CERTIFIED SPECIALIST PROGRAM LABOUR LAW DEVELOPMENTAL PHASES AND LEARNING CRITERIA

Transcription

1 CERTIFIED SPECIALIST PROGRAM LABOUR LAW DEVELOPMENTAL PHASES AND LEARNING CRITERIA PART I: CORE LABOUR LAW KNOWLEDGE AND SKILLS (from Labour Law Experience: Standards for Certification as a Labour Law Specialist) Essential working knowledge of Ontario and federal general labour relations acts working knowledge of legal research resources and techniques for labour law and labour arbitration working knowledge of the structure of, and interpretative principles for, collective agreements familiarity with Ontario and federal employment standards legislation, pay equity, human rights legislation, workplace health and safety and occupational safety legislation working knowledge of constitutional distinction between federal and provincial jurisdiction sufficient familiarity with income tax and benefit law issues as they relate to labour law remedies, to identify issues and seek specialized advice where necessary interview clients to identify legal and factual issues advise re proper proceedings and forum for resolution of client issues draft initiating administrative documents such as grievances and labour board complaints, as well as responses and intervention applications analyse legal problems, and draft legal memoranda and opinion letters of moderate complexity working knowledge of specialized labour statutes in both Ontario and federal jurisdictions: e.g. police, fire-fighters, teachers, community colleges, public servants, as may be applicable (to the lawyer s individual practice) advanced knowledge of Ontario and federal legislation relating to employment standards and human rights working knowledge of Ontario and Federal legislation relating to statutory benefits such as unemployment insurance, pay equity, workplace safety and insurance and occupational health and safety advanced knowledge of constitutional distinctions between federal and provincial jurisdiction working knowledge of income tax and benefit law issues as they relates to labour law remedies advise re filing of complex grievances, labour board complaints, pay equity complaints and other complaints involving specialized statutory regimes relevant to workplace issues analyse legal problems of increasing complexity and draft legal memoranda and opinion letters accordingly 1

2 advanced knowledge of complex and sophisticated research resources and techniques for labour law research, including research relating to other jurisdictions advanced knowledge of specialized labour statutes in both Ontario and federal jurisdictions: e.g. police, fire-fighters, teachers, community colleges, public servants, as may be applicable to the lawyer s individual practice analyse complex legal problems and draft complex legal memoranda and opinion letters assist clients with strategic planning for dealing with workplace issues and problems GRIEVANCE ARBITRATION Essential working knowledge of relevant jurisprudence on commonly recurring substantive and procedural issues in labour arbitration working knowledge of the rules of evidence familiarity with implementation and enforcement procedures for arbitration awards interview clients to identify legal and factual issues in the case interview grievors/witnesses identify relevant documentary evidence identify basic remedial issues identify and deal with basic pre-hearing issues: need for subpoenas, demands for particulars and production of documents, filing of medical evidence, requirement for third party notice understand basic arbitration procedure: who goes first on what issues etc. prepare and present a simple arbitration (e.g. simple interpretation issues, discipline exclusive of discharge), including preparation of witnesses, leading fact evidence, cross-examining fact witness, presenting and responding to evidentiary objection issues, presentation of summary argument negotiate simple settlements assist senior counsel with presentation of more complex cases understanding and awareness of inter-relationship between grievance arbitration and statutory regimes such as employment standards, pay equity and human rights familiarity with appeal and judicial review mechanisms for arbitration awards working knowledge of detailed and factual context governing arbitration in specialized sectors/industries: e.g. health care, education, construction, as may be applicable to the lawyer s individual practice familiarity with income tax and benefit law as they relate to arbitration remedies 2

