This post is cross-posted to CanLII.

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:

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.

CUPE v Governing Council of the University of Toronto, para. 88.

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.


Conclusion

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.


Canadian doctoral candidates, who study in relative obscurity to advance the state of knowledge, are poorly remunerated (if they are remunerated at all). More doctoral candidates are receiving their degrees at the present time than ever before: federal and provincial funding agencies simply do not have the resources to keep up with demand. Nor do universities, who offer a measure of doctoral funding, have nearly enough to keep a professional researcher going for four-to-six years. Indeed, 54% of doctoral candidates graduating in 2015 carried debt over $25,000. These lucky few entered a saturated market, where some 37,000 doctors of philosophy are now teaching as full-time professors and 55,000 are in progress.

These are worrisome numbers that somewhat explain the steady decline of candidates’ persistence over the degree. Of the 2011/12 Canadian cohort of candidates for a Ph.D, 52% fulfilled degree requirements after six years.

The penible state of graduate education in Canada, and the correlated stress from which many doctoral candidates suffer, may be palliated if society recognizes doctoral research as employment. Such recognition valorizes the incredible sacrifices that doctoral candidates make for their research. It also acknowledges that doctoral research demands a candidate’s utter devotion in much the same way a profession demands devotion from its professors: we promote a mental health crisis by not rewarding candidates’ work in capitalist currency.

Changing social attitudes means re-framing the place of doctoral candidates in the university. We now consider candidates students: they are trainees registered at a university purely for their benefit. Ontario’s Employment Standards Act captures this point in no uncertain terms at section 3:

(5) This Act does not apply with respect to the following individuals and any person for whom such an individual performs work or from whom such an individual receives compensation:

2. An individual who performs work under a program approved by a college of applied arts and technology or a university.

Mark these words. They explain that the Act does not apply to a kind of labour, which means that students and candidates for degrees cannot claim to be employed for the purposes of minimum employment standards. These words are exceptional; other fields see employees protected even when they are learning on the job: the Act defines an ’employee’ to include ‘a person who receives training from a person who is an employer’ (s. 2). This definition would, but for section 3, capture doctoral candidates’ labour.

Some European doctoral candidates face no such obstacles. Austria, Belgium, Germany, and Switzerland pay their doctoral candidates over 40,000 Euros in yearly gross salaries. This wage is, at the very least, enough to pay for cost of living. Sweden also offers a monthly salary and frames doctorates as jobs with according status and remuneration. In 2006, Swedish doctoral candidates received an average salary of 2,365 Euros a month.

These may be modest figures for working professionals; they are far more than many Canadian doctoral scholars receive. A $40,000 annual salary for Canadian scholars is usually obtained after submitting to a competitive funding process, one that only accepts a few students a year.

Legal norms

Law offers great potential for shifting this model. The Employment Standards Act precludes doctoral candidates from the benefits of minimal employment standards. The Labour Relations Act in Ontario has no such quibbles.

Post-doctoral fellows and employees have been recognized under the LRA. The seminal case on this point is Canadian Union of Public Employees v Governing Council of the University of Toronto. CUPE applied to create a bargaining unit of post-doctoral fellows working at the University; the University replied that post-doctoral fellows were not employees under the LRA and therefore couldn’t unionize.

The Labour Relations Board ultimately decided for the union, and its rationale built upon earlier analyses from the late 1970s and early 1980s (viz. York University, [1975] OLRB Rep. Sept. 683; Carleton University, [1978] OLRB Rep. February 179; University of Ottawa, [1981] OLRB Rep. February 232; York University, [1981] OLRB Rep. May 601).

Certification decisions must determine an academic worker’s status: they must be employed. The Board described the problem in another decision, University of Western Ontario:

Having said that, the existence of the relationship of student to university cannot be ignored.  The difficulty which arises is that the relationship of student to university as educator can bear many of the hallmarks of the relationship of employee to employer.  That is, the educational relationship may explain the presence of what would otherwise be a hallmark of an employment relationship, and vice versa.

Para. 52.

Employee status is determined by reference to the facts of each case. The student relationship, for example, can occupy the field, thus rendering any payments made between university and student a purely academic matter.

