Features

Monday, 06 February 2012 08:05

Judging the judges

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Illustration: Tara Hardy
Illustration: Tara Hardy
In almost two decades of practice, criminal lawyer Paul Slansky had never complained about a judge. But one day in July 2004, he resolved to change that. Ontario Superior Court Justice Robert Thompson had just ordered him confined to the courthouse in Owen Sound, Ont., while jurors deliberated on the fate of his client, Vytautas Baltrusaitis, who was charged with murder. Toronto-based Slansky, who was staying at a hotel just a couple of minutes’ walk from the courthouse, viewed the move as malicious and petty. “However this conduct was merely the straw that broke the camel’s back,” Slansky wrote in an affidavit following the trial he called “the most difficult of my career.”
Tuesday, 03 January 2012 11:40

The death of collective bargaining?

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Air Canada has had two strikes. The one in 1998 involved pilots; it lasted 13 days and was settled through bargaining during what were profitable times. The other, last June, involved front-counter staff; it was settled after three days — mere hours after the federal government tabled back-to-work legislation. The first strike occurred while the Liberals were enjoying a majority in the House of Commons with Jean Chrétien as prime minister. Today, Stephen Harper’s Conservatives run the country, also with a majority. But while Chrétien stayed out of Air Canada’s contract squabble in 1998, Harper has not.
In light of labour disputes in recent months by both Canada Post and Air Canada, academics and labour lawyers across the country are now discussing Harper’s apparent war with the labour movement in Canada. Some unions are preparing to enter the trenches to fight that battle while others already have done so.
Harper has carte blanche because of his majority, but the hockey enthusiast has the equivalent of a breakaway on an empty net. There’s the loss of resistance with the collapse of the Liberal party, and the uncertainty left at the top of the new opposition New Democrats due to the death of leader Jack Layton. “Harper’s government has more respect for the right to bear arms,” says Toronto labour lawyer Paul Cavalluzzo, who represents the Canadian Union of Postal Workers, referring to the Conservatives’ recent move to do away with the long-gun registry. “Obviously they are not very friendly to the labour movement and they don’t pretend to be.”
In 2011, Minister of Labour Lisa Raitt interceded to stop a strike by Canada Post and prevent one by Air Canada’s flight attendants. Meanwhile, the Canadian Union of Public Employees is preparing proposals for new deals for the carrier’s pilots as of November; the two sides there are already fastening their seatbelts in anticipation of severe turbulence. A contract with Air Canada mechanics is also up for renegotiation.
This new policy of stepping into disputes is setting the stage for a new style of labour negotiations, experts say, where companies hold back and wait for government help. If the government’s propensity to involve itself in labour disputes continues, says Cavalluzzo, employers will feel safe under the umbrella of back-to-work legislation and will no longer be serious about negotiating. That’s exactly what happened in Air Canada’s dispute with the flight attendants, says another Toronto employment and labour lawyer, Howard Levitt of Levitt LLP. “I blame it on Air Canada,” he says. “They didn’t fight. You’ve got to be prepared to fight.”
The airline’s communications department did not respond to interview requests for its representatives.
The government’s increased involvement in labour matters is dangerous, says McGill University’s Bob Hebdon, an expert on government intervention in disputes. “[Parties] hold back knowing if the government intervenes they’ll have padding,” he told The Canadian Employer. “So, the union doesn’t really get the last best offer. The behaviour has changed.”
Twice CUPE took an offer from Air Canada back to the flight attendants. On the first attempt in August, 87 per cent of them rejected the proposal; on the second in October, that number was down to 65. Union leaders said they managed to get 80 per cent of what membership was seeking. “The fact that the members twice rejected offers that they were presented by the union is a pretty clear signal that there is conflict within the union,” offers Ken Thornicroft, a law and labour studies professor at the University of Victoria.
The Canada Industrial Relations Board hadn’t been used in more than a year when it was asked by the union representing Canwest employees to establish successor rights when a number of the broadcaster’s television stations were sold. By going to the CIRB, the government took away the union’s only strength — the membership’s willingness to withdraw their labour, says Julie Guard, an associate professor of labour studies at the University of Manitoba. “For the Harper government to take away the only power that the union really had undermines the entire premise of the labour relations system that has governed relations between workers and their employers since the 1940s,” says Guard.
