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‘Perfect storm’ brewing in Crowns’ court battle against feds

|Written By Tim Naumetz

OTTAWA - A “perfect storm” is brewing in an Ontario Superior Court case the association representing 2,700 federal lawyers has launched against the federal government, says a prominent Ottawa labour litigator.

A memo warning about clawbacks of overtime pay was an attempt to create a ‘chilling effect,’ says Marco Mendicino.

As the province was about to make headlines over its bid for a wage freeze for its own public servants last month, the Association of Justice Counsel filed an application with the court claiming the federal government’s Expenditure Review Act violates the lawyers’ constitutional rights to free collective bargaining, in part because it effectively singled out lawyers with the Justice Department and Public Prosecution Service of Canada for extraordinary retroactive limits on pay increases compared to other employees.

“What you have, I believe, is a perfect storm that has materialized,” Ottawa labour lawyer Barbara Nicholls, with Perley-Robertson Hill & McDougall LLP, tells Law Times.

“The [act’s] implementation overlaps the association in terms of its collective-agreement negotiations for a first contract,” she adds, noting the Supreme Court of Canada reinforced collective-bargaining rights under s. 2(d) of the Charter of Rights and Freedoms in the landmark Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia decision in 2007.

“You have the most aggressive form of government interference, wage control, occurring at a union’s most vulnerable time, the first collective agreement,” Nicholls says.

The case comes as deficit-plagued governments, including here in Ontario, attempt to get their fiscal houses in order by seeking wage restraint for public-sector workers.

In the notice of application filed with the Superior Court of Justice, the federal lawyers’ association, represented by Andrew Lokan of Paliare Roland Rosenberg Rothstein LLP, says the act “substantially interferes with the right of the applicant and its members to bargain collectively” because its retroactive provisions prevented them from negotiating freely to establish an appropriate baseline for salaries before the imposition of restraints established under the legislation in 2009.

Among other things, an affidavit from association president Marco Mendicino points out the government was specific in making the act retroactive to May 10, 2006, for groups that didn’t have a collective agreement or arbitrated award in place when it introduced the legislation in 2008.

Mendicino’s affidavit notes the 2006 date was the very day the association served notice to bargain on behalf of the lawyers, referred to as the law group by the Justice Department, and that the retroactive caps on annual salary hikes precluded any increase above the limits set out in the act either through negotiations or the arbitral award that eventually resulted after the parties failed to reach an agreement.

“The effect of the [act] is that the applicant and its members could not bargain collectively over salary, nor could salary be set by the arbitration board and an appropriate level that replicated the results of collective bargaining,” the application states. “Employees represented by the applicant are the only group of employees subject to these retroactive restraint measures back to the 2006-2007 fiscal year.”

Mendicino’s affidavit also points out that in 2006, when the association first attempted to begin collective bargaining, the federal government posted a substantial surplus of $13.8 billion. By 2008, with the deepest recession since the Great Depression taking hold, the act capped annual salary increases at 2.5 per cent from 2006 to 2008 and 1.5 per cent from 2008 to 2011.

In the meantime, the association says, the Treasury Board of Canada Secretariat failed to put forth a salary offer or disclose employment information and history essential for collective bargaining for four years and finally asked for arbitration just before the government introduced its restraint package in November 2008.

Mendicino tells Law Times that a memo the government issued last month to Justice Department and prosecution service lawyers, in which it warns them that it could claw back the overtime pay and benefits the Crowns won from last year’s arbitral award if it wins a separate court challenge it launched in the Federal Court, is an attempt to intimidate association members over their action in the Superior Court.

“The point and the timing of the announcement is transparent,” Mendicino says. “It wasn’t to provide information. It was to discourage people from applying for compensation under the arbitral award. It was to create a chilling effect.”

But a spokesman for Treasury Board says otherwise. “As has been done in similar cases, the government sent a letter to members covered by the award to inform them of the potential implications of the court’s decision should it rule that the award should not have been given,” says Pierre-Alain Bujold.

“It was not sent in response to the [association’s] application.”

The government filed its Federal Court application for a review of the arbitral award last December.

For more on this story, see "Feds battle lawyers over robes."

  • It\'s about time

    Michael McKee
    A long time coming and still a long way to go. Yes, federal crown lawyers deserve parity with their provincial colleagues. The feds are not paid enough and the provincials may be paid too . . . lets not go there!

    If fact, as a private criminal defense counsel, the federal prosecutors I know and their provincial counterparts all work hard and often for long hours. In fact, I often receive calls and emails from crowns, long after I have left the office.

    I applaud the attempt to see better remuneration for federal prosecutors. I would also think that other gov't lawyers like the ones working for legal aid be properly funded. The priorities are not there. Not for prosecutors, not for defendants, and not for the courts. Did you know that there is not a single full time Registrar of the Superior Court left in the entire Province of Ontario? Not for more than a decade. Our governments are and have been in the business of providing "mc-jobs" for decades by following a neo-conservative 'for-profit' management style and applying it to the public service. Yes, the federal prosecutors need parity, or at least a decent raise, how about legal aid, which has not received a meaningful raise since the seventies.
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