Update on Bill 148 Legal Challenges

It has been years since the Stephen McNeil’s Liberal government passed and proclaimed Bill 148 – the Public Service Sustainability Act.

This piece of legislation did three things that interfere with your right to full, free, collective bargaining:

1. It imposed a non-negotiated wage pattern on the entire public sector (0%, 0%, 1.0%, 1.5% & an additional 0.5% on the last day of the agreement);
2. It removed long-standing articles from the Civil Service master agreement (ending the retirement allowance/public service award as of April 1, 2015);
3. Prohibiting an arbitrator from awarding anything above the above-noted wage pattern.

Even before government proclaimed the Bill into force, the threat of legislation hobbled the unions’ bargaining power and prevented us from being able to freely conclude the collective bargaining process, because it took away the leverage of wages and monetary items like the service award off the table completely. After a significant amount of time with very little progress in bargaining at any major tables, the NSGEU announced in late summer 2017 that it would apply to the Labour Board to appoint an Interest Arbitration Board to settle the Civil Service Master Agreement, as is our right under the legislation that applied. Government proclaimed the legislation to prevent the interest arbitrator from awarding any monetary increases that were higher than was set out in the legislation.

In the five years that have passed since the legislation was passed, the NSGEU has been working hard alongside seven other unions who represent unionized workers to try and have this unjust legislation overturned by the courts.

The unions’ argument is that Bill 148 breeches Section 2(d) of the Charter, which guarantees Canadians Freedom of Association and protects the right to collective bargaining and the right to strike.

The unions knew pursuing legal action would be a slow process, and that has proven to be true, especially since the government is delaying every step of the way.

Here is an update on what has taken place so far, and what our next steps are:

• On August 22, 2017, the government referred a question about the constitutionality of Bill 148 to the Court of Appeal. Originally, they planned to ask one question: Do the wage provisions of Bill 148 contravene the Canadian Charter of Rights and Freedoms? And if so, is that violation saved under Section One of the Charter? It was only after pressure from the NSGEU that the government eventually added the Service Award and Retirement Allowance provisions to the Constitutional question.
• This is case is known as a Reference to the Court of Appeal. The Court of Appeal does not typically deal with evidence and witnesses: they usually hear appeals and only are reviewing decisions made by a tribunal or the Nova Scotia Supreme Court. Because there is technically only one party involved in this reference (the Government of Nova Scotia), the eight unions representing workers affected by this legislation had to file for Intervener Status, which was eventually granted in January 2018.
• Part of the Reference procedure is for the government to then file what is called a Record with the Court of Appeal, which is essentially what it says it relied on when passing the legislation. It took almost a year (December 2018) for government to file its Record: 16 volumes of over 250 documents to support its position that the legislation is Constitutional.
• Since the unions’ first appearance before the Court of Appeal in October 2017, the legal team representing the unions has made it clear that the unions intend to seek permission from the Court to rely on affidavit evidence and expert reports. Our positions is that it is necessary for the Court to have the perspective of those who are most directly affected by the Legislation. Initially, government seemed not to be averse to that.
• Once we saw what the government’s Record included, the unions were able to determine what additional information was required. We knew we needed to file extensive evidence from each of the unions: we filed 10 affidavits from each of the unions and three expert reports by June 2018.
• The evidence outlines the importance of wages and the retirement allowance/long-service award in relation to our bargaining power at the table, among other things. Expert opinions include an analysis of Freedom of Association within the labour relations context; industrial relations and experience conducting collective bargaining; and an opinion on the finances of the Province at the time Bill 148 was passed.
• The unions submitted our evidence & expert reports to government in Spring 2018. They took their time reviewing that evidence before responding that they planned to object to the unions’ filing any evidence or expert opinion with the Court of Appeal.
• In September 2019, the unions were able to schedule a hearing before the Court of Appeal and requested relevant Cabinet documents be released to the Court: we knew government had been compelled to produce these documents during the NSTU’s Charter challenge to the legislation that imposed an agreement on them. Government had attempted to claim this information was privileged. These Cabinet documents included presentations from January and June 2015 that “referred to the preparation of settlement legislation for the fall sitting to apply wage pattern and freeze service awards.” The chronology indicates that this was all before there was any real collective bargaining at major tables.
• Government objected to producing these documents in our challenge, and has further attempted to delay the court case by arguing that the Court of Appeal first had to rule on whether it had the authority to compel the government to produce documents. The Court has issued a decision that said it does have the power to do this under the right circumstances.
• In March 2020, the pandemic hit Nova Scotia. It wasn’t until this summer that we could get back to schedule a hearing to determine whether the unions could file evidence and reports, and whether the government would be compelled to produce the documents. That hearing went well: lawyers for the unions believe we have a strong argument and that the law is on our side. We are now waiting for the Court to decide on whether the unions will be allowed to file evidence and expert testimony. We hope to have this decision in the next few months.

