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:

• The Government’s factum regarding their appeal of the damage award
   
• The Association’s reply factum

Safe Air UM Campaign

UMFA Members Organize for Safe Air on Campus

For months, UMFA members and staff have been advocating for the university's administration to ensure a safe return to campus. These efforts have had moderate success. It is clear that UMFA members and supporters need to take action to get President Benarroch to ensure the University of Manitoba is a leader in safe air – a health reform for our times much as clean water and streets were for an earlier age [1]. That’s why we’re launching the Safe Air campaign.

The pandemic is not over. We have been living with the airborne pathogen SARS-CoV-2 for more than two years. A growing number of people are getting long COVID and suffering long-term debilitating complications, such as brain fog. Meanwhile, vaccine immunity wanes, and new variants that break through existing vaccine protection may develop. We know COVID-19 is airborne [2], but the full scope of its effects remains uncertain.

As UM returns to working and learning fully in-person, we must look to experts for advice on how to prevent the transmission of SARS-CoV-2 and prevent outbreaks in our community. We know:

• Properly fitting KN95 masks prevent outbreaks.
• Vaccines prevent outbreaks and booster doses help to counter waning immunity.
• Ventilation indoors prevents outbreaks [3].

Yet, these protections will not necessarily be in place as we return to campus. UM needs to be a leader and act on the basis of the best research to reduce the risk of people working and studying on our campuses becoming infected by this airborne virus. Ensuring equitable safe working and learning conditions requires proper ventilation. Soon we’ll have lecture halls filled with over 300 people, with few upgrades to ventilation and filtration having been done. It is unacceptable for air quality in UM buildings to be below the standards for reducing infection that current science recommends. This is why we are calling on President Benarroch and his administration to:

1. Assess ventilation and filtration in all buildings on all campuses before September 2022 to identify where upgrades are needed so that air quality meets the standards recommended by current science for preventing the transmission of airborne diseases. The results of the assessment should be published publicly.
2. Initiate ventilation and filtration upgrades as required without delay. As interim measures, provide CO2 monitors and portable HEPA-filters (or equivalent) and implement other COVID-related maintenance as soon as possible but at minimum before September 2022.
3. Continue to require the wearing of KN-95-level masks and provide them to everyone on all UM campuses.
4. Provide Rapid Antigen Tests (2 per person per week) to everyone required to be on UM campuses.
5. Restore the vaccination requirement, with all students and workers required to be maximally vaccinated (with exemptions for bona fide medical reasons).

With the prospect of many more people working and studying in-person this Summer term, we need action now on measures that can be implemented immediately, such as continued mask and vaccination mandates and the availability of rapid testing.

Extensive work on ventilation issues and upgrades needs to start right away. A portion of the UM’s financial surplus should be invested in ensuring proper ventilation in all buildings.

Improved ventilation will not only aid in preventing the spread of SARS-CoV-2 but will also help to prevent the spread of future airborne diseases.

We are calling on President Benarroch to follow science and prioritize the safety of us all. Our community is made up of students, staff, faculty, and administrators with a diversity of interests, backgrounds, and talents. We must aim to prevent as many COVID-19 infections on our campuses as possible.

You can make these demands a reality.

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