Update on Bill 148 (Public Services Sustainability Act) Constitutional Challenge

Good morning,

Back in 2015, the McNeil Liberal government passed the Public Services Sustainability Act (Bill 148). This legislation unfairly imposed a non-negotiated wage settlement onto all public sector workers and unilaterally removed longstanding articles from collective agreements (specifically, the Long Service Award).

Back in August 2015, the NSGEU, through its legal counsel, served Notice of Intended Action in the Nova Scotia Supreme Court in which we claim that Bill 148 contravenes s. 2(d) (Freedom of Association) of the Charter of Rights in regards to Civil Service bargaining.

On September 6th, 2015, the NSGEU along with seven other unions led by the Nova Scotia Federation of Labour (NSFL) announced at a press conference that we were seeking party status in the review of Bill 148 by the Court of Appeal. At that time, the Premier assured unions and the public that they had sent Bill 148 to the Nova Scotia Court of Appeal for a legal opinion on its constitutionality. An opinion they said with confidence would come back in their favour. Less than 48 hours later, we found out this is not the whole truth: government had only sent sections 7 through 19 of the Bill to the court. They did not submit the section that strips our members of their retirement allowances.

We asked you to help and write letters to your MLAs to press McNeil to bring the entire Bill for review. We also launched an ad campaign in all the major and community papers. Unions from across the province joined together for a rally at the opening of the legislature on September 21 to demand this as well as the full repeal of the Bill. On October 4, government announced they were amending their judicial review of Bill 148 to include the articles that strips working people of benefits they earned in previous collective agreements. You told the government and it seems, they had to listen.

On August 22, 2017, the Province of Nova Scotia finally referred the wage provisions of Bill 148 to the Nova Scotia Court of Appeal for a determination of the constitutionality of those sections. Due to pressure from labour, the government agreed to amend the reference and on October 13, 2017, referred both the wage and service award provisions of Bill 148 to the Nova Scotia Court of Appeal.

On January 19, 2018, the Court of Appeal granted the following eight unions intervenor status in the constitutional reference, with the right to file written submissions and make oral argument: the Canadian Union of Public Employees, the Canadian Union of Postal Workers, the Nova Scotia Government and General Employees’ Union, the Nova Scotia Nurses’ Union, the Nova Scotia Teachers Union, Service Employees’ International Union, Local 2, Unifor, and the International Union of Operating Engineers, Local 727. Pink Larkin represents the unions. The Attorney General of Manitoba was also granted intervenor status.

Our position is that the wage and service award provisions of Bill 148 violate the freedom of association and freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms.

On December 14, 2018, the Province filed its 16 Volume Record, which is essentially all the documents that the Province said it relied on to pass Bill 148.

The unions intend to share draft expert reports and affidavits with the Province in the coming months. The Province has indicated that it may object to the unions being able to file and rely on evidence, despite the Province having filed a 16-Volume Record of documents. If the Province objects to the unions being able to file and rely on evidence, they will have to ask the Court of Appeal to decide the issue.

While it is difficult to predict the timing of things with any accuracy, as it depends in part on whether the Province will try to prevent the unions from filing evidence, it is possible that the unions and the parties will be before the Court in the fall of 2019 to set hearing dates for the spring of 2020.

The legal process is a long one, but we are committed to continuing this fight on our members’ behalf, and keeping you apprised as it unfolds. Thank you for your patience and support.

In solidarity,

Jason MacLean
President, NSGEU