Does the Right to Collective Bargaining Extend to Lawyers?

Does the constitutional right to form a union and collectively bargain also extend to lawyers? Unfortunately for the legally curious, a case in Nova Scotia which would have answered this question has been dropped this week, leaving the question for another day. Fortunately for Crown Attorney’s in Nova Scotia, on the other hand, the provincial government was willing to hand them the right to bargain and represent themselves collectively without resorting to litigation. In an age of increasing collective action among lawyers, though, one is left wondering how long until the the courts are called upon to make the tough decision.

The would-be litigation in Nova Scotia flows directly from the landmark decision in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 [Health Services], in which the Supreme Court of Canada (“SCC”) held that the right to freedom of association under s. 2(d) of the Charter includes the right to collective bargaining and the right to organize. The upshot of that decision is that governments are now required to bargain with their public sector employees and in some cases, are required to enact legislation to protect the rights of private sector workers (see also the recent Ontario Court of Appeal decision in Fraser v Ontario (Attorney General), 2008 ONCA 760, commented on TheCourt.ca here.) But the situation giving rise to the Nova Scotia Crown Attorney’s litigation dates from well prior to these developments.

Background

The turmoil began back in 1990 with the Royal Commission of Inquiry into the wrongful conviction of Donald Marshall. The damning report placed blame for the wrongful conviction and 11-year incarceration of the Mi’kmaq man on the shoulders of the Attorney General and the Crown Attorney’s office. In particular, it criticized the Crown Attorney’s for becoming overly zealous and vulnerable to political interference.

The Nova Scotia legislature responded by moving the Crown Attorney’s office to a new arms-length organization under less control of the Ministry. But the problems were not to end there. Instead, the new organization created internal confusion as to how the relationship with the government was to work. That compounded with complaints over low pay, burdensome case loads and a loss of public confidence meant for plummeting morale in the Crown’s office by the end of the decade.

In 1999, the Nova Scotia Crown Attorneys staged a 2-day strike over their working conditions. The action was a major success for staff lawyers the who walked away with an agreement from the provincial government that recognized the Crown Attorney’s Association as their official bargaining representative and put in place mechanisms for collective bargaining over some issues. The victory was only partial, however. The scope of what could and could not be bargained for was narrowly circumscribed to the issue of wages, and more notably the agreement did not include mechanisms for resolving grievances related to discipline and termination.

Perhaps galvanized by the success of the strike, the Nova Scotia Crowns continued to press for these and additional protections that appeared to be more union-like in their character, similar to those enjoyed by other public sector workers. When the provincial government refused to budge on these issues, the Crowns in Nova Scotia filed a lawsuit in Superior Court raising section 2(d) of the Charter.

Implications of the SCC Decision

Before the case could get to get to trial, the Supreme Court released its decision in Health Services. Seeing the writing on the wall, the Nova Scotia government ceded to the Crowns’ demands. The result is that Crowns in Nova Scotia now have a bargaining and grievance process nearly identical to that of other unionized public sector workers. Notwithstanding the absence of a judicial ruling, the Nova Scotia Crown’s case demonstrates that lawyers are often like many other employees who find themselves in employment circumstances where collective action is desirable.

And the situation is not limited to Crown Attorneys. Criminal defence lawyers in Ontario and Manitoba have staged strikes to protest inadequate legal aid tariffs, and staff lawyers working in public defender offices often attempt to bargain collectively for terms of employment. It seems likely that the government now has a constitutional duty to negotiate with some of these publicly-employed lawyers – but exactly where the lines of that duty get drawn remain to be determined.

Further, whether and to what extent the Charter might apply to private-sector lawyers raises additional questions. Most jurisdictions exclude private-sector lawyers from their labour legislation, leaving them without protections to organize and bargain – very much like agricultural workers. Granted, it is doubtful that the courts would have much sympathy for lawyers’ need for labour law protection (indeed, lawyers seem more than capable of defending their rights without the protection of the state), but the structural and legal similarities between lawyers and agricultural workers run far enough that a 2(d) claim on behalf of private-sector lawyers is not beyond imagination.

The struggle for gender equity in large firms, and the perceived lack of protection for women in the profession, for example, may signal some areas where lawyers’ collective action may warrant protection. For the time being lawyers’ unions may seem far-fetched, but as the implications of the Health Services decision are fleshed out, the possibility of lawyers organizing themselves collectively may seem more plausible.