A Brief History of the BC Crown Counsel Association

Early to Mid 1980s

• Government decides to operate Crown offices on the theory of 1/3, 1/3, 1/3: that is, one third very inexperienced lawyers who were specifically told there was no “career” with Crown (often hired on 6 month contracts, renewed once, then dropped for 3 or 6 months and hired for 6 months again); 1/3 ad hoc lawyers with experience but no job security (hired for one case, or one or two court days at a time); and 1/3 senior lawyers with FTE positions and benefits. Many Crown FTE positions terminated between 1982 and 1986.

 

Late 1991

• BCCCA formed
• British Columbia Crown Counsel had endured a decade of broken promises by Government and ever worsening working conditions (in Provincial Court, one prep day every other week). They were among the lowest paid prosecutors in Canada; salaries had been unchanged for years. Within a month or two of the incorporation of the Association under the Societies Act, virtually 100% of prosecutors in the Province had become dues paying members; that level of voluntary membership continued up to the 2007 agreement.

Pre- 1992

• Compensation approximately $29,000 to approximately $79,000

Early 1992

• Association tries to begin negotiations with government. Government agrees to meet with Association to discuss prosecutors “concerns”, as a “courtesy”; but government says Crown have no legal right to bargain collectively. Association makes the acquaintance of Ron McEachern and Phil Topalian, chief negotiator and legal counsel for the government, respectively. Arrogant, condescending, dismissive and contemptuous will describe their dealings with the Association from 1992 to 2006.

April 1992

• strike vote at Whistler Convention: 96% vote in favour.

June 8, 1992

• Association publicly announces job action scheduled for June 15, 1992

June 11-13, 1992

• Association and government reach agreement to appoint third party mediators and job action called off

June 24 1992

• Vince Ready and Judy Korbin appointed mediators (non-binding on either party)

October 19, 1992

• Ready report released -Government accepts all recommendations
• Report establishes the classification system that has only been slightly modified since
• Ready notes that the Government conceded “Crown were underpaid because of the present economic circumstances existing in Government.”

December 4, 1992

• First contract signed, effective April 1, 1992 to March 31, 1995
• Implements a “lockstep” salary progression through the first 10 years
• Further advancement only by appointment to a “merit position”; contract provides for minimum of 42 (about 50% of all Crown with 10 or more years experience); management treats 42 as both minimum and maximum

1993

• salary range of $38,000 to $98,000 phased in by Dec. 31/93 (at that time the top salary for a Provincial Court Judge was $107,000)

1994

• Association gives notice to commence negotiations. Government does not agree to meet for months; commences negotiations by again taking position that meetings are a “courtesy” and Association has no legal authority to bargain for its members
• Negotiations go nowhere fast and in December of 1994, the Association refers dispute back to Ready and Korbin. After short and totally futile effort at mediation, parties agree to Ready and Korbin making “binding recommendations”.
• 0% raises for 1994
• But “merit” positions increased to 75, again representing about 50% of Crown with 10 or more years

May 31, 1995

• second contract, effective April 1, 1994 to March 31, 1996, is a rollover contract
• 0 and 0% raises provided in contract for 1995 and 1996 but:
• 1.5% raise granted to Crown because it is given to all civil servants
• Compensation now $38, 500 to $ 99, 500

1996

• In January, Association gives notice to commence negotiations
• Government finally agrees to meeting in April, but government reps again express doubt that Association has any right to bargain for its members and, in any event, they can only “listen” to Association proposal because they have no “mandate” to bargain
• Next meeting occurs on July 11. Government reps now take position that they will not bargain, the Association has no standing or right to bargain. Despite two previous agreements containing a clause that both parties will “make every reasonable effort to conclude a renewal” of the agreement, they have no intention of negotiating. Instead, they present a “take it or leave it” package which proposes no changes at all except a commitment to continue to implement the lockstep increases called for by the now expired contract in April of 1996 and 1997.
• Government proposal put to members July 31, 1996 and rejected by a 99.6% vote of the members. Association refers dispute back to Ready and Korbin.