She says that by intervening twice now — with the postal workers and the flight attendants — one might surmise that the goal is to prevent all strikes by intimidating workers into accepting bad agreements, on the grounds prolonged agreements will not improve the employees’ position. Also, the employer can offer as little as it wants, knowing it will not have to face a strike.
She says the Air Canada and Canada Post negotiations suggest the Harper government has a secret policy of undermining collective bargaining and weakening the labour movement. “The Conservatives did not mention collective bargaining or an intention to undermine unions when it campaigned in the last election and has not acknowledged that goal now,” she says. “But it appears that is nonetheless its agenda.”
Levitt believes Air Canada would have been better served training new flight attendants in what he says is an unskilled job — forcing a strike that wouldn’t matter to the public, given that the airline would still be in the air and would still have people on the plane pouring coffee. The unionized flight attendants would then watch as the company proceeded without them and be frightened back to work.
That seems to be the plan of the City of Toronto, which by all accounts is bracing for an extended work stoppage with its two largest unions in January. Toronto is moving ahead with plans to train managers to perform unionized employees’ tasks as it tries to negotiate rollbacks on benefits and the end to the “job-for-life” clause in its previous contract.
Levitt says the danger in having the Ministry of Labour continue to get involved in forcing arbitration is that it “will kill the collective bargaining process.” In an opinion piece for Postmedia News in July, Levitt cited the example of the City of Windsor asking Dalton McGuinty’s Liberal government in Ontario to stay out of its dispute with its union and not order them back to work. “[Asking for intervention] is an admission of failure, because ordering the workers back means an arbitrator will decide their remuneration and the history of arbitrators’ decisions has created the very wage boondoggle the public is decrying,” Levitt wrote.
When dealing with labour disputes that reach a stalemate, Levitt recommends firing the lawyers and advisers who brought negotiations to a standstill. Then, if the union strikes, tell the union the cost of the strike will be taken out of their future salaries and benefits when a settlement is reached. “With one not-for-profit client I negotiated for, we told the Teamsters every time our offer was rejected, the next would be less. On the third offer, they believed us and accepted the reduced offer. The next time they didn’t strike,” wrote Levitt.
The postal workers began rotating strikes on June 14, and on June 15 Raitt informed them she would be tabling back-to-work legislation. She did so on June 20. The postal union filed a constitutional challenge in Ontario Superior Court on Oct. 11, arguing that the Conservatives violated the Charter of Rights and Freedoms by imposing back-to-work legislation.
Raitt sent Air Canada’s flight attendants to the CIRB to arbitrate their dispute. The 6,800 flight attendants cancelled a strike scheduled for Oct. 13 after the CIRB told them to stay on the job while the contract offer was reviewed. On Nov. 7, the CIRB ruled in favour of Air Canada on a new four-year deal that expires March 31, 2015. “The government robbed [the flight attendants] of what was a democratic opportunity,” says Anne Gregory, acting director of CUPE’s legal branch. “This is a company that declared bankruptcy twice and after agreeing to wage rollbacks and concessions to help the company, they didn’t get to bargain.”
The pilots were met by a notice of dispute filed with the government in October, prior to a second round of talks, which appears to be following the same path as that of the flight attendants.
That Harper has begun a war with the labour movement in Canada is clear to the Professional Institute of the Public Service of Canada, which has 60,000 white-collar professionals, including federal government lawyers. Traditionally keeping an arms-length distance from labour matters, PIPSC voted in November to join the Canadian Labour Congress in anticipation of layoffs, rumoured to be extensive in the coming months. In the late 1990s, PIPSC had voted against joining the CLC. But, back in the late 1990s, money wasn’t as tight. Air Canada’s pilots won nine-per-cent salary increases over two years in 1998. The airline made a profit of $427 million in 1997. A few short years later in 2003, the company filed for bankruptcy protection and most recently reported a loss of $46 million for the second quarter of 2011, considerably less than the $318 shortfall for the same quarter a year earlier.
