Nova Scotia Teachers Union Applicant v. Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondent DECISION Judge: The Honourable Justice John A. Keith, 2022 NSSC 168

SUPREME COURT OF Nova Scotia Citation: Nova Scotia Teachers Union v. Nova Scotia (Attorney General) , 2022 NSSC 168 Date: 20220613 Docket: HFX No. 469869 Registry: Halifax Between: Nova Scotia Teachers Union Applicant v. Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondent DECISION Judge: The Honourable Justice John A. Keith Heard: February 24, 25, March 1, 2 & 3, 2021, in Halifax, Nova Scotia Final Written Submissions: November 16, 2021 Counsel: Gail Gatchalian, Q.C. and Jillian Houlihan, for the Applicant Kevin Kindred, for the Respondent By the Court: Background and Brief

Summary of Findings [ 1 ] The Applicant Nova Scotia Teachers’ Union (“ NSTU ”) challenges the constitutionality of the Teachers Professional Agreement and Classroom Improvements

(2017) Act , S.N.S. 2017, c. 1 (referred to by all parties as “ Bill 75 ”) which imposed, by statute, a new collective agreement upon the NSTU. [ 2 ] NSTU argues that the Respondent Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia (the “ Province ”) breached

section 2(

d) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) by failing to negotiate in good faith; and that the Act epitomizes an unconstitutional abuse of its legislative authority because it: 1. Forced upon NSTU members a four-year collective agreement which: a. NSTU membership neither accepted nor was given the opportunity to vote upon; b. Imposed certain monetary terms (including wage restraint and eliminating ongoing accrual of a Service Award/Death benefit) that the Province deemed fixed and non-negotiable before the process of collective bargaining even began; and c.

Established contractual terms that were worse than those negotiated during the period of collective bargaining which the Province itself says were conducted in good faith. NSTU says that the Province ultimately desecrated the process of collective bargaining by imposing legislation that did not even reflect their actual negotiations but, instead, punished NSTU for refusing to submit to the Province’s demands. 2. Deprived NSTU of its constitutional right to engage in meaningful collective action by: a. Terminating ongoing negotiations;

b. Terminating ongoing collective action including strike action c. Prematurely stripping NSTU of its ultimate form of expression and economic leverage (strike action) by exploiting the government’s ultimate form of leverage (imposing a collective agreement by legislation); and d. Prospectively depriving NSTU of the right to engage in collective action during the term of the four-year collective agreement by engaging the provisions of the Teachers’ Collective Bargaining Act , R.S.N.S. 1989, c. 460 , as amended, which, in turn, rendered illegal any strike activity during the term of the statutorily imposed contract. [ 3 ] The Province denies these allegations. It argues that

section 2(

d) of the Charter guarantees a process of good faith negotiations. While

section 2(

d) guarantees NSTU and its members the right to engage in meaningful, good faith collective bargaining with the Province, it: 1. Does not guarantee a particular outcome or result. The Province denies that any union or group can insist upon a pay package which the Province believes is unaffordable, unfair and/or fiscally irresponsible; 2.

Does not prohibit the Province from establishing certain monetary boundaries or “lines in the sand” (including wage restraints and termination of the Service Award/Death Benefit) which are deemed essential for preserving the common good and the Province’s long-term financial health. The Province points to its duty as steward of public funds and a related obligation to balance competing pressures for money across a wide array of important services which extend beyond education; 3.

Related to this last point, the Province also points to the fact that the alleged misconduct during the course of collective bargaining occurred under the aegis of a different legislative measure ( Public Services Sustainability

(2015) Act , S.N.S. 2015, c. 34 , referred to by the parties as “ Bill 148 ”) whose constitutionality is not put in issue in this proceeding and therefore is, by law, presumed to be constitutional and passed for a valid (not invalid) public purpose; and 4. Does not entitle NSTU to insist that discussions continue indefinitely until NSTU achieves further concessions on issues where the parties are deadlocked. The Province says that more than 15 months of meaningful negotiations yielded three tentative agreements.

Each tentative agreement was approved by NSTU negotiating committee and NSTU executive who recommended to NSTU members. NSTU members voted to reject each of these tentative agreements. In these circumstances, the Province says the parties reached a legitimate but impenetrable impasse. The Province denies an obligation to continue negotiating for however long NSTU believes is appropriate - regardless of past failures, an existing impasse and the effects upon student education. [ 4 ] Ultimately, the Province maintains that the facts in this case more than amply demonstrate that NSTU’s rights under

section 2(

d) of the Charter were respected and fulfilled. Ultimately, the Province says that it was justified in finally ending the labour dispute as it did - through legislation which reflected its fiscal obligations to Nova Scotians. [ 5 ] NSTU also claims that Bill 75 violates the right of expression under

section 2(

b) of the Charter and particularly focusses on

section 13 of Bill 75 which requires teachers to comply with sections 42 and 45 of the Education Act “when schools are in session while teachers are present” regardless of any competing provision in the Teachers’ Collective Bargaining Act , RSNS 1989, c. 460 , as amended. [ 6 ] As indicated, Bill 75 followed months of collective bargaining and three tentative collective agreements. NSTU’s executive recommended approval of each tentative agreement.

The teachers declined that advice and voted to reject all three agreements. [ 7 ] After the teachers rejected the third tentative agreement, the Province responded promptly by drafting, passing in the Legislative Assembly and proclaiming in force Bill 75 which ended the labour dispute and forced a new collective agreement on NSTU members. [ 8 ] The terms of the collective agreement imposed by Bill 75 were significantly inconsistent with and worse than the third and final tentative agreement that the Province says was the by-product of good faith bargaining.

At best, Bill 75 was an over-zealous but misguided attempt at fiscal responsibility. At worst, Bill 75 was punitive or a vengeful attempt to gain some unrelated, collateral benefit related to ongoing negotiations with other public service unions at the expense of NSTU. Whatever the motivation, by selectively dismantling Tentative Agreement 3, Bill 75 failed to fully respect the process of good faith collective bargaining and was terribly wrong. [ 9 ] For that reason, I conclude that Bill 75 violated

section 2(

d) of the Charter and is not saved by

section 1 . Bill 75 is declared unconstitutional and of no force or effect. [ 10 ] Having said that, for clarity, I do not find that Bill 75 is unconstitutional based on certain additional criticisms advanced by NSTU regarding the collective bargaining process which preceded Bill 75. The collective bargaining process which ultimately led to Bill 75 was dominated by another, different legislative measure: Bill 148.

The issue of Bill 148’s constitutionality was not placed in issue in this proceeding, and, for clarity, I make no determinations regarding the constitutionality of that statute based on the specific facts and context of this case. However, in the absence of a legal challenge as to the constitutionality of Bill 148, the Court is required to presume at law that Bill 148 is constitutional and passed for a legitimate public purpose.

To conclude that Bill 148 was passed for an invalid purpose and is evidence of the Province’s intention to erode Charter rights and destroy good faith bargaining would contradict that legal presumption. [ 11 ] Moreover, the impasse reached by the parties reflected an unwavering disconnect between the constraints created by Bill 148 and the NSTU’s key demands, particularly with respect to phasing out the Service Award/Death Benefit.

Given the presumption that Bill 148 is constitutional and passed for a valid public purpose, the Province’s decision to hold firm to the provisions contained within that statute cannot, in the context of this proceeding, be denounced as intransigent and unreasonable. Unfortunately, there was no reasonable prospect of the parties overcoming the impasse. [ 12 ] As to NSTU’s claims under

section 2(b),

section 2(

b) guarantees the right to freedom of expression. For reasons that are made

more clear below, it is not necessary to engage in a

section 2(

b) analysis as I find the provisions of Bill 75 are unconstitutional under

section 2(

d) and of no force and effect. In my view, it is unnecessary to assess whether Bill 75 is doubly unconstitutional for having also violated

section 2(

b) and any such assessment does not add to the appropriate remedy, particularly given that NSTU’s main issue is with the terms of the collective agreement imposed under Bill 75 and, more specifically, with the loss of the Service Award/Death Benefit. The Law [ 13 ] In order to properly understand how the Charter operates given the unique facts of this case, it is necessary to first explain the legal framework against which the facts are applied.

