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Government lawyer concedes UMFA’s constitutional rights violated during 2016 bargaining, argues $28 million in damages would be unfair to taxpayers

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WINNIPEG -

Lawyers for the Manitoba government acknowledged in the Court of Queen’s Bench on Tuesday it was unconstitutional for the provincial government in 2016 to impose a secret bargaining mandate when the University of Manitoba and the University of Manitoba Faculty Association (UMFA) were in the middle of contract talks.

“It was wrong and it was unconstitutional and it’s deserving of a remedy,” Heather Leonoff, a lawyer for the Manitoba government told Justice Joan McKelvey. “It caused a problem to keep this secret for a period of three weeks…to keep the union in the dark.”

“No effective bargaining could take place during those three weeks because one side knew something the other didn’t know.”

UMFA is seeking more than $28 million in damages. Lawyers for the union argued Monday the university withdrew an offer for a total wage increase of 17.5 per cent over four years when the government interfered in negotiations, pursuant to a political directive, and asked the university to keep it secret.

UMFA lawyer Garth Smorang argued UMFA members would have received the increase and a 21-day strike would have been averted had the government not interfered.

Leonoff disagreed.

“We cannot say for sure what the terms of it would have been,” Leonoff told the court. “Pure speculation exactly what the 2016 contract would’ve looked like.”

While the government’s lawyers conceded there was a violation, they argued UMFA ultimately agreed in 2016 to a one-year contract with a zero per cent wage increase after learning about the mandate.

Leonoff argued mandates and wage restraint legislation aren’t unlawful and that the court should only award damages for the three-week period during which UMFA did not know about the mandate.

“Now they come to court and say we want damages for the deal we accepted,” she told the court.

Leonoff argued that the UMFA’s proposed remedy of more than $28 million would be unfair to taxpayers, telling the court if the union didn’t like the one-year deal, they could’ve chosen not to accept.

“It’s not an appropriate and just remedy,” Leonoff argued. “It’s seeking compensation for four years of its decisions it doesn’t want to live with.”

“How is this fair to the taxpayer? These are all decisions the union made.”

Smorang told the court UMFA takes issue with that argument.

“Everything that was done, not only by the union, but by the university itself after Oct. 27 (2016), was done as a reaction to and as a result of government unconstitutional actions,” Smorang argued.

Leonoff suggested in court a range of $500 to $1,000 per UMFA member would be a more appropriate remedy.

UMFA’s proposal would see the average member receive $13,500 each.

Justice McKelvey has reserved her decision.  

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