McKelvey also called the 2016 mandate at the University of Manitoba to maintain a wage freeze in ongoing collective bargaining at the time was “a major disruption to the collective bargaining process” and another violation of S.2 (d). In response to the question, If the government had set an urgent and substantial target for the PSSA, McKelvey found that previous court decisions, including the Supreme Court of Canada judgments in Newfoundland (Treasury Council) v. N.A.P.E., in 2004 CSC 66 (CanLII) and in the case of health services, confirmed that mere budgetary changes would not be sufficient in the absence of a tax statement to justify a violation of a Charter. , and that the economic justifications for Charter violations must not only be carefully considered by the courts, but beyond the usual concerns about cost control and the appropriateness of a balanced budget, which is the objectives of most governments. McKelvey cited the Newfoundland case and said: … The PSSA was issued on the basis of the royal agreement and is no longer an invoice. The PSSA is a law, even if it has no legal value. The government does apply the ASSA to collective bargaining scenarios with the public sector. He may refer to his position as a mandate or policy; However, the content of the mandate given to public sector workers is based on legislation and, in particular, on the risk of retroactivity recovery. … The government`s objectives at the time of the introduction of the PSSA were neither urgent nor substantial. As the case law below provides, budgetary considerations alone cannot be used to support the existence of an independent and essential objective for charter S.1. Moreover, it is rare for a court to reject [the argument] that the purpose of the law is sufficiently important to warrant the limitation of a charter right.
Expert testimony and other evidence in court did not demonstrate that Manitoba`s financial situation was exceptionally affected or that it was in a dire situation. Moreover, the [government] did not argue that there was a financial crisis. The evidence has shown that this province is right in the heart of the Canadian province. [The government expert] compared the situation in Manitoba to that of a slow-moving oil tanker: small corrective measures were needed. He also stated that the financial situation of this province was very different from that which existed at the time of the 2008 global crisis…. Although the ASSP was not declared in force, its effects were felt throughout the public sector, as a number of employers who were subject to collective agreements applied wage increase caps in the s.12 as their fixed bargaining positions. Of the 21 agreements reached in the province`s public sector following the adoption of the ASP, all the improvements made by the unions in the negotiations were secondary in nature. Employers and unions were also aware that, under the clawback provisions of PSSA 28, wage increases paid above the ceilings were repaid as debts to the employer, even though these payments were made prior to the entry into force of the PSSA. In addition, in reviewing the facts, McKelvey noted that the government`s decision not to include WCB and MASC revenues and assets in the public finances could be characterized as “manipulation” to inflate the deficit. The tax cuts announced in the last budgets have also undermined the government`s arguments. McKelvey found that the MFL and 28 unions sued the Manitoba Court of Queen`s Bench, claiming that the PSSA`s s.9 to 15 violated workers` right to freedom of association, in accordance with Letter 2 (d) of the Canadian Charter of Rights and Freedoms, and to obtain a statement that the Ss.9 to 15 were not effective.