Section 2(

d) and Its Basic Animating Principles [ 14 ]

Section 2 of the Charter is entitled “Fundamental Freedoms”.

Section 2(

d) confirms that everyone has the fundamental right to freedom of association. [ 15 ] There is no doubt that

section 2(

d) of the Charter encompasses and protects the process of collective bargaining. In Health Services & Support-Facilities Subsector Bargaining Assn v British Columbia , 2007 SCC 27 (“ Health Services ” ) , a majority of the Supreme Court of Canada confirmed that

section 2(d) “…protects the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues” (at paragraph 19). [ 16 ] The Supreme Court of Canada in Health Services further confirmed that: “[t]he right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control of a major aspect of their lives, namely their work” (at paragraph 84). [ 17 ] However,

section 2(

d) does not extend Charter protection to all aspects of collective bargaining.

Section 2(

d) does not guarantee that any one party in a labour dispute is entitled to a particular outcome. In Health Services, the Court stated: Nor does [s.2(d)] ensure a particular outcome in a labour dispute, or guarantee access to any particular statutory regime. What is protected is simply the right of employees to associate in a process of collective action to achieve workplace goals” …

Section 2 (

d) does not guarantee the particular objectives sought through this associational activity. However, it guarantees the process through which those goals are pursued. … as the right is to a process, it does not guarantee a certain substantive or economic outcome. (at paragraphs 19, 89 and 91) (See also Meredith v Canada (Attorney General) , 2015 SCC 2 at paragraph 25 ) [ 18 ] The notion that

section 2(

d) protects the process of collective bargaining but does not guarantee a particular outcome is more complicated than it may appear at first blush. Even though

section 2(

d) does not guarantee a preferred outcome, this does not mean that evidence surrounding a party’s preferred outcome is irrelevant to the

section 2(

d) analysis. On the contrary, the positions taken by the parties during collective bargaining and the content of their offers (i.e., their preferred financial or non-financial results) may shed light on whether the parties fully respected the process of good faith collective bargaining in accordance with

section 2(

d) of the Charter . [ 19 ] Ultimately,

section 2(

d) protects the process (and not the outcome) by giving unions the opportunity for respectful dialogue and meaningful input into the working conditions of their members. As Donald J.A. wrote in British Columbia Teacher’s Federation v. British Columbia , 2015 BCCA 184 (“ BCTF ”): 287 If the act of associating in order to collectively negotiate to achieve workplace goals is not substantially interfered with, the government has not breached s. 2(d).

The mere act of passing the terms of employment through legislation rather than a traditional collective agreement makes no difference to whether the employees were given the opportunity to associate and effectively pursue workplace goals .

If the government, prior to unilaterally changing terms of employment, gives a union the opportunity to meaningfully influence the changes made, on bargaining terms of approximate equality , it will likely lead to a finding that the union was not rendered feckless and the employees' attempts at associating to pursue workplace goals were not pointless or futile: see SFL at para. 55. Thus, the employees' freedom of association would likely not therefore be breached. (Emphasis in original) [1] [ 20 ] Similarly, in Mounted Police Association of Ontario v.

Canada , 2015 SCC 1 (“ MPAO ”), McLachlin C.J. and LeBel J., for the majority, wrote: Collective bargaining constitutes a fundamental aspect of Canadian society which ‘enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work’ ( Health Services , at para. 82). Put simply, its purpose is to preserve collective employee autonomy against the superior power of management and to maintain equilibrium between the parties.

This equilibrium is embodied in the degree of choice and independence afforded to the employees in the labour relations process. (at paragraph 82)

[ 21 ] In determining whether employees were afforded the opportunity to “effectively pursue workplace goals” and “meaningfully influence the changes made, on bargaining terms of approximate equality”, the Court remains sensitive to the power imbalances which historically motivated workers to associate. That underlying concern for balance and approximate equality at the bargaining table continues to inspire the constitutional protections enshrined in

section 2(d). This notion of establishing equilibrium between the negotiating parties resonates throughout the jurisprudence. In MPAO , McLachlin C.J. and LeBel J. wrote: [80] To recap, s. 2 (

d) protects against substantial interference with the right to a meaningful process of collective bargaining. Historically, workers have associated in order “to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”, namely, their employers: Alberta Reference , at p. 366. The guarantee entrenched in s. 2 (

d) of the Charter cannot be indifferent to power imbalances in the labour relations context. To sanction such indifference would be to ignore “the historical origins of the concepts enshrined” in s. 2 (d) : Big M Drug Mart , at p. 344.

It follows that the right to a meaningful process of collective bargaining will not be satisfied by a legislative scheme that strips employees of adequate protections in their interactions with management so as to substantially interfere with their ability to meaningfully engage in collective negotiations. (Emphasis added) [ 22 ] At paragraph 82 of MPAO , the majority continued by noting that the purpose of collective bargaining “is to preserve collective employee autonomy against the superior power of management and to maintain equilibrium between the parties”. (emphasis added) [ 23 ] Likewise, in BCTF , Donald J.A. stated: 291 Pre-legislative consultation, then, can be seen as a replacement for the traditional collective bargaining process, but only if it truly is a meaningful substitution.

To be meaningful, the bargaining parties must consult from an assumed position of "approximate equality". I note here that in SFL , Abella J., writing for the majority of the Court, found that a right to strike was essential in order to maintain "approximate equality" between employees and employers in the collective bargaining process: at para. 55, quoting Judy Fudge and Eric Tucker, "The Freedom to Strike in Canada: A Brief Legal History" (2009-2010), 15 C.L.E.L.J. 333 at 333. (Emphasis added) [ 24 ] Finally, in Professional Institute of the Public Service of Canada v.

Canada (Attorney General) , 2016 ONCA 625 , leave to appeal denied, [2016] S.C.C.A. Nos. 444, 445 (“ Professional Institute of the Public Service of Canada ”), Lauwers J.A., for the Court, wrote at para. 39: In the domain of labour relations, s. 2(

d) protects “a meaningful process of collective bargaining”, which is one “that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them”: MPAO , at para. 81 .

Meaningful collective bargaining maintains a balance of bargaining power, or “equilibrium”, between unions and employers : MPAO , at paras. 72 and 82 ; SFL , at paras. 56-57. (Emphasis added) [ 25 ] Thus, the presence (or absence) of good faith collective bargaining compels the Court to critically examine whether the government has improperly created a power imbalance by abusing its ultimate legislative authority and improperly stripping employees of a meaningful opportunity to engage in collective bargaining. [ 26 ] This is not to say that governments are entirely powerless to legislate when the parties are deadlocked.

However, the statutory power to unilaterally end negotiations and impose a new collective agreement is constrained. Governments must first reasonably engage with their employees in good faith and cannot manufacture an “impasse” as a pretext for imposing its will through legislation. As Donald, J.A. warned in BCTF : The government could declare all further compromise in any context to be untenable, pass whatever it wants, and spend all "consultation periods" repeatedly saying "sorry, this is as far as we can go". This would make a mockery of the concept of collective bargaining.

