Throughout the 1990s, Canada's Crown counsel, like other public servants, were subject to a series of wage freezes, diminished promotional opportunities, and increasing staff departures. In this context, support grew for an independent body that would advocate for the interests of non-managerial Crown counsel. The AJC was formed in July 2001, following a national referendum of counsel, in which nearly 90% of the ballots cast were in favor of the AJC’s creation.
Prior to 2005, Canada’s Crown counsel with the Department of Justice were not legally permitted to unionize and bargain collectively. However, a small number of federal public sector lawyers employed by independent agencies (approximately 100) were unionized and had been represented by the Professional Institute of the Public Service (PIPSC) for about 30 years.
The legal landscape changed on April 1, 2005, when the Public Service Labour Relations Act (“PSLRA”) came into force and, for the first time, allowed the vast majority of Canada's Crown counsel to unionize. The AJC applied to become the exclusive bargaining agent for all eligible Crown counsel on the day that the PSLRA came into force.
The AJC was certified on April 28, 2006, as the exclusive bargaining agent for the approximately 2,600 lawyers and prosecutors who work in the federal public sector, including the lawyers who had previously been represented by PIPSC.
The Regional Rate of Pay in Toronto aka Toronto Differential
Between 1987 and 1990 the Department of Justice’s Ontario Regional Office (ORO) in Toronto experienced serious recruiting and retention problems. Lawyers were leaving the ORO at an alarming rate, and the DOJ was having trouble recruiting new lawyers. Many DOJ lawyers in the ORO were taking employment with the Province of Ontario.
At about the same time, Ontario lawyers secured collective bargaining rights. Their first collective agreement in 1989 was resolved by binding arbitration which resulted in pay increases for Ontario lawyers of 22-44%. That was a fatal blow to the ORO’s ability to recruit and retain lawyers.
Treasury Board had historically always opposed regional rates of pay. However, on June 6, 1990, Treasury Board decided that in order to address the ORO recruiting and retention problem it would approve a regional rate of pay for the ORO. The “Toronto Differential” meant that DOJ lawyers at the LP-02 and LP-03 levels in Toronto and in satellite offices in the surrounding area would earn $12,000 - $16,000 more per year than their colleagues elsewhere in the country who were paid on the DOJ national scale.
The Toronto regional rate of pay was intended to be temporary, to be reviewed on an annual basis, and to eventually merge back into the single national pay scale for federal lawyers.[1]
In 1991, the Government of Canada was experiencing budgetary issues and imposed fiscal restraint. A series of legislative measures effectively froze public service pay for a period of seven years. The legislation also froze the Toronto regional rate of pay into place for seven years (1991-1997), even though this regional pay rate was intended to be temporary. In effect, the higher regional rate of pay for Toronto became somewhat institutionalized.
In the post-austerity period, pay increases for DOJ lawyers were approved in 1998 and 2000. The Employer kept the Toronto regional rate of pay in place, but gave ORO lawyers a lower pay increase than the rest of the country.
In 2000 Ontario government lawyers received another substantial pay increase. On October 26, 2002, the Kaplan arbitration award gave Ontario government lawyers a pay increase of 30% for the period of January 1, 1999, to December 31, 2000. To prevent another potential recruiting and retention issue in the ORO, Treasury Board approved another 8% terminable allowance for Toronto lawyers in 2002.
The division caused by the Toronto regional rate of pay eventually manifested itself during the drive to unionize DOJ lawyers in 2005 when a faction of ORO lawyers opposed the certification of the AJC as the exclusive bargaining for all LPs and sought to have a different association certified as the exclusive bargaining agent for ORO lawyers.
[1] The history of the Toronto regional rate of pay is exhaustively reviewed in Babcock v. Canada (A.G.), 2005 BCSC 513 at paras. 40-169.
The AJC’s First Collective Agreement (2006-2011)
2008
September 24, 2008 – After a period of collective bargaining an impasse was reached, and the employer requested arbitration.
The global economic crisis occurred.
2009
March 12, 2009 – The Expenditure Restraint Act, enacted in response to the global economic crisis, came into force and imposed statutory limits on pay increases over a five-year period.
October 23, 2009 – The Bendel Arbitration Decision settled the terms of the AJC’s first collective agreement and was largely modelled on the previous PIPSC collective agreement for unionized federal public sector lawyers. The Decision granted a right to overtime pay and imposed the statutorily-mandated pay increases of 2.5% on May 10, 2006; 2.3% on May 10, 2007; and 1.5% on May 10 of 2008, 2009 and 2010.
The AJC’s Second Collective Agreement (2011-2014)
2011
March 18, 2011 - AJC files Notice to Bargain.
April 8, 2011 - New negotiator for TBS is announced and TBS is in breach of 20-day timeline to meet with AJC (PSLRA Section 105[1]).
June 15, 2011 - Two-day collective bargaining session with TBS (June 15-16).
July 5, 2011 - Three-day collective bargaining session with TBS (July 5-7).
September 27, 2011 - Four-day collective bargaining session with TBS (September 27-30).
October 7, 2011 - AJC files request for arbitration.
November 14, 2011 - AJC incorporates under Canada Not-for-profit Corporations Act.
December 7, 2011 - PSLRB refuses TB’s request to delay arbitration.
The Harper Government was first elected as a minority government in 2006, re-elected as a minority government again in 2008, followed by a majority win in 2011. That is when the Harper Conservative Government brought in legislation (Bill C-4) that significantly weakened collective bargaining rights in the public sector.
