Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 11, 2019 7 www.lawtimesnews.com COMMENT BY JENNIFER LEITCH LAST year, and just in time, the federal government stepped in to bridge the funding gap of the three Law Help Centres in Toronto and Ottawa. This re- sulted from Ontario Premier Doug Ford's provincial govern- ment refusing to do so. While the federal government's move should not be minimized, there is a longer-term question of what continued funding for Law Help Centres will look like after 2019. The possibility of losing the services provided by Law Help Centres stirred many lawyers and judges to speak in defence of the centres; none of their clients can afford lawyers or qualify for help from Legal Aid. With the threat of closure looming, the contribu- tions made by the Law Help Cen- tres to improving access to justice and promoting the administra- tion of justice were lauded by law- yer and judge alike. Lawyers spoke up on behalf of the centres, made public their plight and donated to the funding goal. Judges also sounded the alarm and extolled the benefits associated with as- sisting individuals who are com- pelled to represent themselves in the civil justice system with little or no meaningful assistance. In the provincial legislature, politi- cians challenged Attorney Gen- eral Caroline Mulroney when she refused to address the issue on behalf of the current government. Despite the chorus of voices speaking out, there was one im- portant voice missing — the Law Society of Ontario. The LSO remained silent presumably be- cause it maintained that it is a "regulator" rather than a "source of funding." However, this is problematic particularly when we think about the fact that most self-represented litigants rep- resent themselves because they cannot afford lawyers. Many Ontarians have been priced out of the legal services market by the profession and, as a conse- quence, must go it alone. This is further complicated by the fact that self-represented liti- gants are often up against parties that have legal representation, thereby making for a very unfair fight. While I am not making the claim that the setting of legal fees should be completely regulated or capped, I am suggesting that the profession take its share of responsibility and be part of the solution. As the regulator of law- yers in Ontario, the Law Society of Ontario is in a unique position to compel the profession to act in concrete ways. Under s. 4 of the Law Society Act, the LSO must be guided by certain overarching principles. Among these principles are the LSO's twin responsibilities for advancing the cause of justice and the rule of law and promoting the public interest. In this case, there is a strong argument that the public interest includes pro- viding Ontarians with affordable access to accurate legal advice and information that will assist them in managing and resolving their legal disputes. Whether this be through the competent legal ser- vices of paid lawyers or the pro- vision of pro bono advice at the Law Help Centres should not be the distinction. Even more funda- mentally, s. 4.2 of the LSA requires that the LSO facilitate access to justice for the people of Ontario. In return for a commitment to these various objectives, the LSO retains sole responsibility for the regulation of the profession. There could be no more direct correlation between the duties and responsibilities of the LSO and, by extension, the profession and the need to continue fund- ing Law Help Centres as a means of promoting access to justice for Ontarians. While there continues to be important discourse within the LSO and with the public re- garding its commitment to im- proving access to justice, it is time, as former Supreme Court Justice Ian Binnie recently suggested, for the LSO (and the profession) to "put its money where its mouth is" and support access to justice in a meaningful way. As a means of doing so, Bin- nie suggested the LSO take steps to introduce a levy on individual lawyers' dues that would contrib- ute to the funding of Pro Bono Ontario and the Law Help pro- grams run by PBO. Such a levy could be as low as $10 a year per lawyer — a small price to pay for improving access to justice for more than 18,000 self-represented Ontarians a year. Such a contri- bution would be consistent with individual lawyers' pro bono responsibilities. This designated use of lawyer's levies is already be- ing used in other jurisdictions in Canada. In Alberta, the law soci- ety levies a "tax" of $43 per lawyer toward pro bono programs in the province. In Saskatchewan, each lawyer registered with the provin- cial regulatory body contributes $15 toward pro bono initiatives in that province. In British Colum- bia, the law society contributes approximately $28 annually per lawyer to pro bono programs. If the LSO is worried about this very modest amount being added to its annual lawyer fees, it could easily repay its members by giving them CPD credit for a portion of the pro bono work they do through- out the year. In any event, this seems both an easy and sensible course of action. As we approach another round of bencher elections within the LSO, it is critical that this issue be resolved. A number of bencher candidates are prioritizing access to justice as part of their cam- paigns. The profession needs to stay engaged and elect regulators who understand this imperative and are prepared to take steps to address it. Ultimately, the di- recting minds of the LSO must catch up to the initiatives being implemented in other Canadian jurisdictions. Steps to provide for legal information and advice for all Ontarians consistent with meaningful access to justice must be taken and the LSO should be front and centre in that effort. LT Jennifer Leitch is a lawyer and re- search fellow at the Canadian Forum on Civil Justice, as well as an adjunct professor at Osgoode Hall Law School and the University of Toronto Faculty of Law. Previously, she practised civil litigation at Goodmans LLP. BY FATHIMA CADER I n 2017, women in Canada earned an av- erage of 87 cents for every dollar earned by men, Statistics Canada has reported. By then, Canada's wage gap already at- tracted the attention