An impasse created by the Province through the adoption of unwavering, unreasonable positions and a lack of good faith is not a legitimate impasse. (at paragraph 340) [ 27 ] Finally, it should be emphasized that the analysis under

section 2(

d) is highly contextual and the circumstances surrounding the impugned legislation and its impact on the process of collective bargaining must be considered ( Health Services , at paragraphs 107 and 109). [ 28 ] The recent decision of the Nova Scotia Court of Appeal in Reference re Bill 148,

An Act Respecting the Sustainability of Public Services , 2022 NSCA 39 (“ Reference re Bill 148 ”) reinforced the importance of context. In this decision, the Nova Scotia Court of Appeal considered the recent decision in Manitoba Federation of Labour et al. v. The Government of Manitoba , 2021 MBCA 85 (“ Manitoba Federation ”), including the following conclusion: [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. [ 29 ] The Nova Scotia Court of Appeal did not interpret Manitoba Federation as stamping any and all time-limited wage restraint legislation with the Court’s imprimatur of constitutional validity. Rather, the Courts must still carefully consider the legislation, the context within which the legislation was enacted, and its impact on the process of collective bargaining. Writing for the panel, Wood, CJ concluded: In my view, Manitoba Federation does not add any new principles to the jurisprudence with respect to s. 2(

d) of the Charter . The Attorney General relies heavily on this decision because of the similarities between the legislation under consideration and the PSSA . He argues it stands for the proposition time limited wage restraint legislation is always constitutional. If the suggestion is this conclusion can be reached without the need to consider the surrounding context, this runs contrary to the clear advice of the Supreme Court of Canada in Health Services , Meredith and British Columbia Teachers' Federation . I would not adopt such an

interpretation of Manitoba Federation . (at paragraph 49). [2] The Test Under

Section 2(d) [ 30 ] The parties agree that the test for determining whether impugned legislation violates

section 2(

d) of the Charter involves two distinct inquiries: 1. “The first inquiry is into the importance of the matter affected by the process of collective bargaining, and more specifically, to the capacity of the union members to come together and pursue collective goals in concert” ( Health Services at paragraph 93). Interference with insignificant matters will obviously not be considered sufficiently substantial as to attract Charter protection. 2.

The second inquiry examines the meaningfulness of the collective bargaining process and “the manner in which the measure impacts the collective right to good faith negotiation and consultation” ( Health Services at paragraph 93). The Province correctly notes that NSTU bears the burden of proving that the bargaining process leading up to Bill 75 did not meet the standard contemplated by

section 2(d). [ 31 ] In Health Services , the majority expressed the second inquiry this way: …does the legislative measure or government conduct in issue respect the fundamental precept of collective bargaining — the duty to consult and negotiate in good faith?

If it does, there will be no violation of s. 2 ( d ), even if the content of the measures might be seen as being of substantial importance to collective bargaining concerns, since the process confirms the associational right of collective bargaining. (at paragraph 97) [ 32 ] There seems to be no real debate that the impugned legislative provisions meet the first inquiry under the Health Services test for substantial interference with collective bargaining.

Monetary issues like wages and any potential changes to the Service Award/Death Benefit are acknowledged to be of critical importance to NSTU and teachers, and therefore to the process of collective bargaining. The NSTU filed an expert report authored by Dr. Robert Hebdon [3] which provides empirical support for this same conclusion: It may be helpful to cite some evidence on the importance of monetary issues in collective bargaining. Labour Canada attempted to record the key strike issues in all strikes. From 1946 to 1999, they managed to record strike issues in 82% of all strikes.

Addendum 1, Table 1 shows that monetary issues were key strike issues in 77% of strikes. (at page 7) [ 33 ] However, the issues which were folded into the collective bargaining process included other important issues as well including additional leave with pay, additional guarantees regarding time for teachers to complete their professional obligations, and a concrete commitment to jointly work towards improving working conditions.

Some of these issues were also incorporated into the impugned legislation (Bill 75) while others were unilaterally changed or withdrawn. [ 34 ] While monetary concerns surrounding wages and the Service Award/Death Benefit certainly figured most prominently, the totality of the issues affected by the legislative measure are more comprehensive and enhance the underlying importance of Bill 75 to the NSTU. [ 35 ] This case turns on the second inquiry related to the impact of the legislation on the collective right to good faith negotiation and consultation. [ 36 ] The parties disagree as to the scope of the second inquiry.

The Province says that the second inquiry compels the Court to consider whether the parties came to the table “with the sincere aim of concluding an agreement.” Even if parties hold hard and fast positions, they must still “approach bargaining with the hope that it will succeed” (Province Reply Brief filed January 22, 2021, paragraph 45).

The question as posed by the Province is: “…was the Province, like the government in [ BCTF ], going through the motions of consultation while always intending to pass Bill 75, or was it instead committed to sincere efforts to reach its goals through agreement before resorting to legislation.” [ 37 ] NSTU states that the second inquiry “…deals with the manner in which the impugned measures, i.e., the provisions of Bill 75 that impose wage freezes and restraint and end the Service Award accrual, impacts on those fundamentally-important matters ” (NSTU

Reply Submissions filed February 12, 2021, paragraph 8, emphasis in submissions). Thus, NSTU argues: …the focus is narrowed on the impugned legislative provisions that affect subject matters that have already been determined to be offundamental importance to the process of collective bargaining, in this case, the wage and Service Award provisions of Bill 75.

Thefocus is not expanded out again under the second inquiry, as the Employer would have it, to the Employer’s attitude towards collectivebargaining generally. (NSTU Reply Submissions filed February 12, 2021, paragraph 8) [38] Respectfully and in my view, the Court is not limited at the second stage of the inquiry to consider only the monetary issues ofwages and Service Award/Death Benefit. My reasons include: 1.

NSTU cites paragraph 97 of Health Services which states: Where it is established that the measure impacts on subject matter important to collective bargaining and the capacity of the unionmembers to come together and pursue common goals, the need for the second inquiry arises: does the legislative measure or governmentconduct in issue respect the fundamental precept of collective bargaining — the duty to consult and negotiate in good faith?

If it does,there will be no violation of s. 2(d), even if the content of the measures might be seen as being of substantial importance to collectivebargaining concerns, since the process confirms the associational right of collective bargaining. Respectfully, the Supreme Court of Canada refers to respect for “the fundamental precept of collective bargaining” – which is a processand not a more narrow examination into “subject matters that have already been determined to be of fundamental importance to theprocess of collective bargaining”, as argued by NSTU.

In other words, the inquiry compares the legislative measures (which, as here,may extend beyond specific monetary issues) against the Charter-protected duty to consult and negotiate in good faith. 2. I agree that the monetary issues surrounding wages and the Service Award/Death Benefit are clearly of significantimportance and sufficient to satisfy the first inquiry under Health Services.

I also agree that when assessing whether Bill 75 respectedthe fundamental precepts of collective bargaining, the impact of these monetary issues (wages and Service Award/Death Benefit) shouldproperly be afforded greater weight proportionate to their importance. However, that does not mean that the remaining issues whichformed part of the negotiations are irrelevant. As indicated, Bill 75 affected other issues that enhanced the importance of this legislativemeasure to teachers.

Indeed, NSTU’s submissions in this proceeding included comprehensive coverage all of the various other issueswhich during collective bargaining and were affected by Bill 75. (See, for example, NSTU Written Submissions filed December 18,2020, at paragraph 197). NSTU’s expert, Dr. Hebdon, similarly focussed on wage restraint and the Service Award/Death Benefit but didnot ignore other aspects of Bill 75. Paragraph 450 of NSTU’s Written Submissions filed December 18, 2020, summarizes Dr. Hebdon’sreport by saying: “In the expert opinion of Dr.

Hebdon, the removal of the Service Award in Bill 75, along with other aspects of Bill 75,was ‘unfair, biased, punitive and inappropriate for a back-to-work law.’” (emphasis added) 3. Removing all aspects of the collective bargaining other than monetary matters creates an artificial and potentially falseimpression of the collective bargaining process. It also risks ignoring or masking the impact of non-monetary problems that may berelevant to the question of whether the employer respected the fundamental precepts of the collective bargaining process.

This concernarises here because the third and final tentative agreement negotiated between the Province and NSTU contained both monetary and non-monetary terms which the Province insists flowed from good faith negotiations. The Province subsequently and unilaterally alteredthose same terms when enacting Bill 75. Referring again to NSTU’s expert, Dr.

Hebdon emphasizes that the negotiating leverageavailable to a party during collective bargaining is heavily influenced by the extent to which monetary issues remain open for discussionand debate: …monetary issues are pivotal to the exercise of bargaining power of both labour and management. The parties know that when monetaryissues are settled it is almost impossible to generate pressure on any other issues because they are central to the negotiations. Again, I do not dispute the vital importance of monetary issues to the process of collective bargaining.

The Court obviously reserves theright to appropriately assess the manner in which monetary issues were addressed in a way that recognizes, and is proportionate to, theirsignificance and their impact on the presence (or absence) of approximate equality between the negotiating parties. However, again, thisdoes not mean (and Dr.

