Time for an Articling Student Union in Ontario

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.

Comments

  1. Oh boo hoo. If you are not prepared to do the work, then don’t go into private practice. If you want to go into private practice, be prepared to work long hours, weekends and holidays whenever it is necessary to do so. Otherwise, take a government job or go teach.

    If the students have difficult financial circumstances, look at the source of the problem. It is not the practicing bar. It is not the Law Society. It is not the articling requirement. It is the law schools.

    Articling students are not net money-makers for a firm. They are an overhead cost and they take up a lot of senior lawyers’ time that could otherwise be spent on billable work. The bar is happy to offer articling positions but it has to be cost-sensible. Perhaps the answer is to reduce law school to two years, saving the students one-third of their law school costs.

    A mistake made by the Law Society was to reduce the articling term from a year to, effectively, 9 1/2 months, forcing small firms to pay for an empty office the equivalent of one year out of every five, and forcing the principals to repeat the training/transition period every year because the out-going student never overlaps with the in-coming student. In firms large enough to stagger the students, that is not a problem, but it is a problem for small firms. No wonder fewer small firms hire students.

    As for public-sector unions, they, and the politicians who cave into them, bear by far the largest responsibility for the gargantuan provincial and federal debts now being borne at gargantuan expense by the rest of society. Ontarians are spending close to Two Billion Dollars a month servicing the federal and provincial debt loads. By far the greatest cost to those governments is the remuneration packages paid to public servants. Things have gotten out of whack despite very high tax rates.

    What, Omar, do you recommend to bring down those sky-high government debts which worsen each and every day? Tell me how you propose to cover the costs of transforming, to your specifications, our society as a whole? Please don’t say higher taxes as we are beyond the point where that is cost-effective. We are already seeing the losses of businesses, investment and human capital as they all seek out pastures where their drive, initiative, creativity, and job creating risk-taking are appreciated and nurtured.

  2. Omar, I commend you for what you are trying to do. I have much sympathy for the recent generations of articling students and for those who wish not only to help them but also improve the environment for the practice of law for everyone. What is needed are solutions that address the actual sources of the problems, but which do not require the expenditure of any more government money. What is also needed is a recognition that the path is not easy. Experience shows that, overall, the people who make the fewest excuses and who ‘get on with the job’, go farther and succeed better. What is also needed is a recognition that there are many extremely useful and fulfilling paths that can be taken with a law degree including the many benefits of working for the government or in-house, the great joys of teaching (for those who have never taught, it is one of the great experiences of life), and the exhilarating ride of going into business. What is also needed is recognition that nothing is ever perfect.

    Articling is a great boon to the development of young lawyers, followed with even greater importance by the opportunity to learn at the elbow of an experienced mentor. The facts are that the vast majority of students graduate with eye-watering debt loads, that there are not enough articling jobs to go around despite the actions of the bar to absorb them in historically defensible, per capita numbers, and that, after the calls, there are still insufficient jobs to go around despite the bar happily hiring as many new lawyers as make economic sense. As a result, too many of our students and young lawyers face hurdles that previous generations were spared. Jobless but with the debt to pay, they hang a shingle only to have clients come in with needs that were never taught in law school, the most obvious (and terrifying from an insurance perspective) being real estate deals.

    What has caused those factors to arise? We all know the answer to that – law school bloating coupled with a reduced failure rate among the hugely increased number of students. What can be done about it? Not much I’m afraid. The law schools will not willingly reduce their abilities to reap tuition and government grant revenues. The law societies feel unable, with reason, to cut the students off an inch from the finish line. The government continues to misallocate scarce education resources to unneeded law school placements at the expense of more trade placements and, for that matter, more medical placements.

    You are very thoughtful, and your heart is in the right place. I urge you and any other interested Slawgers to come up with ideas to ameliorate the situation but which do not involve incurring greater costs either to our crushingly indebted government or to the bar. I have a few, everyone should be much more interested in what others can come up with.

  3. Except, articling students are a member of the legal profession entitled to practice in Ontario and employed in a professional capacity and thus exempt from the LRA:

    https://www.canlii.org/en/on/onlrb/doc/1977/1977canlii997/1977canlii997.html

  4. The last thing Ontario law students need is a further financial disincentive to hiring articling students.

    As I used to say to students when I was at Bay Street firms, if you want to get paid more for the year you are articling, then you will end up paying your own articling students more for the rest of your career. Not a great trade-off.

    I agree completely that the problem is that law schools have been allowed to turn out way too many graduates and to increase tuition and other costs to eye-watering levels that leave many new lawyers with a lot of debt. As someone who paid my own way through university and law school decades ago I can tell you this is not a new problem, but the consensus seems to be that it has become worse. If so, let’s look for solutions that reduce the cost of law school, restrict the number of graduates to a more reasonable number that can actually be absorbed by the market, and provide more financial assistance to students who need it.

    While I agree that Omar’s heart is in the right place, it seems inconsistent to lobby for higher articling salaries and/or an articling union and at the same time be a champion for yet another new law school at Ryerson, which in my view is unnecessary at best and will likely only make the problem worse.

  5. The basic problem is that unions are only effective in extracting higher wages when they’re dealing with employers who have some sort of market power. Think industries like steel, chemicals, the auto-industry, government – where markets were dominated by a handful of oligopolists (or, in the case of government, a monopolist that is insensitive to market forces). Such employers can use their market positions to command economic rents, and unions can force them to share those rents with employers (the decline in union power in private industry since the 1970’s also coincides with the loss of the dominant positions of their employers).

    Law is not such an industry. The legal industry is as close to a perfectly competitive market as you’re likely to find in real life -tens of thousands of service providers competing with one another to provide substantially similar services. Lawyers can’t (and don’t) earn economic rents, so there’s nothing to split with articling students. And what are they going to do, go on strike while articling?

    Some of the other suggestions have more merit – I can see the value in a articling student professional association which could represent articling students. An organization like that might have been able to fight the LSO’s shameful downloading of the cost of the LPP program on articling students (the one group both least able to pay those costs and which gets absolutely nothing from it).

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