Law Times

Page 6 OctOber 7, 2013 • Law times COMMENT u Editorial obitEr By Glenn Kauth Costs awards should value pro bono work I f someone spends years litigating to overturn a regulation only to see the case rendered moot at the last minute when the government changes its policy on its own, should the applicant get costs? That was a key question in the Sept. 27 Ontario Superior Court ruling in Josef v. Ontario Minister of Health. The case related to Michelle Josef 's challenge to the province's 1998 decision terminating OHIP funding for sex-reassignment surgery. She began the action in 1999 but held it in abeyance following the Liberal government's ascension to power 10 years ago to see if it might change the policy. It didn't do so, so she relaunched the case in 2006 as the costs built up. Then in 2008, just after the government's deadline to file its factum, it repealed the regulation. Josef, in essence, had achieved much, but not all, of what she had set out to do. The question last month, then, was whether the government should have to cover $261,000 in substantial indemnity costs. According to Superior Court Justice David Corbett's ruling on the issue, Cynthia Petersen and her colleagues at Sack Goldblatt Mitchell LLP had done the work on a pro bono basis. But the government argued Josef hadn't prevailed in the litigation simply because it had changed its policy. It's an interesting issue. On the one hand, the government is technically right. But on the other side, Corbett found it's not necessary to have a judicial decision in a proceeding or step in order for the court to award costs. There were several elements that weighed in Josef 's favour. For example, Corbett noted Josef had been unable to afford the $22,000 cost of the sex reassignment surgery let alone the legal bills stemming from the litigation. In addition, he considered the issue of access to justice in such cases and the need to encourage lawyers to provide pro bono services. "Courts are swift to extol the virtues of making legal services available, and the duty and valour of working on a pro bono basis," wrote Corbett. "These sentiments are pious and empty if costs awards devalue pro bono work." Those are wise words indeed. Josef will get costs of $200,000, which was the correct result. And while the legal profession will always struggle with the pressure to provide pro bono services, Corbett has at least made a strong statement that the court will do what it can to support them. — Glenn Kauth LAO staff lawyers want recognition and respect L egal Aid Ontario staff lawyers have started to tackle the tough job of organizing themselves to address the right to bargain collectively. In an open letter to LAO chief executive officer Bob Ward published in August, the legal aid lawyers campaign committee asked for a meeting to discuss collective bargaining. They say they're the only remaining provincial public sector lawyers without the right to bargain collectively. The lawyers include full-time duty counsel in the criminal and family courts, research facility lawyers, staff lawyers at the refugee law offices, and others. There are about 230 of these staff lawyers across the province, including almost 100 duty counsel in Toronto. More than 80 per cent of Ontario's staff lawyers have signed up for the right to bargain collectively and have agreed to join the Society of Energy Professionals Local 160, a North American organization that represents the labour interests of judges, planners, and managers and is some 80,000 people strong. In interviews with individual duty counsel, they say they're busy and under stress from having to do matters outside their mandate when time is in such short supply. The court might ask them to check a dozen courtrooms for a missing private Law Times the resources of the Crown lawyer or draft minutes of settlement for someone who A Criminal attorney's office or is experienced family law counsel, doesn't qualify for legal aid at Mind staff lawyers fear they'll face all. Family law duty counsel even greater difficulties in may work from 8:30 a.m. until representing Ontario's most 7 p.m. with no break for lunch. disadvantaged groups, espeMost duty counsel have nocially if they have to move to a where to meet privately with different area of practice. their clients. At the College While the staff lawyers I Park courthouse in Toronto, spoke to stressed that income I've heard, 15 lawyers and three paralegals share one office. The Rosalind Conway isn't presently their issue and that securing recognition as a lawyers interviewed expressed bargaining unit is what they're concerns that they might not be able to uphold their ethical and profes- seeking, I expect salary would become a sticking point and they'd seek parity with sional obligations under such conditions. One of their gravest fears is LAO's Crown attorneys. I've heard the staff lawlawyer workforce strategy. Although yers' starting salary from 2009-13 has rethe program is temporarily on hold, it mained at $60,601 and that the maximum would, if implemented, mean staff duty pay continues to be $107,464. Factoring in counsel would have to rotate every two inflation, they say the amount reflects a deyears and leave Toronto, for example, for crease of 10 per cent in real income. What's the fallout of this labour unThunder Bay, Ont. They would wait to see if they could come back and might rest? The staff lawyers say they're not have to relocate their families. And their planning any job action, but there are area of practice would switch between retention issues. Some staff lawyers family and criminal matters. Personal have left while others have one foot out circumstances and professional interests the door. New hires are viewing their jobs as a two-year stint. The open letter wouldn't be a factor. Another concern they raise is lack of to Ward was their effort to commence training. When opposing counsel has a campaign, starting with the legal Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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The next steps include reaching out to the media and holding a press conference. I spoke with their counsel, Steven Barrett of Sack Goldblatt Mitchell LLP. He notes his clients are mostly women who are racially diverse and that they're the only group of lawyers the province hasn't agreed to bargain collectively with. The situation, he says, violates their right under the Charter of Rights and Freedoms to freedom of association even as judges, Crowns, the police, and civil lawyers have some form of bargaining rights. However, as Barrett concedes, there's no statutory right for legal professionals to unionize. Part of what the staff legal aid lawyers want is recognition and respect. There's no doubt not having proper offices is a large part of that. And they fear the prospect of leaving an area where they've developed some expertise only to move to an entirely different field of practice. When the open letter came out, the lawyers had been waiting for three months to hear from Ward. They're still waiting but probably much less patiently. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com

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