Hebdon does not say) that the non-monetary aspects of Bill 75 are inconsequential and should be ignored –particularly for the purpose of conducting the second inquiry under Health Services and examining the government’s conduct in a waywhich is both fair and accurately reflects the negotiating process.

To do otherwise would, in my view, result in a distorted view as to thenature and scope of the government’s conduct during the course of collective bargaining. [39] Returning to the factors which bear upon the second inquiry, at paragraphs 101 – 109 of Health Services, the Supreme Court ofCanada provided a helpful guide to the issues which inform the duty of good faith collective bargaining. By way of

summary: 1. Employees have the right to have their representations considered (not simply received) by their employer. Thus, collectivebargaining is not a series of passive, unproductive meetings. “The parties have a duty to engage in meaningful dialogue and they must bewilling to exchange and explain their positions. They must make a reasonable effort to arrive at an acceptable contract …” As Cory J.said in Royal Oak Mines Inc. v.

Canada (Labour Relations Board), (SCC), [1996] 1 S.C.R. 369: In the context of the duty to bargain in good faith a commitment is required from each side to honestly strive to find a middle groundbetween their opposing interests. Both parties must approach the bargaining table with good intentions. (at paragraph 101) 2. Parties engaged in good faith collective bargaining are not compelled to reach agreement.

They may legitimately reacheither a breaking point or adopt a “take it or leave it” position (paragraphs 102 – 103). 3. “…if the nature of its proposals and positions is aimed at avoiding the conclusion of a collective agreement or at destroying

the collective bargaining relationship, the duty to bargain in good faith will be breached” (at paragraph 105). 4. As indicated above, “…regard must be had for the circumstances surrounding their adoption. Situations of exigency andurgency may affect the content and the modalities of the duty to bargain in good faith” (at paragraph 107).

Ultimately, “… substantialinterference must be determined contextually, on the facts of the case, having regard to the importance of the matter affected to thecollective activity, and to the manner in which the government measure is accomplished” (at paragraph 109). [40] To this helpful synopsis, I would add the following: 1. The amount of time spent negotiating is not as important as the quality of the negotiations.

In Canadian Union of PostalWorkers v Her Majesty in Right of Canada, 2016 ONSC 418, the Restoring Mail Delivery for Canadians Act ended ongoing strike actionby postal workers after almost nine months of negotiations, mediation and conciliation, a Union put itself in the position to strike andthen, after more than 100 days of bargaining under the shadow of a potential strike, engaged in rotating strikes. Firestone, J. determinedthat the Restoring Mail Delivery for Canadians Act breached

section 2(

d) of the Charter and

section 2(b) (freedom of expression); andthat the breach was not justified under

section 1. In reaching that conclusion, Firestone, J. determined, among other things, that “there isno support for a temporal limit on the right to strike in the jurisprudence of the Supreme Court of Canada” (at paragraph 185); and 2. Legislation unilaterally passed by the government following a period of collective bargaining must respect and remainfaithful to the collective bargaining process protected by

section 2(

d) of the Charter. There is nothing in the case law that would suggestgovernments may negotiate in good faith and then, if an agreement is not reached, unilaterally release themselves from any ongoingobligations of good faith and assume the freedom to do whatever they want through legislation. In my view, that would mutate anotherwise legitimate process into a travesty. As Donald, J.A. said in BCTF v.

British Columbia: …if the government negotiates or consults with an association in good faith and nevertheless comes to an impasse, it will likely havesatisfied its constitutional duty and may unilaterally pass necessary legislation consistent with that consultation process.

If thegovernment does not have time to consult or negotiate with a collective bargaining unit because of exigent circumstances or emergency,it may then be found to have breached s. 2(d), but such a breach may be saved under s. 1. (at paragraph 293, emphasis added) [41] Before leaving the issues, which inform the duty of good faith collective bargaining, there is one final issue that is importantand merits more detailed discussion. [42] In its written submissions, the Province acknowledges taking a hard position in its negotiations with NSTU, particularly withrespect to the key monetary issues (wages and the Service Award/Death Benefit).

However, it says that while “surface bargaining” isprohibited, parties are free to take unyielding, tough positions and engage in “hard bargaining”. [43] In support of these arguments, the Province relies on Health Services. This decision also involved back-to-work legislationand the majority of the Supreme Court of Canada specifically referred to the distinction between legitimate “hard bargaining” andimpermissible “surface bargaining”.

It further described “surface bargaining” as follows: 1. “…inflexible and intransigent to the point of endangering the very existence of collective bargaining” (paragraph 103,quoting from C.A.S.A.W., Local 4 v. Royal Oak Mines Inc., (SCC), [1996] 1 S.C.R. 369, at para. 46); and 2. “…when one pretends to want to reach agreement, but in reality has no intention of signing a collective agreement and hopesto destroy the collective bargaining relationship.

It is the improper objectives which make surface bargaining a violation of the Act.”(paragraph 104, quoting from Canadian Union of Public Employees v Nova Scotia (Labour Relations Board), (SCC),[1983] 2 S.C.R. 311 at p. 341) [44] NSTU points out that this distinction between “hard bargaining” and “surface bargaining” arose in the private sector where“Wagner-style” labour negotiations prevail, and the underlying power equation is much different. In the private sector, the ultimateeconomic levers for exerting pressure on the other side are relatively equal. Employees may strike. Employers may resort to a lock out.

It is from that position of approximate equality that notions of “hard bargaining” and “surface bargaining” in the private sector emerged,“premised on the idea that each party ‘is entitled to adopt the contract proposals which are in its own interest, to stick firmly to itsbargaining positions, and then to rely on its economic strength in a strike to force the other side to make concessions.” (NSTU WrittenSubmissions filed February 12, 2021, paragraph 39 quoting from BCTF at paragraph 339) [45] The dynamic changes in the constitutional context when the employer is the government and new concerns arise regarding anadditional, formidable weapon in the employer’s arsenal: back-to-work legislation.

NSTU states that the power imbalance created bythe government’s statutory authority power exists only in the constitutional context and has no equivalent in the private sector. As such,assumptions embedded in the traditional Wagner-style approach break down and a different approach is required to recognize thegovernment’s inherent power advantage and restore some form of equilibrium between the negotiating parties. [46] Recall the fundamental concerns discussed in BCTF regarding maintaining equilibrium or approximate equality betweennegotiating parties.

Donald, J.A.’s reasons in BCTF, which came after the Supreme Court of Canada’s decision in Health Services and,the NSTU says, more fully appreciates the shifting power dynamic when one of the parties engaged in collective bargaining has thestatutory authority to legislate an end to any labour dispute.

Although the decision of Donald, J.A. was rendered in dissent at the BritishColumbia Court of Appeal, its precedential value increased significantly when the Supreme Court of Canada allowed the union’s appeal“substantially for the reasons of Justice Donald” (2016 SCC 49). [47] NSTU emphasizes that the traditional jurisprudence developed in the context of private sector labour disputes and involving“Wagner-style” collective bargaining begins with the premise that the relationship between employer and employee during collectivebargaining is adversarial; and the ultimate economic weapons through which employers and employees may pursue their respectiveinterests are roughly equal thus ensuring a level playing field.

Employees may engage in strike action in appropriate circumstances and

employers may initiate a lock-out in appropriate circumstances.

Based on this view of rough equality in economic power, neither side possesses an unfair advantage and, as NSTU notes, “each party ‘is entitled to adopt the contract proposals which are in its own interest, to stick firmly to its bargaining positions, and then to rely on its economic strength in a strike to force the other side to make concessions.” (NSTU Written Submissions filed February 12, 2021, paragraph 39 quoting from BCTF at paragraph 339 ) [ 48 ] In BCTF , Donald, J.A. adopted the basic reasoning in Health Services was adopted, but the perspective was sharpened and clarified to highlight the important contextual and constitutional differences which arise where, unlike private sector employers, government employers possess the additional power to enact legislation definitively ending the process of collective bargaining. [ 49 ] Donald, J.A. began with two basic propositions: 1. “[E]mployees have a constitutionally protected right to strike in order to protect an approximately equal bargaining position with their employer” (at paragraph 279) ; and 2.

