Quebec administrative justice paralysed by strike

The longest Canadian strike by public civil servants came to an abrupt end after the Quebec government passed a special law that compelled striking government lawyers and notaries back-to-work following a labour conflict that paralyzed the province’s administrative justice system and incapacitated the government’s efforts to pass legislation and enact regulations.

The unusual back-to-work decree calls for the provincial government and Les avocats et notaires de l’État québécois (LANEQ) to return to the negotiating table to bargain “in good faith” with the help of a mediator whose recommendations are non-binding. If an agreement is not reached within 105 days following the passage of Bill 127, the provincial government will impose a labour agreement that calls for a 5.25 per cent salary increase over five years compared to the 9.15 per cent increase Quebec’s 450,000 public sector workers received.

“The special law is odious, and even that description is not strong enough,” said Jean Denis, LANEQ’s president, who intends to retire this April, a year earlier than expected because he no longer wants to work for the government. “What a wonderful way to negotiate by having a gun to your head.”

Without a collective agreement since March 2015, the 1,100 government lawyers and notaries went on strike last October after more than 18 bargaining sessions and five sittings with the mediator led to an impasse. After initially demanding for binding arbitration overseen by a compensation committee with a chair and chosen and appointed by both parties, LANEQ watered down its stance and has sought a special status within the Quebec civil service that is on par with Crown prosecutors – an issue that is not addressed in the back-to-work legislation.

Quebec’s law society, who was hoping for a negotiated settlement, is dismayed that back-to-work legislation was adopted, asserting that it is inappropriate and does little to restore the public’s confidence in the justice system. “This situation is more than sad, and it’s unfortunate that the labour conflict evolved in this manner,” said Claudia Prémont, the bâtonnière of the Barreau du Québec. “We recognize the value of Quebec’s jurists and realize that the labour conflict has had a clear impact on citizens but we are not going to take a position in the labour conflict.”

The labour strife has had a crippling effect on the administration of justice and on Quebec’s National Assembly. In spite of a ruling by the Quebec Administrative Tribunal at the onset of the strike that held that cases currently involving the provincial government are deemed to be essential services, the province’s administrative justice system has been at a standstill since over the past four months.

The ruling allowed government lawyers to ask adjudicators to reschedule proceedings, and the administrative tribunals have for the most part granted them. More than 5,000 cases before administrative tribunals have been rescheduled, including over 1,000 cases that were supposed to be dealt with by the Labour Tribunal, 1,500 cases involving Revenue Quebec, 500 by the province’s auto insurance board, and several hundred by the pubic curator. And that’s aside from preparatory conferences and mediation sessions which too have been postponed.

“It’s total paralysis,” noted Lu Chan Khuong, a Quebec City lawyer with Bellemare avocats who specializes in representing citizens against various Quebec provincial bodies. “Personally I have had 82 hearings that were rescheduled. These cases involve citizens who for the most part are disadvantaged and have waited two, three years to have their cases heard in the hope that their case would be settled.”

The Quebec National Assembly too has been hard hit as legislative efforts have been deferred, the drafting of regulations suspended, and parliamentary commissions put off. According to LANEQ, the Quebec government is playing with fire as it awarded $868 million in contracts without any legal oversight that is normally conducted by Quebec government lawyers and notaries. LANEQ adds that out of the thousand or so contracts that were awarded since late October, more than 200 were without call for tenders. “It’s completely irresponsible for the government to spend these monies without having jurists examine the legality of the contracts,” said Denis.

Quebec lawyers may have been forced back to work but they are still fighting the government on several fronts. LANEQ, with the help of Quebec unions, is going to challenge the constitutionality of Bill 127 that was adopted after a marathon session at the National Assembly that lasted nearly 24 hours. It is also going to sue the provincial government for $37 million before Quebec’s labour tribunal, accusing it of acting in bad faith. Moreover, the Supreme Court of Canada is scheduled this spring to hear a challenge over the legality of the ruling issued by the Quebec Administrative Tribunal that held that cases currently involving the provincial government are deemed to be essential services.

On top of that an email was recently issued among Quebec jurists that spells out tactics they should use to show their discontent. The 11-point missive states that lawyers should follow their seven-hour workday scrupulously, that overtime should be systematically requested, and that they should refuse to plan out work more than three months in advance. In short, they will follow conditions spelt out in the old collective agreement to the tee. “We don’t want people to fall sick because the work has accumulated,” said Denis. “We will do the work to the best of our ability and capacity, but without the pressure to catch up.”

Khuong, who intends to run once again this May as the head of Quebec’s legal society, believes that the Barreau should have been more forceful in voicing its concerns over the labour dispute. “The bâtonnière is the watch-dog of justice,” said Khuong, who reluctantly resigned in 2014 as bâtonnière after a bitter and protracted fracas with the board of directors of the Barreau du Québec. “The Barreau should have intervened in the conflict to prevent the deterioration of the situation. The bâtonnière should have taken a stance because there is no conflict between the interests of the legal society and those of the jurists. The Barreau’s principal mandate is to oversee the protection of the public, and in this case citizens were affected by the labour conflict at many levels.”

This story was originally published in The Lawyers Weekly.

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