Former Saskatchewan MLA wins old job back

Court orders Legal Aid to reinstate Jack Hillson to job he held before being elected

A former Saskatchewan MLA has won his job back with the province’s Legal Aid Commission. Jack Hillson, a Liberal who was elected to office in 1996 and served in cabinet, sued the commission after it refused to give him his old job back.

Before being elected Hillson was the legal director of the legal aid office in North Battleford. When he was elected in a byelection in 1996, he applied for a leave of absence without pay. He was granted the leave without pay in accordance with s. 80(2) of the province’s Labour Standards Act. That section allows employees elected to public office to seek a leave without pay and then, when no longer in office, continue their employment.

When he lost his seat in the provincial legislature in a general election on Nov. 5, 2003, he immediately told Legal Aid he was ready to return to his old job. But he got a lukewarm reception from his former employer.

On Nov. 18 he met with the CEO of Legal Aid to discuss his return. But the conversation turned away from his return to discussion about the problem with his being away for seven years and how things had changed. As the meeting came to an end, the CEO said: “You know, of course, that I can just pay you out.” Hillson was somewhat taken aback by that statement, but made no response.

Another meeting was arranged for Dec. 10. The solicitor for Legal Aid was present and the CEO began by reading a prepared statement to Hillson that said they were not prepared to take him back and would talk to him about the details of a severance package. Hillson was in shock. No specifics about the package were provided and Hillson immediately retained legal counsel.

There were a variety of reasons why Legal Aid did not want to reinstate Hillson to his former position. One was the fact the North Battleford office was fully staffed, with the most junior position having been recently filled by a female lawyer of Aboriginal ancestry. Legal Aid was having a tough time finding and retaining First Nations lawyers, especially women. Had Hillson returned, that woman would have been forced out.

Legal Aid took the position that, though Hillson had the right to be reinstated, it felt it could meet its obligations by offering a severance package.

But by Jan. 15, 2004, it appears Legal Aid and its counsel had concluded it had no choice but to reinstate Hillson under the provincial legislation. It offered to reinstate him effective Feb. 1, 2004. But there was a catch. At the same time, it gave notice that it was terminating his employment effective Sept. 30, 2004. Hillson was deeply offended by this, something he called a “phony reinstatement.”

In addition, Legal Aid went on to tell Hillson he need not report for work and, in fact, he “was not to attend upon or in the North Battleford office.” Hillson said that made it sound like he was “a stalker, or something.”

Interestingly, on the same day Legal Aid sent him the letter about his reinstatement and eventual dismissal, it received a notice of resignation from one of the staff lawyers in the North Battleford office. A few weeks later, the Aboriginal woman also gave notice of her resignation. Despite this, Legal Aid still refused to reinstate him to his former position.

Hillson started looking for another job, eventually landing a position with a law firm in Saskatoon for $52,000 per year. Had he been returned to his old job with Legal Aid, he would have earned $96,371 per year plus contributions to his pension and other insurance and medical benefits.

The Saskatchewan Court of Queen’s Bench said there was no doubt Legal Aid, at least initially, was in breach of the Labour Standards Act. But the offer to reinstate him wasn’t so clear-cut.

Essentially, Legal Aid was telling him to go find another job but was paying him in the meantime. The court said this was not in spirit with what the legislation intended.

“There is no doubt in my mind that the leave of absence provisions for candidates to political office were enacted to benefit employees, to protect their livelihoods while they carried out the responsibilities of public office,” the court said. “It would not make sense, given the scheme of the legislation, to interpret (the legislation) in a way that would allow an employer to offer a severance allowance in place of reinstatement with no loss of privileges. Few employees, I expect, would be willing to chance loss of their employment and seniority by running for political office if all they could expect upon their return was an opportunity to negotiate a severance package or, failing that, the prospect of having to sue their employer for wrongful dismissal.”

The court ordered Legal Aid to pay Hillson back wages from Jan. 1, 2004, and reinstate him. Hillson told the Saskatoon StarPhoenix that he hadn’t yet decided if he would return to his job with Legal Aid or stay with his new employer.

For more information see:

Hillson v. Saskatchewan Legal Aid Commission, 2006 CarswellSask 182, 2006 SKQB 162 (Sask. Q.B.)

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