Ensuring some form of equilibrium between the negotiating parties is essential to meaningful collective bargaining and to recognizing the basic reality that a government’s ability to legislate an end to labour dispute confers upon it an inherent power advantage. Donald, J.A. wrote: a. “To be meaningful, the bargaining parties must consult from an assumed position of ‘approximate equality’” (at paragraph 291); b. “It should be acknowledged that, absent checks and balances, the government may not feel obligated to maintain a position of approximate equality with employees.

This Court should not be “indifferent to power imbalances in the labour relations context”: MPAO at para 80 . It is the ability of the courts to monitor and restrain government action that militates against this power imbalance. To use another constitutional right as an example, even though the Charter may not compel the distribution of locks, it still prohibits unreasonable searches by the state. Similarly, the Charter prohibits an abuse of any power imbalance by the government during the consultation process.” (At paragraph 292.

See also paragraphs 279 and 287); and c. “There is less of a need to inquire into the rationality of internal logic of substantive positions in the context of private parties because Wagner-style collective bargaining imagines resolution of impasse through mediation, arbitration, or the economic pressure of strikes. However, in the constitutional context, the government always has the power to unilaterally resolve impasse through legislation, or force workers to end a strike through constitutionally compliant back-to-work legislation.

This is a huge power imbalance that fundamentally alters the calculus of how negotiations unfold” (At paragraph 339). [ 50 ] A practical but complicated question arises: How does the Court distinguish between legislation which represents an “abuse of any power imbalance” or otherwise violates the employees’

section 2(

d) rights from legislation which respects

section 2(

d) rights while ultimately imposing a solution that more closely aligns to the government-employer’s preferred outcome? Under what circumstances might a government-employer engage in “hard bargaining” which culminates in a constitutionally valid statute that may not exactly mirror but certainly reflects the employer’s key demands? The answers to these questions are relevant here because Bill 75 imposes a collective agreement which is certainly much closer to the Province’s bargaining position than that of NSTU. [ 51 ] In my view, the following judicial comments and principles guide the Court’s response: 1. It is clear that the freedom of associated protections under

section 2(

d) of the Charter are violated “if government legislation or actions substantially interfere with collective bargaining in purpose or effect in such a way that does not respect a process of good faith consultation: Health Services & Support-Facilities Subsector Bargaining Assn at para. 129.” [ BCTF at paragraph 283] ; 2. “Substantial interference” occurs where employees are denied the good faith opportunity to associate and effectively pursue workplace goals ( BCTF at paragraph 287 . See also paragraph 288); 3.

Throughout BCTF , Donald, J.A. repeatedly equates “substantial interference” and the denial of an opportunity to good faith collective bargaining with the notion that collective bargaining was rendered essentially futile ( BCTF at paragraphs 284 - 287, 285, 298, 311, 321, 351 and 385 ); 4. In assessing whether the government’s actions rendered the process of collective bargaining essentially futile, “…courts must inquire into the existence of good faith on the part of the government” ( BCTF at paragraph 298 ). In doing so, the Courts equally examine the “substantive reasonableness” of the government’s positions.

Indeed, this was a critical point of departure which motivated Donald, J.A.’s dissent in BCTF : I note here that, as already discussed, a key component of my colleagues' reasons is their conclusion that it is inappropriate for a trial judge to consider the substantive reasonableness of the government's position. My colleagues then use that conclusion to disregard large portions of the foundations for the trial judge's finding of bad faith, including the findings I have just discussed. As I have explained, I believe that conclusion is in error.

The trial judge was correct to analyze the substantive reasonableness of the Province's position. ( BCTF at paragraph 358 ) 5. In terms of the evidentiary burden, “ …failure to comply with the duty to consult and bargain in good faith should not be lightly found, and should be clearly supported on the record” ( Health Services , at paragraph 107). Thus, the Court will scrutinize the substantive reasonableness of the government’s positions from an objective standard. Superficial statements that are “easily self-serving and insincere” will not suffice ( BCTF at paragraph 364 ); 6.

In BCTF , Donald, J.A. offers the following more concrete examples: a. The following circumstances reflect the absence of good faith:

i. “[ I]f the government were permitted to hold out all of its positions as "final offers" and "skip" rounds of bargaining at its own whim through temporary prohibitions on collective bargaining, this would have the effect of making the act of associating essentially futile. But a sufficiently probing analysis of a government's good faith while engaged in consultation would ameliorate this threat to a large degree.” ( BCTF at paragraph 298 ); and ii.

Closing one’s mind to alternatives and failing to listen in good faith to the employees which “requires consideration and understanding of the position of the other side…In fact, consideration of the representations from the other side is the absolute minimum that is required from the employer.” ( BCTF at paragraph 362 . See also paragraph 375) b.

Conversely, in terms of actions which reveal the presence of good faith: If the government, prior to unilaterally changing the terms of employment, gives a union the opportunity to meaningfully influence the changes made, on bargaining terms of approximate equality, it will likely lead to a finding that the union was not rendered feckless and the employees’ attempts at associating to pursue workplace goals were not pointless or futile.” (BCTF at paragraph 287 ) [ 52 ] In terms of applying these principles, it is also helpful to bear in mind the unique facts of BCTF .

Very briefly, the British Columbia legislature enacted Bill 28 in 2002. It declared void certain items in an expired collective agreement between the government’s representative and the teachers’ union. The deleted terms were collectively defined in BCTF as “Working Conditions”. Bill 28 also prohibited the inclusion of similar terms in all future collective agreements between the union and the government’s representative. That is, it permanently prohibited collective bargaining on these issues. The union was not consulted before Bill 28 was enacted. In 2011, Bill 28 was declared unconstitutional.

In 2012, the government responded to this declaration of unconstitutionality with Bill 22. In many respects, Bill 22 was duplicative. It declared void the very same “Working Conditions” provisions as Bill 28. In addition, like Bill 28, Bill 22 also included a ban on collective bargaining. However, unlike Bill 28, the ban in Bill 22 was temporary and expired about fourteen months later on June 30, 2013. In these circumstances, Donald, J.A.’s

summary conclusions are unsurprising: First, the Province did not give the [union] a meaningful opportunity to make representations. To be a meaningful opportunity, the Province must have considered the [union's] representations in good faith, which it did not do. Second, the trial judge gave full consideration to the Province's policy objectives in her infringement analysis: see e.g., Bill 22 Decision at paras. 243, 244, 250, 308, 347, 349, 361, 394, 417. As I explained, I am confident that the Province is able to pursue its policy goals while respecting the fundamental freedoms protected by the Charter .

Third, the Province cannot rely on a claim that the parties were at an impasse when Bill 22 was passed, because as I explained, a legitimate impasse can only occur if the Province had been negotiating in good faith. Fourth, as I will explain in greater detail below in my s. 1 analysis, the temporally limited prohibition on collective bargaining did not mitigate, but in fact entrenched, the substantial infringement resulting from the deletion of the Working Conditions.

Fifth, as I explained above, the associated regulations passed by the Province do not mitigate the Province's substantial interference with the [union's] freedom of association. In

summary, I agree with the trial judge that the Province did not consult in good faith. Since the Province did not consult in good faith, it did not retain a meaningful process that protected the [union’s] s. 2(

d) right to collectively bargain toward important workplace goals. The unilateral deletion of the Working Conditions, which were of significant importance to the teachers, was therefore a substantial interference with [union’s] associational activity and a breach of s. 2(d). Facts [ 53 ] Having explained the governing law, I turn now to the factual context within which this legal framework is applied. [ 54 ] In 2015, a series of collective agreements between the Province and various public service unions were set to expire.

The Province expressed alarm that the escalating costs of maintaining the public sector were simply unaffordable. It declared an urgent need for fiscal restraint and girded itself for difficult labour negotiations. It also began contemplating wage restraint legislation applicable to all public service unions if necessary to achieve its financial goals. [ 55 ] The Province’s strategy for upcoming negotiations with public service unions generally (and including the possible of wage restraint legislation) was laid bare in Cabinet documents disclosed by decision of Campbell, J. released May 4, 2019.

