Manitoba Federation of Labour et al Date:, 2021 MBCA 85

Citation: Manitoba Federation of Labour et al Date: 20211013 v The Government of Manitoba, 2021 MBCA 85 Docket: AI20-30-09494 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : MANITOBA FEDERATION OF LABOUR ) (in its own right and on behalf of THE ) PARTNERSHIP TO DEFEND PUBLIC ) SERVICES), THE MANITOBA GOVERNMENT ) AND GENERAL EMPLOYEES’ UNION, THE ) MANITOBA NURSES’ UNION, THE ) H. S. Leonoff, Q.C. , MANITOBA TEACHERS’ SOCIETY, ) M. A. Conner and INTERNATIONAL BROTHERHOOD OF ) M. A.

Bodner ELECTRICAL WORKERS LOCALS 2034, 2085 ) for the Appellant AND 435, MANITOBA ASSOCIATION OF ) (via videoconference) HEALTH CARE PROFESSIONALS, UNITED ) FOOD AND COMMERCIAL WORKERS ) UNION LOCAL 832, UNIVERSITY OF ) G. H. Smorang, Q.C. , MANITOBA FACULTY ASSOCIATION, ) S. L. Carson and CANADIAN UNION OF PUBLIC ) K. M.

Worbanski EMPLOYEES NATIONAL, ASSOCIATION ) for the Respondents OF EMPLOYEES SUPPORTING EDUCATION ) (via videoconference) SERVICES, GENERAL TEAMSTERS LOCAL ) UNION 979, OPERATING ENGINEERS OF ) MANITOBA LOCAL 987, THE ) Appeal heard: PROFESSIONAL INSTITUTE OF THE ) June 2, 2021 PUBLIC SERVICE OF CANADA, PUBLIC ) SERVICE ALLIANCE OF CANADA, UNIFOR, ) LEGAL AID LAWYERS ASSOCIATION, ) Judgment delivered: UNITED STEEL, PAPER AND FORESTRY, ) October 13, 2021 RUBBER, MANUFACTURING, ENERGY, ) ALLIED INDUSTRIAL AND SERVICE ) WORKERS INTERNATIONAL UNION, ) LOCALS 7975, 7106, 9074 AND 8223, ) WINNIPEG ASSOCIATION OF PUBLIC ) SERVICE OFFICERS IFPTE LOCAL 162, THE ) UNITED ASSOCIATION OF JOURNEYMEN ) AND APPRENTICES OF THE PLUMBING ) AND PIPE FITTING INDUSTRY OF THE ) UNITED STATES AND CANADA LOCAL ) UNION 254, BRANDON UNIVERSITY ) FACULTY ASSOCIATION, THE ) INTERNATIONAL ALLIANCE OF ) THEATRICAL STAGE EMPLOYEES, ) MOVING PICTURE TECHNICIANS, ARTISTS ) AND ALLIED CRAFTS OF THE UNITED ) STATES, ITS TERRITORIES AND CANADA, ) LOCAL 63, THE UNITED BROTHERHOOD ) OF CARPENTERS & JOINERS OF AMERICA, ) LOCAL UNION NO. 1515, PHYSICIAN ) AND CLINICAL ASSISTANTS OF MANITOBA ) INC. and UNIVERSITY OF WINNIPEG ) FACULTY ASSOCIATION )

) (Plaintiffs) Respondents ) ) - and - ) ) tHE GOVERNMENT OF MANITOBA ) ) (Defendant) Appellant ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference.

On appeal from 2020 MBQB 92 chartier cjm Introduction and Issues [ 1 ] The key question on this appeal is whether it is unconstitutional for legislation to prevent collective bargaining on wages for a limited period of time. [ 2 ] The defendant (Manitoba) says that that question has been answered by the Supreme Court of Canada in Meredith v Canada (Attorney General) , 2015 SCC 2 . It submits that Meredith stands for the legal proposition that broad-based, time-limited wage restraint legislation does not violate the freedom of association as guaranteed under

section 2(

d) of the Canadian Charter of Rights and Freedoms (the Charter ) and is, therefore, constitutional. [ 3 ] Manitoba appeals the trial judge’s judgment that The Public Services Sustainability Act , CCSM c P272 (the PSSA ), which was passed in 2017, is unconstitutional, as well as her decision that Manitoba’s conduct during the 2016 contract negotiations between the University of Manitoba (the U of

M) and one of the plaintiffs, the University of Manitoba Faculty Association (UMFA), violated

section 2(

d) of the Charter . [ 4 ] Since the advent of the Charter , courts have engaged in a constitutional dialogue with the legislative branch of government in regard to Charter rights. Legislatures enact laws based on policy choices elected representatives make. Courts ensure those choices conform to constitutional norms. Legislatures have the last word; they can revise constitutionally deficient laws based on the guidance of the courts.

This appeal provides an opportunity to review the respective roles of the court and the Legislature in relation to this dialogue. [ 5 ] In the case at hand, the Charter right concerns the right to associate in order to collectively pursue workplace goals pursuant to

section 2(d) . The main ground of appeal is whether the PSSA substantially interfered with the

section 2 (

d) associational rights of employees to engage in a meaningful process of collective bargaining. The PSSA sets wage caps of 0%, 0%, 0.75% and 1% over a four-year period. This wage restraint legislation applies broadly across the public service to both unionized and non-unionized employees, covering almost 20% of Manitoba’s workforce. [ 6 ] Manitoba argues that it has the right to impose broad-based, time-limited wage restraint legislation on the public sector in order to meet its budgetary priorities. It submits that the Supreme Court of Canada’s decision in Meredith provides clear binding authority for its position that the PSSA does not infringe the

section 2 (

d) right to associate. Manitoba also submits that the PSSA and the legislation that was the subject matter in Meredith , the Expenditure Restraint Act , SC 2009, c 2,

section 393 (the ERA ), are sufficiently similar so that if one of them is constitutional, so is the other. Finally, it makes the point that Meredith was subsequently relied upon by the appellate courts in Quebec, British Columbia and Ontario (the three appellate courts), who all upheld the constitutionality of the ERA in respect to other bargaining units. The Supreme Court of Canada denied leave to appeal the judgments in all three cases. [ 7 ] The plaintiffs are the Manitoba Federation of Labour and 28 unions. Their position stands in stark contrast to that of Manitoba.

They argue that Meredith does not create a binding legal precedent that can determine the legal outcome in other factual contexts. The plaintiffs submit that the trial judge was right to conclude that the PSSA substantially interfered with their associational activities. They argue that, given the inquiry to determine whether a government measure amounts to substantial interference is contextual and fact-specific, deference is owed to the trial judge’s decision. [ 8 ] Manitoba raises two grounds of appeal.

First, it submits that the trial judge erred in finding that the manner in which wages are restrained in the 2017 PSSA brings about substantial interference in collective bargaining so as to amount to an infringement of freedom of association under

section 2 (d). Second, Manitoba argues that the trial judge erred in finding that Manitoba’s conduct during the 2016 contract negotiations between the U of M and UMFA amounted to an infringement of freedom of association. [ 9 ] For the reasons that follow, I would conclude that the 2017 PSSA legislation does not substantially interfere with

section 2 (

d) associational rights, but that Manitoba’s conduct during the 2016 contract negotiations between UMFA and the U of M did

substantially interfere with those rights. The Decision of the Trial Judge [ 10 ] To establish the proper footing for this appeal, it is helpful to identify the claims that were considered by the trial judge and how she dealt with them. The plaintiffs sued Manitoba. In a multi-faceted statement of claim (which was amended and then re- amended), they sought interim and/or interlocutory injunctions, declarations of Charter violations and numerous other orders. [ 11 ] Before the trial judge, the plaintiffs were seeking the following relief: . . . 1. The Plaintiffs claim: . . . (

c) a declaration that [Manitoba] violated s. 2(

d) and s. 7 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“the Charter ”) respecting the rights of employees represented by UMFA, and that the violation cannot be justified under s. 1 of the Charter ; (

d) a declaration that [Manitoba] violated the s. 2(

d) and s. 7 Charter rights of employees represented by the Plaintiff Unions by failing to give them an opportunity to engage in a timely, good faith process of collective bargaining with their respective employers prior to enacting the [ PSSA ], and that the violation cannot be justified under s. 1 of the Charter ; (

