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.

Strike by Quebec crown prosecutors & government lawyers

Tomorrow the Quebec government and lawyers on the public payroll, who launched a strike two days ago, will sit at the table before a mediator.

The last time round, when government lawyers negotiated with the Conseil du tresor, the government body that controls the purse strings, only minor issues were settled over the course of six sessions with a mediator, Marc Lajoie, head of the Association des juristes de l’État (AJE), told me.

Quebec Crown prosecutors never even got that far. They negotiated with the help of a conciliator, someone with less powers to forge an agreement than a mediator.

Crown prosecutors want above all binding arbitration. It’s something that they wanted for years, to no avail. They were granted the right to strike by the provincial government in 2003 — something they never asked for and never wanted, said Christian Leblanc, head of the Quebec crown counsel association (APCPPQ).

With the government offering a salary increase of nine per cent, and public sector lawyers seeking a 40 per cent increase, it remains to be seen whether a mediator can bridge the wide gulf.

***

The strike is beginning to have an impact. At least four individuals in three different cases have been acquitted since the strike began two days ago, and the walkout appears to be the culprit. A Toronto man facing speeding charges was acquitted as were two men accused of theft, and a 41-year old woman accused of attempted murder. The Directeur des poursuites criminelles et pénales, the government body that oversees Crown prosecutors, is contemplating appealing.

Quebec’s justice system paralyzed

Exasperated that labour negotiations with the Quebec government are at a standstill, provincial crown prosecutors and government lawyers have joined forces to launch a general strike that will likely cripple the province’s justice system — unless there is a striking turnabout in the government’s seemingly unyielding stance.

Asserting that they are the worst-paid in the country and woefully understaffed, making it all but impossible to recruit new staff and adhere to their code of professional conduct, members of the Quebec crown counsel association (APCPPQ) and the Association des juristes de l’État (AJE) recently voted overwhelmingly – a 90 per cent landslide — in favor of a general strike.

“We don’t want to strike,” said Marc Lajoie, president of the AJE, a union representing nearly 1,000 lawyers, notaries, and other legal professionals. “We want to be able to resolve our problems but there has been no progress so we are going to use the ultimate recourse we have to be able to make things advance.”

Both organizations are seeking a dramatic surge in salaries, an increase that will put them on par with the national Canadian average. At present, Quebec crown prosecutors and government lawyers earn at least 30 per cent below the national average, according to the latest figures provided by AJE. A lawyer employed by the Quebec government can earn at most $100,756 or 45.5 per cent of the salary earned by a judge of the Court of Quebec. In contrast, the top salary of an Ontario crown prosecutor or government lawyer is $200,924 or 79.8 per cent of a provincial court judge, making it the highest in the country. In Nova Scotia that figure stands at $130,143, in Manitoba $133,697, in Alberta $176,628, and in British Columbia $177,653.

Quebec crown prosecutors and government lawyers are demanding that the provincial government adopt the British Columbia model of remuneration which pegs the salaries of crown prosecutors to the income of provincial court judges. Thanks to a 12-year deal reached four years ago, future pay increases earned by B.C. crown prosecutors are equal to the increase awarded to Provincial Court Judges, plus 1.27%. Before the deal was inked, a B.C. crown prosecutor earned around 72 per cent of a provincial court judge. Today it stands at 76.9 per cent, and over the course of the agreement will inch its way to reach approximately 86 per cent.

“The salary question is directly tied in with the problem we face with recruitment,” noted Christian Leblanc, head of the Quebec crown prosecutor’s association. “How can we hire people if we are incapable of offering salaries that are competitive?”

Besides a significant increase in salaries, Quebec crown attorneys are asking the provincial government to hire approximately 200 more prosecutors. According to statistics compiled by the Quebec crown attorney association, Quebec has the worst ratio of prosecutor per inhabitants in the country. At present, Quebec has one prosecutor per every 16,526 residents compared to an average of one per 10,700 in the Atlantic provinces, one per approximately 10,000 in B,C. and Manitoba, one per 11,916 in Ontario and one per 13,000 in Alberta.

Quebec crown prosecutors, says Leblanc, are quite simply understaffed and overworked, and the situation is worsening as growing numbers of experienced lawyers are calling it quits. Just before the Christmas holidays three crown prosecutors handed in their resignations to accept work for the federal crown prosecution department where they can earn up to nearly $70,000 more. As it stands, Quebec crown prosecutors are unable to adequately prepare their cases, unable to meet with victims and witnesses, and unable to keep up-to-date with jurisprudence, all of which put the administration of justice in Quebec under severe strain, added Leblanc.

“I am convinced that there are trials in Quebec that we lose because of the lack of resources to do the job well,” declared Leblanc, a crown prosecutor for the past 16 years. “There are people who are acquitted in Quebec when they should have been found guilty. We negotiate sentences at a bargain rate in order to reduce the number of cases.

“Many prosecutors have told me that they no longer file motions for leave to appeal. They don’t have the time. So if the court renders a decision which they disagree with, they won’t appeal it. They take the case it, and file it away.”

Those are assertions that the Barreau du Québec takes seriously. While the law society will not take a stance in labour negotiations “between employees and employer,” it is concerned about the “systematic under financing of the Quebec justice,” said Gilles Ouimet, the Barreau’s head.

“There is a grain of truth in those allegations but I don’t think it should be taken literally,” said Ouimet, a criminal lawyer himself. “What worries me is the negative impact that it could have on the public’s perception over the quality of criminal justice. In spite of the lack of resources, the criminal justice in Quebec works well because crown prosecutors are conscientious. When the security of the public is at stake, they will do what they have to do.”

In the meantime, both criminal prosecutors and government lawyers have already laid the financial, logistical and legal groundwork to launch a strike. The government’s lawyers union is armed with a robust strike fund, hovering at around $4 million, while the crown prosecutor’s association, which has 450 members, boasts that its strike fund matches that amount on a pro rata basis. Indeed, crown prosecutors have gone so far as to obtain a line of credit. When crown prosecutors met last weekend at a downtown Montreal hotel to give their association the mandate to strike in support of their contract demands, they also voted in favor of paying an additional one per cent to their union fees to reimburse the line of credit. “The message is clear – this is a fight to the end,” remarked Leblanc.

But according to a spokesman from the Conseil de trésor du Quebec, the ministry that holds the purse strings and is responsible for labour negotiations with the two lawyer’s organizations, the government “is confident that a negotiated settlement with the crown attorneys and government lawyers can be reached.”

Following six failed attempts to reach a settlement with a mediator in the case of government lawyers, and an impasse in spite of the presence of a conciliator to deal with the demands of crown prosecutors, both organizations are however preparing for the worst-case scenario. Strike signs have been ordered, and both organizations have already met with the province’s essential services council. If a strike is launched, prosecutors have agreed to provide essential services when handling a jury trial, when the accused is detained, when there is a 30-day limit on summary conviction cases, and in dealing with requests for delays. Government lawyers, on the other hand, agreed to be present in all cases dealing with health and security.

“If they don’t have the money for prosecutors and government lawyers, then they surely don’t have the means to reach out to the private sector to hire people for cases,” said Lajoie, noting that over past five years, five government bodies hired the services of private-sector lawyers at a cost of $51.9 million. “All we’re asking is that our salaries be pegged to the Canadian average.”