1997

• February 6, 1997 Ready and Korbin issue another set of recommendations. With substantial unhappiness and reservations, Association members approve recommendations (no new money beyond the continued implementation of lockstep increases, but some progress on other issues. It is one more agreement with the Association and once again, it contains a renewal clause calling for good faith negotiations). Government accepts the mediators recommendations, including renewal clause.
• Third contract signed on March 4, 1997, effective April 1, 1996 to March 31, 1998
• 0 and 0% raises for 1997 and 1998

1998

• In January the Association gives notice to commence negotiations
• Government delays first meeting until May 6. Government reps again profess to have no “mandate”. Second meeting scheduled for May 26 on the understanding that government reps would obtain “mandate” and come back ready to negotiate. Instead, on May 26, their position is still that they have no authority to negotiate and (quelle surprise!) the meeting is only a “courtesy” in any event – they are not under any obligation to negotiate with the Association, which has no legal right to bargain on behalf of the members.
• Next meeting scheduled for June 11, but cancelled on June 9 by government reps, who still have “no instructions”
• Meeting re-scheduled for June 30, cancelled again by government reps. Lead negotiator for government makes promise to call to schedule next meeting before leaving for holidays; but reneges and leaves without making any effort to re-schedule
• September 21, 1998 parties meet, government reps say “no” to every proposal made by the Association and instead offer 0, 0 and 2 percent in each of the next three years.
• Negotiations again at an impasse
• October 16, 1998 members vote 94% in favour of taking job action commencing November 16. Association obtains letter from Law Society Ethics Committee supporting members’ right to refuse work for which they did not have adequate time to prepare.
• November 11 and 12, Association meets with Criminal Justice Branch management (Branch Management Committee, or BMC) and agrees to a proposed Practice Directive (Workload Issues – Jan 25 1999 on the CJB website) which, among other things, establishes the targets of 2 prep days for every 3 court days in provincial court and 1 for 1 in Supreme Court. There is also agreement that the Workload Committee Chair, Bill Smart, will be directed to deliver the committee report no later than February 1, 1999.
• Same dates, government reps send message by way of BMC that they will agree to yet another mediation. Dispute is referred to Ready and Korbin again. Job action is cancelled pending their report.
• December 1, 1998 parties meet with Vince Ready. Government reps tell Ready they have no instructions to change position on any outstanding issue, including their position that there is no obligation to negotiate with the Association.

1999

• 0% raises in 1999. Except for the 1.5% COLA increase in 1995, there has been no increase to Crown salary levels for 6 years.

February 5, 1999

• Members vote 94% in favour of job action on March 11 and 12 in the form of two days of “study sessions” away from office and court for all Crown except those who had trials commencing or continuing on those days from which they could not ethically withdraw. This was communicated to BMC, the government and the public.

March 10, 1999

• Study sessions are called off when Government agrees to appoint Steven Owen as mediator in dispute, implement the lockstep increases due on April 1, and implement recommendations of Smart’s Workload Committee (with two minor changes). Despite those concessions, the vote was only 60% in favour of calling off the job action. To describe Association members as “angry and frustrated” does not do justice to the level of their discontent.

October 31, 1999

• Initial Owen report received; both sides make further representations

December 31, 1999

• Final Owen report received but Government makes no move to accept any of its recommendations. These include establishing a unique bargaining unit, granting collective bargaining rights, obtaining independent comparative assessments of the terms of employment of Crown Counsel [emphasis added] at least every 5 years “to properly inform collective bargaining, dispute resolution and collaborative management”, and an “expedited, non-binding arbitration” to deal immediately with classification and compensation issues.

February 15/16, 2000

• Two day withdrawal of services by Crown Counsel
• Four day walkout set for March 27-30, 2000
• Further negotiations go nowhere

March 22, 2000

• Government applies for an injunction – service on the Association is effected while Association reps actually engaged in negotiations
• Injunction application heard on Friday March 24, 2000 but ruling reserved for Monday March 27^th when walkout supposed to start

March 26, 2000

• As result of negotiations over the weekend Don Munroe is appointed as mediator and an agreement on process for resolving dispute is reached

March 27, 2000

• Walk-out voluntarily postponed
• Injunction application abandoned

March 31, 2000

• Memorandum of settlement is signed. It provides:
  • For the appointment of Don Munroe to make recommendations which the parties agree are intended to “…contribute to the orderly, constructive and expeditious settlement of terms and conditions of employment.”
  • That the Government may reject the award by filing a reasoned response thereto in the Legislature
  • That the BCCCA binds itself to accept the recommendations and not to withdraw services during the process or the agreement established pursuant to that process

May 2000

• Munroe hearing on terms of new contract

June 19, 2000

• Munroe report published
  • Munroe agrees “generally with the Association’s thesis that Crown Counsel in British Columbia are not being appropriately compensated”
  • Munroe finds relevant comparables for compensation evaluation are Crown Counsel in Alberta, Ontario and Department of Justice
  • Munroe takes the Government’s financial situation into account stating that he considered BC’s “existing economic and negotiating environment”

July 14, 2000

• Government accepts Munroe’s recommendations for a five year contract stating the recommendations balance “…Crown counsel’s concerns and government’s fiscal constraints.”
• Munroe report serves as the basis for an agreement, effective April 1, 1998 to March 31, 2003, the renewal of which is the basis for the Taylor arbitration award