e) in the alternative to paragraph (d), if a process of meaningful consultation between the Plaintiff Unions and [Manitoba] about the [ PSSA ] is a constitutionally adequate substitute for the process of timely, good faith collective bargaining between the Plaintiff Unions and their respective employers in the circumstances of this claim, which is denied, then: a. a declaration that [Manitoba] violated the s. 2(

d) and s. 7 Charter rights of employees represented by [the] Plaintiff Unions who participated in the Fiscal Working Group (as herein defined), by failing to engage in a good faith process of negotiation and meaningful consultation process prior to enacting the [ PSSA ], and that the violation cannot be justified under s. 1 of the Charter ; and b. a declaration that [Manitoba] violated the s. 2(

d) and s. 7 Charter rights of employees represented by the Plaintiff Unions who did not participate in the Fiscal Working Group, by failing to engage in any process of good faith negotiation and meaningful consultation prior to enacting the [ PSSA ], and that the violation cannot be justified under s. 1 of the Charter ; (

f) a declaration that sections 9 – 15 of the [ PSSA ] violate the rights and freedoms guaranteed by s. 2(

d) and s. 7 of the Charter , cannot be justified under s. 1 of the Charter , and are invalid and of no force and effect; . . . (

i) an order that any term or condition of the [ PSSA ] declared invalid does not bind any of the Plaintiff Unions, their members, or their employers; . . . [ 12 ] At trial, the plaintiffs advised the trial judge that they were no longer pursuing declarations pursuant to

section 7 of the Charter ; only declarations under

section 2(d) . [ 13 ] The trial judge dealt with the above-mentioned five claims by dismissing three and accepting two, as set out below.

a) Claim 1(

e) Dismissed

[ 14 ] Interestingly enough, the trial judge decided to start her analysis with the alternative argument found at Claim 1(e) (see paras 281-300). The plaintiffs argued that, because the PSSA legislation affected them, Manitoba had a duty to consult with them prior to enacting the legislation. Relying on Supreme Court of Canada authority, the trial judge denied this relief, holding that there is no duty on governments to consult affected entities prior to enacting legislation.

b) Claim 1(

d) Dismissed [ 15 ] The trial judge then dealt with Claim 1(d) (see paras 301-3). The plaintiffs argued that Manitoba had a duty to undertake timely and good faith bargaining as a prerequisite to the introduction of the PSSA . Relying essentially on the same principles found in her analysis with respect to Claim 1(e), the trial judge held that no such duty existed and denied this relief.

c) Claim 1(

f) Accepted [ 16 ] Next, the trial judge dealt with Claim 1(f) (see paras 304-425). The plaintiffs submitted that sections 9 to 15 of the PSSA violated the

section 2(

d) Charter rights of their members and that this violation could not be justified under

section 1 . In comprehensive reasons, the trial judge granted the relief claimed, declaring that wage restraint of the PSSA was not constitutional.

d) Claim 1(

c) Accepted [ 17 ] The trial judge then dealt with the fourth claim, Claim 1(c) (see para 429). The plaintiffs claimed that Manitoba had substantially interfered in the 2016 collective bargaining between UMFA and the U of M, and had thereby breached the

section 2(

d) Charter rights of the UMFA members. The trial judge found a violation of

section 2 (

d) and granted the relief claimed.

e) Claim 1(

i) Dismissed [ 18 ] Finally, in the last paragraph of her reasons (see para 434), the trial judge dealt with Claim 1(i). The plaintiffs had sought “an order that any term or condition of the [ PSSA ] declared invalid does not bind” them. In light of her conclusion of Claim 1(f), the trial judge found the relief sought at Claim 1(

i) to be “redundant” and dismissed it ( ibid ). [ 19 ] In the result, the trial judge granted the relief sought concerning Claim 1(

c) and Claim 1(f), and she dismissed Claim 1(d), the alternative claim at Claim 1(

e) and Claim 1(i). Manitoba’s two grounds of appeal relate to the two claims that were successful at trial: - Claim 1(c): Whether Manitoba had substantially interfered in the 2016 collective bargaining between UMFA and the U of M. - Claim 1(f): Whether sections 9 to 15 of the PSSA violated

section 2 (

d) and are, therefore, unconstitutional. [ 20 ] Finally, Manitoba accepts that, if the PSSA is unconstitutional, the

section 2 (

d) infringement cannot be justified under

section 1 of the Charter . Analysis [ 21 ] Prior to starting my examination of the two issues on appeal, it would be helpful to review the analytical framework of

section 2 (

d) as it relates to the right to associate in order to collectively pursue workplace goals.

a) The Analytical Framework of

Section 2(

d) in the Workplace Context [ 22 ]

Section 2(

d) guarantees “freedom of association.” It is often referred to as an “associational right” (see, for example, Health Services and Support — Facilities Subsector Bargaining Assn v British Columbia , 2007 SCC 27 at paras 90 , 97, 112, 128-29; and, more recently, Mounted Police Association of Ontario v Canada (Attorney General) , 2015 SCC 1 at paras 62 , 131, 147). In the workplace context, the

section 2 (

d) right that is guaranteed is the right of employees “to associate in a process of collective action” ( Health Services at para 19) in order “to engage in a meaningful process of collective bargaining” ( Saskatchewan Federation of Labour v Saskatchewan , 2015 SCC 4 at para 1 ( SFL )). [ 23 ] The Supreme Court of Canada describes

section 2 (

d) as “a limited right” ( Health Services at para 91) in that it is restricted in the three following ways:

a) It is a procedural right : It guarantees the right to a process, not a certain substantive or economic outcome. This includes a right to a fair and meaningful process of collective bargaining, which incorporates

a) the right of employees “to join together to pursue workplace goals”;

b) the right “to make collective representations to the employer, and to have those representations considered in good faith”; and c) “a means of recourse should the employer not bargain in good faith” ( SFL at paras 1, 29 ).

b) It is general in nature : The associational right does not protect “all aspects of ‘collective bargaining’” ( Health Services at para 19). It guarantees the right to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method (see Mounted Police at para 67).

c) It is limited to “substantial interference” : The associational right does not protect against all interference with the procedural right to bargain collectively, only against “substantial interference” with the associational activity ( Health Services at para 90). [ 24 ] As stated above, the interference with the associational activity must be “substantial” ( ibid ). This is not an easy threshold to meet. Merely interfering, impacting or impairing the collective bargaining process will not be enough to meet the “substantial interference” test.

As the majority explained in Health Services , to constitute “substantial interference”, the intent or effect of the government measure “must seriously undercut or undermine” (at para 92) the associational activity of the employees who were coming together to engage in a meaningful process of collective bargaining.

[ 25 ] The party claiming that the government has substantially interfered with its

section 2(

d) associational right has the onus of satisfying the judge on a balance of probabilities that the test has been met. If met, the onus shifts to the state to justify the violation under

section 1 of the Charter (see Ontario (Attorney General) v Fraser , 2011 SCC 20 at para 47 ( Fraser )). [ 26 ] The test to determine whether the government interference rises to the level or degree of “substantial”, involves two “contextual and fact-specific” inquiries ( Health Services at para 92). These inquiries are as follows (at para 93): Generally speaking, determining whether a government measure affecting the protected process of collective bargaining amounts to substantial interference involves two inquiries.

The first inquiry is into the importance of the matter affected to the process of collective bargaining, and more specifically, to the capacity of the union members to come together and pursue collective goals in concert.

The second inquiry is into the manner in which the measure impacts on the collective right to good faith negotiation and consultation. [emphasis added] [ 27 ] The need for the second inquiry only arises if the first inquiry criterion is met (see para 97). [ 28 ] The first inquiry requires the judge to focus on the importance of the matter affected; is the issue so important or significant that it discourages or undermines the capacity of employees to pursue workplace goals collectively?

