A coalition of unions in Manitoba has succeeded in a constitutional challenge to the Public Services Sustainability Act. In a decision released on June 11, 2020, Justice McKelvey found that the PSSA violated the right to collective bargaining under s.2(d) of the Charter.

Justice McKelvey of the Manitoba Court of Queen’s Bench found that the test for a breach of s.2(d), as set out by the Supreme Court of Canada in Health Services, was met. She held that wages are of fundamental importance to union members and that meaningful bargaining was unworkable and almost impossible because wages were pre-determined by the legislation, leaving unions with very little power to negotiate. She said the following about the impact of the Act on the process of collective bargaining:

342 The PSSA is a draconian measure which limits and reduces a union’s bargaining power. The legislation circumvents and compresses the leverage or bargaining power available and inhibits the unions’ ability to trade off monetary benefits for non-monetary enhancements, such as protection from contracting out, job security, and layoffs. The PSSA has left no room for a meaningful collective bargaining process on issues of crucial importance to union memberships. There is no ability to promote representations and have them considered on a good faith basis. The right to meaningfully associate in pursuit of a fundamental and important workplace goal has been denied. It is not the “fruits” that raises the substantial interference, but it is the loss of a meaningful process …

Justice McKelvey also found that the violation of s.2(d) was not saved under s.1 of the Charter. First, she found that the government failed to demonstrate that it had a pressing and substantial objective in enacting the PSSA because there was no fiscal crisis or emergency. Given that finding, she did not have to go on to determine the other aspects of s.1. Nonetheless, she found that the government also failed to show that this was the least drastic means of achieving its objectives. Justice McKelvey found that the government did not meaningfully consider alternatives other than legislation. Before any “consultation” started, the government had already decided to adopt the Nova Scotia legislative model, and had drafted legislation. Justice McKelvey noted that the government had negotiated with unions in the past to achieve wage freezes in exchange for non-monetary concessions.

Justice McKelvey declared the relevant provisions of the Act to be of no force or effect.