Benchers arguing that the market should dictate salaries don't understand today's realities
As we kick off another year under COVID-19, the Law Society of Ontario has planned a special late Christmas gift to good articling students across Ontario. At the February Convocation meeting, benchers will consider whether to roll back their own decision from 2018 which required all articling positions in Ontario to pay the equivalent of minimum wage.
It’s hard to know where to begin with such a wrong-headed move, so we might as well start with the background. While the LSO passed the minimum wage enhancement in 2018, it was not due to come into effect until May 2021 and implementation was suspended once the pandemic struck. Articling students have never benefited from the promised reforms, which are now in danger of complete removal. If it strikes you as a bit premature to be strangling a basic labour right in its infancy, that’s because it is.
Perplexingly, the Experiential Training Enhancement brief prepared by the Professional Development and Competence Committee who made the recommendation to remove this protection (a majority of whom were in favour of revoking the minimum wage requirement) suggests that the LSO could “study” whether an alternate approach to compensation had a measurable impact on the availability of articles. But there is a new approach that is yet to be tested. It can surely provide plenty of valuable data for the LSO if the benchers could only refrain from throwing it out before there is even a single year of information on how it has impacted articles.
The PDCC further stated that the LSO should “encourage” employers to offer paid articles. We already have more than enough experience with how the market decides to act when the only incentive is the “encouragement” of the LSO. It ends with articling students forced to take underpaid and unpaid articles, exploited for their contributions, and deeper in debt. Soft measures do not work when we are discussing a floor for compensation. They cannot and will not substitute for a clear base pay requirement.
The argument that COVID-19 has pressured the industry and reduced the amount of articling positions does not hold water. If the genuine concern is the availability of articles in Ontario, this is a problem of the LSO’s own making that pre-dates the pandemic. The LSO is the regulator; it has the power to regulate the profession, work with law schools and the provincial government, provide support and funding to articling opportunities off Bay Street, and protect its most vulnerable constituents – articling students. Benchers deny these students any representation at the forum where they make these decisions but select students to foot the bill wherever possible.
The LSO is eating from both ends of the table. On the one hand, it refuses to give students any formal say in how we are treated and hikes our licensing fees yearly. On the other, it strips labour protections from us to satisfy the concerns of a limited group of employers who benefit from the absence of compensation regulation. When we complain, the LSO ignores us. When we work within the LSO rules, the LSO dismisses us.
As they say, the good LSO taketh, and the good LSO taketh again.
It is no excuse that an employer complains they cannot fund an articling student at minimum wage or that training costs money. We do not accept such a thin argument from any other industry. There is a cruel irony that the LSO, the arbiter of an occupation that professes to uphold and promote fairness and demands every new call swear they will ensure access to justice and legal services, now looks to cripple the very people doing the work closest to these ideals. This work includes historically less remunerative areas like criminal defence, family law, legal aid, etc. They deserve minimum compensation protections and for any bencher to argue otherwise is shameful.
Articling students do not need the hollow platitudes of benchers that “ideally, all placements would be paid.” We need to see the regulator take our concerns seriously and not disregard our interests just because we have no vote or voice at Convocation, by their design.
A final point to note. By my count, only a handful of benchers were called after law school tuition was deregulated and commenced its meteoric rise to today’s levels. The majority have no frame of reference for the reality of entering the profession today and the immense financial investment that is required. They wrap themselves in arguments of the “free market” in the highly regulated articling race or claims that articling is training, not employment, a view so divorced from reality it strains belief. These benchers went to law school with a nickel and a dream. That they should be the ones determining that we don’t merit minimum wage is galling.
To the honourable benchers, ask yourself the question — if a client came to you and asked your advice on whether they should accept a job that paid below minimum wage (or nothing) and took seven years of higher education to qualify for, would you tell them to take it? I’m willing to bet your answer would be no, and that’s how you should be voting to the proposed rollback of minimum compensation.
You can do better. I urge you to.
Editor's Note: An earlier version of this article incorrectly stated that the minimum compensation reform took effect in May 2021. The author regrets this error.