The Supreme Court of Canada provided two examples of matters that may meet the first inquiry on the importance of the subject matter: (

a) government measures that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer, and (

b) measures that unilaterally nullify significant negotiated terms in existing collective agreements (see para 96). [ 29 ] The substantial interference test does not end with the determination of importance at the first inquiry. If that criterion is established, the second inquiry is required. The second inquiry focusses on good faith; does the government measure respect the fundamental precept of collective bargaining—the duty to consult and negotiate in good faith (see para 97)? As explained by the Supreme Court of Canada in Health Services , even where government measures involve matters of importance or significance, there will be no violation of

section 2 (

d) if the measures taken “preserve a process of consultation and good faith negotiation” (at para 94). [ 30 ] As a result, in order for the government measure to have substantially interfered with the associational rights of employees, the party claiming the

section 2 (

d) violation must obtain from the judge an affirmative answer on the first question below and a negative answer on the second:

a) First inquiry: Is the issue so important or significant that it discourages or undermines the capacity of employees to pursue workplace goals collectively?

b) Second inquiry: Does the government measure respect the fundamental precept of collective bargaining, being the duty to consult and negotiate in good faith? [ 31 ] I now turn to the case at hand. [ 32 ] Manitoba raises two arguments. First, it submits that the trial judge erred in finding that the manner in which wages are restrained in the PSSA brings about substantial interference in the collective bargaining process. Second, Manitoba says that the trial judge erred in finding that its conduct during the 2016 contract negotiations between the U of M and UMFA infringed

section 2 (d).

b) Standard of Review [ 33 ] Before going further, it is important to address the issue of the applicable standard of review with respect to each of the two issues on appeal. The nature of the questions raised by the two issues are quite different. The importance of this distinction cannot be understated because the nature of the question will also inform the applicable standard of review. While both grounds pertain to infringements of

section 2(d), the nature of each alleged infringement differs. [ 34 ] A government can infringe upon a

section 2(

d) right in two ways: by its legislation, or by its conduct. The first ground questions the constitutionality of duly enacted provisions of the PSSA , not the conduct (see Reference re Public Services Sustainability

(2015) Act , 2021 NSCA 9 at para 19 , leave to appeal to SCC refused, 39598 (8 July 2021)). The second ground, however, does question Manitoba’s conduct. [ 35 ] In the same way the positions of the parties on the merits stand in stark contrast, so do their positions on the applicable standard of review. [ 36 ] Manitoba submits that both grounds of appeal raise constitutional issues and that the rule of law requires that they both be reviewed on a correctness standard. [ 37 ] For their part, the plaintiffs submit that, since the Supreme Court of Canada held in Health Services that the inquiry to determine whether a breach of

section 2 (

d) occurred “in every case is contextual and fact-specific” (at para 92), the trial judge’s decision is owed deference, absent palpable and overriding error, on both grounds. [ 38 ] One would have expected to find, at either the appellate court or the Supreme Court of Canada level, some commentary on the standard of review as it relates to:

a) whether the standard of review differs when the alleged infringement concerns the constitutionality of the legislation asopposed to the conduct of the government; and

b) whether the fact that a trial judge’s analysis is “contextual and fact-specific” (ibid) demands a review on the palpable andoverriding error standard. Unfortunately, there is very little. [39] Since this appeal arises from a civil action, the standards of review set out in Housen v Nikolaisen, 2002 SCC 33,apply. The first ground questions the constitutionality of the PSSA, whereas the second ground questions Manitoba’s conduct during the2016 contract negotiations between the U of M and UMFA. In my view, the nature of each question is different.

Deciding whetherlegislation is constitutional involves the interplay between two laws: the impugned legislation, and the Constitution. Deciding whethercertain conduct infringes a Charter right involves the interaction of a particular set of facts with the Charter provision. [40] I will deal first with the standard of review on the constitutionality of the legislation. The plaintiffs submit that,because the trial judge’s

section 2(

d) analysis is contextual and fact-specific in every case, her conclusion on this question is to bereviewed on the palpable and overriding error standard; not on correctness. I cannot accede to their submission. [41] If the constitutionality of legislation does not raise a question of law, then I do not know what does. In my view, theconstitutionality of the legislation is the quintessential question of law. Legislation is constitutional or it is not. The rule of law and theprinciple of universality requires that there only be one correct answer to that question; reasonable people cannot disagree on the answer.

As the Supreme Court of Canada explained in Housen, “[T]he principle of universality requires appellate courts to ensure that the samelegal rules are applied in similar situations” and are to be given “a broad scope of review with respect to matters of law” (at para 9). Icannot sum up my view of this issue better than by quoting from the majority decision in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 (at para 53): . . .

The application of the correctness standard for [constitutional] questions respects the unique role of the judiciary in interpreting theConstitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and forwhich a final and determinate answer is necessary: Dunsmuir [Dunsmuir v New Brunswick, 2008 SCC 9], at para. 58. [42] A correctness standard ensures this “consistency” (ibid), as well as the law-settling role appellate courts are called toexercise.

The Supreme Court of Canada has held that the applicable standard of review with respect to constitutional decisions iscorrectness (see Consolidated Fastfrate Inc v Western Canada Council of Teamsters, 2009 SCC 53 at para 26). However, there was acaveat. It stated that deference is owed “[w]here it is possible to treat the constitutional analysis separately from the factual findings thatunderlie it” (ibid; see also Canada (Attorney General) v Bedford, 2013 SCC 72 at paras 49-56).

It is of course understood that deferencewill only be owed to those factual findings that are relevant to the constitutional analysis. [43] I want to address directly the point made by the plaintiffs that, because a court’s

section 2(

d) analysis is contextual andfact-specific in every case, any conclusion is to be reviewed on the palpable and overriding error standard. An analogy is useful. Questions of statutory

interpretation require courts to use the “modern contextual approach” (Verdun v Toronto-Dominion Bank, (SCC), [1996] 3 SCR 550 at para 2; see also paras 1, 3-7; and see Rizzo & Rizzo Shoes Ltd (Re), (SCC),[1998] 1 SCR 27 at para 21). Despite requiring a contextual analysis, questions of statutory

interpretation are questions of law that arereviewed on the correctness standard (see Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 at para 33; and,more recently, Rooplal v Fodor, 2021 ONCA 357 at para 44). [44] Moreover, the relevant contextual approach that is to be used on questions relating to constitutional decisions is notunlike the approach used on questions of statutory

interpretation. The Supreme Court of Canada in Consolidated Fastfrate set out theguiding principles for the

interpretation of constitutional provisions, stating that the provision “must be read in context” consistent with“[t]he history, purpose, and text” of the provision (at paras 32, 68). This is not that dissimilar to the guiding principles of statutoryinterpretation that legislation be construed in accordance with “Driedger’s Modern Principle”; that “the words of

an Act are to be read intheir entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and theintention of Parliament” (Prof Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis, 2008) at 1, citingElmer A Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at 67). [45] As a result, despite requiring a contextual analysis, questions of constitutional

interpretation, like statutoryinterpretation, are questions of law that are reviewed on the correctness standard. [46] Whether legislation is constitutional is a quintessential question of law. Therefore, the applicable standard of review iscorrectness. However, to the extent that the

section 2(

d) inquiry is premised on an assessment of relevant facts, any relevant factualfinding will be owed deference and will be reviewed on the palpable and overriding error standard (see Consolidated Fastfrate atpara 26).

The appellate court will then take a last look at the accepted relevant factual foundation and decide the ultimate issue (whetherthe legislation is constitutional) on the correctness standard. [47] I now turn to the second ground, which pertains to state conduct during contract negotiations. [48] While the principle of universality requires the answer on whether legislation is constitutional to be the same in allcircumstances, that principle does not apply when determining whether state conduct infringes

section 2(

d) rights. In some situations,state conduct will infringe

section 2(d), while in other situations, different state conduct will not. Since the relevant considerations withrespect to the second ground, which pertains to Manitoba’s conduct during contract negotiations, are more dependent on the particularfactual matrix before the court, I am of the view that this calls for a less exacting standard of review than the first ground. It also

requires a more nuanced standard of review analysis (see R v Farrah (D) , 2011 MBCA 49 at para 7 ; and Young v Ewatski et al , 2012 MBCA 64 , leave to appeal to SCC refused, 35035 (28 March 2013)). [ 49 ] Thus, I would conclude that, while raising a constitutional issue, the applicable standard of review on whether the state conduct infringes the

section 2(

d) Charter rights of individuals requires the following multi-faceted analysis:

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and the standard of review is correctness.

b) The appellate court will then review the relevant factual findings underlying the judge’s Charter analysis, to see whether there was an error. On this part of the review, the judge’s decision is entitled to deference, absent palpable and overriding error.

c) The appellate court will also examine the application of the legal principles to the relevant facts of the case to see if the facts, as found by the judge, satisfy the correct legal test. In the civil law context, this is a question of mixed fact and law that is reviewed for palpable and overriding error, unless an extricable legal error from the factual determination is evident, in which case the correctness standard applies. [ 50 ] I will deal with the first ground of appeal; namely, whether the wage restraint PSSA legislation is constitutional.

c) Issue One — Whether the PSSA Is Constitutional [ 51 ] Manitoba’s position is unambiguous; Meredith is a binding precedent. It points out that Meredith was subsequently relied upon by the three appellate courts, with leave to appeal applications to the Supreme Court of Canada denied in all three cases. Manitoba submits that the trial judge improperly distinguished Meredith and the three appellate court decisions to overcome the binding precedent that upheld wage restraint legislation that is similar to the PSSA .