Formed in 1920, PIPSC’s almost 100 years of political neutrality ended when 400 delegates rallied at Parliament Hill on Nov. 4. That same day, a private member’s bill tabled by Conservative MP Russ Hiebert calling for greater financial disclosures from Canadian unions crashed in the House of Commons in large part because of procedural strategies developed by PIPSC, and slipped into the hands of the New Democrats. “In today’s difficult economic times, our members are facing an increasingly complex labour environment, as well as a sustained attack on the part of government and its supporters in the business community,” PIPSC president Gary Corbett said after the Nov. 7 vote.
Finance Minister Jim Flaherty is attempting to balance the budget by 2015, but among the roadblocks he faces is a reported increase in pay for public servants of $1.2 billion for 2012 as established through collective bargaining. Job cuts have already been publicized. Close to 800 positions were eliminated in August at Environment Canada, whose employees belong to PIPSC, along with 52 from the National Research Council. In October, Veterans Affairs Canada confirmed that 500 jobs would disappear in the next few years.
On the flipside, what hasn’t been reported, according to the Canadian Taxpayers Federation, is an increase in public sector jobs of 35,000 since Harper took office in 2006 — to 420,000 from 386,000. “It is simply not correct to say that the Harper government is cutting the size of the federal public sector, or cutting spending. The opposite is true,” says Gregory Thomas, the CTF’s federal and Ontario director. “We welcome the cost-cutting the government has carried out so far. We urge them to cut more aggressively.”
The federal government is using the Air Canada dispute to publicize its desire to make changes to the Canada Labour Code, which is more than 100 years old.
“There’s something wrong in this case and does that mean there’s something wrong in the code?” Raitt said in an interview with the CBC in October. “If we do have a problem and maybe it is a flaw in the system, we should discover it now, and if we need to make changes we can make changes.”
Harper has made some major moves in the first months of his majority, including scrapping the long-gun registry, eliminating the Canadian Wheat Board, and beginning the process of cutting $4 billion from the country’s budget, which is what prompted PIPSC to hold its vote.
The labour movement in Canada faces a challenge not only from the government, but also from the new global economy. As the generation of baby boomers leaves the workforce, it is replaced by a younger workforce that views unions as being less important — having grown up in a country where most labour rights have long been established.
According to a paper written by compensation and industrial relations director Karla Thorpe for the Conference Board of Canada, organized labour has seen a 1.7-per-cent decline in the past few years, to 29.2 in 2011 from 30.9 per cent of the workforce in 1997. Seventy per cent of the public sector is unionized, while 15.9 per cent of the private sector is — an all-time low, down from about 35 per cent just a decade ago. “Labour’s ability to exert pressure on behalf of workers will undoubtedly be impacted by a declining base of members and the resulting loss of union dues,” writes Thorpe. “Even though union density is on the wane, organized labour can continue to have a positive impact on government policy — particularly if they focus on issues that have broader public appeal.”
Thornicroft suggests that unions are here to stay, and will remain especially relevant in the public sector. “In terms of public, unions remain strong and powerful and well funded and I don’t see any change there. They will continue to have considerable bargaining leverage. In the private sector, that’s a different story. In the private sector unions have no significant bargaining leverage these days.”
Most of the concerns, according to Thornicroft — safety, health care, and wages, for example — are no longer issues in Canada, so workers in the private sector are now opting to skip unionizing. “For private sector unions the glory days are gone,” he says. “They may be back but I don’t see it happening any time soon.”
It would appear Air Canada’s flight attendants are dealing with that reality right now.
Cover photo: Liam Sharp
Cover photo: Liam Sharp
Air Canada has had two strikes. The one in 1998 involved pilots; it lasted 13 days and was settled through bargaining during what were profitable times. The other, last June, involved front-counter staff; it was settled after three days — mere hours after the federal government tabled back-to-work legislation. The first strike occurred while the Liberals were enjoying a majority in the House of Commons with Jean Chrétien as prime minister. Today, Stephen Harper’s Conservatives run the country, also with a majority. But while Chrétien stayed out of Air Canada’s contract squabble in 1998, Harper has not.
Monday, 14 November 2011 08:00