The University of Toronto case doesn’t deal with this point because post-doctoral fellows are admittedly not students. The University unsuccessfully attempted to argue that the fellows weren’t employees, but the Board put paid to this distinction:

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 problem was canvassed in the University of Western Ontario decision in the excerpt set out above.  In this case, however, there is no dispute that the University of Toronto does not have the power to licence or grant a degree per se to PDFs: PDFs are not graduate students.  The Board’s past decisions with respect to the employment status of graduate students are thus of limited application to the case at hand.

The fact that the work performed by PDFs is of educational value to them as “academic trainees”, to use the term preferred by the University, is therefore irrelevant.  The fact that work provides an opportunity to learn, even a continuous opportunity to learn, does not transform what would otherwise be an employment relationship into a non-employment relationship for the purposes of the Act.  As argued by the Union, universities are typically a unique environment: one in which learning never comes to an end.  The evidence before me clearly establishes that this is the case at the University of Toronto.

The fact is that the PDFs perform work in the University of Toronto’s labs, using the University’s equipment and materials, produce something of value, i.e. research, and receive compensation from the University for the performance of that work.  These are all hallmarks of an employment relationship.

As noted, direction and control is another hallmark of an employment relationship.  The significance of this factor in a particular case requires consideration of the nature of the work in question.  For example, this Board has had no difficulty in concluding that professionals are employees for the purposes of the Act notwithstanding the fact that the nature of their work is such that they are subject to very little in the way of meaningful direction and control.  The evidence established some variance in the degree of direction and control to which PDFs at the University of Toronto are subjected.  Some are engaged to perform a very specific task.  Some are given greater licence to explore a research area within the general parameters of the principal investigator’s research interests.  But there is no question that in the day to day performance of the work itself, PDFs are subject to very little direction and control.  In my view, this simply reflects the nature of the work: research within an academic setting.  In this respect, the work performed by PDFs is not very different from the research work of the faculty for whom they perform the work, apart from the fact that they are subject to the general direction of those faculty in their capacity as principal investigators.

Paras. 88-91, 102-3.

The distinction between student and employee is razor thin, and the Board here happily does not have to enter into this complicated relationship.

The Board did review the relationship in Western Ontario, where it found graduate students working under many of the criteria that constitute employment (para. 53). The Board, however, concluded that the educational relationship between student and university (largely in the STEM fields on the evidence in that case) provided the student with a preponderant advantage. The Board, however, left open the possibility that its decision could be revised:

Within the context of this analysis, the union’s position would require the assumption that only a graduate student’s work on his or her thesis or own research has educational value to the student.  I do not accept this proposition.  The union’s witnesses generally accepted that within the context of lab based disciplines, where collaborative research is the norm, there is something to be learned or gained from working with and supervising others and skills to be developed from maintaining and operating laboratory equipment which is not directly related to one’s own research.  The problem with respect to activities of this nature may be one of degree.  There may come a point where the performance of this work can no longer be said to be of sufficient educational value to the graduate student, and its required performance gives rise to an employment relationship.

Para. 57.

This quotation begs the question: is doctoral candidates’ labour of sufficient value to the graduate student?

The question is best answered with a view toward outcomes. 55,000 doctorates are currently underway in Canada. If, say, 54% of current doctoral candidates obtain their degrees, the Canadian market is flooded with almost 30,000 new doctors of philosophy. There were only about 37,000 full-time professors teaching in Canada in 2019.

Qui bono?

The traditional career paths for a Ph.D are quite established. They include finding academic employment as a university professor. Other paths include work as professional researchers (typically in STEM fields) or consultants in various capacities.

If a Canadian doctoral candidate aims to graduate and join the academic profession as a professor, she or he faces stiff competition in Canada’s current job market. Professional researchers in STEM fields do have further career options; Ph.Ds in humanities, however, face dimmer prospects. They may consult, which is the product either of personal brio or happy circumstance.

Universities, on the other hand, obtain direct and sustained benefits from graduate enrolment. Take Ontario as a representative example: each university receives funding per student known as ‘Basic Income Units’. Each student has a value. To these units are added things like a ‘Graduate Expansion Grant’, which rewards universities for expanding their graduate enrolments year-on-year. Bottom line: universities benefit from additional government support when they convince students to enrol in doctoral programs.

The situation is such that the Government of Ontario has created and expanded funding incentives for post-graduate employment six months and two years after graduation. Put differently, universities are now not only rewarded for increasing their enrolments, thus saturating sectors of the labour market; universities also benefit from graduates’ future job prospects. This benefit again takes further advantage of the training that students receive.