3 identify need for expert evidence prepare and lead expert evidence, cross-examine expert witnesses identify remedial issues of moderate complexity identify and deal with more complex pre-hearing issues negotiate settlements of moderate complexity act as lead counsel on cases of moderate legal and factual complexity is familiar with mediation and ADR techniques advanced knowledge of legal and factual context governing specialized sectors/industries: e.g.health care, education, construction, as may be applicable to the lawyers individual practices working knowledge of income tax and benefits law as they relate to arbitration remedies act as lead counsel on lengthy and complex cases creatively design and use of mediation/adr techniques to solve client problems LABOUR BOARD PROCEEDINGS Essential working knowledge of labour board policies and rules of procedure working knowledge of relevant jurisprudence on commonly recurring substantive and procedural issues in labour law working knowledge of the rules of evidence working knowledge of implementation and enforcement procedures for labour board decisions interview clients to identify legal and factual issues involved interview grievors/witnesses prepare simple pleadings (applications for certifications / complaints / responses / intervention applications) represent clients at officer s meetings, pre-hearing conferences and consultations identify and deal with basic pre-hearing issues: (e.g. need for subpoenas, demands for particulars, filing of medical evidence, requirement for third party notice, interim orders) identify basic remedial issues has understanding of procedural issues related to burden of proof: who goes first on what issues etc. prepare and present simple contested matters (e.g. simple applications for certification, DFRs, simple unfair labour practices) including preparation of witnesses, leading fact evidence, crossexamining fact witness, presenting and responding to evidentiary objections issues, presentation of summary argument negotiate simple settlements 3

4 assist senior counsel with presentation of more complex cases advanced knowledge of labour board policies and rules of procedure advanced knowledge of relevant jurisprudence on commonly recurring substantive and procedural issues in labour law advanced knowledge of the rules of evidence advanced knowledge of implementation and enforcement procedures for labour board decisions working knowledge of appeal and judicial review mechanisms relevant to labour board decisions advanced knowledge of specialized legal regimes such as those related to the construction industry, health care and education as may be applicable to lawyers individual practices familiarity with specialized sectors/industries environments: e.g. health care, education, construction industry, retail food industry as may be applicable to lawyers individual practices advanced knowledge of specialized labour tribunals (e.g. public service tribunals) identify and argue remedial issues of moderate complexity identify and argue more complex pre-hearing issues negotiate settlements of moderate complexity act as lead counsel on cases of moderate legal and factual complexity, including successor rights and common employer applications represent clients in multi-party cases identify need for expert evidence prepare and lead expert evidence, cross-examine expert witnesses is familiar with and can use mediation techniques advanced knowledge of substantive jurisprudence and factual context governing specialized sectors/industries: e.g. health care, education, construction, as may be applicable to lawyers individual practices act as lead counsel on complex cases and multi-party cases creatively design and use mediation/adr techniques to solve client problems COLLECTIVE BARGAINING Essential working knowledge of contract language identify issues which should be dealt with through collective bargaining advise on meaning and implications of contract language tabled in negotiations 4

5 advanced knowledge of contract language familiarity with novel issues in collective bargaining working knowledge of various bargaining techniques, such as interest- based bargaining, single team bargaining, mutual gains bargaining advise clients on bargaining strategy review collective agreements and identify areas where they should be re-negotiated draft contract language participate as part of client bargaining team prepare and present an interest arbitration. advanced knowledge of various bargaining techniques, such as interest- based bargaining, single team bargaining, mutual gains bargaining act as chief negotiator for client co-ordinate client bargaining strategy make creative use of various bargaining techniques, such as interest- based bargaining, single team bargaining, mutual gains bargaining trouble-shoot difficult negotiations PART II: LABOUR LAW AND RELATED AREAS NOTE: These are all specialty areas which a labour law specialist would begin to develop at the intermediate level. There is therefore no suggested basic developmental level. OCCUPATIONAL HEALTH AND SAFETY working knowledge of federal and Ontario occupational health and safety statutes and regulations working knowledge of workplace health and safety statutes working knowledge of legal research techniques and resources relevant to occupational health and safety familiarity with industry resources available on occupational health and safety issue advise clients on obligations, rights and remedies with respect to occupational health and safety represent clients in administrative proceedings involving occupational health and safety represent clients in simple prosecutions under occupational health and safety statutes 5

