No end in sight of strike by Quebec government lawyers and notaries

A general strike by Quebec government lawyers and notaries shows no signs of abating as the provincial government is remaining firm while the bargaining agent has received the approval of the overwhelming majority of its members to shore up its war chest.

Without a contract for more than a year, the 1,100 members of the Les avocats et notaires de l’État québécois (LANEQ) have been on strike since late October to push for a change in the negotiation process from the current mediation process. LANEQ is calling for binding arbitration, buoyed by a compensation committee, with a chair chosen and appointed by both parties. The mandate of the compensation committee would include assessing reasonable compensation while taking into the account the provincial government’s capacity to pay. In exchange, the association is willing to give up its right to strike. (Quebec Crown prosecutors are not part of the strike).

“We’re tired of always going into the streets to obtain what we want,” said Jean Denis, LANEQ’s president. “We’re on strike so that we don’t ever have to do it again.”

The Quebec Administrative Labour Tribunal recently ruled that cases currently before the courts involving the provincial government are deemed to be essential services. Government lawyers can however ask to reschedule proceedings. LANEQ has filed a motion to appeal the decision, even though Denis doubts that the case will be heard in time by Quebec Superior Court to have an impact on the labour dispute. He added that the decision does not affect the majority of government lawyers.

Émilie Lord, a spokesperson with Quebec’s Treasury Board, declined to comment except to say that “channels of communication” are open between the two parties.

The labour disruption is beginning to take its toll, and has prompted Quebec’s legal society to express “deep concerns” over the repercussions it will have on public confidence in the justice system. At least 17 bills tabled by the provincial government before the National Assembly have been delayed as have 67 regulatory amendments, according to Denis. Also, more than 1,100 cases before the courts have so far been postponed due to the strike. And that’s aside from the work that government lawyers perform that is impossible to quantify such as providing legal advice and opinions, added Denis. Even public inquiries will be affected. The Quebec government recently announced that it will launch a public inquiry that will examine police surveillance of Quebec journalists and possible political interference in investigations. But until the labour dispute is settled the three-person inquiry panel will be working without the assistance of government lawyers, noted Denis.

“The administration of justice, already afflicted by delays that undermines the public’s confidence, is suffering from the effects of this new conflict,” wrote Claudia Prémont, the bâtonnière of the Barreau du Québec, in a letter early this November to the Quebec Minister of Justice Stéphanie Vallée. “Quebec citizens may have the perception that the progress of their cases may be compromised, which harms the image of an accessible, efficient and fair justice system.”

But there appears to be little reason for optimism that the stoppage will be quickly settled. Labour relations between government lawyers and the province have since the turn of the century developed into bitter and protracted disputes, and this one seems to be no different. Negotiations, which began in January 2015, have stalled. The provincial government and LANEQ have held 18 negotiation sessions and sat on the table with a mediator five times, to no avail. Though the two parties are holding informal discussions, the last time they held formal negotiations was this past July. Prémont is so concerned about the impasse that in yet another more recent letter written in mid-November she called for a meeting with the Quebec justice minister, noting that the spectre of a long conflict that lasts until the end of the new year should not be contemplated. “Quebecers deserve that the parties give due regard to justice and accept sitting at the negotiating table,” said Prémont.

In the meantime LANEQ has laid down the financial, logistical and legal groundwork for a prolonged battle. It is armed with a robust strike fund, hovering at around $7.5 million, including a line of credit of $4 million. Moreover, in mid-November it received the approval of an overwhelming majority of its members – 74 percent of members turned up to vote at an assembly, with 86 per cent giving the nod — to seek more funds to cover the costs of a strike.

There is speculation that the Quebec government may introduce back-to-work legislation as it did in 2011 and 2005 when government lawyers, notaries and Crown prosecutors went on strike over remuneration and work conditions. That has prompted University of Ottawa law professor and former Quebec minister Benoît Pelletier to conclude that the right to strike that government lawyers have is “relatively factitious” because of the Quebec government’s “reflex” to adopt  “special laws.” In a legal opinion that was commissioned by LANEQ, Pelletier concludes that the lawyer’s association could resort to a landmark ruling by the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 SCR 245 to fight back against the Quebec government if it adopts back-to-work legislation. The SCC in Saskatchewan confirmed that the right to strike is protected under the Canadian Charter of Rights and Freedoms. “It is possible in this case to draw on the Saskatchewan ruling where the SCC held that in the absence of a strike to vote, civil servants have the right to resort to an efficient and independent arbitration process,” said Pelletier.

The labour conflict is being closely watched by government lawyers across the country. The Canadian Association of Crown Counsel (CACC) is supporting LANEQ’s efforts to “fight to get a process in place which would enable them to fairly bargain with the government,” said president Rick Woodburn. “We always want to take the road of discussion where we can present our proposals in a fair way – that’s all Quebec is asking for. A binding arbitration process is a very fair way of settling disputes.” Such a system is already in place in Ontario, British Columbia, Manitoba and Nova Scotia, added Woodburn.

The Alberta Crown Attorneys’ Association (ACAA) as well as the Newfoundland and Labrador Crown Attorney’s Association and the New Brunswick Crown Counsel and Prosecutors too are providing LANEQ with “unqualified” support in its campaign to change the negotiation process from mediation to binding arbitration.

“There’s no good that comes out of walking out or getting locked out,” said Philippe Thériault, president of the N.B. Crown Counsel Association, which has 45 members. “It doesn’t serve government. It doesn’t serve taxpayers. And it certainly doesn’t serve union members. There are ways of dealing of dealing with these issues that is fair.”

The situation in New Brunswick underlines the divisive nature of labour negotiations. Until this year Crown counsel and Crown prosecutors used to negotiate together. But they parted ways after Crown counsel signed an agreement on June 30th of this summer, an agreement that was rejected by 97 per cent of the 60-odd Crown prosecutors. It appears that Crown prosecutors and the provincial government are heading towards conciliation before a three-member panel.

Binding arbitration is not included in the new deal signed this summer by N.B. Crown counsel, said Thériault. “It was not on the table because we knew the answer,” said Thériault. “The provincial government does not want binding arbitration because they do not want to give up their ability to make a final decision.”

James Pickard, ACAA’s president, said it’s time that the Quebec government “recognize the essential role its civil service lawyer play in the proper functioning of Quebec’s public institutions.”

The Chambre des notaires du Québec declined to comment.

This story was originally published in The Lawyers Weekly.

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