Come back to the question: is doctoral candidates’ labour of sufficient value to the graduate student? This question pairs with the Latin qui bono. The funds delivered to universities for their students’ labour generally benefit the university more than the student. In undergraduate or masters’ education, one might distinguish the benefit: these degrees are threshold requirements to a broad range of jobs. Students in these degrees do benefit from the education that they are offered.

Doctoral candidates, however, face restricted job prospects due to the specialized nature of their education. They are required to perform intensive research, which (unless the candidate works on the degree part-time) requires the candidate to fully commit herself or himself to the degree. This requirement causes the candidate to lose income from other employment: a disadvantage imposed by the university. The university, however, obtains operating grants for the candidates’ labour and for increasing the number of candidates labouring at the university.

On this cynical view, universities systematically benefit to an overwhelming degree. The circumstances of liberal higher education have changed the educational value of a doctorate. While doctoral candidates obtain value from the education offered, they also face the prospect of lost income. Their labour in fact serves to remunerate the university to such a degree that the university’s requirements become tantamount to an employer-employee relationship. Doctoral candidates may (with a lot more evidence) be in a position to unionize and, thus, to obtain more reasonable working conditions.

Collective agreement drafting is presently a non-specialist field, and lack of drafting skill leads to lack of clarity in labour relations. When I read a collective agreement, I look for the rules that structure my workplace or the workplace of a friend. I look for clear rules, well defined exceptions, and reasonable structure. I find most of these things in most agreements, but I have to look.

Dipping into labour arbitration shows me how complex these rules can get. Brown and Beatty’s Canadian Labour Arbitration is filled with chapters on collective agreement interpretation, where rules are not clear enough. Labour lawyers and union representatives know the pain of these disputes, yet, when I speak with some lawyers, I am subtly informed that there is a way of doing things in the labour world. There is a way of speaking and a way of writing.

There sure is, and the back-and-forth that takes place around the bargaining table can be frenzied and very emotional, much like labour relations more generally. Both sides are negotiating a future – and it has to be good enough to ensure industrial peace. For all this pressure, though, the language of many collective agreements remains opaque to an average reader.

The way things are done is, in my admittedly limited experience, a euphemism to efface errors made in the heat of negotiations. These errors are often unique, but I categorize them into two camps:

  1. Overwrought, verbose language; and
  2. Useless text.

I will describe these phenomena with reference to collective agreements. The solution to both problems requires a paradigm shift in labour negotiations. Drafting by the parties at the table does not produce good collective agreement language. Each party has too much of a vested interest.

A new model for collective bargaining leaves the parties to negotiate the substantive terms of their agreement while a professional drafter hammers out the text. In this way, parties can direct their energies to getting the terms right, while they have but to review the language to ensure that it captures the spirit of their agreement.

Overwrought, verbose language

Overwrought and verbose language occur when drafters unnecessarily complicate sentences, clauses, or articles. A typical legislative sentence proceeds subject-verb-object. Modifiers may be appended before or after this unit to create conditional rules or to qualify the rule. A complicated sentence will contain modifiers interjecting in the main unit. A complicated sentence will obtain from a run-on sentence, or a sentence with many qualifiers. Clauses or articles become complicated when conditions are repeated across many sentences. They are also weighed down by more basic syntax and grammar errors.

An example of these kinds of errors occurs in the agreement between . This agreement’s public holiday provision reads in part:

To qualify for payment for the holidays listed in 10.1.1, employees must have worked their last scheduled workday prior to the holiday and their first scheduled workday after the holiday. Employees who are absent from work on either or both of these days, but are in receipt of basic wages from the Company, and employees who are absent from work on either, but not both of these days and are in receipt of Workers’ Compensation Board benefits for that day, shall be entitled to the holiday pay. Employees who are not in receipt of wages and are absent from work on either or both of these days due to circumstances considered by the Company to be beyond their control shall be entitled to the holiday pay.

This paragraph defines entitlement and creates a list of exceptions to entitlement rules. This list is framed as a series or conditions that lead to entitlement even though the (Employment Standards Act) criteria are not met. Full sentences are used to enumerate each condition when a simple list would do:

Employees absent from work on their first scheduled workdays prior to or following on qualify for holiday pay listed in article 10.1.1 when they

  1. receive basic wages from the Company;
  2. receive workers’ compensation benefits; or
  3. are absent from work due to circumstances that the Company considers beyond their control.

