The Law Society of Ontario occupies a special place in most lawyers’ hearts, and much talk has sprung up in recent years about how that special place first forms, then concatenates. One reason that springs to mind among the next crop of legal advisers is that articling students are not represented in the Law Society’s structure. They are, to be sure, members of the Society—no one would deny an opportunity to double down on the costs associated with legal licensing. They are simply not represented.
Before attending to the employment concerns that are the heart of this piece, notice the LSO’s structure. It is, as I have said elsewhere, an eleemosynary corporation with collegial powers:
the Law Society is a professional college that bears the hallmarks of an eleemosynary corporation. It is a foundation endowed to preserve its members’ interests. It can award university (collegiate) degrees. Its funds are (notionally) diverted to its members. The Society is, in other words, a charity designed to house legal professionals as a self-regulating and self-training college, thus maintaining an independent profession.
The nature of this independence (and I have called that independence into question) is as a body corporate consisting of all members of the legal profession. This corporate identity is not a facile construction; it was applied from the ancient collegiate model to house each lawyer, thus giving lawyers rights and obligations toward each other. When we speak of the LSO, therefore, we are referring to the corporation of all lawyers in Ontario, and the place of each lawyer in this structure is, like it or not, that of a participant in the LSO’s good and bad works.
On to the employment matters: the situation becomes more interesting still when you attend to an articling student’s options under the Employment Standards Act. They have none because students-at-law are exempted from employment standards:
2. (1) Parts VII, VII.1, VIII, IX, X and XI of the Act do not apply to a person employed,
(a) as a duly qualified practitioner of, …
(ii) law, …
(e) as a student in training for an occupation mentioned in clause (a), (b), (c) or (d).
If you’re not familiar with the ESA, the above exemptions relate to:
- Hours of work and eating periods;
- The ‘three-hour rule’, which requires an employee who comes to work to be paid at least three hours;
- Overtime pay;
- Minimum wage;
- Entitlements for public holidays; and
- Vacation with pay.
In short, then, students-at-law benefit from none of the rights that are traditionally associated with employees. Their only recourses against employers are through human rights tribunals, the courts, or the Law Society itself.
This recital should give you pause. A profession that prides itself on the honourable and efficient administration of justice would, one thinks, admit vulnerable populations like articling students to basic employment protections.
The legislative and regulatory web, however, make students incredibly vulnerable, and the profession’s regulator is Shelob.
Only one legislated recourse is open to this vulnerable population: unionization. The immediate objection to such a course is that students can’t unionize. That claim to student status mitigates attempts to unionize.
I have, however, elsewhere detailed how students and quasi-students may unionize against universities. This class is virtually identical to the students-at-law toiling in enforced obscurity. My article detailing how doctoral candidates might unionize observed that:
The Employment Standards Act precludes doctoral candidates from the benefits of minimal employment standards. The Labour Relations Act in Ontario has no such quibbles.
Indeed, some unions already represent articling students in the Province of Ontario. Legal Aid Ontario, for example, has its articling students represented by the Society of United Professionals.
The stumbling block when it comes to unionizing articling students against the LSO is that they are perceived as students, not as employees. They are, moreover, not directly employed by the LSO: their ability to unionize must attach to an employment relationship.
The LSO as employer
Careful attention to the LSO’s rules regarding articles of clerkship and judicial opinion on the subject suggests that an employment relationship does exist, which merits collective bargaining. The LSO acts either as a statutorily recognized employer bargaining agency or as a personnel agency with the power to establish employment conditions on behalf of its members (Ontario’s lawyers). Its current rules are not subject to negotiation because the equivalent employee bargaining agency doesn’t exist; it has never been viewed as a personnel agency, likely because its august character doesn’t make the inference obvious. One thing, however, is perfectly clear: articling students and law students don’t have a place at the table despite their entreaties.