The plaintiffs argue that Meredith does not create a binding legal precedent that determines the outcome in other factual contexts. [ 52 ] Given that Manitoba’s case stands or falls on Meredith , it is necessary to review Meredith , along with the three appellate court decisions. I. Review of Meredith and the Three Appellate Court Decisions [ 53 ] The critical issue in the present appeal is whether Meredith stands for the legal proposition that broad-based, time- limited wage restraint legislation does not violate the freedom of association as guaranteed under

section 2(

d) of the Charter and is, therefore, constitutional. [ 54 ] Manitoba submits that the 2017 PSSA legislation and the legislation that was the subject matter in Meredith , the 2009 ERA , are sufficiently similar so that if one of them is constitutional, so is the other. [ 55 ] A review of the history of the ERA will be helpful. In October 2008, the federal government decided to limit wage increases in order to respond to growing fiscal concerns.

In the next few weeks, federal Treasury Board officials met with union representatives to advise that the Treasury Board had set a restricted mandate regarding wage increases and that there was a desire to complete collective bargaining by the end of November 2008. [ 56 ] On November 19, 2008, the federal Speech from the Throne was delivered. It indicated that the government intended to “table legislation to ensure sustainable compensation growth in the federal Public Service” (Canada, House of Commons Debates (Hansard) , 40-1, vol 143, No 2 (19 November 2008) at 15 (Hon Peter Milliken)).

The negotiators were not authorized to discuss the terms of this legislation other than to inform the bargaining agents of their new mandate and that the legislation could include caps on increases to wage rates. The rates were not disclosed. [ 57 ] On November 27, 2008, the federal Minister of Finance issued a fiscal statement that disclosed the ERA wage caps for the first time. The ERA was tabled in Parliament on February 6, 2009, and received Royal Assent on March 12, 2009.

The ERA imposed broad-based, time-limited wage restraint increases in the public sector over a five-year period, retroactive to April 1, 2006; namely, 2.5%, 2.3%, 1.5%, 1.5% and 1.5% from fiscal year 2006-2007 to 2010-2011 (see

section 16). While the ERA prohibited any other increases to compensation, it did contain an exception for RCMP members that permitted the negotiation of additional allowances to support “transformation initiatives” (the ERA at

section 62). [ 58 ] Which brings me to Meredith . [ 59 ] Meredith involved a

section 2 (

d) challenge by members of the RCMP to the ERA . More specifically, the members argued that rolling back scheduled wage increases for RCMP members without prior consultation violated their associational Charter rights. It should be noted that, at that time, the RCMP did not bargain collectively. Rather, a “Pay Council” recommended salary increases and made recommendations to the Commissioner of the RCMP, the Minister and the Treasury Board. The Treasury Board had announced to the Commissioner salary increases of 3.32%, 3.5% and 2% for 2008, 2009 and 2010 for the RCMP members (see Meredith at para 7 ).

However, the ERA caused these increases to be revised to 1.5% in each of 2008, 2009 and 2010 (see

section 16). [ 60 ] In Meredith , the majority of the Supreme Court of Canada (6:1) upheld the constitutionality of the ERA . It restated that “[s]ection 2(

d) guarantees a right to a meaningful labour relations process, but it does not guarantee a particular outcome” and guarantees “the right of employees to associate in a meaningful way in the pursuit of collective workplace goals” (at para 25). It concluded that the ERA had not “substantially impaired the collective pursuit of the workplace goals of RCMP members” (at para 30). [ 61 ] The ERA did not apply only to members of the RCMP. It applied to over 400,000 unionized and non-unionized federal public sector employees, as well as 48,000 employees working for federal Crown corporations. Moreover, unlike the RCMP members,

these employees did not enjoy the same

section 62 exemption referred to above at para 57. The ERA prohibited any other increases to compensation for them (see Meredith at para 13 ). [ 62 ] Subsequent to Meredith , the three appellate courts considered the constitutionality of the ERA legislation as it applied to three different groups of employees (Canadian Broadcasting Corporation (CBC) employees; dockyard workers; and members of the Public Service Alliance of Canada (PSAC) and the Professional Institute of the Public Service of Canada (PIPSC)). See, respectively, Canada (Procureur général) c Syndicat canadien de la fonction publique,

section locale 675 , 2016 QCCA 163 ( Syndicat canadien ), leave to appeal to SCC refused, 36914 (25 August 2016); Federal Government Dockyard Trades and Labour Council v Canada (Attorney General) , 2016 BCCA 156 ( Dockyard Trades ), leave to appeal to SCC refused, 35569 (1 December 2016); and Gordon v Canada (Attorney General) , 2016 ONCA 625 , leave to appeal to SCC refused, 37254 (16 February 2017). [ 63 ] In Syndicat canadien , the Quebec Court of Appeal (the QCCA) looked at the ERA and how it impacted CBC employees.

The ERA caused the loss of a portion of previously bargained wages and resulted in an obligation to repay certain amounts received in excess of the capped limits. Despite accepting that the ERA affected the previously signed collective agreement and the ability to freely negotiate a new agreement, the QCCA rejected the union’s argument that any changes to an existing agreement would amount to a

section 2 (

d) infringement. It stated that the question that needed to be answered was to what “degree or intensity” the measures interfered with the right to bargain collectively (at para 31). [ 64 ] The QCCA held that there was still sufficient scope for collective bargaining, including on non-monetary issues such as hours of work, vacation, leaves, staffing, assignments and transfers (see para 55). After noting that there were cases where legislation had amended collective agreements without substantially affecting

section 2 (

d) rights, it concluded that there had been no Charter violation in the case before it. The QCCA stated, “This is the conclusion of the Supreme Court in Meredith , and we should not depart from it” (at para 61). [ 65 ] The QCCA held that, while the ERA placed prima facie limits on

section 2 (

d) freedom of association rights, those limits “cannot be considered to substantially interfere with the exercise of this freedom” because they do “not deprive the employees and associations that represent them of the possibility of having meaningful collective negotiations on workplace matters, the right to actual collective bargaining processes, or the ability to engage in collective bargaining” (at para 100). [ 66 ] In Dockyard Trades , the British Columbia Court of Appeal (the BCCA) looked at the ERA and how it impacted dockyard workers. The ERA had invalidated a wage increase obtained through arbitration.

Despite the rollback of this wage increase, the BCCA was not persuaded that it “undermine[d] the capacity of the union to collectively and effectively pursue its goals. The [ ERA ] explicitly guarantees the right to collective bargaining in ss. 6-10” (at para 91). [ 67 ] The BCCA was “not persuaded that Meredith [could] be meaningfully distinguished from this case; both involved wage rollbacks under identical legislation” (at para 89). Applying the Health Services test, it concluded that there was no substantial interference with the bargaining process, stating (at para 93): . . .

Moreover, I do not think it can be said, as contended by the appellants, that [the ERA ] compromised the essential integrity of the collective bargaining process. It is not my view that [the ERA ] can be said to significantly impair or thwart the associational goals of the Dockworkers. The [ ERA ] simply does not have that reach. [ 68 ] Finally, in Gordon , the Ontario Court of Appeal (the ONCA) looked at the ERA and how ERA -imposed rollbacks impacted employees of the PSAC and the PIPSC, which represented “about 88% of unionized employees in the federal public service” (at para 2).

