The campaign to win collective bargaining rights for Legal Aid Ontario (LAO) lawyers was a momentous challenge that the Society took on fiercely.
For more than four years, LAO lawyers sustained a campaign for the right to unionize, shining a bright light on the discrimination that denied a largely female and disproportionately racialized workforce collective bargaining rights.
A rally in support of Legal Aid Ontario lawyers seeking collective bargaining rights
It was 2016 when Legal Aid Ontario finally recognized the Society as the official bargaining agent of its lawyers. The victory was the culmination of relentless public campaigning, a charter challenge, and political lobbying that sent ripples across the country and ignited a renewed effort by unions to organize the legal community in Ontario and beyond.
“When we finally won bargaining rights for the LAO Lawyers, we changed the vernacular. Before that, you only heard ‘lawyers can’t be unionized.’ But overnight, that changed,” said Society Organizer Michelle LeBlanc, who worked on the campaign.
“This was a major win. It changed the idea of who can be unionized for both unions and lawyers in Ontario.”
The Society appealed to the Charter of Rights and Freedoms and principles of equity to win the public debate and successfully pressure the employer to voluntarily recognize the Society as the lawyers’ official bargaining agent. It demonstrated that lawyers, who are excluded from the right to unionize under the Ontario Labour Relations Act, should in fact have the right to union representation.
THE CAMPAIGN'S BEGINNINGS
In 2011, lawyers from LAO reached out to the Society and expressed interest in joining. It was not the first time LAO lawyers took collective action around workplace issues. In 2006, many Toronto-based LAO lawyers signed cards and pooled resources to hire a labour lawyer to negotiate with LAO, according to a June 2020 paper by Patricia Chong, Michelle LeBlanc, and Anna Liu entitled, “Legal Aid Ontario lawyers organizing against the odds: A case study of professional workers unionizing,” published by the International Centre for Development and Decent Work.
“Without a structure, dedicated funds, and a succession plan, the group eventually collapsed without lasting agreements in place,” they wrote. The experience highlighted the importance of sustained resources and organizational support to successfully bargain collectively.
By 2011, LAO lawyers were facing several workplace issues that likely catalyzed initial efforts to form a union. The Lawyer Workforce Strategy was a LAO policy that was causing major discontent among staff. It required lawyers to work in different locations across the province and practice in different areas of law. The rationale behind the policy was that it would create a more well-rounded workforce and increase understanding and experience with the legal aid system as a whole. But many LAO lawyers took issue with demands to relocate.
“You work in an area, you settle in that area, you’re not looking to up yourself every two years, which is what the program would require."
“You work in an area, you settle in that area, you’re not looking to up yourself every two years, which is what the program would require,” explained Criminal Duty Counsel Dana Fisher, current Local Vice-President of the Society’s Legal Aid Local and a member of the Inside Organizing Committee during the campaign. She said that lawyers were told they would not get raises if they didn’t rotate.
LAO Local Vice-President Dana Fisher
The Lawyer Workforce Strategy was at odds with legal practice standards. As Fisher explained, the field of law is directed towards specialization, not generalization, to provide clients with the best legal services possible.
“The old-school lawyer in a small town who practices all areas of law – that isn’t the direction that law is going,” she said.
“If you have someone who has been practicing criminal law for 10 or 20 years, and that’s their area of interest and their area of expertise, why would you pull them out of that?” she questioned.
According to Fisher, LAO wasn’t consulting meaningfully with lawyers about the policy or considering their perspectives. “We were being treated more like widget workers as opposed to people who had training and expertise,” she said. As frontline staff, LAO lawyers have good knowledge of their clients’ needs, but their voices were being ignored.
Another major workplace issue was disparities in the pay grid, which did not reflect years of experience nor seniority in a transparent or consistent way. It was unclear how lawyers were being placed on the pay scale, there were pay disparities within LAO based on gender, and there were concerns that LAO lawyers were underpaid compared to other public sector lawyers.
At the heart of the campaign was the issue that crown attorneys were granted bargaining rights by the Ontario government. LAO lawyers were mostly women and were a more racialized workforce than other groups, including crown prosecutors and civil lawyers. Yet crown attorneys had higher salaries and better working conditions. The call to end discrimination and the call for pay equity were central tenants of the campaign.
