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.

Quebec government discriminated against jurists on maternity leave, rules appeal court

Quebec government lawyers and notaries, forced back to work after Canada’s longest public sector strike, won a legal battle against the provincial government after the Quebec Court of Appeal held that the government discriminated against jurists on maternity leave.

In a nuanced decision that will provide comfort to both employers and labour organizations, the appeal court found that it is not discriminatory if employers under certain circumstances “distinguish” for purposes of compensation between employees who provide services to employers and those who do not such as those in maternity or sick leave. But the appeal court added that it is discriminatory if employers provide different compensation to different groups of employees who do not provide services to employers, if the distinction was based on prohibited grounds.

“Employers will be reassured by the decision in terms of the overarching principle,” said Nicolas Joubert, a Montreal employment and labour lawyer with Lavery. “In this case the principle was not necessarily discriminatory but its application created a problem.”

According to Luc Bruneau, a Montreal lawyer who plead the case for the 1,100 members of Les avocats et notaires de l’État québécois (LANEQ), the appeal court ruling is “very important” because the courts have traditionally been “prudent” when dealing with discrimination cases involving remuneration. “The principle has always been in these cases that employees had to provide services to employers,” remarked Bruneau, who is one of LANEQ’s lead negotiators in the labour conflict with the provincial government. “The appeal court opens the door to cases involving employees who do not provide services to employers.”

Under the current collective agreement, a lump sum equal to two per cent of the salary is supposed to paid for each regular hour paid to the “jurist for work performed as a jurist” during the period from April 1, 2011 to April 4, 2012. But the provincial government refused to pay the two per cent bonus to jurists who were on maternity leave even though it paid the bonus to attorneys and notaries who were for instance on union or family leave.

LANEQ filed a grievance, maintaining that the employer had discriminated against pregnant women in violation of the collective agreement, subsection 15(1) of the Canadian Charter of Rights and Freedoms and section 10 of the Quebec Charter of human rights and freedoms. An arbitrator dismissed the grievance but it was overturned by Quebec Superior Court Judge Mark Peacock, a decision which in turn was appealed by the Quebec government.

Heeding guidance from the Supreme Court of Canada in R. v. Kapp, [2008] 2 SCR 483, 2008 SCC 41, the Quebec appeal court noted that there is a two-part test to show discrimination occurred under s.15(1) of the Canadian Charter: does the law creates a distinction based on an enumerated or analogous ground, and does the distinction create a disadvantage by perpetuating prejudice or stereotyping. Following yet more guidance by the SCC in Withler v. Canada (Attorney General), [2011] 1 SCR 396, 2011 SCC 12, the appeal court noted that “care must be taken to avoid converting the inquiry into substantive equality into a formalistic and arbitrary search for the ‘proper’ comparator group.” A formal analysis therefore should not fall into the trap of becoming a formal comparison with a selected comparator group, but “an approach that takes into account the full context,” said Quebec Court of Appeal Justice Robert Mainville in a unanimous decision in Procureur générale du Québec c. Association des juristes de l’État 2017 QCCA 103.

The three-part test for a breach of section of the Quebec Charter is slightly different, noted the appeal court. A breach is established when a plaintiff can show on the balance of probabilities a case of prime facie discrimination resulting from a distinction, exclusion or preference; based on one of the prohibited grounds that compromises their right to full and equal recognition and exercise of their human rights; and in relation to a right protected under another Quebec Charter article. In short, section 10 does not set out an autonomous right.

The employer’s refusal to pay the bonus during a maternity leave “may constitute” discrimination on the basis of sex and pregnancy, grounds of discrimination listed in section 10 of the Quebec Charter, held the appeal court. The appeal court also noted that under subsection 15(1) of the Canadian Charter, discrimination based on sex includes discrimination based on pregnancy. But the fact that an employer distinguishes between different types of work absences does not necessarily mean that it constitutes discrimination, added the appeal court. It points out that it is not necessarily discriminatory when an employee on maternity leave receives 93 per cent of her salary during a period of 21 weeks while an employee on sick leave is paid nearly 67 per cent of their salary for 52 weeks.

“It all depends on the context of the distinction and its justification,” said Justice Mainville. “When an employer provides benefits to employees who are absent from work, it must do so in a way that that ensures its application does not lead to discrimination based on prohibited grounds,” warned Justice Mainville.

Justice Mainville found it “troubling and suspect” that the Quebec government treated jurists on leave differently than others, particularly since there was “no explanation” that was offered by the government over the distinctions it has made.

“The appeal court decision clarifies and provides guidance over how to establish comparator groups, given that in this case many people who were on leave were able to obtain the bonus while others on maternity leave did not,” said Bruneau.

In the meantime, the four-month strike by Quebec government lawyers and notaries is over after the Quebec government introduced back-to-work legisation. (More on that in another story).

“It’s clear that the government wanted to exhaust us, break us,” said Bruneau.

This story was originally published in The Lawyers Weekly.

Quebec government engaged in illegal practice of profession, alleges lawyer’s union

Quebec’s two law societies have concurrently launched an investigation to determine whether agencies, departments and ministries of the Quebec government are employing and hiring civil servants who are engaged in the illegal practice of the legal profession, following grievances lodged by an organization representing provincial government lawyers.

The Association des juristes de l’État (AJE), a union representing nearly 1,000 lawyers, notaries, and other legal professionals, submitted 96 official complaints over the past few months before the Barreau du Québec and the Chambre de Notaires du Québec after analyzing more than 1,600 job descriptions of civil servants, alleging that civil servants who are not on the Roll are providing legal advice and consultations on legal matters. Whoever practices the legal profession without being entered on the Roll is guilty of an offence and is liable to the penalties provided in s. 188 of the Professional Code, which includes a fine of not less than $1,500 nor more than $20,000 or, in the case of a legal person, of not less than $3,000 nor more than $40,000.

According to the AJE, the culprits consist of no less than 15 ministries including the Ministry of Revenue, the Ministry of Finance, the Ministry of Natural Resources as well as agencies and departments like the workers’ compensation board, pension regulator Régie des rentes du Québec, the vehicle insurance department, and the Treasury Council. Continue reading “Quebec government engaged in illegal practice of profession, alleges lawyer’s union”