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Nova Scotia government loses twice to teachers in evidence skirmishes

School hallway with student lockers.
The Nova Scotia Teacher’s Union is challenging the constitutionality of the 2017 back-to-work legislation that forced them into a contract, claiming the government failed to respect the process of meaningful and good faith consultation. - SaltWire Network

On Oct. 28, 2015, then-deputy minister of finance George McLellan and Ron Pink, Nova Scotia Teacher’s Union counsel, met for a confidential chat.

We don’t know what was said because neither has volunteered it to the Supreme Court of Nova Scotia.

But we do know that a few days later Pink told a Nova Scotia Teacher’s Union bargaining committee that the province was drafting legislation to impose a worse deal on teachers than the proposed one they had negotiated.

So the union executive put the deal to membership with a recommendation they accept it, which they didn’t.

As they voted down two more deals brought by their executive over the following year and a half that would see picketing, school plays and extra-curricular activities cancelled and, ultimately, teachers forced back to work by legislation that may or may not have been discussed on Oct. 28, 2015.

The contents of that discussion and internal government records regarding a related piece of legislation were the topic of two Supreme Court rulings released this week.

The Nova Scotia Teacher’s Union is challenging the constitutionality of the 2017 back-to-work legislation that forced them into a contract, claiming the government’s long held intent to pass it meant that they “failed to respect the process of meaningful and good faith consultation.”

Rulings went against the province

While a decision on that matter could still be a long way away, the rulings this week on what can be admitted as evidence did go against the province.

For one, signed affidavits by union members of briefings they were given by Pink about what he’d heard the province was willing to do are not “privileged communications” as claimed by government lawyers.

“The relationship between management and union labour negotiators is not of the kind that would give rise to privileged communications in the context of the negotiation of a collective agreement,” wrote Justice Jamie Campbell in his decision.

“The purpose of a trial is to seek the truth and the extension of privilege is an impediment to that …”

On the matter of internal documents and cabinet meeting minutes regarding the Public Service Sustainability Act (2015), which was passed but never brought into force, Campbell ruled separately that sections relevant to the constitutional challenge would be unredacted.

“They are relevant to the determination of the NSTU’s Charter litigation and there is a strong public interest in having that resolved without having relevant information kept secret,” wrote Campbell.

He also awarded the NSTU its $1,500 in legal costs.

The Chronicle Herald contacted Pink via email to ask whether his not providing an affidavit on the contents of his Oct. 28, 2015 meeting with McLellan was a sign he didn’t support his former client’s use of it in a court challenge.

He responded: “It would have to be a warm day in Halifax before I told you.”

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