Labour Mobility and the Legal Profession

Human Resources and Skills Development Canada (HRSDC) defines labour mobility as the freedom of workers to practise their occupation wherever opportunities exist. According to HRSDC, every year, approximately 200,000 Canadians relocate to a different province or territory to look for work.

Several Canadian provinces and territories have enacted or are in the process of enacting legislation that will eliminate internal trade barriers and enhance labour mobility to ensure all Canadian workers have the freedom to be able to work in their fields anywhere in Canada. These endeavours stem from the Agreement on Internal Trade (AIT), signed in 1994 by the Government of Canada and the provincial and territorial governments (except Nunavut), which came into force in 1995. Specifically, Chapter 7 of the AIT deals with labour mobility and states that any qualified worker in an occupation in one province or territory must be granted access to similar employment opportunities in any other Canadian jurisdiction.

Chapter 7 of the AIT and accompanying provincial and territorial legislation target three main barriers that prevent or limit workers from moving among provinces:

• Residency requirements
• Practices related to occupational licensing, certification and registration
• Differences in occupational standards

The AIT mandates that any worker certified, licensed, registered or officially recognized in one province or territory, upon application, will be certified, licensed, registered or officially recognized for that same occupation by any other province or territory without the worker being required to undertake any material additional requirements, such as education, training, examination or assessments.

However, provinces and territories have the right to maintain specific occupational standards and can adopt exceptions to certification requirements based on legitimate objectives. The meaning of legitimate objectives and lists of known exceptions by jurisdictions and occupations are published on the AIT website at www.ait-aci.ca/index_en/labour.htm. The legal profession is one of the occupations that needs to be recognized among the provinces and territories, but is also one of the professions with exceptions to full labour mobility in Canada.

Lawyers
The legal profession is among the exceptions because of the differences between the legal systems of Quebec (civil law) and the rest of the country (common law).

The rationale for the exception is that there are significant foundational differences in the legal systems, including the way the law is developed and codified. Persons prepared to practise in the civil law system will not possess the necessary knowledge or expertise to practice in a common law system, and vice versa.

This generally means that lawyers that are members of the Barreau du Québec may require additional training and examinations to ensure competency to practise in provincial/territorial common law. And, a lawyer in a common law province or territory who files a request for certification to the Barreau du Québec will have to demonstrate that he or she has mastered the competencies, knowledge and abilities related to the practice of law according to the Quebec Civil Code, through evaluation, education, training and exams.

As a result, many were unconvinced that anything would come out of the labour mobility strategy as it relates to the legal profession and the province of Quebec. That’s why it was encouraging to read in the March 13, 2010, issue of The Lawyers Weekly that the Law Society of Upper Canada (LSUC) has developed a special licence for lawyers in Quebec in order to practise in Ontario. It is called an L3 licence. Lawyers wanting to get an L3 will have to be in good standing with the Barreau du Québec and pay their dues in both Quebec and Ontario. L3-category lawyers will have the same professional responsibilities and be subject to the same by-laws as L1 practitioners. However, they won’t have to get liability insurance from both provinces. In essence, the “home” jurisdiction will continue to cover the lawyer for his or her work in the other jurisdiction.

L3 lawyers are limited to:

(a) Giving legal advice on:

(i) The law of Québec and matters involving the law of Québec,
(ii) Matters under federal jurisdiction, or
(iii) Matters involving public international law, provided his or her home jurisdiction’s insurer covers such services,

(b) Drawing, revising or settling a document for use in a proceeding concerning matters under federal jurisdiction,

(c) Appearing as counsel or advocate before any tribunal with respect to matters under federal jurisdiction.

Quebec has also reciprocated. The Barreau du Québec has created a form of membership known as Canadian Legal Advisor; allowing members of the LSUC to provide legal advice on matters dealing with public international law and the laws of their own province as well as matters under federal jurisdiction.

Certain agreements still need to be signed between Ontario and Quebec, and by-laws drafted to give full effect to this strategy that meet the goals of national mobility under the AIT.

It is important to note that the labour mobility strategies will not guarantee anyone a job in any province or territory, or any increase in wages or salaries. People who want to move to another province or territory will compete for jobs and local wages and salaries as they always have. Also, there are no guarantees that law firms in Ontario will need lawyers who can only deal with the law of the province of Quebec, and matters under federal jurisdiction, and vice versa.

Right now it is difficult to determine the precise economic and other impacts the AIT will have, but the openness and flexibility that the LSUC and the Barreau du Québec have shown suggest that provinces and territories that are most open will be competitive and deal with the labour market needs of the future.