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Lawyers head to SCC over unpaid on-call duty

|Written By Michael McKiernan

Government immigration lawyers are headed to the nation’s top court as they continue their long-running fight against mandatory unpaid on-call duty.

Ursula Hendel says a case where federal immigration lawyers in Quebec are fighting a requirement they make themselves available outside business hours has wide-reaching implications.

Since 2010, the Federal Department of Justice has required all immigration lawyers in its Quebec regional office to make themselves available on weeknights and weekends on a rotational basis to process urgent stay applications before the Federal Court. But the lawyers get paid only for time spent working, with no remuneration for the hours on standby.

The Supreme Court of Canada agreed to hear the case last month after the Federal Court of Appeal overturned a Labour Relations Board adjudicator’s finding that the policy violated not only the collective agreement between the government and the Association of Justice Counsel, which represents the lawyers, but also s. 7 of the Charter, which protects the right to liberty. A tentative hearing date is scheduled for April.

According to the AJC, similar policies are in place in other justice department offices around the country, including in Toronto, with the Quebec grievance performing a representative function. But AJC president Ursula Hendel says the case has implications far beyond the association.

“If we lose this case, I think it presents an opportunity for employers to expand their interpretation of management rights very aggressively when it comes to restrictions imposed on employees’ personal activities away from work,” she says. “The decision is not limited to unions; it’s about management rights writ large. If the federal government can do this to us, it’s going to make workers vulnerable anywhere in Canada, whether they’re part of a union or not.”

Lawyers on standby duty must make themselves available by pager or cellphone and be able to get to the office within an hour of receiving a call. According to the Federal Court of Appeal decision, in Quebec, each lawyer ends up on standby duty for two or three weeks out of the year. Weekend calls are rare, according to the decision, occurring only around six times per year. Weeknight work is more frequent, with about 120 stay applications per year requiring attention. Before 2010, on-call slots were filled by volunteer lawyers who received days of leave in return at their employer’s discretion. However, the volunteer pool dried up when the government announced that it would compensate lawyers only for hours worked while on call, and a rota was drawn up to include all lawyers, according to their individual availability and personal situation.

Laura Williams, a labour and employment lawyer who acts for employers, says the Charter protections available to government lawyers adds an extra layer of complexity to the relatively common problem of on-call duty.

“I think we’re on a real slippery slope if the court further expands the scope of liberty under s. 7 to include some of the activities that these employees are saying were restricted by the policy,” says Williams, the principal at Williams HR Law in Markham, Ont.

With the collective agreement silent on the issue of on-call duty, the AJC filed a grievance in the Quebec case within weeks of the new policy coming into force in March 2010. However, it wasn’t until April 2015 that Stephan Bertrand, an adjudicator with the Public Service Labour Relations and Employment Board, delivered his ruling in the group’s favour.

The government directive was “neither reasonable nor fair,” according to Bertrand, who found that it breached s. 7 of the Charter: However, in its March 23 decision in Canada (Attorney General) v. Association of Justice Counsel, a three-judge panel of the Federal Court of Appeal granted the Attorney General of Canada’s application for judicial review of Bertrand’s decision, finding that it was unreasonable for him to conclude a breach of the collective agreement had occurred.

“We feel the court of appeal’s definition of the right to liberty was too narrow,” says Bernard Philion, the lawyer with Montreal firm Philion Leblanc Beaudry who represented the AJC on the appeal, who’s hopeful the Supreme Court will see things differently in the spring.

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