The Province’s appeal of Campbell, J.’s decision was dismissed on March 10, 2020 ( 2020 NSCA 17 ) [ 56 ] These Cabinet documents reveal: 1. By as early as January 15, 2015, the Province was contemplating legislation applicable to all public service unions that would freeze wages. It would also phase out public service awards and related benefits.

A presentation to Cabinet on January 15, 2015, began by confirming that “Almost all public sector agreements expire between October 2014 and July 2015.” It also confirmed that the Province’s key priorities around wage restraint would be difficult to achieve and “Decisions will need to be made in the whether to attempt to achieve through job action or to legislate”. Finally, Cabinet was warned as to the risk of a court challenge to wage restraint legislation. To mitigate this risk, the Cabinet was advised “legislating same wage pattern as offered”; 2.

A subsequent Cabinet meeting on June 18, 2015, identified three potential approaches to upcoming negotiations, all of which mentioned the likely difficulties with unions and the possibility of legislation.

It also recommended a consistent, uniform approach with all public service unions because “The more changes made to individual agreements, the greater the risk of a Charter loss…” Finally, if legislation became necessary, the statute should “impose a pattern slightly more generous than the tabled patterns.” [ 57 ] The stage was set for what became a contentious and confrontational period of time for the provincial government and labour unions. The first major engagement occurred between the Province and NSTU.

[ 58 ] On June 18, 2015 (the same day as the Cabinet presentation discussed above), NSTU gave the Province notice to bargain a new collective agreement pursuant to

section 18 of the Teachers Collective Bargaining Act , RSNS 1989, c. 460 , as amended. The existing collective agreement dated May 14, 2013, between Nova Scotia’s Minister of Education and Early Childhood Development and NSTU expired about 6 weeks later, on July 31, 2015. [ 59 ] During the course of ensuing labour negotiations, the Province made two key monetary demands: 1. A temporary wage freeze; and 2. Terminating the ongoing accrual of a Service Award/Death Benefit. Some form of service award was a long-standing fixture in the teachers’ collective agreements dating back to the early 1970s.

The Service Award/Death Benefit contained in the 2012 collective agreement which expired July 31, 2015, can be traced back through each preceding agreement from January 1, 2002, to July 31, 2005. [ 60 ] The parties managed to negotiate a tentative agreement (“ Tentative Agreement 1 ”), with this risk in mind. Consistent with the Province’s demands, Tentative Agreement 1 included a wage freeze for the first two years.

Thereafter, wages would increase a total of 3% over 4 years: • 1% as of August 1, 2017, the beginning of Year 3 • 1.5% as of August 1, 2018, the beginning of Year 4; • 0.5% on July 31, 2019, the last day of Year 4. [ 61 ] The Province points out that Tentative Agreement 1 included wage increases which were greater than its original “asking package”. In that “asking package”, the Province proposed a total wage increase of 2% over the 4 years as follows: • 0% increase in each of Years 1 – 3; • 1% as of August 1, 2018, the beginning of Year 4; • 1% on July 31, 2019, the last day of Year 4.

Thus, the Province did soften its position somewhat on wages. [ 62 ] Tentative Agreement 1 also terminated or froze ongoing accrual of the Service Award/Death Benefit as of July 31, 2015. However, here again, the Province points out that Tentative Agreement 1 contains concessions by the Province when compared against its original “asking package”. In particular, the Province originally proposed that any Service Award be calculated based on the teachers’ salary as of July 14, 2015.

The calculation formula in Tentative Agreement 1 provided that Service Awards would be calculated based on the teacher’s salary on the last day of employment (not July 14, 2015). In addition, the Province originally proposed that Service Awards only be paid to those teachers with 10+ years of service. Tentative Agreement 1 softened that requirement by allowing all years of service up to the last day of employment be taken into account in determining whether a teacher meets the minimum service eligibility criterion. [ 63 ] NSTU states that Tentative Agreement 1 was reached under the “threat” of legislation.

It refers to a discussion in October 2015 between the Deputy Minister of Finance and Treasury Board, George McLellan, and NSTU’s Chief Negotiator and Legal Counsel, Ron Pink, Q.C. NSTU states that Mr. McLellan told Mr. Pink that the Province intended to introduce the legislation in the House of Assembly when the legislature opened on November 12, 2015, unless the parties could reach an agreement before then. [ 64 ] Neither Mr. McLellan nor Mr. Pink testified.

Instead, NSTU’s representative Jack MacLeod, referred to this exchange in an affidavit filed June 22, 2022. [ 65 ] The Province says that Jack MacLeod attests to information received from Mr. Pink who is said to have received it from Mr. McLellan. The Province also points out that the possibility of enacting legislation in October 2015 was not acted upon. Indeed, the Public Services Sustainability

(2015) Act , S.N.S. 2015, c. 34 (referred to by the parties as “ Bill 148 ”), would not be passed in the legislature until December 14, 2015 – after Tentative Agreement 1 was reached. [ 66 ] At the same time, the Province “does not deny that Mr. McLellan spoke with Mr. Pink in October 2015, and relayed information that the Province had contemplated legislation if it was unable to achieve its wage pattern through collective bargaining” (Province written submissions filed January 22, 2021, at paragraph 75). [ 67 ] NSTU says that the affidavit evidence of Mr. MacLeod referencing a discussion between Mr.

MacLellan and Mr.

Pink is admissible as an admission against a party. [ 68 ] In addition, both sides say that the Court should draw an adverse inference against the other for the failure to file evidence from their respective representatives who were actually involved in this discussion: Ron Pink for NSTU and George McLellan for the Province. (NSTU Reply Written Submissions filed February 12, 2021, paragraphs 61 – 62; and Province Written Submissions filed January 22, 2021, at paragraph 76) [ 69 ] In Davison v NSGEU , 2005 NSCA 51 , Cromwell, J.A. (as he then was) wrote at paragraph 73: In civil cases, "... an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away": see J.

Sopinka, S. Lederman and A. Bryant, The Law of Evidence in Canada , 2d ed. (Toronto and Vancouver: Butterworths, 1999) at para. 6.321. The rationale of this rule is that the failure to call the evidence in these circumstances is an implied admission by the party "... that the evidence of the absent witness would be contrary to the party's case, or at

least would not support it": Ibid. But, as with all implied admissions, one must remember that conduct may be equivocal. It follows thatthe failure to call evidence may reasonably be open to different

interpretations. An adverse inference should only be drawn when it iswarranted in all of the surrounding circumstances: see, e.g. Sopinka, Lederman and Bryant at para 6.315 - 6.320; Kaytor v. Lion'sDriving Range Ltd. (1962), (BC SC), 40 W.W.R. 173 (B.C. S.C.) at 176. [70] The failure of either side to call the persons directly involved in these discussions is open to different

interpretations and theevidence is not sufficient strong to draw an adverse inference. In light of all the surrounding circumstances, I am not prepared to draw anadverse inference against either party. [71] I do note certain additional evidence sheds some light into the Province’s approach to potential legislation, but this evidencepost-dates the October 2015 discussion: 1. A presentation to Cabinet on October 29, 2015, refers to an existing direction from Cabinet to table legislation. However,no such legislation had been introduced as of that date.

As indicated, Bill 148 would not be passed in the legislature until December 14,2015. Moreover, the constitutionality of Bill 148 is not before this Court. And Bill 75 would not be passed until much later, on February14, 2017; and 2. On December 10, 2015, members of Cabinet confirmed the Province’s resolve to legislate fiscal restraint, if necessary. Minutes taken from this Cabinet meeting contain the following observation: “Without some pressure, achieving wage mandate at thetables is in jeopardy”.

These Minutes conclude with the recommendation that legislation be introduced but not proclaimed “to enablepending tentative agreements to be addressed by [union] members”. [72] I accept Mr. MacLeod’s statement as an admission against interest (R. v. Evans, (SCC), [1993] 3 S.C.R. 653,at 664).

However, as to weight, “The more precise the details of what was said, and the more detail concerning the surroundingcircumstances, the more weight will be afforded the evidence” (Prince Edward Island (Director of Child Protection) v P. (C.), 2014PECA 18, at paragraph 57). [73] The details around which the statement was made were relatively spare, and the fact that the admission is third hand throughMr. Pink and then through Mr. MacLeod creates additional concerns. In the circumstances, the weight which I attach to Mr.