It repeated what the Supreme Court of Canada had said in Health Services at para 94, that even if government action or legislation “substantially touch on collective bargaining, they will still not violate s. 2 (

d) if they preserve a process of consultation and good faith negotiation” (at para 175). The ONCA concluded, “drawing on Meredith , Dockyard Trades . . . and Syndicat canadien . . ., that the rollbacks did not amount to substantial interference with the collective bargaining process and thus did not limit the [section] 2(

d) Charter rights of the employees” (at para 164). [ 69 ] The ONCA held that the federal government had “engaged in permissible hard bargaining during a period of economic crisis and government austerity” (at para 176). It noted that the ERA had capped wage increases for a limited period, that the limit imposed was in line with wage increases obtained through free collective bargaining, and that progress had been made on matters of interest in some of the bargaining units. It concluded that the unions “were still able to participate in a process of consultation and good faith negotiations.

As such, neither the ERA nor the Government’s conduct before or after the enactment of the ERA limited the appellants’ s. 2 (

d) rights” ( ibid ). [ 70 ] Meredith and the decisions of these appellate courts concluded (

a) that the ERA did not render the bargaining process futile or undermine the activity of workers to come together in the collective pursuit of improving workplace conditions, and (

b) that broad-based, time-limited wage restraint legislation did not fundamentally alter the collective bargaining process or preclude good faith bargaining from occurring on other important workplace conditions and on non-monetary matters. [ 71 ] In the end, these courts held that, despite having such an important topic as wages taken off the bargaining table, the ERA did not substantially interfere with the right to collectively bargain as constitutionally protected by

section 2 (d). Moreover, the Supreme Court of Canada denied leave to appeal the judgments in all three cases (see para 62 herein). II. Whether the Trial Judge Erred [ 72 ] Manitoba’s position is clear; Meredith and the above three appellate court decisions, whose leave to appeal applications were denied by the Supreme Court of Canada, are the “linchpins” to its submission. It submits that Meredith is a binding precedent that

upheld the ERA broad-based, time-limited wage restraint legislation that is similar, albeit not identical, to the PSSA . Manitoba argues that the trial judge’s attempts to distinguish Meredith ’s applicability to the case at hand were in error. It argues that the trial judge erred in five ways.

i) Did the Trial Judge Err By Improperly Distinguishing Meredith on the Basis That It Was Decided in a Non-Union Context Given That the RCMP Did Not Have a Wagner Model of Collective Bargaining? [ 73 ] Manitoba submits that the trial judge first attempted to distinguish Meredith on the basis that it was decided in a non- union context. The trial judge stated that, because the RCMP were not legally permitted to bargain collectively, “there was no consideration [in Meredith ] of how the ERA impacted collective bargaining” (at para 312). While it appears the trial judge accepted Manitoba’s

interpretation of what Meredith and the three appellate court decisions stand for at the beginning of her reasoning (that broad-based, time-limited wage restraint legislation is constitutional), she seemed to resile from this view later in the same paragraph ( ibid ): [Manitoba] has relied upon the Meredith decision to argue that the PSSA restraints do not result in substantial interference with the collective bargaining process. This position was based on the Supreme Court’s acceptance of temporary public sector wage restraint legislation in circumstances of financial difficulty .

The acceptability of the ERA restraint legislation can also be seen in a number of Court of Appeal decisions, such as Dockyard Trades , Gordon , and Syndicat canadien . However, it must be remembered that, specifically in Meredith , there was no consideration of how the ERA impacted collective bargaining , as the issue before the Court was whether the ERA interfered with what had been found in [ Mounted Police ] to be an unconstitutional consultative wage determination process.

The RCMP was not legally permitted to engage in collective bargaining at the time of that decision. [emphasis added] [ 74 ] In my view, distinguishing Meredith on the basis that there was “no consideration of how the ERA impacted collective bargaining” ( ibid ) was incorrect in three ways. [ 75 ] First, a review of Meredith shows that the Supreme Court of Canada did indeed consider how the ERA affected collective bargaining when it decided that: 1) The ERA did not preclude consultation on other compensation-related issues, either in the past or future (see para 28). 2) The level at which the ERA capped wage increases was consistent with the going rate reached in other agreements and so reflected an outcome consistent with actual bargaining processes ( ibid ). 3) The ERA did not prevent the consultation process from moving forward (see para 29). 4) The ERA cannot be said to have substantially impaired the collective pursuit of the workplace goals (see para 30). [ 76 ] Second, distinguishing Meredith on the basis of the RCMP’s non-union status amounts to saying that members of the RCMP have lesser substantive Charter rights than unionized employees.

Section 2(

d) protects all persons irrespective of whether statutory labour regimes provide greater protection to unionized employees, who enjoy the Wagner model. All employees, unionized and non-unionized, have identical

section 2 (

d) rights. They all equally have the right to come together to advocate for better workplace conditions. As the Supreme Court of Canada stated in Fraser , a case involving a non-unionized context,

section 2 (d) “broadly . . . includes the right to collective bargaining in the minimal sense of good faith exchanges” (at para 90). [ 77 ] Finally, it was improper for the trial judge to attempt to distinguish Meredith based on the fact that the RCMP members were not at the table, able to bargain collectively, and had to use another process. That other process involved a Pay Council. That Council recommended salary increases and forwarded them to the Commissioner of the RCMP, the Minister and the Treasury Board.

The Supreme Court of Canada recognized, in Meredith , that it did not have to consider the constitutionality of the Pay Council process. The only issue was the constitutionality of the ERA and whether it met the test set out in Health Services . It concluded that the ERA did and that it was constitutional. [ 78 ] As I stated earlier, the ERA applied to over 400,000 unionized and non-unionized federal public sector employees, as well as 48,000 employees working for federal Crown corporations.

It is my view that, if there was ever any doubt that Meredith ’s ruling on the constitutionality of the ERA wage restraint legislation applied not only to RCMP members, but to everyone affected by the ERA , that doubt was removed when the Supreme Court of Canada denied leave to appeal the three appellate court decisions. ii) Did the Trial Judge Err In Finding the PSSA Was Unconstitutional Because the Wage Cap Levels in the PSSA Were Not Comparable to Wage Levels Established Through Pre-Legislative Collective Bargaining? [ 79 ] There are two aspects to this ground.

One touches the issue of pre- PSSA collective bargaining and the other relates to wage comparability. [ 80 ] In regard to the first aspect, one of the stated reasons for the trial judge’s ruling that the PSSA was unconstitutional was that Manitoba “had not endeavoured to collectively bargain wage restraint within the public sector prior to the PSSA ’s enactment” (at para 348) (emphasis added).

Manitoba points out that, not only does Meredith not require collective bargaining in advance of wage restraint legislation, the jurisprudence establishes that governments owe no duty to consult or negotiate prior to passing legislation (see

Health Services at para 157; see also, more recently, Mikisew Cree First Nation v Canada (Governor General in Council) , 2018 SCC 40 ). [ 81 ] I agree. In this case, while Manitoba could have entered into pre-legislative collective bargaining, it chose not to.

Given that the law does not require governments to do so, it was, in my view, improper for the trial judge to use Manitoba’s decision not to engage in collective bargaining prior to tabling the PSSA as a reason to support her conclusion that the legislation was unconstitutional. [ 82 ] With respect to the second point on wage comparability, the trial judge properly considered whether the level at which the PSSA capped the wages was consistent with the going rate reached in other agreements, thereby reflecting an outcome consistent with an actual bargaining process.

She found that collective agreements not captured by the PSSA , such as those negotiated with private companies operating long-term care facilities (i.e., Revera, ArlingtonHaus and Extendicare), were well above the caps under the PSSA . The trial judge stated, “Where actual collective bargaining occurred, the wage increases were above the PSSA -mandated compensation (i.e., ArlingtonHaus, Extendicare, Revera)” (at para 321). [ 83 ] She later stated (at para 348): . . . . . . While actual outcomes are not determinative of a s. 2 (

d) analysis, the evidence of outcomes for bargaining units, such as Revera and ArlingtonHaus supports the conclusion of substantial interference and the major impact that has been occasioned upon associational activity; . . . [emphasis added] [ 84 ] Manitoba submits that the trial judge’s reliance on collective agreements negotiated with the private companies operating long-term care facilities (i.e., Revera, ArlingtonHaus and Extendicare) was wrong, and led her to improperly distinguish Meredith and conclude that the PSSA substantially interfered with the employees’

section 2 (

d) rights. [ 85 ] I agree. While members of one of the plaintiffs’ unions work at Revera, ArlingtonHaus and Extendicare, they are not paid from the public purse. The payors in those cases are private corporations, not Manitoba. Those payors are strangers to the legislation, making irrelevant any agreement reached with them. When looking for comparatives, it must be apples to apples; it must be a valid comparison. The payor must be the same in both cases.

