funding, and increased student tuition. We, as UMFA members, need to be active participants in ensuring political candidates and elected officials understand the value of post-secondary education in Manitoba, and the kinds of changes and supports we need to see in the years ahead.
We have been advised by the registrar of the Court of Appeal that the government's appeal from the remedy award given at Queen's Bench will be heard on Wednesday January 11, 2023 beginning at 9:30 AM. At present we presume that this will be an in-person hearing, which is public anyone who wishes to attend is free to do so. Below you will find the Government’s arguments, as well as UMFA’s response.
May 18, 2022
Manitoba Government Appeals Court of Queen’s Bench $19.4M Ruling
In February, the Court of Queen’s Bench of Manitoba released its decision about the damages awarded to you and UMFA after the Pallister government interfered in our 2016 round of collective bargaining. The court found that the Government violated your charter rights and “significantly disrupted” the relationship with our employer. The Court ordered the Government to pay UMFA and its members $19.4 Million dollars, plus interest, for a portion of the costs of the 2016 strike, your lost wages during that strike, and the wage increases you would have seen between 2016 and 2020 had the government not interfered in negotiations.
Today, the provincial government has appealed this decision. Now they have 45 days to file their arguments and evidence, after which time UMFA’s lawyers will file their response on behalf of UMFA members. These legal processes will continue for many months (or years) before the process is finalized.
This is the largest damages award for a labour-related Charter case in Canadian history, so it is no surprise that the provincial government has appealed this decision. It continues to be extraordinarily disappointing that the government is not interested in making amends for interfering in your right to free and fair collective bargaining and infringing on the autonomy of the university.
February 23, 2022
Court Orders Government of Manitoba to Pay $19.3 Million to UMFA members
Manitoba’s Court of Queen’s Bench has just released its decision about the remedies owed to you and UMFA after the Pallister government interfered in our 2016 round of collective bargaining.
The court has found that the Government violated your charter rights and “significantly disrupted” UMFA’s relationship with our employer. The Court ordered the Government to pay UMFA and its members $19.3 Million dollars, plus interest, for the costs of the strike and for your lost wages.
This is a bittersweet ruling. Though it is affirming that the Judge decided definitively in our favour, the government should never have interfered in our collective bargaining in the first place.
In her decision, Justice McKelvey clearly explains how the provincial government disrupted the 2016 round of collective bargaining. In 2017, the Manitoba Labour Board already found that the university’s administration was at fault for not disclosing its compliance with the Government’s mandate, and ordered the University of Manitoba to apologize and pay damages to you and to UMFA. Justice McKelvey has now determined that the government’s violation of your charter rights were responsible for triggering the 2016 strike and your lost wages, and therefore awarded us these damages:
- To anyone who was an UMFA member at any point between April 2016 and March 2020: one-time payments totaling $15 Million for wages lost due to government interference
- To members who were on strike in 2016: one-time payments totaling $1.6 Million for wages lost over 21 days of picketing
- To the Association, for costs associated with the strike of 2016: $2.7 Million
The government could appeal this decision. Details of how the money will be distributed will only be finalized after the appeal period has ended. If the decision is appealed, it could be many months (or years) before the process is finalized.
Despite the continued uncertainties of this process, I hope you all take a moment to celebrate this ruling. In 2016, we knew our rights were violated, and since then you have continued to defend your right to free and fair collective bargaining, and to protect the autonomy of the university from government interference. The Justice, in her ruling, affirms these actions.
The full decision is available on the UMFA website in two parts:
Oct. 13, 2021 - Decision on the Government's appeal of the PSSA ruling - available here.
Feb. 25, 2021 - The Partnership to Defend Public Services has filed a reply to the Government’s appeal of the PSSA decision, which declared the PSSA ‘draconian’. Read it here.
Jan. 4, 2021 – The Manitoba Government has filed the details of its Appeal of Justice McKelvey’s decision, available here.
June 11, 2020 - Justice J. McKelvey declares that the PSSA is unconstitutional. The full decision can be found here. You can also find a summary of the decision on our legal firm’s website.
Jan. 2020 - The following is a helpful resource on the background and legal context of the PSSA trial, written by a former lawyer: https://manitoba-pssa-ontrial.com/.
Nov. 2019 - This fact sheet contains information on both Bill 28 and Bill 2, which was introduced in the fall of 2019: Public Services Sustainability Act Fact Sheet - Manitoba Federation of Labour
Bill 28, the Public Services Sustainability Act was introduced by the Pallister government earlier in the Spring of 2017. This legislation will freeze the wages of 120,000 public-sector workers for two years and cap their pay for another two years. UMFA submitted a letter to the Standing Committee on Bill 28, which can be found here, and also appeared at the hearings on May 8.
The Partnership to Defend Public Services (PDPS) is a group of unions representing over 100,000 workers in Manitoba. The group was formed to challenge the Pallister government's Public Services Sustainability Act, and to defend public services and their employees. Since entering office, the Pallister government has been unwilling to consider suggestions from Manitoba unions on ways to reduce spending and has instead chosen to move forward with legislation that inherently undermines the bargaining rights laid out in the Canadian Charter of Rights and Freedoms.
July 4, 2017
The PSPD filed for an injunction against the Act. See statement of claim below (click on the image to access the entire document), as well as a press release issued by the Manitoba Federation of Labour on behalf of the Partnership.
October 20, 2017
The PDPS officially filed an injunction against the PSSA along with evidence that the Act will infringe on the bargaining rights of Manitobans. An expert’s opinion on the damage caused by the legislation was also submitted. To read the press release, click here.
STATEMENT OF CLAIM filed in the Court of Queen's Bench on July 4