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December 5, 2016

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Lawyers head to SCC over unpaid on-call duty BY MICHAEL MCKIERNAN For Law Times G overnment immigration lawyers are headed to the nation's top court as they continue their long- running fight against mandatory unpaid on-call duty. Since 2010, the Federal Depart- ment of Justice has required all im- migration lawyers in its Quebec regional office to make themselves available on weeknights and week- ends on a rotational basis to pro- cess urgent stay applications before the Federal Court. But the lawyers get paid only for time spent work- ing, with no remuneration for the hours on standby. The Supreme Court of Canada agreed to hear the case last month after the Federal Court of Appeal overturned a Labour Relations Board adjudicator's finding that the policy violated not only the collective agreement between the government and the Association of Justice Counsel, which repre- sents the lawyers, but also s. 7 of the Charter, which protects the right to liberty. A tentative hearing date is scheduled for April. According to the AJC, similar policies are in place in other jus- tice department offices around the country, including in Toronto, with the Quebec grievance per- forming a representative function. But AJC president Ursula Hendel says the case has implications far beyond the association. "If we lose this case, I think it presents an opportunity for em- ployers to expand their interpre- tation of management rights very aggressively when it comes to restrictions imposed on employ- ees' personal activities away from work," she says. "The decision is not limited to unions; it's about man- agement rights writ large. If the fed- eral government can do this to us, it's going to make workers vulner- able anywhere in Canada, whether they're part of a union or not." Lawyers on standby duty must make themselves available by pag- ANTI-TERRORISM ACT FLAWED Counterterrorism programs need critiquing: lawyer P7 FOCUS ON E-discovery P8 See Real, page 4 PM #40762529 $5.00 • Vol. 27, No.39 December 5, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Ursula Hendel says a case where federal immigration lawyers in Quebec are fighting a requirement they make themselves available outside business hours has wide-reaching implications. POLICE SCRUTINIZED Is Project Marie park crackdown constitutional? P5 BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has ruled that class members must not be on the hook for a fee-sharing agreement that Merchant Law Group LLP sought in a settlement of a carriage dispute. The controversial Saskatch- ewan class action firm was set to receive $800,000 in fees through the agreement it had settled with class counsel in Bancroft-Snell v. Visa Canada Corporation. The agreement had been ap- proved in all the other prov- inces where the class action was launched, but the Ontario Court of Appeal largely upheld a motion judge's decision that the agreement as it existed was not in the best in- terests of class members. Lawyers say the case highlights the problems that exist in Canada's class action landscape, where the Constitution divides power be- tween the provinces in such a way that doesn't easily lead to national carriage solutions. "It would be nice if there is a solution, but there isn't a solution, or at least there isn't one yet," says Daniel Bach, a partner with Sis- kinds LLP, who was not involved in the case. "And I don't know if this will make it harder or if it will just be one more thing to consider." Bach added that the decision affirms the importance that courts continue to have "muscular over- sight" over the relationship be- tween class counsel and class. In the decision, Court of Ap- peal Justice Robert Blair noted the problems with the lack of a nation- al carriage solution. "While it may be that in an ide- al world, the tools exist to enable class counsel to avoid the necessity of multiple parallel class proceed- ings in different provinces, we do not live in an ideal world and we do live in a Canada where juris- dictional competence is divided between the federal, provincial and territorial governments," Blair wrote in the decision. "There will be carriage dis- putes — some justified, some per- haps not — until there is a legisla- tive or effective solution to these problems." See Carriage, page 4 James Musgrove says a recent Ontario Court of Appeal decision will likely make resolving carriage fights more complicated. Photo: Robin Kuniski Case highlights problems in Canada's class action landscape: laywers Class members not on hook in carriage dispute Follow & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Integrated Legal Marketing Solutions Put Your Digital Marketing Tactics into High Gear Untitled-4 1 2016-11-22 9:00 AM

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