MacLeod’sstatement is minimal, beyond revealing an indication that the risk of legislation was in play and an active concern for NSTU whenconsidering Tentative Agreement 1. [74] Tentative Agreement 1 was approved by both NSTU negotiating committee and NSTU executive; however, it was conditionalupon an affirmative vote by NSTU members. [75] On November 18, 2015, Shelly Morse, President of NSTU and member of NSTU bargaining team, wrote to NSTU members asfollows in “A Brief Word”: Our lead negotiator was made aware that Government had prepared legislation that would impose the already highly publicized publicsector wage settlement on teachers with a five-year deal – 0%, 0%, 0%, 1% and 1%.

There were other significant clawbacks outlined inthe legislation as referenced in the Minister’s Action Plan for Education: The 3 Rs: Renew, Refocus, Rebuild, namely those that appearon page 17 under Cooperation or Negotiation with the Nova Scotia Teachers Union. … The threat of legislation to settle our agreement was real, and we have seen this government use its legislative power to resolve otherlabour disputes over the last two years. … In the face of impending draconian legislation it was decided to recommend acceptance of this offer.

Your provincial executivebelieves that while the process to reach this negotiated tentative agreement was not optimal, it is necessary under the currentcircumstances, and we urge you to vote in favour of this agreement. (Emphasis in original) [76] In Ronald Pink’s letter to NSTU membership dated November 24, 2015, he wrote at page 3: If you vote to reject the tentative agreement (“no”) in this round of bargaining the future is very much in doubt. These are the followingpossibilities: 1. Continue bargaining – Who can say if we will get a better deal. It is doubtful. 2.

Conciliation – Why would anything change as a result of conciliation when the provincial executive and negotiating committeealready agreed on an earlier deal. 3. A strike vote – Each member will have to decide whether to go on strike. 4.

Legislation – Our sources advised us that legislation was always an option for the government and if they were to legislate, theymay well impose by legislation their unilateral plan to change the Teachers’ Provincial Agreement to fall in line with the Action Plan.This would be a serious setback for teachers. (Emphasis added) [77] On December 1, 2015, NSTU members declined to follow their executive’s recommendation. 61% of the teachers who cast

ballots voted to reject Tentative Agreement 1. [ 78 ] After Tentative Agreement 1, NSTU believed that the Service Award/Death Benefit would have to be preserved in order for the teachers to vote in favour of a tentative agreement. [ 79 ] Immediately after the teachers voted against Tentative Agreement 1, the government initiated legislative action.

On December 2, 2015, the Province confirmed that it was in the process of drafting legislation which would impose financial terms no better than Tentative Agreement 1. [ 80 ] On December 10, 2015, as mentioned in paragraph 68 above, members of Cabinet confirmed the Province’s resolve to legislate fiscal restraint, if necessary. Minutes taken from this Cabinet meeting contain the following observation: “Without some pressure, achieving wage mandate at the tables is in jeopardy”.

These Minutes conclude with the recommendation that legislation be introduced but not proclaimed “to enable pending tentative agreements to be addressed by members.” [ 81 ] On December 14, 2015, and consistent with Cabinet’s recommendation, the Province passed Bill 148. Bill 148 received Royal Assent on December 18, 2015, but it was not proclaimed in force at that time – again consistent with the December 10, 2015 Cabinet recommendation.

Bill 148 would not be proclaimed in force until August 22, 2017, after the labour dispute between the Province and NSTU was ended with the enactment of Bill 75 on February 14, 2017. [ 82 ] Although conceived in the midst of negotiations with NSTU, Bill 148 was broader in scope and applied to a variety of public service unions. Nevertheless, the timing was specific to NSTU negotiations, and it formed a very significant part of the context within which negotiations between NSTU and the Province would continue.

At a minimum, it reflected the government’s determination to achieve certain wage restraint goals it considered critical. [ 83 ] I note the following provisions of Bill 148: 1. Wages would be frozen for the first two years immediately following the expiry of the prior collective agreement. Wages would increase by 1% for Year 3, another 1% for Year 4 and 0.5% on the last day of Year 4. These increases were identical to the terms which were contained in Tentative Agreement 1 and already rejected by the NSTU members (sections 13 and 14); 2.

Accrual of the Service Award/Death benefit would terminate or be frozen as of March 31, 2015 – worse than the July 31, 2015, deadline contained in Tentative Agreement 1. Furthermore, the Service Award/Death Benefit would be calculated based on the teacher’s salary as of March 31, 2015 – again, worse than Tentative Agreement 1 which calculated the benefit based on the last day of employment (sections 20 – 22); and 3. The Legislative Assembly delegated the authority to make regulations to the Executive Council.

Section 29 stated, inter alia :

(1) The Governor in Council may make regulations: (

a) designating a person as a public-sector employee; (

b) prescribing a person as not being a public-sector employee; … (

o) defining any word or expression used but not defined in this Act; (

p) further defining any word or expression defined in this Act; (

q) respecting any matter or thing the Governor in Council considers necessary or advisable to effectively carry out the intent and purpose of this Act.

(2) A regulation made under subsection (1) may, if it so provides, be made retroactive in its operation to the date specified in the regulation. [ 84 ] Again, Bill 148 was not proclaimed in force until more than 6 months after negotiations with NSTU ended and Bill 75 was in place. Nevertheless, the Province says that Bill 148 drew “lines in the sand” that could not be crossed in ongoing negotiations with NSTU.

According to the Province, “it is a fact that Bill 148 placed restrictions on what concessions the Province could make with respect to wages and the Service Award.” [ 85 ] The Province further notes that Bill 148 did not preclude ongoing collective bargaining, including strike action. In addition,

section 17 of Bill 148 allowed for the possibility that a portion of any savings achieved through collective bargaining may be used to fund compensation or benefits, subject to the approval of the Treasury and Policy Board. Thus, collective bargaining could continue after Bill 148 was passed but, the Province qualifies, within the parameters of Bill 148. [ 86 ] It is a fact, as will be seen below, that negotiations continued after Bill 148 was passed.

As well, NSTU was able to achieve additional, albeit modest, gains at the bargaining table. [ 87 ] The Province further insists that Bill 148 is presumed to be constitutional at law and that its ability to make further concessions within the constraints established by Bill 148 negotiations must equally be presumed “to be constitutional and serve a valid public purpose.” (Province Written Submissions filed January 22, 2021, at paragraph 95) [ 88 ] The impact of Bill 148 on collective bargaining was significant.

In its original written submissions, NSTU explains: “Because of the ability of the government to proclaim [Bill 148], the NSTU did not have any leverage to negotiate more favourable wage or

Service Award provisions than those contained in Tentative Agreement 1” (NSTU Written Submissions filed December 18, 2020, at paragraph 107). In addition, “The NSTU Negotiating Committee was aware that the Province of Nova Scotia could proclaim Bill 148 into force at any time…” NSTU Written Submissions filed December 18, 2020, at paragraph 112). [ 89 ] I also note that the NSTU Executive and members perceived Bill 148 to be a bully tactic and a threat hanging over negotiations.

NSTU felt that “…because of Bill 148, the NSTU Negotiating Committee had no ability in bargaining to persuade the [Province] to change its position on salary or the elimination of the Service Award.” [ 90 ] In subsequent written reply submissions, NSTU responded to the law which presumes validly enacted statutes are presumed constitutional and passed for a valid purpose. NSTU adopted a more nuanced approach to Bill 148.

It argues that while Bill 148 impacted collective bargaining, it was also not formally proclaimed in force until well after Bill 75 terminated any further collective bargaining and that, therefore, it was not “operative” during the relevant period of time. Moreover, Bill 148 was not retrospective in nature and, therefore, could not be used to retroactively absolve the Province of its misconduct during collective bargaining.

The NSTU argued that Bill 148 “did not operate during the contentious period and cannot retroactively “wipe clean” the actions and conduct of the government” (NSTU Written Reply Submissions filed February 12, 2021, at paragraph 52). The Province disagrees and states that the presumption of constitutionality applies in this case. [ 91 ] I consider below the interplay between the NSTU’s concerns around Bill 148 during collective bargaining and the law which presumes that validly enacted statutes are constitutional and passed for a public purpose.