2012
April 20, 2012 – AJC arbitration brief submitted.
June 27, 2012 – Tentative agreement reached. Among a number of changes, overtime pay was removed from the collective agreement, pay was structured (10% increase in addition to annual economic increases), and the LP-01 to LP-03 classifications were converted to lock step pay schemes.
October 1, 2012 – Ratification vote
The AJC’s Third Collective Agreement (2014-2018)
2014
January 9, 2014 - AJC files Notice to Bargain
The Harper Government’s 2014 budget omnibus bill made it illegal for any federal bargaining unit to strike if 80 per cent or more of the positions in that unit were declared necessary for providing an essential service. The legislation also allowed the government to define what exactly an essential service is, and how many positions are required to provide that service.
The Harper Government was defeated in 2015 and the Liberal Government of Justin Trudeau formed a majority government. While the new Trudeau government signaled early on in their mandate that they would reverse the damaging legislation brought in by the previous government it wasn’t until November 26, 2018, that Bill C-62—An Act to amend the Federal Public Sector Labour Relations Act and other Acts—received Royal Assent.
However, the Trudeau Government did sign interim agreements with Bargaining Agents in 2016 (including the AJC) promising not to exercise the new powers and to accept any request to change dispute resolution methods.
Delays in bargaining were not exclusive to the AJC at this time. Also of note, TB changed the negotiator assigned to the AJC several times between 2014 and 2016 which added to the delays.
2016
June 3, 2016 - The AJC requests a change from conciliation/strike route to "binding conciliation."
October 2016 - TB failed to provide their wage comparability study to the negotiation team for review and cancelled bargaining until November.
November 2016 - Bargaining was resuscitated.
December 19 and 20, 2016 - The AJC and TB hold bargaining sessions.
December 22, 2016 - The AJC declared an impasse.
2017
January 2017 - Referral to binding conciliation (interest arbitration).
April 2017 - Nominees are chosen.
May 2017 - Chair is chosen.
June 2017 - AJC Brief submitted.
2018
July 10, 2018 - Brault Arbitration Decision rendered. The evidence on pay was conflicting with the AJC pay study suggesting that a 29% pay adjustment was warranted, and the employer pay study recommending a 1% wage adjustment. The Chair refused to assess the pay study evidence and determine which evidence he accepted. Instead, the Chair accepted the employer position that a 1% wage adjustment should be awarded. The Chair wished for more common tools and strongly recommended that the parties have reliable, thorough and non-partisan joint pay studies for future collective bargaining.
July 29, 2018 - Dissent rendered by Member Munn.
July 30th, 2018 - Dissent rendered by Member Cavalluzzo.
The AJC brought a judicial review application of the Brault Arbitration Decision.
The AJC’s fourth Collective Agreement (2018 – 2022)
2018
July 18, 2018 - AJC files Notice to Bargain (along with a judicial review application of the Brault Arbitration Decision as leverage).
October 2018 - Membership Input Survey was completed.
November 2018 - Exchange of proposals.
December 2018 - Bargaining sessions held on the December 17 and 18.
2019
February 2019 - 2nd Bargaining session.
March 2019 - Bargaining sessions continued.
June 2019 - Bargaining continues.
July 2019 - Tentative agreement reached which included two pay studies jointly administered by the AJC and TBS and an undertaking from the Department of Justice and Public Prosecution Service to co-develop guidance on management leave.
August 2019 - Ratification vote.
Joint Pay Studies 2019 - 2022
2019
October-December 2019 – AJC-TBS Working Group for the joint pay studies met three times on matters relating to the internal relativity study and the external pay comparability study.
2020
February-December 2020 – AJC-TBS Working Group for the joint pay studies met six times on matters relating to the internal relativity study and the external pay comparability study.
November 2020 – The AJC delivered the first draft of the contextual information document for the internal relativity study.
2021
January-December 2021 – AJC-TBS Working Group for the joint pay studies met twelve times on matters relating to the internal relativity study and the external pay comparability study
December 2021 – TBS unilaterally sought a recommendation from the contractor for the internal relativity study on the appropriate use of the contextual information document. The contractor recommended that it should have absolute discretion with respect to whether to use the contextual information document and to what extent it would be used.
2022
January-May 2022 – AJC-TBS Working Group for the joint pay studies met five times on matters relating to the internal relativity study and the external pay comparability study.
February 2022 – After more than a year, the AJC was finally able to secure the agreement of the employer that the contextual information document was accurate.
May 2022 – The AJC concluded that it had reached an impasse with the employer over the appropriate use of the contextual information document for the internal relativity study. The AJC decided to seek a decision on the issue from the independent expert agreed upon by the parties in accordance with the MOU for the joint pay studies.
May 27, 2022– The AJC delivered its submissions to the independent expert and TBS.
June 23, 2022– After having had the AJC’s submissions for almost a month, TBS advised that it would need until August 15 to reply (a further two months). The expert declined to impose a shorter timeline on the TBS submissions.
August 11, 2022– TBS indicated that it would not be able to provide its submissions by August 15 and would require an additional week until August 22.
August 22, 2022 – TBS delivered its submissions to the expert at 11:32 pm.
September 22, 2022 – The AJC delivered reply submissions to the expert.
October 25, 2022 – Expert delivered her decision in favour of the AJC's position.