|The association was able to persuade the court to suspend the practice of preventing clerks’ call to the bar while the case was pending, says Steven Barrett. Photo: Robin Kuniski|
“If the employer decides to hire clerks eligible to be called to the bar, it cannot unilaterally impose a contractual term upon them that prevents them from being called,” said Kaplan in the decision dated Sept. 4.
“The imposition of a prohibition that the individuals not be called to the bar is of real significance and great weight and cannot be imposed unilaterally in a collective bargaining regime whether or not individuals agree.”
The grievance filed in August 2011 proceeded to a hearing a year later. It contested a pre-employment condition imposed on Superior Court clerks preventing their call to the bar before or during their tenure with the court.
Since 2010, about five people have been working under that condition per year, says Steven Barrett, managing partner at Sack Goldblatt Mitchell LLP who acted for the association.
But, he adds, the association was able to persuade the court to suspend that practice while waiting for the arbitrator to deal with the issue. As a result, few people had to delay their call to the bar.
“The arbitrator applied pretty long and established principles,” says Barrett.
The decision in Management Board of Cabinet v. Association of Law Officers of the Crown suggested that money was at the core of the dispute. By employing clerks not yet called to the bar, the government was able to pay a lower wage.
The employer’s clerkship program recruitment policy for third-year applicants “strongly suggests that the prohibition on the call to the bar is driven by a desire to avoid paying” the rate for Crown counsel, Kaplan noted.
“It is completely within the employer’s power to ensure that it hires no clerks who are eligible for call to the bar by only hiring clerks who have not yet articled and by organizing their employment term so as to ensure that it begins and ends before any scheduled call to the bar,” Kaplan wrote.
“But if the employer decides to hire clerks eligible to be called to the bar, it cannot unilaterally impose a contractual term upon them that prevents them from being called.
“Fundamental terms and conditions of employment must be negotiated with the bargaining agent. The parties can, if they wish, therefore, negotiate specific
compensation for clerks who have been called to the bar.
But failing that, the default compensation is as provided for in the ALOC collective agreement because any significant unilaterally imposed pre-employment term or condition, as the Supreme Court has made very clear, is prohibited.”
The government says it’s examining the decision.
“We value the work of clerks in our courts, the majority of whom use this opportunity towards their articles to be called to the bar,” says Ministry of Government Services spokesman Mark Thompson.
Barrett says the Ontario Court of Appeal hires a similar number of clerks but notes it doesn’t apply those restrictions. He isn’t familiar with any other jurisdiction that does.
Omar Ha-Redeye, co-chairman of the Ontario Bar Association’s young lawyers division, says the situation for clerks whose terms of employment prevented their call to the bar would have had further consequences.
He refers to the notion of chronocracy in the legal profession under which time is a valuable element “because there’s so much emphasis on your year of call.”
“This is something that has serious repercussions,” he notes.
The one-year delay has an impact on job prospects, according to Ha-Redeye, because the profession can view it as the equivalent of holding someone back a year in school.
He adds the delay could have an impact on the individual’s practice since the court awards costs on a sliding scale depending upon the lawyer’s years of experience.
“There’s a lot of things that are hinging on that year of call,” says Ha-Redeye.
Now, however, things have changed for the clerks.
“Any eligible individual may, if they wish, be called to the bar,” wrote Kaplan. “And if they are, they must be paid in accordance with the ALOC collective agreement unless and until the parties negotiate otherwise.”
For more, see "Let clerks be called to the bar."