To justify himself on page 1 of the Charter, McKelvey took the R. v test. Oakes, 1986 CanLII 46 (SCC), examined, first, whether the objective of the ASP was urgent and substantial, and second, whether the means used to achieve this objective were proportionate, implying that (1) the means chosen were rationally associated with the objective, 2) any infringement of rights was minimal and (3) the effects of achieving the objective were proportionate. While it is « rare » that the legislation does not meet the first part of the Oakes test, the government has not demonstrated in this case that the ASSP is supported by its urgent and essential objective of controlling compensation costs to deal with the deficit. Meanwhile, on 5 January 2017, at the first meeting of the Joint Inter-Union Working Group on Budget (FWG), the government stated that public finances were in dire straits and that it was open to proposals on how to achieve balanced budgets, with legislation being a possible option. Representatives of the Manitoba Federation of Labour (MFL) and other unions who were not aware of legislation were being developed proposed regulating wage moderation through collective bargaining and noted that in 2010 and 2011, unions and the government agreed to stop the wages of government employees in exchange for job security guarantees. The government did not respond to the unions` proposals and did not participate in a meaningful consultation on the content of its proposed legislation. Manitoba`s fiscal position must be examined in this case to determine the existence of an urgent and essential objective. It would be an unusual situation where economic and fiscal circumstances were not a problem with any province or with the government of that country.
In Manitoba, 55 per cent of the budget comes from public sector costs, which increase by $200 million each year, without higher compensation. It is necessary to consider whether the urgent and essential objective of this legislation could be justified by exceptional circumstances that can be justified by budgetary challenges and budgetary constraints…. What is remarkable is that neither the union expert nor the leader felt that Manitoba was thought to be in a financial crisis. Instead, caution was recommended by both with regard to fiscal policy…. Similarly, Ontario unions have launched a charter challenge for Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (PSPSFGA), which sets an annual cap of 1% for salaries of employees of publicly funded institutions over three years of « moderation. »