Each enumerated condition creates the same right to holiday pay. An employee absent before or after the holiday receives pay if she or he fulfills one of the conditions. Employees absent on both days must fulfill the trigger condition because they have missed one or the other workday. The relevant information is communicated in a concise article.

My hypothesis to explain overwrought and verbose language in labour relations agreements boils down to parties being carried away by the emotion and pressure of labour negotiations. Verbosity is often due to confusion; confusion may be engendered by emotion. Meetings at bargaining tables are often emotionally charged events. Parties draft accordingly.

Though this example does not permit us to deduce or infer too much about collective agreement drafting, it does suggest a better approach to drafting. This logic game is misconstrued for negotiation. Hashing out contract language is an important element in any legal relationship. It remains, however, a job best left to third-party specialists. These types will bring clarity and stillness to an emotional task, thus reducing chances of error.


Useless text

Useless text occurs when parties insert statements that do not create or define rules. It also occurs when parties insert references to statutory obligations.

When these conditions obtain, the collective agreement is weighed down by language that isn’t doing any legal work. Their inclusion inhibits comprehension by forcing the reader to understand the agreement’s legal context. This context is not of immediate value in most cases; it becomes valuable in arbitration, when statutory law is pled to interpret the agreement.

Consider the agreement between Sunnycorner Enterprises and the Canadian Union of Skilled Workers, which opens with a standard preamble:

1.1 WHEREAS the Employer is engaged in construction industry work in the electrical power systems sector on Ontario Power Generation or Bruce Power property and may enter into collective agreements covering those of its employees in the bargaining unit as hereinafter defined; and

1.2 WHEREAS the Union, as defined in the covering page of this Collective Agreement, has in its membership competent, skilled and qualified journeymen and apprentices to perform work coming with the trade and craft jurisdiction; and

1.3 WHEREAS the Employer and the Union desire to encourage closer co-operation and understanding between the Employer and the Union to the end that a satisfactory, continuous and harmonious relationship will exist between the parties to this Agreement.

These paragraphs do very little work. A reader even remotely acquainted with the parties will know the first two paragraphs’ contents. The third paragraph is arguably an operative provision. It indicates the parties’ intention to readers. Alas, however, section 2 of the Labour Relations Act supplies this recital and more besides. All the interpretative language exists in the enabling statute. Readers and arbitrators don’t need the parties’ help, and the agreement can be shortened.

Restatement of statutory obligations is again found in more specialist agreements. The agreement between the Service Employees International Union Local 2.ON and Labatt Breweries contains a classic example of this flaw:

3.01 The Company confirms its intention to continue to comply with the terms of the Operating Engineers Act and all other statutes regulating the operating of equipment and machinery used in the Company plant at London, Ontario.

Two problems exist. The most alarming issue is the implicit suggestion that a company can opt out of statutory law. Most statutes contain obligatory provisions. The second problem is that the Operating Engineers Act has been repealed for some twenty years. The Technical Standards and Safety Act, 2000 replaced this legislation. The agreement does capture other acts, but inclusion of defunct legislation suggests that dual standards, one adopted voluntarily from past legislation and another enforced by current law, exist. Removing reference to statutory law avoids this problem.

Whatever its form, useless text lengthens reading to no benefit. The reasonably well-informed reader does not come away with knowledge about precise obligations. Collective agreements are legal instruments. They exist to create clear rules. Any text that does not create, describe, or qualify a rule is unnecessary. (To be clear, bald references to statutes do not create, describe, or qualify a rule – they repeat a pre-existing obligation or permission.) Collective agreement drafting needs to move beyond these reminders and recitations.


Back to basics: the professional drafter

Most people I’ve encountered don’t want to delve into the intricacies of labour drafting, nor should they. Drafting is a specialist’s field because it requires an interest in language, language’s logical expression, and the legal backdrop of labour relations law.

The closest analogy to a professional collective agreement drafter is, of course, legislative drafters, for which Canada is well-known. These professionals create laws and regulations; collective agreement drafters create the same instruments for workplaces.

I have not encountered specialized collective agreement drafting on my journey through labour relations. It would be nice to see these professionals become a reality.