Judges reserve decision after hearing Manitoba's appeal of order to pay U of M union $19.4M

A panel of three justices has reserved its decision after hearing arguments Wednesday in the Manitoba government's appeal of an order to pay millions of dollars to University of Manitoba professors, instructors and librarians after a judge found it interfered in the 2016 collective bargaining process.

The province's legal team filed the case in the Manitoba Court of Appeal in May 2022, arguing Justice Joan McKelvey — in what was previously known as the Court of Queen's Bench — made legal errors in awarding damages based on the assumption there would have been a four-year collective agreement and in awarding damages for the costs and wage losses of the 2016 strike.

McKelvey ruled a one-year wage-freeze mandate imposed by the province late in the process disrupted talks and violated the union's Charter right to meaningful collective bargaining, fuelling a 21-day strike.

Michael Bodner, a lawyer for the provincial government, wants the Court of Appeal to issue its own award regarding damages.

He argued there was a misunderstanding by the trial judge surrounding the nature of the mandate and said her finding that the government caused the 2016 strike was an error of law.

"Nothing required the union to accept that mandate and therefore wages were not removed from the bargaining table," Bodner told the Court of Appeal. "Through no fault of the government, the university engaged in hard bargaining on the non-monetary issues."

The province has acknowledged in court the wage directive had an impact and keeping it secret was inappropriate, but lawyers argued it was an error of law to treat the mandate as a Charter breach.

"There's nothing unconstitutional about the late mandate on its own," Bodner argued.

Bodner told the justices more modest compensation in the range of $500 to $1,000 per member would be suitable. That would result in damages of up to around $1.2 million, given the University of Manitoba Faculty Association represents 1,265 full-time professors, instructors and librarians.

Lawyers Garth Smorang and Kristen Worbanski are representing UMFA. They argued the province's involvement was substantial and surreptitious.

Smorang argued the trial judge awarded damages based on the totality of the government's "charter-infringing conduct."

"There was no lawful mandate imposed by the government in this case," Smorang told the court. "This was no ordinary government mandate. This was essentially an unveiled threat combined with a severe consequence."

Wage-freeze mandate 'a threat': UMFA lawyer

He cited evidence at trial that the university was told there would be financial consequences if it didn't co-operate.

"This was a directive, an order, a threat," Smorang said. "And the university took it that way."

Worbanski argued the trial judge's award of damages is appropriate and just. Should the court find any error in the ruling, she said the issue should be sent back to the trial judge for a decision on damages.

Orvie Dingwall, president of the University of Manitoba Faculty Association, said outside court members are frustrated the case is still tied up in court.

"Really disappointing that the government can say out of one side of their mouth that yes they are at fault for having secrecy in the interference of our bargaining in 2016 and on the other hand say that they shouldn't have to pay us any money," Dingwall said in an interview. "So of course we hope it's the larger number. If it's the smaller number, I think really our members just feel disappointed in the whole process that seven years after that round of bargaining we're still here in the courts."

Faculty members previously received $2,000 each following a 2018 decision by the Manitoba Labour Board, which ruled U of M engaged in unfair labour practice at the direction of the provincial government.

Bodner, the lawyer for the province, argued that's money the union members have already received for the unfairness in bargaining in 2016.

Lawyers for UMFA argued the labour board decision was only against the university and doesn't deal with Charter damages.

No date has been set for a decision on Wednesday's Court of Appeal hearing.