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November 14, 2011

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Billions of dollars invested, not a penny lost. ntitled-2 1 $4.00 • Vol. 22, No. 36 7/7/11 9:10:05 AM Covering Ontario's Legal Scene ntitled-3 1 Crowns win salary ruling A BY KENDYL SEBESTA Law Times s the federal government continues its aggressive approach to labour unions, it found itself losing a bat- tle in its own backyard in a court decision that found salary caps for federal Crowns to be unconstitutional. At the heart of the matter are wage caps on federal lawyers and prosecutors from 2006 and beyond that the government im- posed through the Expenditure Restraint Act (ERA). Th e Association of Justice Counsel that represents federal Crowns and has been seeking a fi rst contract for its members argues the caps are unconsti- tutional and violate collective bargaining rights under s. 2(d) of the Charter of Rights and Freedoms. Ontario Superior Court Justice Dun- can Grace agreed with the association this month. "Th e statute substantially limits, both in purpose and eff ect, the freedom of association guaranteed by the Charter. In so doing, the ERA infringes section 2(d)." In his ruling, Grace rejected government justifi cations for the wage restraint related to the recent recession and fi nancial crisis. "I am prepared to accept that a temporary suspension of collective bargaining to fa- cilitate a multi-faceted economic response to a crisis aff ecting the fi nancial well-being of the public was once again warranted. . . . I am of the view the ERA goes too far by in- cluding the 2006-2007 fi scal year," he wrote. 'For about the last 20 years, federal lawyers and prosecutors have seen zero growth,' says Marco Mendicino. "Deference and restraint do not mean ab- stinence," he added. "Courts must be vigilant to ensure that troubled times are not used, even if innocently, to discard constitutionally protected rights and freedoms." November 14, 2011 5/4/10 2:49:21 PM Wage caps for federal lawyers unconstitutional, court rules Th e ruling has left federal Crowns "ex- tensively pleased," according to association president Marco Mendicino. He notes the association has since made a request for ar- bitration in order to continue bargaining for wage increases with the Treasury Board. "We think the ruling affi rms that the ERA interfered signifi cantly with our abil- ity to reach a fi rst-ever collective agree- ment," says Mendicino. "As an association that represents federal lawyers and prosecu- tors . . . when we sit at the table for the fi rst time, we feel we have a right to expect that the employer will sit at the same table. But the ERA has basically rendered our ability to collectively bargain under these terms useless." Th e ruling continues the association's long-standing battle for better wages for federal Crowns. "For about the last 20 years, federal lawyers and prosecutors have seen zero growth," says Mendicino. "But our comparatives have continued to make good gains. Th is led us to address how far we'd fallen behind with the Treasury Board, but we couldn't get an off er from them for the better part of two years. And then in 2008, the whole issue was made moot. We had no choice but to advance our constitu- tional challenge at that point." In December 2008, the Treasury Board approved changes that eliminated and reduced several parts of a compensation package submitted to a number of bargain- ing agents, including the association, a few See Gov't, page 5 Neinstein faces new hearing as case ends BY KENDYL SEBESTA Law Times T oronto litigator Gary Neinstein is "grateful" after the Law Society of Upper Canada quietly withdrew long-standing sexual harassment allegations against him even as he faces a new set of unrelated disci- plinary proceedings. "It's been a long, historical road, and he's grateful that the matter has ended without any blemishes on his reputation," says Brian Greenspan, who represents Neinstein. Greenspan notes his client was glad to see the sexual harassment allegations come to an end after a decade fi lled with unwanted "negative attention." He adds that his client has "never not practised" law since the matter fi rst arose. "Th is has really impacted his life and reputation in a negative way, but he is glad his reputation is now fully restored." Th e law society issued the de- cision on Oct. 18 after LSUC counsel requested that the sexual harassment allegations be with- drawn. Th e move follows a criti- cal review last year of an LSUC hearing panel's decision in the case by the Ontario Court of Appeal. Th e panel originally heard Nein- stein's case in 2004 and ordered his subsequent disbarment. But the Court of Appeal told the LSUC to convene a new hearing panel to hear the matter last year. Why the law society has since decided to drop the matter is unclear as the regulator won't provide details. "Th e notice of ap- plication regarding Mr. Neinstein has been withdrawn and the law society is not pursuing that par- ticular matter further," says LSUC spokesman Susan Tonkin. Asked to explain why, she says she has no further information to disclose. Th e LSUC hearing panel origi- nally disbarred Neinstein in 2004 for the alleged sexual harassment of C.T., a client, and S.G., a secre- tary in his law offi ce. L.D., a family friend and cli- ent, also alleged Neinstein sexually harassed her in January 1998, but the panel rejected her claims. "Th is was a classic 'he said-she said' case," Ontario Court of Ap- peal Justice David Doherty wrote See Case, page 5 Get more online Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds • Visit Us Online 1-8-5X.indd 1 2/28/11 2:37:34 PM Fresh Canadian legal news and analysis every day Inside This Issue 4 IBA Censored? 6 Law Matures 9 Focus On Labour and Employment Law Quote of the week "Employees who are off work because of a bona fi de disabil- ity and are not paid disability benefi ts during the period of reasonable notice may be able to claim the value of the lost disability benefi t from the employer." — Deborah Howden, Shibley Righton LLP, See Cases, Page 13 Gary Neinstein 'has a long and admirable reputation and has served his clients admirably,' says his lawyer Brian Greenspan. Agreement No. 40762529

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