Unfortunately, the trial judge took into account irrelevant facts and fell into improper legal reasoning. [ 86 ] In the case at hand, the record provides some examples of the going rate reached just prior to the PSSA legislation involving groups that had the same payor (Manitoba) and that were subject to the legislation. For example, the Direct Support Workers & Rural Child Development Workers’ bargaining unit settled, on December 2, 2016, on a collective agreement that provided for two years of 0% wage increases in 2015 and 2016.

This was negotiated just prior to the PSSA being introduced for first reading on March 20, 2017, and is consistent with what is in the PSSA . iii) Did the Trial Judge Err By Finding That the PSSA Was Unconstitutional Because It Was Unnecessary Since the Outcomes Could Have Been Reached Through Hard Bargaining? [ 87 ] The trial judge noted that wage freezes had been successfully bargained in the past.

Indeed, the record shows that the previous government had issued a four-year general wage mandate for public sector unions in 2010-2011 of either 0%, 0%, 2.75% and 2.75%, plus a long-service step of 2% after 20 years; or 0%, 0%, 2.9% and 2.9%. That previous mandate, like the PSSA legislation, included a two-year wage freeze. [ 88 ] The trial judge was satisfied “that hard or co-operative bargaining could have been utilized by [Manitoba] to support its desire for fiscal restraint” (at para 335).

Manitoba contends that this shows that the trial judge concluded that the PSSA was unconstitutional because it could have bargained with the plaintiffs rather than tabling the legislation. It submits that this was improper legal reasoning because the question on the

section 2 (

d) analysis is never whether legislation is necessary or unnecessary. Manitoba argues that the fact that wage freezes had been bargained in the past without the need for legislation is an irrelevant consideration in the analysis. [ 89 ] I agree for three reasons. First, while the necessity for the legislation is a relevant consideration under

section 1 of the Charter , it is irrelevant during the

section 2(

d) analysis. When determining the constitutionality of the legislation under

section 2 (d), the question is not whether the legislation is necessary, but whether the legislation substantially interfered with the associational rights of employees to engage in a meaningful process of collective bargaining. [ 90 ] Second, the fact that wage freezes were bargained in the past is irrelevant to the analysis. That fact does not mean that they can be successfully bargained under different circumstances in the future. That is speculative reasoning.

[91] Finally, the trial judge kept returning to the fact that Manitoba tabled the PSSA without first trying to negotiate wagerestraints. However, that was not the legal question before her. The question before the trial judge was not about the wisdom of theexecutive branch’s policy decision to table the legislation without first trying to negotiate; it was whether the PSSA was constitutional.

As was recently pointed out by the Supreme Court of Canada in R v Chouhan, 2021 SCC 26, “The wisdom of political choices should beleft to such institutions that are accountable to the public through electoral processes” (at para 141).

See also Vriend v Alberta, (SCC), [1998] 1 SCR 493, where the Supreme Court of Canada reminds all three branches of government to respect eachother’s role (at para 136): Because the courts are independent from the executive and legislature, litigants and citizens generally can rely on the courts to makereasoned and principled decisions according to the dictates of the constitution even though specific decisions may not be universallyacclaimed.

In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make valuejudgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold theConstitution and have been expressly invited to perform that role by the Constitution itself.

But respect by the courts for the legislatureand executive role is as important as ensuring that the other branches respect each others’ role and the role of the courts. [emphasis added] [92] The real question before the trial judge was not about the wisdom of tabling legislation without first engaging inconsultation, negotiation or collective bargaining. There is no legal prerequisite on governments to consult or negotiate prior to passinglegislation. Indeed, the trial judge drew this same conclusion in her reasons (see paras 296-303).

Yet, she uses the lack of priorcollective bargaining as a reason to support her conclusion that the PSSA is unconstitutional. The trial judge’s focus should have been onthe real question, which was the same question before the Supreme Court of Canada in Meredith and the three appellate court decisions;whether legislation that removes an important workplace issue like wages from the bargaining table infringes

section 2(

d) of theCharter. iv) Did the Trial Judge Err By Improperly Distinguishing Meredith Based on the Lower Wage Caps in the PSSA, as Compared tothe ERA, and in Finding the PSSA Unconstitutional on the Basis That It Did Not Provide Scope for Bargaining on Monetary Issues? [93] The wage caps under the PSSA are 0%, 0%, 0.75% and 1%, and average 0.4375% over a four-year period. Those underthe ERA were 2.5%, 2.3%, 1.5%, 1.5% and 1.5%, and averaged 1.86% over a five-year period.

One of the stated reasons for the trialjudge’s ruling that the PSSA was unconstitutional was that, while both the ERA and the PSSA imposed wage caps, those under the PSSAinvolved “draconian” wage freezes for two of the four years (at para 348). She considered this an “important distinction”, given the“ERA provided some level of wage increase in each year of its implementation” (at para 320).

The trial judge used this fact to distinguishMeredith. [94] Manitoba argues this two-year 0% wage freeze is irrelevant to the constitutional analysis and that the trial judge’s use ofit as a distinguishing feature was improper. It submits that there was no legal reason for the trial judge to find this objectionable. Itpoints out that the trial judge had noted in her reasons that 0% wage freezes had been successfully bargained in the past. The recordshows that the previous government’s four-year general wage mandate also included a two-year 0% wage freeze for the public sectorunions. [95] I agree.

What is the legal conclusion that flows from the fact that the wage cap increases under the PSSA were lowerthan under the ERA or included 0% wage freezes? For the PSSA, the average cap over the four-year period was 0.4375%, while the ERAaveraged out at 1.86% over a five-year period. Determining the constitutionality of legislation will not be done by decimal points. Thefact that the wage caps averaged 1.4225% a year less under the PSSA than under the ERA is an irrelevant consideration.

The trial judgeshould have been concerned with the process of bargaining, not the outcomes (see Health Services at para 91). [96] Manitoba had always conceded that the first inquiry of the two-pronged test set out in Health Services had been met. The first inquiry is about “the importance of the matter affected to the process of collective bargaining” (at para 93). Manitoba nevertook issue that the wage caps issue met this criterion. The issue before the trial judge was whether the second inquiry had been met.

That inquiry required the trial judge to consider the manner in which the wage restraint legislation “impacts on the collective right togood faith negotiation and consultation” (ibid). [97] As stated in Health Services, the

section 2(

d) right in the workplace context, is a “limited right” (at para 91) in that itguarantees the employees the right to a process, not a particular economic outcome. As in Meredith, the trial judge should have beenconcerned with the impact the PSSA had on the duty to consult and negotiate in good faith, not on the numbers set out therein.

v) Did the Trial Judge Err In Finding That the Negative Impact of the PSSA on a Union’s Bargaining Power or Leverage Resultsin a Finding of Unconstitutionality? [98] The plaintiffs argued at trial that the PSSA fundamentally alters a union’s ability to bargain because, once wages arepre-determined, the union loses its leverage to trade-off wages for other concessions. The trial judge, relying on the evidence of anexpert, Dr. Robert Hebdon (Dr. Hebdon), accepted this argument.

She adopted his conclusion that, “[w]ith monetary issues alreadypredetermined, meaningful bargaining is unworkable and almost impossible” (at para 333). [99] Manitoba argues that, while it was open to the trial judge to accept Dr. Hebdon’s evidence, she erred in the legalconsequences that flowed from that evidence; namely, that it does not comply with Meredith and the three appellate court decisions onwhich leave to the Supreme Court of Canada had been denied.

[100] Again, I agree. The problem with the trial judge’s conclusion is that it runs contrary to Meredith and the three appellatecourt decisions. The trial judge concluded that the “removal of monetary issues from the bargaining table” (at para 348) substantiallyinterfered with the collective bargaining process.