July 2000

• Crown Counsel Act amended to give BCCCA statutory recognition as sole bargaining agent for all Crown Counsel

October 2000

• Ontario Crown obtain 30% raise

January 5, 2001

• Fourth contract signed, effective April 1, 1998 to March 31, 2003
  • Retroactively confirms 0% in raises for 1998 and 1999
  • Creates new salary grid effective April 1, 2000
    • starting salary 1993: $38,000 2000 $45,914
    • top salary 1993: $98,000 2000 $114,240

April 1, 2001

• 2% raise implemented
• Larger increase at the top for level 4’s; not as large an increase for mid-seniority Crown. But minimum populations for “merit” categories of 3B and 4 increased and after 2 year “plateau”, all Crown move in “lockstep” through level 3A (years 12-15) unless management shows they are not meeting performance expectations. This “reverse onus” provision is never exercised during the life of the agreement.

October 31, 2001

• Alberta Crown get 23% raise

April 1, 2001

• 2.5% contractual increase

April 1, 2002

• 2.5% contractual increase

April 2002

• Department of Justice get up to 17% in raises, partially retroactive
• B.C. government eliminates 35 Victim Support Services positions and expects Crown Counsel to pick up the slack in providing advice and support to victims of crime.

October 2002 to February 2003

• Expert report, as specifically provided for by contract, providing a comparative assessment of all federal and provincial Crown compensation levels is commissioned and received (Connaghan report)

February to March 2003

• Notwithstanding that the Owen report of December 1999 had referred to such a report as being “required” to properly inform collective bargaining Government suggests the Connaghan report is just a “source of information” (see Taylor report page 7)
• Government offers 0, 0 & 0

June 12, 2003

• 3.2% COLA given to BCGEU members. Despite clear contractual language requiring Crown be given same increase, Government refuses to make any increase to Crown pay schedule. Increase finally implemented after BCCCA filed grievance and arbitrator Don Munroe sided with the Association. Government’s initial position was that Munroe lacked jurisdiction to deal with the issue (again, in the face of unambiguous contract language that gave him such jurisdiction)

March 31,2003

• Starting salaries now: $49,780
• Top salaries now: $123, 836

October 2003

• Dispute Resolution Panel (Taylor) hearings held
• Existing contract provides that it is the “intention of the parties that the recommendations will contribute to the orderly, constructive and expeditious settlement of terms and conditions of employment.”
• BCCCA is bound by the recommendations
• Government may reject the recommendations by filing a reasoned response in the Legislature
• If the Government does rejects the recommendations then the next contract, effective April1, 2005, gives the BCCCA the right to withdraw services

January 14, 2004

• Taylor report is issued recommending 13% increase effective April 1, 2003
• The analysis applies the labour relations principle of replication; i.e. it determines what the parties would have achieved had negotiations not broken down
• The increase is based purely on what is required as a “market adjustment”
• The Taylor report specifically rejects the Government’s position that the proper comparators are other civil servants. Taylor states that the Government’s position is wrong according to: the principle of replication, historical reality and the Government’s previous agreement with BCCCA.
• Taylor accepts that the proper comparators are Crown in Ontario, Alberta and Department of Justice (Vancouver)
• Taylor recognizes that the recommended increase will still leave BC Crown behind their comparators but makes that decision because: “we are cognizant of the economic realities faced by the Government and the prevailing views on wage increases as distinct from market adjustment increases.” (pp. 25- 27)
• a COLA clause, which the panel feels is merited and necessary, is nonetheless rejected because it is not subsumable under the “market adjustment” policy analysis

Earlier decisions on “appropriate comparators”

• Vince Ready in 1992 rejected the Government’s position that the proper comparators are other management levels
• Owen in 1999 asserted that the management pyramid paradigm did not apply (quoted with approval by Munroe) and found that comparisons to the terms of employment of other Crown Counsel was a necessary foundation for bargaining. Munroe rejects other civil service management as a proper comparable.

Compensation comparators*

• the top salary for BC Crown in 2003 was $123, 836 -no bonuses available
• starting salary for BC Crown in 2003 was $49,780 -no bonuses available
• top DOJ salary for 2003 was $140, 500 excluding 5-10% in bonuses
• starting salary was $52,205 excluding bonuses
• top Ontario salary was $169, 759 excluding bonuses of 4.5-9%
• starting salary was $65,850 excluding bonuses
• top Alberta salary was $119,988 excluding bonuses – at least 2.5%
• starting salary was $52,232 excluding bonuses

*comparators all pay bonuses that were not taken into account by Taylor

February 12, 2004

• A-G (Geoff Plant) faxes his “reasoned response” rejecting Taylor to the Association and files same in Legislature on February 26
• Despite the contrary rulings from Ready, Owen, Munroe and Taylor, Plant says “What should have been done is to compare the remuneration of Crown Counsel with other members of the B.C. Public Service.” and “… I see no need to treat Crown Counsel differently from other members of the public service …”