LAO lawyers were also fighting for the interests of their clients – many of whom come from marginalized backgrounds. The fight for unionization was also a fight to provide the best representation possible to these clients. And they highlighted the irony in the system – that LAO clients had the right to legal representation, but their lawyers were being denied representation rights when it came to labour relations.
Nov. 3, 2016 - LAO lawyers speak at the Toronto and York Region Labour Council
THE FIGHT FOR FAIRNESS
Because the lawyers did not have the right to unionize conventionally under the OLRA, they embarked on a campaign for voluntary recognition with the employer. An Inside Organizing Committee was assembled, composed of 20 LAO lawyers from diverse regions and areas of law.
The committee collected petition signatures to demonstrate to LAO the lawyers’ democratic support for joining the Society. Signatures were collected at LAO training conferences, legal conferences, social events, and meet-and-greets.
Despite concerns among lawyers that joining a union could interfere with their professional obligations, there were also strong arguments in favour of unionizing. “LAO lawyers quickly understood unionization as seeking representation from workplace experts, similar to acquiring specialized legal counsel on a legal matter. As lawyers, they appreciated the power of having a legally binding contract instead of relying on employer-controlled workplace policies,” write Chong, LeBlanc, and Liu.
The Inside Organizing Committee met weekly for four years, requiring significant dedication from the campaign’s leaders. The committee performed outreach across major geographic divides. LAO has approximately 50 worksites dispersed across the province, which was initially a major barrier for the campaign. Committee members took time off work to visit different Legal Aid offices and phone colleagues. Financial support from the Society was crucial as it helped to cover travel expenses and lost wages.
By taking the campaign public, organizers were able to connect with members in remote locations. A website was launched, and brochures were developed. By 2013, 80 percent of LAO lawyers had signed the petition.
A meeting was requested with the CEO of LAO to discuss the petition. After no response was received from the employer, a delegation of lawyers accompanied then-Society President Scott Travers to LAO’s office to deliver a written request for a meeting. The request was ignored.
The campaign employed a variety of tactics to escalate pressure on LAO. An information picket was organized outside the head offices of LAO. One LAO board member who taught a university course saw flyers distributed to his class.
Throughout the campaign, LAO lawyers garnered significant media attention. A press conference was held on Sept. 24, 2013 at Queen’s Park, which marked the official launch of the campaign.
A Toronto Star article featured a quote from the Ontario Attorney General John Gerretsen – whom LAO directly reports to – in support of LAO lawyers’ right to collectively bargain. While he later retracted his support, the statement was a step forward.
The media attention garnered through mainstream outlets breathed energy into the campaign, and it helped harness buzz in legal circles across the country, building momentum for future organizing drives beyond the scope of the campaign itself.
"The media attention garnered through mainstream outlets breathed energy into the campaign, and it helped harness buzz in legal circles across the country."
The Society also engaged in a concerted lobbying effort to win political support for the campaign and generate greater public awareness. The Society hired lobbying consultants to provide strategic advice and develop political relationships. The lobbying succeeded in drawing attention to the campaign, but it’s unclear to what extent the lobbying effort mounted political pressure on LAO to grant the lawyers collective bargaining rights.
A major boost to the campaign was the solidarity expressed by the labour movement and other community allies. “Other groups were fabulous. We did a number of rallies and other groups always showed up to them. It gave us confidence to keep going,” said Fisher. When it came to public actions, solidarity was crucial to mobilizing the numbers needed for success.
Workers’ organizations like the Ontario Nurses Union, the Fight for $15 and Fairness, and the Toronto and York Region Labour Council mobilized their members in support of the lawyers.
According to Fisher, “The fact that workers who frankly had a lot less than us and are probably treated a lot worse stood in support was very empowering. It made us feel part of the workers’ rights movement.” She said the solidarity the LAO lawyers received renewed their commitment to the cause.
Allies in the legal community, such as the Women’s Legal Education and Action Fund (LEAF), Association of Community Legal Clinics of Ontario, and the National Association of Women and the Law also extended their support to the campaign.
While a variety of campaign events and actions worked together to secure the Voluntary Recognition Agreement, Fisher believes the tipping point was the constitutional challenge that the Society filed.
“It wasn’t until we filed the charter challenge, and we were on the eve of having testimony begin, that they finally acquiesced,” she said.