For present purposes, suffice it to say that negotiations did proceed. However, pausing here, it is important to emphasize that to the extent ongoing process of negotiations continue under the shadow of any legislation, it was Bill 148 - not Bill 75, which is the subject of this proceeding. Bill 75 would not be conceived or enacted until Tentative Agreement 3.

Again, I return to the significance of this issue below. [ 92 ] Between January and May, 2016, the Province’s chief negotiator, Ron MacLeod, told Jack MacLeod, a member of NSTU’s negotiating committee, that he had no mandate to preserve the Service Award/Death Benefit because of Bill 148. The Province does not dispute this evidence but points out that it is consistent with the constitutional limits created when Bill 148 was passed, although not in force.

That is, the Province argues, Bill 148 established statutory boundaries which the Province’s negotiating team could not cross, and they included clear restrictions regarding wages and the Service Award/Death Benefit. Furthermore, as just indicated, the Province maintains that Bill 148 is deemed to be constitutional and passed for a valid public purpose. Again, I return to this issue below. [ 93 ] On September 2, 2016, the parties reached a second tentative agreement (“ Tentative Agreement 2 ”). Again, it was approved by both NSTU negotiating committee and NSTU executive.

And again, it was conditional upon approval by NSTU members. [ 94 ] Tentative Agreement 2 did not include any improvements to Tentative Agreement 1 in terms of the wage freeze. In addition, and although NSTU executive believed teacher approval hinged on preserving the Service Award/Death Benefit, Tentative Agreement 2 again terminated accrual of that benefit. [ 95 ] That said, NSTU did achieve some gains. For example: 1.

NSTU was able to negotiate a “me too” clause meaning that if any other public sector union was able to obtain better wage increases or a latter accrual date for any service award, NSTU had an option to accept the greater benefit; 2. The Province agreed to a new Partnership on Systemic Working Conditions in which a committee including three (3) members from each of the NSTU and the Province and one school board member.

This Partnership would address systemic demands on teachers that may limit the teachers’ ability to facilitate student learning and success. [ 96 ] NSTU negotiating committee and NSTU executive reluctantly recommended approval of the tentative agreement, having regard to the threat posed by Bill 148. [ 97 ] On October 4, 2016, NSTU members again declined to accept that recommendation. 70% of the teachers who cast ballots voted to reject Tentative Agreement 2. [ 98 ] On October 25, 2016, 96% of NSTU members voted in favour of a strike. [ 99 ] On October 27, 2016, NSTU asked that the Province agree to the appointment of a conciliation board as a vehicle for trying to resolve their differences.

The Province agreed to conciliation but conditional upon the provisions of Tentative Agreement 1 and Tentative Agreement 2 regarding wages and the elimination of the Service Award/Death Benefit be untouched. [ 100 ] On October 29, 2015, a presentation to Cabinet confirmed “SCC decisions make clear demonstrating effort to consult is critical” but also recommend tabling legislation early in the next sitting of the Legislative Assembly. [ 101 ] On November 28, 2016, NSTU issued a notice of its intention to strike as of December 5, 2016.

In a press release issued that same day, NSTU announced its anticipated strike action. They called the plan “Work to Rule”. The title was somewhat of a misnomer in that the plan did not fully and strictly adhere to all statutory work requirements for teachers. NSTU acknowledges that teachers did withdraw services that they would normally be obliged to perform under the Education Act , S.N.S. 1995-96, c.1 . Thus, strictly speaking, it was not “work to rule”. [ 102 ] In any event, the Province decided to close schools on December 5, 2016, but re-opened them the next day, December 6, 2016.

NSTU members returned to school but implemented its “Work to Rule” plan. [ 103 ] On December 13, 2016, and at the Province’s request, the parties returned to the negotiating table. In response to NSTU’s job action, additional gains followed. For example: 1. While there would still be a wage freeze for the first two years of the contract, the terms under which wages would increase

in the last two years improved. There would still be a 3% wage increase over the term of the contract, but the timing of that increase was accelerated as follows: • 2% as of April 1, 2017 – as opposed to 1% as of August 1, 2017; • 1% as of April 1, 2018 – as opposed to 1.5% as of August 1, 2018. Having achieved the 3% increase as of April 1, 2018, the final 0.5% increase on July 31, 2019, was removed 2.

The Province agreed to provide teachers with one day of leave with pay in the current year and two days of leave with pay in each subsequent year subject to certain terms regarding the purpose of the leave and advance notice; 3. The Partnership on Systemic Working Conditions remained but was strengthened to include an arbitration provision. [ 104 ] On January 20, 2017, the negotiating teams reached a third Tentative Agreement (“ Tentative Agreement 3 ”).

On January 25, 2017, NSTU President wrote to members saying, in part, that: “The dark shadow of Bill 148 and the threat of an imposed contract have loomed heavily over the process.” However, once again, the tentative agreement was approved by NSTU’s negotiating committee and NSTU’s executive and recommended to NSTU members. [ 105 ] Immediately following Tentative Agreement 3, on January 23, 2017, NSTU members suspended their “Work to Rule” protest.

However, they quickly resumed their protest a week later citing comments attributed to Premier Stephen MacNeil which they saw as unfair and unnecessarily inflammatory. [ 106 ] On February 8, 2017, NSTU members voted on Tentative Agreement 3. For a third time, the membership declined to accept their executive’s recommendation.

This time, 78% of the teachers who cast ballots voted to reject Tentative Agreement 1 – up from 61% rejection for Tentative Agreement 1 and 70% rejection for Tentative Agreement 2. [ 107 ] The Province reacted with haste by introducing new legislation which dealt specifically with teachers: Bill 75, the constitutionality of which is challenged in this proceeding. [ 108 ] Under

section 3 of Bill 75, the prior collective agreement dated May 14, 2013, between the Minister of Education and Early Childhood Development and NSTU was amended in accordance with new terms imposed under

Schedule A of the Act. [ 109 ] On February 21, 2017, the Nova Scotia legislature passed Bill 75 and, unlike Bill 148, proclaimed it in force immediately. Thus, a new collective agreement was created by statute, and not collective bargaining. NSTU members were legally required to return to the classroom and fulfill their statutory duties as described in the Education Act , S.N.S. 1995 – 1996, c. 1 as amended (the “ Education Act ”). They did so, reserving their right to challenge the constitutionality of the government’s actions. Bill 75 [ 110 ] Bill 75 brought to an end NSTU’s ongoing job action. It also terminated the process of collective bargaining. Thus,

section 13 of the Act addresses the right of teachers to engage in ongoing “work to rule” strike action. It confirmed a teacher’s legal obligation to comply with certain statutory requirements enumerated in sections 26 and 31 of the Education Act , S.N.S. 1995 – 1996, as amended, regardless of any rights conferred under the Teachers Collective Bargaining Act , R.S.N.S. 1989, c. 460 , as amended. The statutory duties listed in

section 26 and 31 of the Education Act included obligations to diligently teach prescribed courses as may be assigned to a teacher; conduct necessary assessments to track student progress; maintain order in the classroom; etc. In effect, these specific teaching duties were to be fulfilled regardless of any labour action that might otherwise be authorized under the Teachers Collective Bargaining Act . [ 111 ] In addition,

section 3 of Bill 75 imposed a new collective agreement on NSTU and the teachers, the terms of which were established under

Schedule A.

Section 3 states: 3

(1) The Teachers’ Provincial Agreement made on May 14, 2013, between the parties, is amended in accordance with

Schedule A to this Act.

(2) The Teachers’ Provincial Agreement referred to in subsection (1), as amended in accordance with

Schedule A to this Act, is deemed to constitute a professional agreement entered into by the Minister as an employer and the Union as the bargaining agent. [ 112 ]

Schedule A of Bill 75 contained numerous new terms but, for present purposes, the following are particularly germane: 1. New four-year term:

Section 23 of

Schedule A amends

Article 69.01 to the Teachers’ Provincial Agreement to impose a four-year term from August 1, 2015 to

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