As part of the April 28 Convocation, Law Society of Ontario (LSO) benchers narrowly voted 25-24 (with one abstention) to have minimum compensation for articling in the province — despite those opposed saying such a move could hurt smaller firms and further reduce the number of articling spots in an already sparce hiring environment.
An LSO spokesperson confirmed the new target date for implementing a minimum wage regime is May 1, 2023, when the 2023-24 licensing cycle begins.
An actual amount has yet to be determined, said Jennifer Wing in an e-mail to The Lawyer’s Daily.
“The Professional Development and Competence Committee will determine how to successfully implement the mandatory minimum compensation policy and will return to Convocation for any decisions that require further policy approval,” she said.
The new mandatory minimum will apply to all Ontario articling students, including those who go through Toronto Metropolitan University’s (formerly Ryerson) Law Practice Program and the University of Ottawa’s Programme di Pratique du droit — both “experiential training” options that include work placement.
As expected, the vote did not come without yet another lengthy debate on the issue.
Some benchers said not having a mandatory minimum would allow to continue potentially exploitive hiring environments and have negative impacts on cash-strapped students — some of whom end up articling for free.
Others said that having one would kill more articling positions due to a mandatory wage potentially impacting the bottom line of smaller firms and solo practitioners.
According to an LSO Professional Development and Competence Committee (PDCC) report presented to the benchers at a November 2021 Convocation, it was estimated that 130 to 150 placements either paid an annual salary of less than $20,000 or went completely unpaid.
“The majority of these placements are in sole practices or law firms of two to 10 lawyers,” it states.
Bencher Atrisha Lewis
“Having made that request for an exemption, we have now taken on the responsibility to ensure that the most vulnerable in our profession are protected,” said Lewis, noting there are other Canadian jurisdictions where lawyers and law students are not exempt from respective employment standards legislation.
Lewis also said that through consultations it has been learned that the profession in general is in favour of minimum compensation. She noted articling students are generally cash-strapped to being with, and that this leaves some quite vulnerable.
“I think it’s important for this bench to consider the situation of current articling students. I know many of us are decades-plus removed from what that … experience is, but law school tuition and debt is now very high. … And students graduating these days have immense financial burden, and that raises equity concerns when we think about a barrier to entering the profession. It is unduly burdening our most vulnerable members of our profession at a time where they have taken on such significant financial barrier.”
Apropos of this, bencher Jonathan Rosenthal said that allowing students to work below a set minimum wage — or, in some cases, for free — is wrong.
“That’s illegal in any other job,” Rosenthal said, adding that such a thing does nothing to improve the public’s view of lawyers.
“We are not a loved profession. And we actually want to say to the public that we want people to work for free? … The profession has spoken, the students have spoken, and we should not be saying, you got it all wrong folks — just trust us. … There may be a solution to fix articling, but it’s not allowing people to work for nothing.”
But others said forcing lawyers and firms to pay a mandatory minimum would further reduce the number of articling placements due to smaller employers being unwilling or unable to take on the extra cost.
Bencher Murray Klippenstein
Combining a student’s salary with all the other usual expenses could mean some smaller firms may simply forgo taking on articling students, Klippenstein said.
“Some people were saying an articling job is a job like any others, and the major factor is the moral obligation to pay for work. Well, an articling job is not like other jobs, and I don’t agree that the overall factor is a moral imperative to pay them. An articling job is the first stepping-stone in a lifelong career path. It’s not like other jobs. And for us as benchers, yes, people should pay articling students … but the moral problem we face is, as others have said, who is going to make the jobs? Who’s going to hire people? We need to expand that circle.”
Cecil Lyon, a family lawyer in Kanata, Ont., wondered if mandating a minimum wage would be a slippery slope to the regulation of lawyers’ income.
“Where does this stop?” he asked. “Do we mandate first year salaries? Do we mandate what sole practitioners should earn? How far does the law society want to stick its hands into the practice of law? And where does it end?”
But Michael Lesage was one of the benchers who waded into the long-standing debate around doing away with articling altogether.
“The U.S, experience teaches us that there will always be high unemployment for new law grads, and by having articling, we’re in effect mandating as a regulator that some students, often disadvantaged, work for free, which in my view is simply wrong. Candidly, I’m hoping that requiring mandatory compensation helps to kill articling in Ontario.”
The vote to mandate a minimum wage was the latest chapter in a back-and-forth over the issue.
A mandatory minimum wage had initially been approved by Convocation in December 2018, but this move was reportedly interrupted by the COVID-19 pandemic. Then the November 2021 PDCC report came out, recommended a “best practices approach to compensation which encourages rather than requires that all experiential graining placements be paid … .”
At the time, a divided Convocation decided that the issue of compensation be differed pending additional input.
If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Terry Davidson at t.davidson@lexisnexis.ca or call 905-415-5899.