March 1, 2004

• Crown commences a grievance, claiming the reasoned response is no such thing and the “negotiations” and the Taylor dispute resolution process that preceded the rejection were, on the part of the government, a mere sham, conducted in bad faith.
• The parties are unable to agree to an arbitrator and D. P. Jones (of Edmonton, Alberta) is eventually appointed by the Chair of the B.C. Labour Relations Board to decide the grievance (pursuant to a contractual provision that dealt with this possibility).
• Jones hears evidence in late 2004

February 18, 2005

• Jones issues his ruling. He rejects the evidence of the chief negotiator for the government, Ron McEachern. He rejects the government’s arguments about interpretation of the agreement and about whether or not the “reasoned response” was, in fact, “reasoned”. He finds that it was not a reasoned response. He finds that the Attorney-General’s reasons were “not rational, legitimate or in good faith” in respect of two separate issues: (a) the unilateral rejection of the very comparators that had been previously agreed to as being “appropriate” comparators; and (b) the reliance upon “unsuccessful submissions made to the Taylor panel”.
• He further states:

On a micro-level, one must conclude from looking at this detailed inventory of the reasons given by the Attorney General for rejecting the Taylor Panel’s recommendations that it is not possible to identify even one which fits within the judicially recognized parameters of what would constitute a “reasoned response”.

On a macro-level, one must conclude that the Attorney General fundamentally misconceived the nature of the process which the parties agreed to in the Memorandum of Settlement in March 2000, after lengthy discussions about it in front of Mr. Owen and Mediator Munroe; incorrectly assumed that the role of the Panel was to be merely advisory, with no obligation on the parties to make their participation before it serious and comprehensive, rather than being effective; and incorrectly assumed that he could reject its recommendations for any and all reasons without regard to what had gone on before. That is not the effective, fair and good faith process which the parties clearly contemplated the Panel was to be part of; and that is not what the parties must inescapably have understood the phrase “on a reasoned basis” and “reasoned response” to mean in light of their knowledge and extensive discussion about the court cases dealing with that concept prior to signing the Memorandum of Settlement in March 2000.

• He allows the grievance, sets aside the “reasoned response” and directs the government to implement the Taylor award

February 28, 2005

• Government introduces Crown Counsel Agreement Continuation Act.

March 3, 2005

• CCACA gets third reading and Royal Assent. The Act provides that the Crown contract is extended unilaterally to March 31, 2007. Crown Counsel get the 13% increase that Taylor awarded (effective April 1, 2003) on April 1, 2006. The Taylor and Jones decisions are of no force or effect. In yet another demonstration of the government’s lack of good faith, the contractual recognition of the Crown’s right to take job action after April 1, 2005 (which was critical to gaining Crown agreement to the contract being “extended”) is legislated out of existence and Crown are prohibited from taking any job action before April 1, 2007. The Act does permit the Association and the government to vary the contract by agreement, but gives the Minister of Finance a veto over any change that “creates a financial obligation” for the government.

2005-2007

• The Association raises dues and imposes several special levies on the members to fund a lawsuit against the government and to create a “war chest” to support job action in 2007 if no agreement is reached. Association assets increase from an average of about $80,000 in the bank to about $300,000, while funding litigation costs in excess of $100,000.

January-March 2007

• Negotiations with government get off to a better start than usual – McEachern and Topalian are gone and the Association is recognized by law. However, negotiations do not produce much agreement between the parties. The Association is simultaneously pursuing an aggressive PR strategy and preparing detailed plans for job action to commence in April
• On Saturday, March 31, a tentative agreement is reached and job action is postponed pending a ratification vote
• Members vote 86% in favour of acceptance
• 12 year deal. Future pay increases to equal the increase awarded to Provincial Court Judges plus 1.27%. Contract provides for a ½ time paid presidency, and all members receive a $3,900 “signing bonus”, equivalent to the bonus already paid to all other excluded management employees.

October 18, 2007

• Arbitrator rules in favour of the Association on the “Maternity Leave” grievance. Salary increases scheduled to take effect while a person is on parental or maternity leave are to be implemented immediately when calculating what constitutes 85% of “salary” for the purpose of “topping up”. Government practice had been to delay implementation of such increases until the person returned to work.

November 9, 2007

• The Deputy Attorney-General, Alan Seckel, confirms that the government has accepted the unanimous recommendations of the Judicial Compensation Committee. The result for Crown is that effective April 1, 2008 their salaries are increased by 9.97% and by a further 3.77% on April 1, 2009 and 2010.