This conclusion is diametrically opposed to the jurisprudence which holds thatlegislation similar to the PSSA, which includes broad-based, time-limited wage restraint legislation, had not “substantially impaired thecollective pursuit of the workplace goals” (Meredith at para 30). [101] One other comment on this issue. Dr. Hebdon had opined that strikes will, in all likelihood, be “futile” under the PSSA(at para 133). Manitoba points to section 7(4) of the PSSA as a reason why that would not be the case. That

section gives the TreasuryBoard the ability to exempt “any person or class of persons” from the wage restraint legislation. [102] As explained in SFL, strikes play an essential and integral role towards achieving a meaningful process of collectivebargaining. That is why the right to strike is constitutionally protected under

section 2(d). When collective bargaining reaches animpasse, the ability to strike provides employees with the ability to withdraw services collectively for the purpose of placing economicpressure on employers in order to return to “meaningful” bargaining (see paras 46-55). [103] In the present case, if a union goes on strike over the PSSA, the government has the ability under section 7(4) to exemptthat union from the legislation, if it cannot withstand the economic pressures arising from the strike. III. Open for This Court to Intervene [104] As explained above, the trial judge at times collapsed the two-pronged Health Services test into one, conflated thesection 2(

d) analysis with the

section 1 analysis, focussed on outcomes as opposed to process, and fused the limited

section 2(d)constitutional rights in regard to collective bargaining with the broader rights given under statutory labour relations regimes. This causedthe trial judge to err in the manner in which she distinguished Meredith and the three appellate court decisions. [105] In the result, I am of the view that the trial judge erred in her constitutional analysis. Having so erred, it is open to thisCourt to substitute its own decision. IV. The Constitutional Dialogue Between the Courts and Legislatures [106] Judges must always be keenly aware of the role they play in a Charter analysis.

While courts have a duty to ensure thatlaws enacted by legislatures are constitutional, it is important that they give legislatures “reasonable room to manoeuvre” in appropriatecircumstances (Chouhan at para 84). In Chouhan, Moldaver and Brown JJ recently reminded us of that role (ibid): . . .

The role of the courts in the Charter analysis “is to protect against incursions on fundamental values, not to second guess policydecisions”, because when “struggling with questions of social policy and attempting to deal with conflicting (social) pressures ‘alegislature must be given reasonable room to manoeuvre’” (Andrews v. Law Society of British Columbia, (SCC), [1989] 1S.C.R. 143, at p. 194, per La Forest J. (concurring); Black v.

Law Society of Alberta, (SCC), [1989] 1 S.C.R. 591, atp. 627). . . . [emphasis added] [107] Rowe J also expounds on the importance of allowing for proper legislative flexibility (see Chouhan at para 133). However, this manoeuvrability must align with constitutional boundaries. The oft-cited decision of Wells v Newfoundland, (SCC), [1999] 3 SCR 199, says it best, where Major J stated (at para 59): . . . Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can doas they see fit.

The wisdom and value of legislative decisions are subject only to review by the electorate. . . . [108] Unless constrained by the Constitution, Parliament and the provincial legislatures are supreme.

The concept ofparliamentary supremacy within constitutional boundaries leads to constitutional minimums as was explained in R v Stillman, 2019 SCC40 by Karakatsanis and Rowe JJ (in dissent, but on another point), where they stated, “It is the courts, not legislatures, that ultimatelyinterpret the Constitution and define constitutional minimums” (at para 148). [109] The role of the courts is to interpret the Constitution and determine whether legislation or state conduct meet Charterstandards.

This oftentimes means defining constitutional minimums that will provide the legislatures with the “reasonable room tomanoeuvre” in order to properly balance competing interests and social and economic pressures (Chouhan at para 84). Again, as long aslegislatures remain within their constitutional boundaries, a court’s role is “not to second guess policy decisions” of legislatures (ibid). [110] Courts set constitutional minimums because the Constitution protects a floor, not a ceiling. Legislatures may chooseand, more often than not, do choose to go beyond a constitutional minimum standard.

This back and forth is a dialogue between thecourt and the Legislature. Courts refer to this as a “constitutional dialogue”. The Supreme Court of Canada stated in Chouhan, “This iswhy the relation between courts and legislatures has been described as one of dialogue among branches, in which legislatures canrespond to the courts” (at para 134). [111] While there can be no doubt that the imposition of broad-based, time-limited wage restraint legislation like the PSSA and

the ERA impacts or interferes with the collective bargaining process, the Supreme Court of Canada has held that before courts canintervene, the legislative interference must be “substantial”. The term “substantial interference” was not chosen without purpose. It wasjudiciously selected by the Supreme Court of Canada in order to allow legislatures some freedom to move within permissibleconstitutional limits. V.

The PSSA Was Based on Constitutional Dialogue [112] As counsel for Manitoba pointed out at the appeal hearing, the PSSA came about through constitutional dialogue thatstarted with the ERA and the subsequent court decisions in Meredith and the three appellate courts. Courts speak and legislatures takewhat they understand from binding precedent to draft legislation. The Supreme Court of Canada in R v Hall, 2002 SCC 64, gave anexample of this constitutional dialogue (at para 43): Since the introduction of the Charter, courts have engaged in a constitutional dialogue with Parliament.

This case is an excellentexample of such dialogue. Parliament enacted legislation that permitted a judge to detain an accused person where detention was“necessary in the public interest”. This Court considered this language and determined that the portion of s. 515(10)(

b) that authorizedpre-trial detention for reasons of public interest was unconstitutional. At p. 742 of Morales [R v Morales, (SCC), [1992]3 SCR 711], supra, Lamer C.J. severed the “public interest” ground from the rest of s. 515(10)(

b) because the provision could stillfunction as a whole. After considering this Court’s reasons in Pearson [R v Pearson, (SCC), [1992] 3 SCR 665] andMorales, supra, Parliament replaced the “public interest” ground with new language. [113] In the case at hand, counsel for Manitoba explained that the 2017 PSSA legislation was drafted based on the 2009 ERA,following the 2015 Meredith decision and the three 2016 appellate court decisions. The record shows that the PSSA was introduced inthe Manitoba Legislature for first reading on March 20, 2017.

This was seven months after the last of the three appellate court decisions. [114] The primary purpose of the PSSA is to create a framework respecting future increases to compensation for public sectoremployees that reflect the fiscal situation of the province (see

section 1(a)). Indeed, the trial judge found that Manitoba “faced fiscalconcerns with the resultant need to control expenditures” (at para 348). To assist in addressing this fiscal situation, Manitoba passed thePSSA, which imposed broad-based, time-limited wage restraints on public sector employees. [115] The record shows that, albeit not identical, the PSSA is similar to the ERA. Many of the definition sections areessentially identical.

Both contain identical headings and quasi-identical wording with respect to the sections dealing with the “Right tobargain collectively”; the “Right to strike”; and “Amendments permitted” (the PSSA at sections 3-5; and the ERA at sections 6-8). [116] More importantly, the sections the trial judge found to be unconstitutional in the PSSA (see sections 9-15), are found, insome form or another, in the ERA, and they were held to pass constitutional muster by the Supreme Court of Canada and the threeappellate courts. Below are the impugned sections of the PSSA and their functional equivalent in the ERA: -

Section 9: What is called the “sustainability period” in

section 9 of the PSSA is referred to in the ERA as the “restraintperiod” in

section 2. -

Section 10: This

section requires any “additional remuneration” and “rates of pay” found in collective agreements orarbitral decisions to be based on “12-month periods.” The ERA has the same “12-month period” requirement as set out in sections 16, 17and 19. -

Section 11: This

section prohibits the restructuring of rates of pay during the sustainability period. The ERA equivalent isfound at

section 23. -

Section 12: This

section sets out the broad-based, time-limited wage restraint legislation that is found in

section 16 of theERA. Wording similar to the opening words of section 12(1) of the PSSA is found in section 17(1) of the ERA. -

Section 13: This

section sets out restrictions on additional remuneration. The functional equivalent is set out differently,but can be found in sections 24 and 26 of the ERA. -

Section 14: This

section allows for the possibility of negotiating additional remuneration in years three and four of thesustainability period. There is no equivalent in the ERA. -

Section 15: This

section states that collective agreements or arbitral decisions that provide for a restructuring of rates ofpay, for increases in a rate of pay or in additional remuneration, will be of no effect.