of the United Na- tions, whose Human Rights Committee reported its concerns with "the high level of the pay gap" in 2015. The committee formally recommended that Canada "strengthen its efforts to guar- antee that men and women receive equal pay for work of equal value across its terri- tory, with a special focus on minority and indigenous women." Indeed, Statistics Canada has found that Indigenous women earn 36 per cent less than non-Indigenous men and 18 per cent less than Indigenous men. Similarly, racialized women earn 34 per cent less than white men and 19 per cent less than racialized men. Disaggregated data indicates the wage gap contains even deeper disparities based on age, disability and full-time versus part-time work. The committee also noted that "legisla- tion relating to equal pay differs at the fed- eral, provincial and territorial levels and for the public and private sectors, and does not exist in some provinces." The com- mittee further recommended that all of Canada's provinces and territories adopt a legislative framework on equal pay, cover- ing the public and private sectors. Though not without its own f laws, On- tario's presently stalled Pay Transparency Act, 2018, SO 2018 was intended to alleviate some of these inequalities. The act would have operated in concern with other legisla- tion, such as Ontario's Pay Equity Act, RSO 1990, c P.7 and the federal Employment Equity Act, SC 1995, c 44. However, the act increasingly finds itself in limbo. The act is not in force, though it was first introduced by then-Premier Kathleen Wynne last year. As drafted, the act would impose four key duties on large employ- ers. Last week, Conservative Minister of Labour Laurie Scott announced the government was asking employers for feedback on those obligations. Section 5 of the act would prohibit employers from asking job applicants about their pre- vious compensation (though applicants are allowed to "vol- untarily and without prompting" disclose this information). Section 6 requires em- ployers to include anticipated salary rate or range in all "publicly advertised job postings." The Conservatives' newly announced consultation appears to largely target s. 7, which requires prescribed employers and employers with 100 or more employees to publicly post an annual "pay transparency report" setting out their "workforce com- position" and compensation gaps with respect to "gender and other prescribed characteristics." Section 8 prohibits employers from penalizing employees who inquire about their compensation, disclose their com- pensation to a co-worker or inquire about the employer's pay transparency report, among other protected actions. The act is not without precedent. Re- gardless of employer size, unionized em- ployees already enjoy some of the act's titular transparency, since collective agreements typically include detailed and extensive wage grids. There is also the famous "sunshine list," wherein the Public Sector Sal- ary Disclosure Act, 1996, SO 1996, c 1, Sch A requires provin- cially funded organizations to every year publicly disclose the names, positions, salaries and total taxable benefits of employ- ees paid $100,000 or more. But the act goes further in requiring large employers to break wages grids down by (at least) gender. Even still, the collection of iden- tity-based data will not be new to most employers. The Law Society of Ontario itself asks li- censees how they identify with respect to race, gender and indigeneity. A through-line in the Conservative party's labour law announcements has been a concern for employers. For exam- ple, the provincial minimum wage rose to $14 from $11.85 on Jan. 1, 2018, and it was supposed to rise to $15 on Jan. 1, 2019. (Note that this is not a living wage. In 2015, TVO calculated a living wage in major Ontario cities as high as $18.52.) Last fall, Premier Doug Ford froze minimum wag- es at $14, reportedly to protect employers from being unable to hire workers. Contrary to fears of minimum wage-re- lated job losses, the Financial Accountabil- ity Office of Ontario reported last month that 2018 was marked by "robust gains in full-time employment and a continued decline in the annual unemployment rate." Importantly, the office also noted that the gender pay gap improved by two cents in 2018, "primarily due to a steep increase in the wages of part-time female workers." The act is not perfect. It would apply only to workers defined as employees un- der the Employment Standards Act, 2000, SO 2000, c 41, leaving out independent contractors. As well, Ontario's Equal Pay Coalition has called for the act to apply to workplaces with more than 10 employees, on the basis that 98 per cent of Ontario employers have less than 50 employees. At base, the act's intent should be un- controversial. It proposes cross-referenc- ing data that is otherwise siloed — income and gender. It is one small step toward evidence-based labour policy. The government's consultation seeks to ask employers how much time and money it would take them meet the act's reporting requirements. "The measure of our laws on closing the gender pay gap is not whether big business finds it onerous to implement them," said Ontario Federation of Labour secretary-treasurer Patty Coates. "Leaving wage inequities in place makes women the economy's ordained shock absorbers," noted Supreme Court Justice Rosalie Abella for the majority in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] 1 SCR 464, 2018 SCC 17 (CanLII). In that case, the court made short shrift of Que- bec's argument that it had "advanced the goal of ensuring employer compliance" by amending that province's pay equity laws. We are well beyond the question of proving there is a wage gap in Ontario. At this point, the numbers are trite and em- barrassing. The question remains what we intend to do about it. Employers who pay their employees fairly and without discrimination have nothing to fear. LT Fathima Cader practises public interest, hu- man rights, employment and labour law in To- ronto. She can be reached at cader@caderlaw.ca. Speaker's Corner Planning for long-term funding of PBO Law Rebooted Fathima Cader Embarrassing wage gap persists

• Cover