Preparing for uncertainty

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2011_November-December_uncertainty.jpgAs Canada fights to stay out of a looming global recession, it seems corporate counsel are preparing for the worst with plans to bring more work in-house even as they expect to see an increase in the amount they will be challenged to do in the coming year, according to the annual Canadian Lawyer corporate counsel survey.
Monday, 14 November 2011 08:00

The loan arrangers

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Cover: Dominic Bugatto
Cover: Dominic Bugatto
Third-party litigation loans have a rather nasty reputation. The funding of legal cases by complete strangers causes many intelligent people, some of them lawyers, to declare these kinds of loans abusive, predatory, and a black mark on the justice system. And yet there are others, some of them also lawyers, MBAs, and financial advisers, who believe when administered to the right people, by the right people, these “lawsuit loans” help those in need when no one else will. Stephen Pauwels is one such person. Yes, Pauwels is in the loan business. Yes, he profits from plaintiff-victims. But his point of view will surprise you. Pauwels believes his own industry is dangerous, similar to both the Wild West and the American subprime catastrophe.
Monday, 03 October 2011 09:00

Doing business in Africa

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Cover: Jacqui Oakley
Cover: Jacqui Oakley
As the world’s second-most populous continent and blessed with abundant mineral riches, Africa holds great promise and economic opportunity. But those opportunities must also be mentioned and measured along with Africa’s many challenges: its division into 50 often fractious nations, frequent wars and civil strife, a stubborn history of corruption and inefficiency, and the deepest poverty anywhere on the planet. It’s fair to say Africa is the toughest place in the world to do business.
Monday, 05 September 2011 10:00

A decade on

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2011_September_cl_sep_11-lr-1.jpgKent Roach thinks of it as the age of innocence, those emotional early months following the Sept. 11, 2001 attacks in New York and Washington, D.C., when Canadians were vigorously debating new anti-terrorism laws. Parliament, the legal community, and other stakeholders were consumed with how to craft legislation that would properly balance national security, privacy, and human rights. That was long before most Canadians had ever heard of Maher Arar or Omar Khadr. No-fly lists, security certificates, and electronic surveillance were barely on the national radar. The federal public safety department, now one of the most high-profile federal ministries, didn’t exist. Canada had not yet deployed the 37,000 soldiers who would serve in Afghanistan over the following decade, 157 of whom lost their lives.
Monday, 05 September 2011 09:00

Hacked!

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Illustration: Mick Coulas
Illustration: Mick Coulas
Computer systems at law firms, governments, companies, courts, and high-profile organizations have been targets of increasing numbers of cyber attacks as perpetrators become more sophisticated in their ability to steal information. As recently as July, the North Atlantic Treaty Organization and the United States’ Central Intelligence Agency were targeted. The CIA’s web site was shut down for several days as a result, while the hackers who attacked NATO claimed they had infiltrated the organizations’ computers and obtained classified documents; the United Nations, law firms in Canada and the United States, and Ontario’s courts have been hacked over the last several months.
Monday, 01 August 2011 11:50

To article or not to article?

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Illustration: Alexi Vella
Illustration: Alexi Vella
It’s a capstone to legal training in Canada, a (mandatory) rite of passage that allows law students to prove they not only have the academic chops to become full-fledged lawyers, but also the nimbleness to effectively serve their clients in the real world. Unfortunately, for many budding lawyers in Canada, articling — the “bridge” between law school and full-blown legal practice — has now become a barrier to reaching their professional aspirations.
Monday, 01 August 2011 10:43

The Top 25 Most Influential

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2011_August_cl_aug_11_-_cover.jpgCanadian Lawyer is back with our second annual list of the Top 25 Most Influential in the justice system and legal profession in Canada. Our inaugural Top 25 was one of our most-read, and most commented-on, features in 2010. As expected, it was controversial and lawyers across the country had lots to say about it. We took heed of the comments and this year put our list together slightly differently, asking for nominations from: legal groups and associations representing a variety of memberships and locations; some winners from last year’s Top 25; our general readership; and our internal panel of writers and editors. We received more than 100 nominations, which the internal panel then whittled down to about 55 candidates. We then posted the list online and once again asked our readers to participate, with more than 1,300 people voting in the poll. The final list is based on that poll with input and the last word from the internal panel.
Monday, 04 July 2011 15:54

The speaker

Written by
Photo: Colin Rowe
Photo: Colin Rowe
It's hard to imagine a more natural setting for Peter Milliken. Sir Winston Churchill stares over his shoulder from a portrait on the wall. Row upon row of bound copies of Hansard line the wood-panelled walls of his elegant, now former, Centre Block office in Ottawa. Everywhere you look are mementos of his years as Canada's longest-serving Speaker of the House of Commons. Yet, Milliken appears serene as he discusses his decision to trade the pomp, circumstance, and power of his job as speaker for a life of semi-retirement, part-time academe, and occasionally consulting with his former law practice. “I’m not anxious for another full-time job at all,” he says with a grin and a slight twinkle in his eye. “I would rather have a more relaxed afterlife, if I can call it that.”
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