The ERA functional equivalent is set out differently,but is found in sections 19, 26 and 29. [117] This comparison of both pieces of legislation leaves no doubt that the PSSA came about through constitutional dialogueas it is, to a large extent, based on the ERA legislation that was upheld by Meredith and the three appellate courts. [118] Meredith and the three appellate court decisions held that imposing broad-based and time-limited wage restraintlegislation met both inquiries of the Health Services test. They determined that the ERA did not preclude a robust bargaining process onthe other issues.

It was concluded that this type of legislation did not substantially interfere with the collective right to good faithnegotiation and consultation. Meredith is binding on this Court and the three appellate court decisions are highly persuasive. [119] Like the ERA, the PSSA does not preclude meaningful changes to other important workplace conditions and nothingprevents the parties from participating in a meaningful bargaining process on non-wage workplace issues. Like the ERA, the PSSApreserves a wide scope of bargaining issues as well as a robust process.

The PSSA does not affect the right to bargain collectively (seesection 3) and the right to strike (see

section 4). Nor does it impact the ability to bargain numerous workplace issues including (

a) health

and safety issues; (

b) seniority and bumping procedures; (

c) disciplinary procedures; (

d) grievance procedures; (

e) reclassification issues; (

f) performance appraisals; (

g) recruitment and retention; (

h) contracting out; and (

i) job security, including no-layoff clauses. [ 120 ] Indeed, the facts as found by the trial judge establish that bargaining did take place because the PSSA did not affect the process to deal with workplace issues, other than wages. Bargaining went on because there remained a process to do so in the PSSA . Some, however, chose to forgo the bargaining process, which is their right.

For example, the largest union representing provincial civil servants, the Manitoba Government and General Employees’ Union, after learning that the PSSA represented Manitoba’s position on wages, chose to skip the bargaining process and exercise its rights under The Civil Service Act , CCSM c C110 , in order to secure binding arbitration. [ 121 ] Other unions chose to bargain. The record shows that 21 collective agreements had been completed before the PSSA was passed by the Legislature in 2017.

While it must be noted that acceptance of the agreements was conditional on the PSSA being constitutional, the fact remains that bargaining continued for those unions wanting to participate in such a process. For example, in relation to the Red River Community College, and as stated by the trial judge, there were certain increases in remuneration, albeit many of those increases were required to update figures to reflect changes in the consumer price index, as well as to honour changes in legislation, such as to The Employment Standards Code , CCSM c E110 .

Additionally, there were agreed letters of intent to undertake a review and discuss issues such as long-term disability and pay scales. [ 122 ] Another example was with respect to the University of Brandon.

The trial judge found (at para 115): . . . [It was] acknowledged that a number of changes in the articles of the collective agreement had been achieved, which were reflective of employer acceptance of certain [Brandon University Faculty Association] benefit proposals for its members, such as: 10 paid sick days could be used as family leave, an increase in research days for professional staff from five to 10, and the establishment of working groups to explore certain issues.

There was additional money made available for research, four new positions were created, and a re- opener clause was agreed if the PSSA was found to be unconstitutional. [ 123 ] There are also a few sections of the PSSA , favourable to unions, which are not in the ERA . Unlike the ERA , the PSSA provides the plaintiffs with an opportunity, in years three and four of the wage restraint timeframe, to negotiate savings and increase employee compensation (see

section 14). Unlike the ERA , the PSSA does not overturn any agreements ratified before the legislation was introduced in March 2017. Unlike the ERA , the PSSA contains a provision that gives the Treasury Board the ability to exempt “any person or class of persons” from the wage restraint legislation (at section 7(4)).

Finally, like the ERA , the PSSA does not substantially interfere with a meaningful collective bargaining process on other workplace issues. [ 124 ] As I indicated at the beginning of these reasons, the key question is whether it is unconstitutional for legislation to prevent collective bargaining on wages for a limited period of time. There can be no doubt that the intention of the ERA and the PSSA legislation was to remove the issue of wages from discussion at the bargaining table.

In the end, the Supreme Court of Canada in Meredith and the three appellate courts concluded that removing the issue of wages from the bargaining process for a limited period of time did not substantially interfere with a meaningful collective bargaining process and, thus, the ERA complied with

section 2 (d). [ 125 ] I have not been persuaded that there is any sound legal basis to distinguish Meredith . It is my view that Meredith stands for the proposition that it is not unconstitutional for a government to remove by statute the topic of wages from the bargaining table so long as:

a) the wage restraint legislation is broad-based and time-limited; and

b) it does not preclude a meaningful collective bargaining process from occurring on other important workplace matters. [ 126 ] It is my view that the PSSA meets the above criteria. The PSSA is broad-based, given that it applies broadly across the public service to both unionized and non-unionized employees, covering almost 20% of Manitoba’s workforce. The PSSA wage restraint legislation is also time-limited; it covers a four-year period. [ 127 ] Moreover, I am of the view that the essential integrity of the collective bargaining process was not compromised by the PSSA . As stated in Health Services ,

section 2(

d) does not protect all aspects of the associational activity of collective bargaining (see paras 90-94). It protects only against “substantial interference”. Determining whether a government measure affecting the protected process of collective bargaining amounts to substantial interference involves two inquiries: first, whether the measure substantially impacts the capacity of the union members to come together and pursue collective goals in concert; and second, whether the measure impacts on the collective right to good faith negotiation and consultation. If the first inquiry is not met, the measure does not violate

section 2(d). If, on the other hand, it is met, the measure will still not violate

section 2(

d) if it preserves a process of consultation and good faith negotiation. [ 128 ] In the case at hand, Manitoba conceded that the first inquiry was met. This is in line with what was decided in Meredith and the three appellate court decisions. I agree that taking wages off the bargaining table meets the first inquiry. However, even in situations where the measure deals with matters of significant importance, there will be no violation of

section 2(

d) if the measure taken preserves “a process of consultation and good faith negotiation” ( Health Services at para 94). As I explained above, it is my view that such a process was preserved by the PSSA . While there can be no doubt that the imposition of wage restraint legislation, like the PSSA and the ERA , impacts or interferes with the collective bargaining process, the case law establishes that that type of legislative interference does not amount to “substantial interference” when it is broad-based and for a limited period of time. [ 129 ] In the result, I would conclude that sections 9 to 15 of the PSSA do not violate the freedom of association as guaranteed under

section 2(

d) of the Charter and are, therefore, constitutional. Having concluded that there is no Charter infringement, there is no need to carry out the

section 1 analysis.

d) Issue Two — Whether Manitoba Substantially Interfered in the 2016 Collective Bargaining Between UMFA and the U of M [ 130 ] Manitoba argues that the trial judge erred in finding that Manitoba’s conduct during the 2016 contract negotiations between the U of M and UMFA amounted to an infringement of freedom of association under

section 2(

d) of the Charter . [ 131 ] As I indicated in my standard of review analysis, even though this second ground raises a constitutional issue, it calls for a less exacting standard of review than the correctness standard that was applied to the question of whether the PSSA was constitutional. The reason for this distinction is that the nature of each question is different.

Deciding whether legislation is constitutional involves the interplay between two laws: the impugned legislation; and the Constitution, while deciding whether certain conduct infringes a Charter right involves the interaction of a particular set of facts with the Charter provision which, in the civil law context, is a question of mixed fact and law. [ 132 ] As a result, on this second ground of appeal, absent reversible errors of law (reviewable on the correctness standard) or fact (reviewable on the palpable and overriding error standard), deciding whether the impugned government conduct infringes

section 2(

d) of the Charter , is reviewable on the palpable and overriding error standard. [ 133 ] The facts surrounding the impugned conduct are not in dispute. [ 134 ] The current government was sworn into office on May 3, 2016. The U of M and UMFA were engaged in contract negotiations in the summer and fall of 2016. On September 13, 2016, after 20 bargaining sessions, the U of M offered UMFA a comprehensive offer which included a 7% wage increase over four years (1%, 2%, 2% and 2%).

When market adjustments were added, this wage increase would have represented a 17.5% wage offer over the four-year period. [ 135 ] That offer, while not accepted by UMFA, was still on the table when Manitoba heard about it for the first time on September 30, 2016. It was concerned that the September 13 wage offer would create a bad precedent for future bargaining regarding public sector wages across the province. As a result, on October 6, 2016, it directed th

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