IN THE MEAN TIME:

The NSGEU has initiated our own action with the Supreme Court of Nova Scotia for three reasons:

1. The government’s Court of Appeal reference case will only result in a decision on the Constitutionality of the legislation. This Court will not award a remedy. So even if this Court rules the Bill was unconstitutional and the Province does not choose to take action to remedy the Breach of the Charter, we won’t be starting at square one: an application has been filed with the Supreme Court alleging all of the same arguments to be put forward at the Court of Appeal. The intent is to hold these applications in abeyance and await the Court of Appeal’s decision;
2. The government could choose to withdraw or end the Court of Appeal reference case at any time: since they initiated the court action, they could simply choose to withdraw it;
3. If the Court of Appeal decides that there is no right to file evidence/expert testimony, we have the option of proceeding to the NS Supreme Court.

NEXT STEPS:

If the unions are successful in our argument to file evidence, then there is a wait for government to file their own affidavits and expert reports, as they will certainly want to schedule cross-examination of our witnesses and experts, and further delay this process.

The unions must then show there was substantial interference with collective bargaining. If the unions can prove a breach of Section 2(d), then we get to Section 1, which is where government can try and justify a breach of the Charter. The arguments will be that there was no pressing and substantial objective of this legislation, because the province was not in a financial emergency, and that they had other options available.

POTENTIAL REMEDIES:

Unfortunately, Courts do not award substantial remedies in Charter cases often. They could make a declaration of invalidity, but are reluctant to go further than that.

The unions would be seeking reinstatement of the Service Award and Retirement Allowance to all of the collective agreements it was removed from by Bill 148. We would also likely seek retroactive remedies for anyone who took a payout of the allowance or award that was less than they would have gotten if they have been allowed to continue to accrue.

The unions also would seek damages, but that will be a tough fight.

The unions will be carefully watching other similar cases as they unfold here (the Nova Scotia Teachers Union currently has a Charter Challenge underway which is similar to ours, and Bill 148 will be a feature of their litigation). They have hearing dates scheduled for late February and early March.

Earlier this year, a Judge of the Manitoba Court of Queen’s Bench found that wage restraint legislation imposed on public sector workers in that province infringed on Section 2(d) and was not saved under Section 1. It is important to note that Manitoba’s legislation was found to be modelled directly after NS’s Bill 148. Unions in that case relied on expert reports from two of the experts we are attempting to file with the Court of Appeal. In the Manitoba case, the Court relied on evidence to find that wage restraint provisions of that legislation essentially destroyed bargaining power of unions at the table and this constituted a substantial interference with collective bargaining under Section 2 (d). Furthermore, they found that this breach was not saved by Section 1, because there was virtually no consultation with the unions before passing the legislation and that in the past, and then when government had sought wage restraint, they had been able to successfully bargain it by offering alternatives.

IN CONCLUSION:

The government has spent the past five years wasting time and public resources. They are simply trying to further delay this matter, and are clearly disinterested in participating in a full and fair process.

We know that Manitoba’s Court of Queen’s Bench has struck down legislation that was clearly modeled on Nova Scotia’s Bill 148. However, the government of Manitoba has filed notice with the province’s Court of Appeal that it intends to challenge ruling, meaning that the Manitoba case is far from over.

“It’s been delay, delay, delay for the last three years,” said NSGEU President Jason MacLean, “If government was so confident it wasn’t a breach of the Constitution, why would they be delaying the Court process at every turn?”

This is a long process, but the unions believe that they will prevail. Everyone involved in this fight appreciates the patience and support of NSGEU members while the process unfolds.