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The SQ on the side of lawyers


According to Mr Luc Bruno, it is only a matter of time before the Crown attorneys mimic the SQ polic and go to court to get arbitration instead of just recommendations. -PHOTO LIBRARY OF THE SUN

These union demands will multiply because of the jurisprudence created by the Supreme Court. To fully understand what is happening, especially in the case of lawyers, we must go back 20 years to a decision on the status of judges.


Step One: In 1997, the Supreme Court ruled that it was inappropriate for judges to negotiate their salary directly with the state. As a result, independent committees have been given the responsibility of making decisions on their salaries and making recommendations. The government is not obliged to follow them, but it must justify its decision.


Step Two: Starting in the early 2000s, Crown Attorneys across the country argue that the nature of their work requires the same independence status and arbitration mechanism as judges. The Ontario government gives in first. In 2003, the Quebec government is still resisting. Instead of arbitration, it gives its Crown attorneys and lawyers the right to strike, even if they do not want it.


Third step: In 2011, Quebec Crown attorneys go on strike and boycott the Permanent Anti-Corruption Unit (UPAC). The pressures are enormous on the government. A special law puts an end to the strike, but the prosecutors obtain that their wage conditions are subject to a non-binding arbitration mechanism, as for the judges.


Step Four: Also on strike in 2011, lawyers have the same demand as prosecutors. But they settle with the government two months earlier than their colleagues in return for a letter of understanding to discuss their bargaining system. This discussion is not done.


Fifth step: In October 2016, the lawyers again strike and claim the same status as prosecutors, with one difference: they want binding arbitration, that is to say enforceable. Why this requirement? Because of a Supreme Court ruling in 2015 that invalidates a Saskatchewan essential services law. This ruling states that the law "substantially impedes the right to a genuine process of collective bargaining". The Court states that the right to strike "enjoys constitutional protection because of its crucial function". Two judges dissenting: Richard Wagner and Marshall Tothstein. They argue that the Court should not interfere in the delicate balance of labor relations established by elected officials.


This judgment is major. Deprived of the right to strike, as are the SQ police officers, or recalled by a special law such as jurists, the case is the same: the unions argue that their constitutional rights are being violated. 


This, in their view, is the same kind of impediment to "a genuine process of collective bargaining" denounced by the Supreme Court in the case of Saskatchewan. This will be the basis of the legal battle that the state's lawyers now plan to take against the Quebec government.


Crown attorneys will follow


It's only a matter of time before Crown Attorneys imitate SQ police and go to court to get binding arbitration instead of simple recommendations, predicts lawyer Negotiator Luc Bruno . "Clearly, the path is drawn. They could easily, like the SQ police and other organizations such as peace officers, appeal to the Superior Court to invoke the unconstitutionality of their regime. "
Even the judges could theoretically bring such an appeal, according to Mr. Bruno, but he doubted that because the government finally respected the latest recommendations of the committee to advise him on their salary.


The legal negotiator also believes that a repeat of the nurses' strike, brought back to work by a special law under Lucien Bouchard, would take a different turn because of the Saskatchewan decision. "This is a case in point," he explains, "and the principle adopted by the Court is the balance in the negotiations. The government is an employer, and labor relations regimes must be built in such a way that there is a balance of power in the negotiations. It is from this perspective that the Court said in 2015 that even if you are a government, you can not get out the baton or the atomic bomb to end a negotiation. " 


Mr. Bruno indicated that the Saskatchewan decision may also apply to the private sector if there is government intervention. In recent examples, he cites Acts 71 and 111, passed in 2015 and 2016 to end the conflicts between garage employees in the Saguenay and the Relais Nordik shipping company. He pointed out that in both cases, the special law provided for an arbitration mechanism in case of failure of mediation, which the government refused to its lawyers.


Mr. Bruno's remarks are echoed by the Canadian Association of Jurists, chaired by Halifax lawyer Rick Woodburn. "In Quebec, the government tells its lawyers that they can not be entitled to binding arbitration and it removes the right to strike. In our opinion, this is unconstitutional. "


Mr. Woodburn points out that the only exception allowed to the rule of law would be in the case of a government that faces "extreme budgetary constraints. But it can not last forever. And what we did in Quebec, in my opinion, is simply punitive. "


Finally, counsel states that Ontario, Nova Scotia and Manitoba have granted binding arbitration to their lawyers. In British Columbia, lawyers have a right to binding arbitration only for normative clauses. The government gives them 75% of the salary paid to provincial judges. According to him, the litigation of the Quebec jurists is on a direct way towards the Supreme Court.