6 advanced knowledge of federal and Ontario occupational health and safety statutes and regulations advanced knowledge of workplace health and safety statutes advanced knowledge of legal research techniques and resources relevant to occupational health and safety prepare and present appeals and judicial reviews on occupational health and safety matters represent clients in complex prosecutions under occupational health and safety statutes represent clients at inquests involving occupational health and safety issues EMPLOYMENT STANDARDS working knowledge of federal and Ontario employment standards statutes and regulations working knowledge of legal research techniques and resources relevant to employment standards working knowledge of enforcement mechanisms for unionized and non-unionized employees, including relationship between employment standards and grievance arbitration advise clients on obligations, rights and remedies relevant to employment standards represent clients before employment standards officers or inspectors in employment standards matters advanced knowledge of federal and Ontario employment standards statutes and regulations advanced knowledge of legal research techniques and resources relevant to employment standards advanced knowledge of enforcement mechanisms for unionized and non-unionized employees, including relationship between employment standards and grievance arbitration 6

7 prepare and conduct employment standards reviews at the OLRB< or judicial reviews involving employment standards issues PAY EQUITY advanced knowledge of pay equity statutes at both Ontario and federal level advanced knowledge of pay equity commission and tribunal policies and rules of procedure advanced knowledge of enforcement procedures for pay equity rights for unionized and nonunionized employees advanced expert knowledge of legal research resources and techniques relevant to pay equity working knowledge of other research resources and techniques relevant to pay equity literature advise individual clients about pay equity rights and remedies advise unions and/or employers about rights, obligations and remedies in respect of the development and maintenance of pay equity plans draft administrative pleadings in pay equity matters represent clients before review officers, and before the Pay Equity Hearings Tribunal and the Canadian Human Rights Tribunal on cases of moderate complexity advanced knowledge of other research resources and techniques relevant to pay equity literature advanced knowledge of expert resources for negotiation, mediation and litigation in the pay equity area, including expert witnesses represent clients before the Pay Equity Hearings Tribunal and the Canadian Human Rights Tribunal on complex cases prepare, examine and cross-examine expert witnesses in pay equity cases HUMAN RIGHTS advanced knowledge of the Ontario and federal human rights codes working knowledge of enforcement mechanisms for unionized and non-unionized workers advanced knowledge of resources and techniques (both electronic and paper) for human rights research working knowledge of basic procedures in human rights cases 7

8 advise clients re obligations, rights and remedies under human rights statutes interview clients to identify legal and factual issues in the case assist clients in drafting human rights complaints or responses to such complaints assist clients in dealing with human rights commissions prepare submissions on dismissal (e.g. s.34) issues assist client to prepare responses to investigators reports represent clients in mediation interview witnesses identify relevant documentary evidence identify basic remedial issues identify and deal with basic pre-hearing issues: need for subpoenas, demands for particulars, filing of medical evidence, requirement for third party notice represent complainants or respondents in simple board of inquiry hearing including preparation of witnesses, leading fact evidence, cross-examining fact witness, presenting and responding to evidentiary objections issues, presentation of summary argument negotiate simple settlements assist senior counsel with presentation of more complex cases advanced knowledge of the Charter of Rights and Freedoms working knowledge of international standards and enforcement procedures in human rights advise clients on Charter obligations, rights and remedies utilize the Charter administrative and court procedures represent clients before international human rights tribunals WORKPLACE SAFETY AND INSURANCE NOTE: There is a separate set of specialist certification standards for this area of practice. A lawyer seeking certification as a labour law specialist and relying on practice area as one of her/his Part II sub-specialities does not need not meet all the criteria for the WHS specialty. advanced knowledge of existing Workplace Safety and Insurance legislation working knowledge of prior Workplace Safety and Insurance legislation working knowledge of Workplace Safety and Insurance operational policies working knowledge of Workplace Safety and Insurance jurisprudence working knowledge of objection and appeal procedures and tribunals working knowledge of the operations of the Workplace Safety and Insurance Board and Appeals Tribunal working knowledge of assessment and cost allocation issues 8