In 2015, the campaign launched a constitutional challenge against LAO and the Ontario government, arguing that the exclusion of lawyers from the OLRA was unconstitutional. The campaign was emboldened by a recent Supreme Court of Canada decision that established that the Royal Canadian Mounted Police’s exclusion from labour legislation was a Charter violation.
The Charter challenge produced an affidavit from LAO’s CEO that substantiated the Society’s claim that LAO was a female-dominated workforce. It allowed the Society to re-open a pay equity complaint with the Ontario Pay Equity Commission.
“As they put more information out there, it was looking worse for them as opposed to looking better,” remarked Fisher.
As noted by Chong, LeBlanc, and Liu, the government was named in the court challenge, deepening their interest in the campaign’s outcome. “There were political considerations for the current government in this legal battle, as they would have been forced into the position of defending the exclusion of lawyers from the OLRA. How LAO funds, and in general government funds, are spent is a politically sensitive topic within public discourse,” they explain.
While the court challenge was underway, additional pressure was applied on the Ontario government through targeted pickets and rallies. Media attention continued to swell. And in 2016, Legal Aid Ontario finally agreed to the lawyers’ demand – that the Society be recognized as their official bargaining agent, pending a representation vote. A representation vote was conducted, and October 26, 2016, the ballots were counted. Seventy-six percent of those who voted expressed support for unionizing with the Society of Energy Professionals.
July 14, 2016 - Labour and community allies picket a Liberal Party fundraiser
THE GAINS OBTAINED
The campaign had some important successes along the way. In the middle of the campaign, a new salary grid was implemented by the employer based on the year of call. Some lawyers received significant pay increases – up to 30 percent. Chong, LeBlanc and Liu saw these pay increases as a union busting tactic, to discourage lawyers from progressing their campaign. Yet LAO lawyers continued to fight for their rights in what was largely unchartered territory for their profession.
The salary grid was improved upon in bargaining, where gaps in the grid were smoothed out, and transparency increased. “We made it fairer,” said Fisher.
The pay equity complaints were settled during this process. The bargaining team also successfully negotiated 0.9 percent wage increases every six months.
“We put some equity language throughout our collective agreement,” said Fisher, “although not nearly as much as we tried to put in.”
The LAO lawyers won protections against involuntary transfers. Their first collective agreement also included important provisions that required the employer to engage in meaningful consultation around policies that affect the lawyers’ working conditions.
By forming a union, the LAO lawyers were able to establish a collective voice on the policies that affect clients. A Professional Responsibilities Committee was created to give lawyers a means to discuss concerns surrounding professional best practices.
Unionization opened up avenues for greater communication between LAO lawyers and the employer, while providing union members with the structure to compile information and present a united position.
It also gave LAO lawyers institutional support for collective advocacy on public policy. Where it may not be feasible for Legal Aid Ontario to take policy positions, the Society can advocate for change at the provincial level and organize members to take political action. And it can broaden the reach of this advocacy through its connections with the broader labour movement.
Day of Action against cuts to Legal Aid
This was put into practice in April 2019 when the Ontario government cut Legal Aid Ontario’s budget by 30 percent. The Society initiated a campaign against the cuts, which included the launch of the website StopLegalAidCuts.ca and a web platform to email Premier Doug Ford. Society members collaborated with the Ontario Federation of Labour and other players in the labour movement to call for a stop to the cuts – cuts that impede access to justice, particularly for Ontario’s most marginalized residents.
The campaign to organize LAO lawyers was significant not only because it won voluntary recognition for lawyers despite the legal barriers to unionizing, which was innovative in its own right. It was significant because it brought lawyers into the labour movement, and it demonstrated how the rights of workers are intimately tied to a broader movement for social justice. It centered the needs of LAO clients, who have natural allies in the frontline lawyers who understand the ways that Ontario’s legal system can improve to better serve those clients. By winning collective bargaining rights, lawyers also won a voice at the table to advocate for clients beyond the confines of the courtroom.
A picket outside MPP Kevin Flynn's office
2016 rally outside a Liberal Party fundraiser
2014 Inside Organizing Committee members and IFPTE organizers
Lobby event at Queen's Park on April 2, 2014
Society members picket a Liberal Party golf tournament
LAO lawyer Haran Arulish speaks at a rally Oct. 18, 2013
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