Law Times

October 17, 2016

The premier weekly newspaper for the legal profession in Ontario

Issue link:

Contents of this Issue


Page 1 of 15

Page 2 OctOber 17, 2016 • Law times NEWS NEWS LAO, says that the organization has simply asked the OLRB for a ruling on an issue that is in dis- pute. "This is a normal course of action in a labour proceeding," Burk said in an email. He added that the two parties have agreed to work together to try to agree on the facts that are relevant to the bargaining unit structure dispute. "Delay tactics generally do not involve the co-operation of the other party in a dispute," he said. In the ORLB ruling concern- ing the status dispute, the board said there was no doubt the so- ciety was a trade union as it had already been determined as such in a 2007 decision. "The Board's decision find- ing status is essentially final and therefore the union has status unless there is evidence that be- tween the time it was initially certified and the date it filed this application it lost its status as a trade union," the board said in the decision. Burk said the status question was raised because it wasn't clear to LAO that the local union had been correctly established. He said documents LAO requested from the International Federa- tion of Professional and Techni- cal Engineers were never pro- duced. LAO agreed to negotiate with the Society of Energy Pro- fessionals as the representative of its staff lawyers in August. The lawyers ratcheted up their campaign this summer, holding rallies outside multiple Liberal Party functions to apply pres- sure on the provincial govern- ment. The staff lawyers originally requested to be represented by the union more than three years ago, but they were turned down. They also filed a charter ap- plication challenging the exclu- sion of lawyers from the Labour Act, but they have since sig- nalled they will drop the chal- lenge after signing an agreement with LAO in September. The staff lawyers are now set to vote on whether the Society will be their exclusive bargain- ing representative on Oct. 17. Garrett Zehr, one of LAO's articling students from last year who pushed to unionize, says articling students have some unique challenges that union- izing can help to address. Articling students generally graduate law school with moun- tains of debt and rarely in much of a position to negotiate their contract, he says. "And then when they're actu- ally articling they're desperate to get a job [and] get hired back af- ter. So they're not going to want to rock the boat at all," he says. "So for that reason I think it's important to have someone you can go to." LAO does not pay for its ar- ticling students' licensing fees as the Ministry of the Attorney General does, he says. There is also a pay gap be- tween LAO articling students and MAG ones, who are repre- sented by the Association of Law Officers of the Crown, says Zehr. While MAG articling students receive a basic salary of $1,167 per week, those with LAO re- ceive $1,095.15 per week. He added that the effort to unionize is particularly impor- tant for LAO's articling students in remote areas. "I think it's important for them to feel that they have the support and someone behind them," says Zehr, who was hired back and is now a staff lawyer at LAO. Lawrence says LAO's request to have the articling students split up into seven separate bar- gaining structures is "absurd." "It would cause an incredible amount of fragmentation," Law- rence says. "They're obviously trying to position Legal Aid Ontario to have the fewest strong bargain- ing units as possible." As LAO has roughly 30 to 40 articling students each year, some of the proposed units could have as few as two students each, she says. "The only thing that really makes sense with an organiza- tion of this type is a province- wide unit," she says. She also noted that LAO's re- fusal to agree to a province-wide bargaining unit for the students is inconsistent with what it has agreed to in the negotiations with the lawyers. Burk, however, said that LAO's different positions on the two proceedings are based upon what makes operational sense to the organization, as the respon- sibilities of articling students vary in different parts of the province. Zehr says he thinks LAO's approach with the two differ- ent groups has been consistent, given the fact that the lawyers' campaign took more than three years to achieve its goals. "They've been dragging the lawyers' campaign on for several years now," he says. "It took liti- gation and finally they've agreed to sit down at the table." The two parties have agreed to a potential hearing date of Dec. 14, but they are waiting to hear if the OLRB is available at that date. Zehr says he is hopeful LAO students will be able to unionize soon and hopes that other arti- cling students will take inspira- tion from that. "Articling students do have the right to unionize and we hear about some troubling workplace issues and culture around arti- cling and I think unionizing is definitely a way these things can be addressed," he says. LT Continued from page 1 Articling students face challenges like high debt: lawyer geon, but while he waited for his appointment, he continued to experience severe symptoms. After consulting his family doctor, he went to Toronto Gen- eral Hospital on Aug. 12, where he stayed overnight, but he was discharged the next day with medication for his symptoms. Expert witnesses in the board's proceedings said Dykie's condition had been stabilized when he left the hospital. "The board relied on that, suggesting he was fine," says Gary Srebrolow, a partner at Blaney McMurtry LLP, who rep- resented Dykie's estate. "In response, we argued he was discharged from a medical point of view but not from a can- cer treatment point of view." The hospital said it had set up an appointment with a surgeon for Aug. 19, but Dykie's family disputed this. He left the country on Aug. 14 to pursue care at a clinic in Houston, Tex. In October, he returned to Ontario, where he received ad- ditional treatment, but he died in March 2012. The board found Dykie would have had enough time to apply for pre-approval and that his condition was not "so ur- gent" that he needed to travel to Texas to get treatment. "The perception seems to be the family went too quickly to Houston and perhaps jumped the gun and that they should have waited because perhaps an appointment was forthcoming," says Srebrolow. The family, however, were not told he had an appointment and he was very ill and needed treat- ment, Srebrolow says. "Their position was that if they waited, it would have been too late," he says. "The family felt that they did what they had to do at the time." The Divisional Court ruled that it only needed to determine whether the board's decision was reasonable. "The appellant is essentially asking us to re-evaluate the medi- cal evidence and come to a differ- ent conclusion — one that favours its position," Justice Ian Nord- heimer wrote in the decision. "That is not the role of this court on an appeal." The court found that Dykie's family failed to show that the de- cision was unreasonable. "The Board's decision was driven by the facts as it found them, based on the medical evi- dence that it heard," Nordheimer wrote. "Those factual findings were open to the Board on the evidence." Kwinter notes that the deci- sion does not go into much of the evidence in the board's pro- ceedings. "All they do basically is up- hold the findings of the board saying whatever findings they made with whatever evidence was called that their decision was reasonable," he says. "If it was reasonable based on the evidence, they don't have to decide if it was right or wrong," Kwinter says the decision shows certain policy consider- ations make it very difficult for people to get reimbursed for treatments in other jurisdictions. "There is an underlying con- cern that if the government funded treatment outside the province, this could very quickly drain the coffers provided for health care," says Kwinter. "They've put in certain tests and one of the tests is whether the treatment is available in Ontario." Kwinter says if pre-approval is denied, an appeal can take many months. And then, if the person cannot wait for the ap- peal, it can often be difficult to prove it was an emergency. And Srebrolow says that those looking to get treatment outside of the country should seek a lawyer's advice early to give their claims a better chance. A spokesman for the Min- istry of Health and Long-Term Care declined to comment, as the estate could appeal the deci- sion. LT Continued from page 1 Board's decision 'driven by facts' Tel: 905-841-5717 The Proof is in The Precedents (TBI Verdict) – Pelletier v. Ontario – [2013 ONSC 6898] (TBI Verdict) – Roycroft v. Town of East Gwilimbury – [1999 CarswellOnt 233] When it's Complicated. "The fortunes of the world are in no way distributed equally. Neither are the misfortunes. Unpacking the physical, emotional and psychological sequelae of the accident from Jerry's pre-existing issues is not an easy task. But it is one faced by the Court in this instance." Pelletier v Ontario Untitled-3 1 2016-09-28 11:22 AM

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - October 17, 2016