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LAO lawyers see promise in RCMP ruling


Dana Fisher hopes the Supreme Court’s ruling will convince Legal Aid Ontario to reconsider its decision not to give staff lawyers voluntary recognition to join the Society of Energy Professionals. Photo: Robin Kuniski



“We think this [ruling] helps solidify our position,” says lawyer Dana Fisher, spokeswoman for the campaign around the LAO union issue.


“We’re really happy about the decision.”


In one of its first decisions of the year, the top court said RCMP officers could still form an association despite their exclusion, as with LAO staff lawyers, from the applicable labour relations act.


“The government cannot enact laws or impose a labour relations process that substantially interferes with the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals,” wrote Supreme Court Chief Justice Beverley McLachlin and Justice Louis LeBel on the majority’s behalf in the Jan. 16 ruling.


“Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters.


“Similarly, a process of collective bargaining will not be meaningful if it denies employees the power to pursue their goals. Whatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining.”


Fisher says her team is feeling emboldened by the  top court’s ruling and hopes it will convince LAO to reconsider its decision not to give the lawyers voluntary recognition to bargain collectively.


“We’re hoping legal aid will see this decision and really kind of take the right steps and recognize our rights to have collective bargaining,” she says.


For its part, LAO believes the Supreme Court’s ruling suggests another interpretation. “The Supreme Court of Canada’s recent decisions involving the Royal Canadian Mounted Police (RCMP) are in line with what Legal Aid Ontario (LAO) has always understood to be the law on this issue,” said LAO spokeswoman Genevieve Oger in a statement.


“The freedom of association provides a right to a collective bargaining process, but does not guarantee a particular collective bargaining model or outcome. LAO has offered to meet with staff lawyers to discuss developing a collective bargaining process between LAO and an association of its lawyers, which recognizes the culture and particular workplace issues at LAO. This offer has been declined, with the result that LAO has continued on its own to address issues in the workplace of concern to its lawyers.”


Labour and employment lawyer Danny Kastner says there’s merit to LAO staff lawyers’ reaction. “This is another decision from the Supreme Court giving force to freedom of association and the right to collectively bargain,” says Kastner, an associate at Turnpenney Milne LLP in Toronto.


“It’s the most definitive one yet and there are lots of reasons why a parallel could be drawn between the police and the lawyers. The one caution I suppose is the Supreme Court is explicit in that decision that there are different considerations in different industries. What we can’t do is apply a cookie-cutter approach from one industry to another. That said, the general principles the Supreme Court endorses in that decision one would think apply to legal aid lawyers.”


In October 2013, LAO chief executive officer Bob Ward told lawyers the organization doesn’t have a legal obligation to voluntarily recognize a trade union to represent employees excluded from the Labour Relations Act.


The Supreme Court’s decision may leave Ward without the option of saying no to employees who want collective-bargaining rights, according to Kastner. “The big take-away from this decision is well, that’s not [Ward’s] choice as the employer,” he says.


“It’s up to the employees whether they want to have a collective voice or whether they want to deal with their employer individually. That’s a principle that’s likely to be applied to any industry.”


Scott Travers, president of the Society of Energy Professionals IFPTE Local 160, the union LAO staff lawyers are seeking to join, says he’s hoping their employer will “do the right thing” after looking at the ruling.


“We hope the government will, having seen the Supreme Court ruling, do the right thing and direct legal aid to recognize the chosen representative for the employees,” he says.


“We hope it doesn’t have to go through a legislative process.”


He adds: “Our assumption is that legal aid will see the ruling and do the right thing now.”


Travers says the union has been working to raise the issue through the government and notes it had also been waiting to see the top court’s ruling in the RCMP case. “Now that we got the decision, we’re going to be working to make sure the decision-makers are aware of the implications.”


Kastner says there isn’t a “serious debate” about whether the recent ruling will have implications for the LAO staff lawyers’ campaign to form an association. The real question now, he says, is what kinds of freedoms it would mean for them. “It’s beyond serious debate that LAO lawyers have the freedom to associate and collectively bargain,” he says.


“What remains to be worked out is the precise content of that freedom.”


According to Kastner, the Supreme Court’s ruling is clear that it’s not enough that the RCMP officers are able to bargain collectively. The employer has to deal with them in “good faith” when it looks at their proposals, he says.


“If the federal government can just turn around and reject those proposals, it completely undermines the collective-bargaining rights that they have,” he says.


“So the cases going forward now, including for the legal aid lawyers, aren’t going to be so focused on the right to collectively bargain because it’s pretty clear they have that right. It’s going to be then, on top of that, what kind of a collective-bargaining legislation are they entitled to.”


Justice Marshall Rothstein, the sole dissenting judge, said the courts aren’t the best place to decide which specific labour relations scheme is most appropriate for a particular group of employees.


“In my view, requiring RCMP members to be included in the [Public Service Labour Relations Act] or equivalent scheme is ‘to enter the complex and political field of socio-economic rights and unjustifiably encroach upon the prerogative of Parliament,’” he wrote, citing Delisle v. Canada (Deputy Attorney General).