An employer or an employee bargaining agency differs from a traditional union because it represents the collection of independent bargaining power for a class of employers or unions. The prime example is the Ontario Hospital Association, which negotiates province-wide terms of employment for nurses and other hospital staff. Local negotiations between individual hospitals in the system also take place to ensure that local peculiarities are satisfied. The provincial agreement, however, predominates.
Where a personnel agency exists, its foremost role is routing job seekers to employers. I should note that employees of temporary help agencies in Ontario receive more statutory protection than articling students. Temporary help agencies also cannot charge employees fees for assigning employees to an employer. The LSO charges its articling students $2,800 for the privilege of being employed. Recall that these fees are charged on top of three years’ worth of exorbitant law school tuition fees.
These observations come to naught if the LSO cannot be made out to be an employer, and my first analytical point must demonstrate that the LSO fits the broad legal definition of an employer. Once this point is established, the right to unionize flows from the Labour Relations Act, which defines ‘employee’ as including ‘a dependent contractor’. No further qualification is given. The word speaks for itself.
The employer relationship
The employer relationship is subject of frequent debate, especially as the gig economy enters full swing. Courts have often pronounced on the true status of an independent contractor under employment standards legislation. Labour Relations Boards have also opined on employee status in the context of union certification. Lord Denning’s view of an employer-employee relationship is most apposite: you know it when you see it. This approach is Canadian courts’ and tribunals’ final position in the helter skelter world of judicial opinion.
I’ll dredge up some Labour Relations Board commentary:
The difficulty posed by cases like those of articling students, medical residents and graduate students is that the licensing or academic requirements imposed by an entity upon the individual seeking to be licensed or graduate may serve to explain all or some hallmarks of a relationship which would otherwise be an employment relationship with that entity: direction and control, performance of work, production of something of value, and receipt of income.
This difficulty is, of course, squarely at issue for articling students. The five hallmarks of an employment relationship are present. The major stumbling point is that each of the five hallmarks may also be assigned to the lawyer or firm employing an articling student. The traditional view, and one that has been assumed by the courts, aids the law societies. In the LSO’s case, there appears to be no challenge to the bald disclaimer in its licensing process policy:
The Society is not a party to the employment relationship created by Articles. The employment relationship is between the Candidate and the Candidate’s employer.Art. 10.3.
This statement doesn’t hold water if the LSO is found to have all the hallmarks of an employment relationship.
Canadian cases go a ways toward defining the employment relationship, but the law is fraught with discordance. Several tests exist such that the traditional test for control, which defined a master-servant employment relationship is no longer persuasive. Two other tests may apply to the LSO’s relationship with articling students.
The first of these is the fourfold test. This test requires a sufficient degree of control, the ownership of tools, a chance of profit, and a risk of loss.
The second is the organization test, which asks whether a person or group is part of the employer’s organization. The judicial emphasis is placed on the location and timing of the work If the person is indeed part of the organization, they are employees.
Supreme Court Justice Major stated the test more plainly in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.:
In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. …
The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.
It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.Paras. 46-8.
The flexibility of Justice Major’s position has been the Ontario Labour Relations Board’s practise. In C.J.A., Local 27 v. Calvano Lumber & Trim Co., a panel said that:
Employment relationships may exhibit a variety of forms in different contexts, but the essence of such relationship is the exchange of labour for consideration in some form. Collective bargaining concerns the terms of that exchange and trade union representation permits even small groups of employees to improve them.
Applying helter skelter
The LSO’s rules relating to articling students disclose a level of control over the articling relationship that, though not undue, points to students’ status as labour.
The test for control is an obvious starting point. Lawyers control articling students’ day-to-day activities. That control, however, springs from lawyers’ relationship to the LSO. All articling supervisors are approved by the LSO and are regulated as delegates of the LSO. This regulation is akin to appointing professors to supervise graduate students. The lawyer works at the LSO’s behest, and her or his payment for this service is the provision of labour from the LSO. The relationship between the LSO and its students, then, is colourable by the control that the Society exercises over principals.
