Legal aid lawyers file Charter challenge against LAO

As it faces a constitutional challenge filed by staff lawyers who have been seeking to unionize, Legal Aid Ontario says it respects their right to associate and is willing to consider associations other than the union the employees want to join.

“LAO has always supported employees’ constitutional right of association,” says LAO spokeswoman Genevieve Oger, noting the agency is willing to consider associations like the Association of Law Officers of the Crown and the Ontario Crown Attorneys’ Association.

Staff, however, say they’re taking their bid to unionize under the Society of Energy Professionals IFPTE Local 160 to court. “After two years of requests to our employer, LAO, and to the government for help, we have been forced to pursue our rights by filing the application to remedy this injustice,” says Dana Fisher, a spokeswoman for the staff lawyers involved in the unionization bid.

The challenge, filed in the Ontario Superior Court on Thursday, centres on the right to freedom of association under s. 2(d) of the Charter of Rights and Freedoms. “Rights enshrined in the Charter are for everyone, even lawyers,” says Fisher.

The application is seeking a declaration to recognize the Society of Energy Professionals IFPTE Local 160 as the bargaining agent for the staff lawyers as well as damages for the costs of the ongoing campaign since May 2013. It notes that while the definition of employee in the Labour Relations Act excludes practising lawyers, employers can voluntarily recognize a bargaining unit. The application also points out that the Ontario government has recognized bargaining agents for Crown attorneys and lawyers working in other government ministries.

A recent Supreme Court ruling that dealt with collective-bargaining rights, Mounted Police Association of Ontario v. Canada (Attorney General), has emboldened the LAO lawyers’ bid to unionize. “It was our hope that LAO’s leadership would rethink its position following the recent Supreme Court ruling and reach an agreement with us,” says Scott Travers, president of the Society of Energy Professionals.

“We hope the government will recognize the merits of the Supreme Court ruling and intervene, avoiding the unnecessary burden upon taxpayers of a protracted legal battle,” he added.

According to the application, more than 80 per cent of staff lawyers had signed a petition by early 2013 indicating they wished to join the union. In response, LAO chief executive officer Bob Ward wrote a letter in October 2013 indicating he had rejected the bid to join the union. In the letter, he raised concerns about the fact the Society of Energy Professionals was a trade union.

The court application sheds some light on the reasons for seeking to join that union. After the lawyers began to consider the need to unionize in 2011 in light of concerns over issues such as LAO’s lawyer workforce strategy that provided for mandatory practice rotations and relocations, they decided they needed an “experienced and well-resourced association/union to mount an effective campaign,” according to the application. Associations representing Crown attorneys and lawyers at other government ministries were “unwilling to commit the necessary resources” for a campaign, the application noted. “The group selected the Society because of its experience in representing professionals, its experience working with governmental agencies in Ontario, and its experiences and resources,” the application reads.

The application notes the lawyers have received support from notable members of the legal profession such as Julian Falconer, Clayton Ruby, and Lorne Waldman. “Legal Aid Ontario’s steadfast refusal has left us with no alternative but to take them to court,” says Travers.

Oger, meanwhile, says LAO is aware of the court application and will be responding. As to some of the concerns about working conditions, she says LAO provides “excellent work-life balance for staff lawyers.”

“Depending on the position, alternative work arrangements are possible — including reduced hours, flex hours, and work-from-home policies,” she says.

“LAO has increased compensation for staff lawyers and pension packages,” she adds, noting pay ranges over three years are rising from $62,000 to $107,000 to $89,000 to $115,000 a year.

For more, see "LAO staff lawyers' union bid rejected," "LAO staff lawyers want recognition and respect," and "LAO lawyers see promise in RCMP ruling."

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