Quebec government expected to impose labour agreement on its lawyers and notaries

The Quebec government is expected to impose a labour agreement on government lawyers and notaries that will give them the lowest salary hike of all Quebec public civil servants after months of negotiations with a mediator failed to find common ground.

Without a collective agreement since March 2015, Quebec ‘s 1,100 government lawyers and notaries held the longest Canadian strike by public civil servants, from October 2016 to March 1, 2017, before it was forced to back to work after the government passed an unusual back-to-work decree.

The special law called 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. Under the back-to-work decree, 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.

“Unfortunately it was not possible to lead the parties to conclude an agreement on all or parts of the elements in dispute between the parties,” said the government-appointed mediator René Beaupré in a brief one-page report.

Since the back-to-work decree, the two parties have held 13 bargaining sessions, including five with a mediator. Before the decree, there were more than 18 bargaining sessions and five sittings with the mediator – all of them unsuccessful.

“I regret that LANEQ was unable to reach an agreement with the government, while 510,000 public and parapublic sector employees were able to do so,” said Quebec Treasury Board president Pierre Moreau.

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 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 and one that proved to be the main stumbling block between the parties. LANEQ also sought a salary increase in line with Crown prosecutors – that is, 10 per cent over four years.

“The government has said from the beginning of its negotiations that it will not budge on either special status or salary increases,” noted Jean Denis, LANEQ’s president. “They say they must treat us as they do all public servants yet they have just given provincial police officers a 17.5 per cent salary hike and as far as I know they are government employees.”

Denis said that he is still open and hopeful that more negotiations will take place. But if that fails, LANEQ will turn to the Tribunal administratif du travail (TAT) which presides over labour matters. As it stands, TAT is already scheduled to hear the parties this fall. If the matter goes before the tribunal, LANEQ says it will sue the government for $37 million for conducting negotiations in bad faith, said Denis.

“Our members are disappointed, disappointed by its employer, disappointed that their employer treats them like this,” said Denis. “It’s important for employers to recognize the efforts of its employees. So the mood of our members could be better.”

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.

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.