This point is enhanced by the Society’s potential control over the process. Its recent decision to compel principals to pay their students is a case-in-point. The Society can establish any term or condition relating to students’ labour, thus giving it unlimited potential to control the relationship. That potential, or the ability to control the work, is a determining factor in the test (see 2017 TCC 242, para. 16; Zacharuk v. Kitlarchuk, paras. 20-1).
The fourfold test builds on this analysis. The LSO’s control is established. The ownership of tools rests with the principal, but the tools for a modern lawyer are minimal. A computer is needed, and access to a couple paid databases is helpful. Most of the resources necessary for a lawyer’s trade may be found in a well-stocked university law library. The principal has a chance of profiting on the student’s work; the LSO obtains profit from the student by charging fees to give the student access to the working relationship. This structure, of course, does not import a risk of loss. The LSO instead deputizes its members as agents on its behalf. The risk of loss is passed onto the individual member. Those members are, however, extensions of the LSO’s corporate personality. Their rights and privileges are determined and allowed by each other lawyer, which implies that the risk passed to an individual lawyer is one authorized by the profession. My interpretation is preserved by the above-noted relationship between LSO and principal.
The fourfold test for an employment relationship between articling student and LSO is thus fulfilled. The LSO exercises control over the student’s work; though it does not supply any tools for the work, not many are needed in most cases; it obtains profit from the worker; and it has passed the risk of loss on to individual members.
This assessment of the LSO’s work makes the organization test a formality. The above analysis suggests that the Society serves as a temporary employment agency. It creates the sole means of entering the profession and requires workers to comply with its organizational rules before complying with articling principals’ local requirements. The eleemosynary nature of law societies, moreover, means that each principal is complicit in establishing and maintaining the scheme. The college’s directing minds directly benefit from the organization’s decision to raise labour by using its statutory privileges.
There exists, moreover, a policy reason for recognizing Ontario’s articling students as employees of the LSO. Such recognition allows them to have a meaningful voice in the profession that has so far refused to accede to requests for representation. The Ontario Labour Relations Board recognized this fact in Association of Commercial and Technical Employees, Local 1704 v Parkdale Community Legal Services:
In view of their exclusion from the definition of “member” of the Law Society as set out above, articling students are unable to participate in the governing process of the Society either through voting for or becoming a bencher.
to give “member” under The Labour Relations Act a broader interpretation than “member” under The Law Society Act would be to exclude form collective bargaining persons who are not yet full members of their profession and can neither enjoy the full benefits of their professional association nor have an effective input into its operation. The existence of professional associations and an assumed lack of need for collective bargaining among their members provides a fundamental pillar of support for the professional exclusion under The Labour Relations Act. In the absence of clear language to the contrary, we are not persuaded that the Legislature intended to exclude from collective bargaining persons who still stand at the door of their profession and, until they become full members of their professional association, lack effective means of self determination through that association.Paras. 11, 13.
The fees levied against articling candidates entitle them to a measure of responsible government. If the LSO is unwilling to provide such a measure, the Labour Relations Board is the best alternative.
There’s much left to be said and done on this issue. The above sketch will hopefully generate more in-depth discussion regarding articling students’ place as labourers in the profession. Steps may be taken to organize union representation, either directly against the Law Society, or in concern with unions to form a provincial bargaining association.
The way forward in this regard is fraught by the ever-changing nature of the workforce. Articling students only work for ten months before moving on to professional life. A successful unionization drive therefore requires a rapid vote to certify the bargaining unit, or a vote that is so public that incoming articling students are aware of the issues and can feel confident voting for representation.
The challenge isn’t for the faint of heart, but when one attends to stories of articling relationships gone wrong, or when one takes cognizance of the LSO’s inflexible criteria with regard to this labour pool, the vulnerability of the articling student population to a hierarchical and arcane professional regulator’s decisions is striking.