Law Times

Law Times • January 26, 2015 Page 5 www.lawtimesnews.com not be meaningful if it denies employees the power to pursue their goals. Whatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining." Fisher says her team is feel- ing emboldened by the top court's ruling and hopes it will convince LAO to reconsider its decision not to give the lawyers voluntary recognition to bar- gain collectively. "We're hoping legal aid will see this decision and really kind of take the right steps and recog- nize our rights to have collective bargaining," she says. For its part, LAO believes the Supreme Court's ruling suggests another interpretation. "The Su- preme Court of Canada's recent decisions involving the Royal Canadian Mounted Police (RCMP) are in line with what Legal Aid Ontario (LAO) has always understood to be the law on this issue," said LAO spokes- woman Genevieve Oger in a statement. "The freedom of association provides a right to a collective bargaining process, but does not guarantee a particular collective bargaining model or outcome. LAO has offered to meet with staff lawyers to discuss developing a collective bargaining process between LAO and an association of its lawyers, which recognizes the culture and particular workplace issues at LAO. This offer has been declined, with the result that LAO has continued on its own to address issues in the workplace of concern to its lawyers." Labour and employment lawyer Danny Kastner says there's merit to LAO staff law- yers' reaction. "This is another decision from the Supreme Court giving force to freedom of association and the right to collectively bargain," says Kast- ner, an associate at Turnpenney Milne LLP in Toronto. "It's the most definitive one yet and there are lots of reasons why a parallel could be drawn between the police and the lawyers. The one caution I suppose is the Supreme Court is explicit in that decision that there are different considerations in different industries. What we can't do is apply a cookie-cutter approach from one industry to another. That said, the general principles the Supreme Court endorses in that decision one would think apply to legal aid lawyers." In October 2013, LAO chief executive officer Bob Ward told lawyers the organization doesn't have a legal obligation to volun- tarily recognize a trade union to represent employees excluded from the Labour Relations Act. The Supreme Court's deci- sion may leave Ward without the option of saying no to em- ployees who want collective- bargaining rights, according to Kastner. "The big take-away from this decision is well, that's not [Ward's] choice as the em- ployer," he says. "It's up to the employees whether they want to have a collective voice or whether they want to deal with their employer individually. That's a principle that's likely to be applied to any industry." Scott Travers, president of the Society of Energy Profession- als IFPTE Local 160, the union LAO staff lawyers are seeking to join, says he's hoping their em- ployer will "do the right thing" after looking at the ruling. "We hope the government will, having seen the Supreme Court ruling, do the right thing and direct legal aid to recognize the chosen representative for the employees," he says. "We hope it doesn't have to go through a legislative process." He adds: "Our assumption is that legal aid will see the ruling and do the right thing now." Travers says the union has been working to raise the issue through the government and notes it had also been waiting to see the top court's ruling in the RCMP case. "Now that we got the decision, we're going to be working to make sure the de- cision-makers are aware of the implications." Kastner says there isn't a "serious debate" about wheth- er the recent ruling will have implications for the LAO staff lawyers' campaign to form an association. The real question now, he says, is what kinds of freedoms it would mean for them. "It's beyond serious de- bate that LAO lawyers have the freedom to associate and collec- tively bargain," he says. "What remains to be worked out is the precise content of that freedom." According to Kastner, the Supreme Court's ruling is clear that it's not enough that the RCMP officers are able to bar- gain collectively. The employer has to deal with them in "good faith" when it looks at their pro- posals, he says. "If the federal government can just turn around and reject those proposals, it completely undermines the collective-bar- gaining rights that they have," he says. "So the cases going forward now, including for the legal aid lawyers, aren't going to be so focused on the right to col- lectively bargain because it's pretty clear they have that right. It's going to be then, on top of that, what kind of a collective- bargaining legislation are they entitled to." Justice Marshall Rothstein, the sole dissenting judge, said the courts aren't the best place to decide which specific labour relations scheme is most appro- priate for a particular group of employees. "In my view, requiring RCMP members to be included in the [Public Service Labour Relations Act] or equivalent scheme is 'to enter the complex and political field of socio-economic rights and unjustifiably encroach upon the prerogative of Parliament,'" he wrote, citing Delisle v. Canada (Deputy Attorney General). LT technology in place," he adds. "The whole world understands that you can't maintain a paper file anymore." Lawyers simply became political scapegoats for cases thrown out of the court system, according to Ferro. "Instead of fixing the problem with technol- ogy, more judges, and better system design, they lashed out and said, 'Oh well, we're going to have a system called Justice on Target and we're going to measure the length of time it takes from start to fin- ish and, by the way, if you don't fall in line with what we think is the proper timeline, we're going to throw out your case,'" he says. The rule failed to create efficiencies, adds Ferro, who notes it in fact did the opposite. When the court threw out a case after two years for delay, it was un- likely a lawyer would accept the dismissal without a fight, he suggests, noting followup motions seeking to set aside administrative dismissals only added to court time. "You can't just admit that your case is thrown out because you'll get sued," he says. "You have to go back and get it reinstated. So instead of shortening the process, [the two-year restriction] has increased the process and the cost of the process." But the problem remains, according to Ferro. "As it turned out, in hindsight, none of it worked," he says. "Now all of a sudden they've gone from two years to five years, but it's still the same problem." Murray says while the two-year limit might have worked in some areas, it was particularly problematic for lawyers practising personal injury law. "It failed to take into account that oftentimes, counsel do know what they're doing, the direction that a file is taking, the time that it's taking, and there [could be] multiple good reasons as to why a case wasn't set down for trial or even sometimes why there wasn't a statement of defence," says Murray. Lawyers could be dealing with a minor or someone whose medical condition needs to stabi- lize before setting a trial date, he notes. Ferro, too, says the previous rule had "an unre- alistic expectation." "It's an unrealistic expectation because the work I do is messy," he says. "Personal injury ligation and litigation of all kinds is messy. It's not a very nice business because people are fighting, and to expect them to wake up one day on Year 2 and say, 'By the way, we're not fighting anymore, we're going to move along,' is totally unrealistic." Murray says the fact the new rules mean automat- ic dismissal after five years without further notice is both positive and negative in some ways. On the one hand, he says the change eliminates court time often spent on determining whether there was proper no- tice before dismissal. But on the other hand, lawyers who don't have the proper time tickers may find their cases dismissed without their knowledge. And while the switch to a five-year deadline may be good in complex matters, in other cases it will mean simpler files will drag on for far too long, says Kevin Toyne of Brauti Thorning Zibarras LLP. "In some cases, I think the change to five years is going to be helpful; in other cases, you may see the case languish without moving forward with the kind of speed that it should. So it's really going to depend on the nature of the issues in the case." LT NEWS Get programming specifi c to your practice area, all of your 2015 CPD hours and: • Networking and professional advice with colleagues and peers • 3 months access to the entire online library of Institute 2015 papers • Keynote address by Olympic gold medalist, Marnie McBean • Advice on being a happier lawyer at the launch of the Mindful Lawyer CPD series • The OBA Foundation's 3rd annual Repartee and silent auction Get ready to #OBAInstitute Reserve your space today! oba.org/institute2015 February 4 -7 ntitled-1 1 2015-01-21 8:02 AM Continued from page 1 Rule 'unrealistic,' lawyer says LAO says ruling in line with its approach to union issue Continued from page 1

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