Law Times

law Times • July 26, 2010 NEWS PAGE 3 'Perfect storm' brews in Crowns' court battle Charter challenge of wage restraint comes as Ontario seeks salary freeze BY TIM NAUMETZ For Law Times OTTAWA — A "perfect storm" is brewing in an Ontario Superi- or Court case the association rep- resenting 2,700 Crown lawyers has launched against the federal government, says a prominent Ottawa labour litigator. As the province was about to make headlines over its bid for a wage freeze for its own public servants this week, the Associa- tion of Justice Counsel fi led an application with the court in June claiming the federal gov- ernment's Expenditure Review Act violates the lawyers' consti- tutional rights to free collective bargaining, in part because it allegedly singled out employees with the Justice Department and Public Prosecution Service of Canada for extraordinary ret- roactive limits on pay increases compared to other employees. "What you have, I believe, is a perfect storm that has mate- rialized," Ottawa labour lawyer Barbara Nicholls, with Perley- Robertson Hill & McDougall LLP, tells Law Times. "Th e [act's] implementation overlaps the association in terms of its collective-agreement ne- gotiations for a fi rst contract," she adds, noting the Supreme Court of Canada reinforced collective-bargaining rights under s. 2(d) of the Charter of Rights and Freedoms in the landmark Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia decision in 2007. "You have the most ag- gressive form of government interference, wage control, occurring at a union's most vul- nerable time, the fi rst collective agreement," Nicholls says. Th e case comes as defi cit- plagued governments, includ- ing here in Ontario, attempt to get their fi scal houses in order by seeking wage restraint for public-sector workers. In the notice of application fi led with the Superior Court of Justice last month, the federal lawyers' association, represented by An- drew Lokan of Paliare Roland Rosenberg Rothstein LLP, says the act "substantially interferes with the right of the applicant and its members to bargain col- lectively" because its retroac- tive provisions prevented them from negotiating freely to estab- lish an appropriate baseline for salaries before the imposition of restraints established under the legislation in 2009. Among other things, an af- fi davit from association presi- dent Marco Mendicino points out the government was specif- ic in making the act retroactive to May 10, 2006, for groups that didn't have a collective agreement or arbitrated award in place when it introduced the legislation in 2008. Mendicino's affi davit notes the 2006 date was the very day the association served notice to bargain on behalf of the lawyers, CLL enhance_list CL.indd 1 referred to as the law group by the Justice Department, and that the retroactive caps on annual salary hikes precluded any increase above the lim- its set out in the act either through negotiations or the arbitral award that eventually resulted after the parties failed to reach an agreement. "Th e eff ect of the [act] is that the applicant and its members could not bargain collectively over salary, nor could salary be set by the arbi- tration board at an appropriate level that replicated the results of collective bargaining," the application states. "Employees represented by the applicant are the only group of employ- ees subject to these retroactive restraint measures back to the 2006-2007 fi scal year." Mendicino's affi davit also points out that in 2006, when the association fi rst attempted to begin collective bargaining, A memo warning about clawbacks of overtime pay was an attempt to create a 'chilling effect,' says Marco Mendicino. the federal government posted a substantial surplus of $13.8 billion. By 2008, with the deepest recession since the Great Depression taking hold, the act capped annual salary increases at 2.5 per cent from 2006 to 2008 and 1.5 per cent from 2008 to 2011. In the meantime, the as- sociation says, the Treasury Board of Canada Secretariat failed to put forth a salary of- fer or disclose employment in- formation and history essen- tial for collective bargaining for four years and fi nally asked for arbitration just before the government introduced its re- straint package in November 2008. Mendicino tells Law Times that a memo the government issued two weeks ago to Justice Department and prosecution service lawyers, in which it warns them that it could claw back the overtime pay and ben- efi ts the Crowns won from last year's arbitral award if it wins a separate court challenge it launched in the Federal Court, is an attempt to intimidate association members over their action in the Superior Court. "Th e point and the timing of the announcement is transpar- ent," Mendicino says. "It wasn't to provide information. It was to discourage people from ap- plying for compensation under the arbitral award. It was to create a chilling eff ect." But a spokesman for Trea- sury Board says otherwise. "As has been done in similar cases, the government sent a letter to members covered by the award to inform them of the potential implications of the court's decision should it rule that the award should not have been given," says Pierre-Alain Bujold. "It was not sent in response to the [association's] application." Th e government fi led its Federal Court application for a review of the arbitral award last December. LT Looking for new business leads? an enhanced listing on CANADIANLAWLIST.com works for you! Get an enhanced listing on www.canadianlawlist.com. It's Canada's most popular and reliable online network for the legal community, bringing thousands of lawyers together with clients each year. It is a highly efficient, cost-effective and convenient online vehicle to advertise your firm, your practice or your website. With an enhanced listing on www.canadianlawlist.com, you'll stand out to an expansive Canadian audience that visits to this website everyday. When you want to drive more traffic to your practice, www.canadianlawlist.com is the name potential clients and practitioners know best. So, what's in a name? Everything when you're Canadian. The enhanced listing includes the option of: • Firm or personal profile • Live web link • Up to 5 areas of practice chosen from our searchable list • The option of adding your firm logo (on line only) BONUS! Your enhanced listing appears in all three versions of Canadian Law List: Internet, Print and CD-ROM Book your enhanced listing today! CANADIANLAWLIST.com To learn more about this service or sign up today, call Colleen Austin 1.800.263.2037 ext 4207 caustin@canadalawbook.ca • canadalawbook.ca www.lawtimesnews.com 7/19/10 2:02:42 PM

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