Tomorrow is Labour Day across Canada, where everyone in the country is provided a statutory holiday under s. 166 of the Canada Labour Code. The federal Interpretation Act, designates in s. 35(1) the first Monday of the September as Labour Day, and every province has employment standards legislation mandating the day as a statutory holiday as well.
The origins of Labour Day go back to March 25, 1872, when the Toronto Typographical Union went on strike for the nine-hour workday, backed by 10,000 workers and 27 unions. The action was characterized as an illegal conspiracy against trade at the time, with 24 leaders of the strike put in prison.
These retaliatory actions were highly unpopular, leading Sir John A. Macdonald to pass the Trade Unions Act on June 14, 1872, providing some legal protections to unions. The official celebration of Labour Day commenced on July 23, 1894, under Prime Minister John Thomson, with a parade being held in Toronto every year since.
Of course many self-employed individuals cannot properly celebrate Labour Day, and this includes the vast majority of lawyers who are in private practice. Lawyers are often self-employed, or otherwise “voluntarily” undertake work during this weekend, even if it is at a reduced or limited manner.
This weekend also marks the transition from summer, where articling students have begun to acclimatize themselves with practice. The post-vacation surge that usually occurs in early September, where the work is now delegated to articling students in higher quantities, signals the demands to be expected in the months to come.
Although lawyers share some of the exclusions of articling students under employment standards, they do not share the same prohibitions under all labour laws across Canada for collective bargaining. Only five jurisdictions in Canada – Alberta, Nova Scotia, Ontario, Prince Edward Island and
Quebec – exclude lawyers from collective bargaining. Articling students, however, do not necessarily share these exclusions in these same jurisdictions.
Ontario’s Labour Relations Act states,
1(3) …for the purposes of this Act, no person shall be deemed to be an employee,
(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity;
Articling students, who are not yet members of the legal profession as lawyers, are not covered by this exemption.
One of the greatest obstacles towards collective organization for articling students is the relatively short duration of the internship process. The Professional Association of Residents of Ontario (PARO), to contrast, is able to effectively negotiate and advocate on behalf of its members, primarily because the training process spans multiple years.
However, the need for greater representation of articling students has never been stronger in Ontario. Canadian Lawyer Magazine reported last month that tuition fees at law schools are going up across Canada, with the highest absolute tuition still found in Toronto (UofT, Osgoode) and then the rest of Ontario. This tution burden is the single greatest factor impacting the direction and the choices of the next generation of lawyers.
In 2013, Sarah Rankin wrote in The Globe,
Continued increases well above inflation are unsustainable. They will shut qualified candidates out of the profession, or drive them into careers determined by debt repayment. The profession will suffer if it excludes those who would bring diverse backgrounds and perspectives to legal practice. And the public will suffer, as affordable legal services will become increasingly hard to find.
The result of this financial debt is that articling students are unnaturally beholden to their employers, in a manner that has never been seen before in the legal industry. What makes it worse is that the recruitment processes in place have been clearly implemented to benefit the large firm employers, and not the students being recruited.
Precedent Magazine recently provided an excellent overview of the problems associated with the recruitment process, including the Working Group which provided recommendations to the law society. Daniel Fist states,
The benchers had a clear choice: they could side with the students or the largest law firms. In the end, they voted 19 to two — with two abstentions — in favour of shifting recruitment to the fall. With that, the current recruitment process was born.
The shift in the calendar was exclusively intended to benefit the larger law firms, and despite extensive consultation with law students the decision was made against their own interests. It doesn’t help that law students and articling students have absolutely no say as to who the benchers who vote on these issues are.
For all the lip service and attention provided to mental health issues in the profession in recent years, few people have tried to actually listen to those affected by these decisions as to how they actually impact them.
Another consultation is currently underway in Ontario, through the LSO’s Dialogue on Licensing. Although many law students and articling students will invariably participate in this process, this involvement lacks the ability to properly negotiate on behalf of all of the articling students in a collective manner. For a number of various reasons, articling students are reluctant to express their opinions, and if they do, they have little confidence their opinions will be taken seriously.
The Changing Workplaces Review in Ontario may have assist in revamping our employment law landscape, including how articling students and young associates are dealt with, but with a change of government those initiatives are currently on the backburner.
Professional membership associations may have a role in this conversation, but the membership in these organizations has been steadily declining, and this is often most pronounced with law students, articling students, and young lawyers, all who lament about diminishing relevance. Instead, we need a mechanism similar to our own Rand formula, where universal representation is provided.
Our society has developed trade unions to achieve the goal of providing a voice to workers. For all of their contemporary challenges, unions have been highly effective in creating bare minimums for all workers, even outside of the unionized workplace.
Another model might be an official representative voice through an independent association, similar to what PARO has achieved, which could negotiate the terms and conditions of employment of articling students. One potential contender would be the Law Students Society of Ontario, founded in 2014 to address some of these specific issues.
There would be considerable variability across different practice areas, firm sizes, and geographic locations, but the centralization of this voice in an independent manner from the bar would provide the appropriate countervailing weight necessary to assist articling students in highlighting their needs.
Of course any such change would still have to go before convocation, requiring members of the profession to recognize the importance of having an independent student voice who can speak for themselves, instead of relying on Working Groups providing piecemeal feedback, or benchers to speak on their on behalf during convocation debates. This model would effectively achieve what the LSSO has been calling for in convocation reforms earlier this year.
This Toronto Labour Day Parade parade I will be marching for articling students. Although they may not be the first segment of the workforce that we think of when considering societal vulnerabilities, they are one of the most important vanguards through which we can transform our legal institutions, and by extension, our society as a whole.