Legal Aid Ontario employees to challenge certification restriction in court
A group of lawyers that represents some of the most underprivileged Ontarians is headed to court to fight for their own right to join a union.
Lawyers from Legal Aid Ontario (a non-profit government agency that provides legal assistance to low-income clients) embarked on the quest for collective bargaining rights more than two years ago after they say their request to join a union was met with a cold response from their employer.
Now — riding the coattails of the Supreme Court of Canada's landmark decision in January granting RCMP officers the right to certify — the lawyers are looking to the courts to back them up.
"After two years of requesting recognition of our rights from our employer to no avail, we are left with no other option than to turn to the courts to enforce our harter rights," said Dana Fisher, a Legal Aid Ontario (LAO) lawyer in Toronto and spokesperson for the campaign.
"We believe the rights enshrined in the (Canadian Charter of Rights and Freedoms) apply to everyone, including lawyers. We want to address professional and ethical concerns as well as advocate for greater access to justice for LAO clients."
In Ontario, lawyers are excluded from parts of the Labour Relations Act that guarantee union access. Legal Aid lawyers are among the last in the public sector to secure bargaining rights, as crown attorneys and provincial government counselors have bargained through professional associations, and have been voluntarily recognized by their employers, for years.
The Supreme Court decision was lauded by LAO lawyers as it marked a watershed moment for their own grassroots campaign.
"The (Supreme Court) decision has made it clear that everyone is entitled to collective bargaining rights and all Canadians have the right to independently choose representation," Fisher said. "LAO is a public agency accountable to the provincial government. It has been disappointing, to say the least, that LAO is denying Legal Aid lawyers this fundamental right."
‘Slam dunk’ case
The case, according to Toronto civil rights lawyer Clayton Ruby, should be a "slam dunk," given the Supreme Court’s labour-friendly conclusion that Mounties are constitutionally entitled to organize.
"The RCMP decision was a real breakthrough, saying even employers and employees who don’t have collective bargaining get rights, which are crucial," Ruby said.
"That changes the relationship between employer and employee, in the public service or groups like this. You would expect an honest employer to quickly respond to this new ruling and embrace the relationship... Instead of embracing it, (LAO is) doing their best to do nothing. And the world goes on without them."
LAO responds
While lawyers maintain LAO has been an unwilling bedfellow, the employer said it is open to discussing options candidly.
"LAO has repeatedly offered to meet with representatives of the staff lawyers to discuss developing a collective bargaining process between LAO and an association of its lawyers that would recognize the culture and particular workplace issues at LAO," said Genevieve Oger, spokesperson for the employer.
"Right now, lawyers are excluded from the Labour Relations Act. Should the LAO lawyers wish to pursue an arrangement similar to Crown attorneys and provincial government lawyers, LAO would be happy to discuss this with them and support their efforts."
Oger added that compensation and pension packages have increased for staff and the agency boasts excellent work-life balance policies, such as working-from-home perks and flexible schedules.
Over three years, she noted, pay ranges are rising from $62,000 - $107,000 to $89,000 - $115,000 per year.
Discrimination
Further muddling the matter is that the demographic makeup of Legal Aid Ontario lawyers has prompted some to call the employer’s reluctance to certify discrimination.
"LAO lawyers are also composed of two-thirds women and we believe the most racially diverse group of lawyers in the province," Fisher said.
"Our clients are the most vulnerable members of our society. They deserve high-quality legal services and LAO lawyers deserve representation as well."
Ruby echoed the sentiment, calling LAO lawyers "poor and powerless" in comparison to their Crown and attorney counterparts.
"What’s obvious is that they are the least powerful among all the organizations that would reap the benefits of this (RCMP) ruling," he said.
"You’d think Legal Aid would respond and instead they respond negatively. It’s just humiliating for the rule of law."
2013 vote
Back in 2013, 80 per cent of LAO’s 420 some-odd staff voted in favour of joining the Society of Energy Professionals, but Legal Aid’s CEO Bob Ward rejected the union as the sole bargaining agent in a letter penned to its president.
Since then, both employer and employees have been embroiled in the battle for bargaining rights, which will now be won or lost in court.