9 advise clients on obligations, rights and entitlements under Workplace Safety and Insurance legislation interview clients and identify legal and factual issues in case assist clients in managing claims advise clients with respect to medical aspects of claims, analysing existing medical information and identifying what if any additional medical information is necessary advise and assist clients on matters respecting rehabilitation, re-employment and reinstatement advise and assist clients with respect to ESRTW and LMR issues prepare or assist in preparing objections and appeals represent clients in appeals before Appeals Resolution Officers and the Workplace Safety and Insurance Appeals Tribunal identify basic remedial issues prepare written submissions for written appeals or at the request of the Workplace Safety and Insurance Appeals Tribunal advanced knowledge of past Workplace Safety and Insurance legislation advanced knowledge of Workplace Safety and Insurance operational policies working knowledge of policy development concerning workplace safety and insurance advanced knowledge of Workplace Safety and Insurance jurisprudence advanced knowledge of assessment and cost allocation issues advise clients on policy issues concerning workplace safety and insurance prepare submissions in respect of policy consultations and legislative revision EMPLOYEE BENEFITS working knowledge of federal and Ontario statutes dealing with employee benefits including statutory benefits and pensions working knowledge of federal and Ontario regulatory systems working knowledge of trust law working knowledge of substantive and procedural law for the enforcement of all types of employee benefits working knowledge of tax law as it relates to employee benefits advise clients on obligations, rights and remedies with respect to statutory and negotiated benefits represent clients before statutory tribunals administering employee benefit schemes in simple cases 9

10 draft simple trust documents and pension/benefit plans advanced knowledge of federal and Ontario statutes dealing with employee benefits including statutory benefits and pensions advanced knowledge of federal and Ontario regulatory systems advanced knowledge of trust law advanced knowledge of substantive and procedural law for the enforcement of all types of employee benefits advanced knowledge of tax law as it relates to employee benefits represent clients before statutory tribunals on complex cases prepare and conduct appeals from decisions of statutory tribunals draft complex trust documents and pension/benefit plans PROFESSIONAL DISCIPLINE working knowledge of statutes governing the regulation of professions working knowledge of substantive and procedural law governing professional regulation and regulatory tribunals working knowledge of the law of evidence advise clients re obligations, rights and remedies with respect to professional regulation and discipline, including reporting obligations draft submissions to investigative committees draft pleadings negotiate settlements in professional regulatory matters represent clients in simple cases before professional regulatory bodies advanced knowledge of statutes governing the regulation of professions advanced knowledge of substantive and procedural law governing professional regulatory tribunals advanced knowledge of the law of evidence 10

11 represent clients in before all types of tribunals in professional regulatory matters prepare and conduct appeals and judicial reviews from decisions of professional regulatory tribunals LABOUR LITIGATION IN THE COURTS working knowledge of substantive and procedural law on judicial review, and appeals from judicial review working knowledge of substantive and procedural law on statutory appeals working knowledge of substantive and procedural law on injunctions working knowledge of substantive and procedural law on Weber issues advise clients on appropriate use of courts in labour matters draft affidavits and pleadings in labour litigation prepare facta in labour litigation represent clients in court in injunction proceedings and in simple statutory appeals and judicial review applications advanced knowledge of substantive and procedural law on judicial review, and appeals from judicial review advanced knowledge of substantive and procedural law on statutory appeals advanced knowledge of substantive and procedural law on injunctions advanced knowledge of substantive and procedural law on Weber issues represent clients in complex statutory appeals judicial review applications represent clients in appeals from judicial review decisions represent clients in Weber applications represent client is all other matters involving labour law issues in courts 11

12 WRONGFUL DISMISSAL advanced knowledge of fundamentals of employment law, including relevant Ontario and federal statutes advanced knowledge of research resources and techniques (both electronic and paper) relevant to employment law working knowledge of civil procedure working knowledge of remedies issues in wrongful dismissal, including pension, benefits and tax issues working knowledge of limitation periods advise clients re obligations, rights and remedies in relation to termination of employment advise clients re appropriate forum for resolution of issues draft and respond to demand letters negotiate settlements draft pleadings in wrongful dismissal cases conduct examinations for discovery represent clients in mediations, motions and administrative proceedings in termination of employment cases represent clients in simple trials advanced knowledge of remedies issues in wrongful dismissal, including pension, benefits and tax issues advanced knowledge of civil procedure represent clients in complex trials and appeals creatively design and make use of mediation/adr techniques to solve client problems 12