Ontario: Legal Aid Lawyers Mount Constitutional Challenge Against Province

Update:

Stained Glass Ceiling of Queen's Park. Staff lawyers for Legal Aid Ontario have launched a constitutional challenge to have the provincial government recognize the collective bargaining rights of legal aid lawyers. photo by fightyourtickets.ca
Stained Glass Ceiling of Queen’s Park. Staff lawyers for Legal Aid Ontario have launched a constitutional challenge to have the provincial government recognize the collective bargaining rights of legal aid lawyers. photo by fightyourtickets.ca

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The lawyers have launched a constitutional challenge over Legal Aid Ontario’s refusal to bargain with their chosen representative.

For the past three years, Ontario’s legal aid staff lawyers have been attempting to unionize, arguing it would help them negotiate fair working conditions to better serve their clients.

But Legal Aid Ontario (LAO), a provincial government agency, has refused to recognize their chosen union, and so employee and employer are now locked in a legal battle that could prove to be lengthy and expensive.

The lawyers — many of whom work out of courthouses, often representing the most marginalized in society who can’t afford counsel — have launched a constitutional challenge over LAO’s refusal to bargain with their chosen representative, the Society of Energy Professionals (SEP). The case is set to be heard in Superior Court beginning Dec. 5.

“All I can tell you is I think the people of Ontario would be profoundly disappointed with the way that Legal Aid Ontario has conducted itself as a government agency by denying its employees the right to associate freely and bargain collectively,” said Matthew Kellway, assistant to the president of the SEP and former NDP MP.

Courthouse. In order to convict someone or an organization, the Crown would have to establish that there was a "wilfull contravention". Wilfull contravention means knowing that it is illegal and doing it anyway.
The lawyers — many of whom work out of courthouses, often representing the most marginalized in society who can’t afford counsel — have launched a constitutional challenge over LAO’s refusal to bargain with their chosen representative, the Society of Energy Professionals (SEP). The case is set to be heard in Superior Court beginning Dec. 5. photo by fightyourtickets.ca

“This is a government-funded agency that has chosen to spend its highly-valued dollars to fight its employees in court on bargaining collectively rather than providing justice to low-income Ontarians.”

Lawyers are not recognized as “employees” under Ontario’s Labour Relations Act, and so are excluded from its collective bargaining system.

But the government has voluntarily recognized the associations representing its own lawyers and bargained with them, such as the association that represents Ontario’s Crown attorneys.

An LAO spokesman said the agency has “repeatedly offered” to meet and negotiate with a similar association of legal aid staff lawyers, should one be formed.

“In LAO’s view, an association of its lawyers would recognize the unique culture and the particular workplace issues at LAO. These offers have been declined to date,” said spokesman Graeme Burk.

“The Society of Energy Professionals initiated this lawsuit. We are defending this action because we believe our position is consistent with the law.”

Legal aid staff lawyers are often found assisting recently arrested individuals on their first appearance in court and representing accused persons in bail court and when they wish to plead guilty. Some also work on family court matters and at immigration hearings.

They have taken to the streets to protest the refusal to recognize their chosen union, most recently outside a Liberal Party fundraiser at the TIFF Bell Lightbox earlier this month.

Ontario's Liberal Minister of Community Safety and Correctional Services, Yasir Naqvi is currently pushing a Bill through Queen's Park named Bill 113, Police Record Checks Reform Act, 2015 which has reached second reading. ANDREW FRANCIS WALLACE/TORONTO STAR
The union remains hopeful that recently appointed Attorney General Yasir Naqvi will step in before the court date and allow for staff lawyers to commence bargaining with Legal Aid Ontario through the SEP.

The union remains hopeful that recently appointed Attorney General Yasir Naqvi will step in before the court date and allow for staff lawyers to commence bargaining with Legal Aid Ontario through the SEP, said lawyer Steven Barrett, who represents the staff lawyers in the constitutional challenge.

“I think with the new Attorney General, there’s a new opportunity to look at the matter fresh, and he should have an understanding of the importance of collective bargaining as the former Minister of Labour,” Barrett said.

“He should understand the legitimacy of collective bargaining and he should have a keen understanding of the obligations of the government. Otherwise, obviously we’ll be in court in December.”

A Ministry of the Attorney General spokesman declined to comment as the matter is before the court, other than to say LAO is an independent organization whose management and board of directors are responsible for human resources matters.

About 80 per cent of LAO’s staff lawyers have signed a petition to join SEP over the last two years, Barrett said.

Duty counsel Dana Fisher, who is an applicant in the constitutional challenge, said there had been some discussion about the lawyers forming their own association, but said in the end it had decided to go with a union that had a strong ability to organize a large group of people spread out across the province.

Fisher said the lawyers liked SEP because it is accustomed to working with employees who have professional and ethical obligations such as lawyers, and said it also represents lawyers and judges in the U.S.

“Our aim has always been to improve access to services for our clients,” said Fisher, who has been based at the crowded College Park courthouse in downtown Toronto for the past six years.

One example of improvements that are desperately needed, Fisher said, is more space. She said there are currently 14 lawyers working out of cramped quarters in the duty counsel office at College Park, where no one has their own desk.

“I don’t have any private space where I can interview my clients privately. It makes it very difficult to receive instructions and provide confidential advice to clients,” she said.

Supreme Court of Canada. If this matter proceeds to the Ontario Superior Court of Justice, it will no doubt be appealed to the Court of Appeal, followed by the Supreme Court. photo by fightyourtickets.ca
Supreme Court of Canada. If this matter proceeds to the Ontario Superior Court of Justice, it will no doubt be appealed to the Court of Appeal, followed by the Supreme Court. photo by fightyourtickets.ca

In a separate action, three legal aid staff lawyers are taking their employer to the Pay Equity Commission, arguing that Ontario’s legal aid lawyers are predominantly female, and therefore LAO must conduct what is known as a gender neutral job evaluation to ensure the lawyers are not being discriminated against in terms of remuneration.

Fisher, who is not directly involved with the pay equity complaint, said her colleagues also believe they are the most racially diverse group of public sector lawyers. LAO said it does not keep statistics related to race.

Barrett, who is also counsel for the pay equity complaint, explained that because more than 60 per cent of the legal aid staff lawyers are women, the job is considered a “female job class” under provincial legislation, which triggers the gender neutral review.

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