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The two sides of mobility

|Written By Kelly Harris

Labour mobility has long been a challenge for Canadian companies and professionals moving between provinces. For years if a lawyer wanted to move from one province to another, licensing was a major hassle. However, law societies across the country have taken steps to make mobility easier.

In 2002, under the auspices of the Federation of Law Societies of Canada, the National Mobility Agreement was created, which set out permanent and temporary mobility agreements between provinces. By 2006, all nine common-law provinces had implemented the agreement. However, while Quebec has signed it, it has not implemented it.

That meant moving between provinces was quite a different experience for a pair of Fraser Milner Casgrain LLP associates. Joshua Jantzi moved from Ontario to Alberta in 2006 and Cauchy Richard moved from Quebec to Ontario in 2008. While Jantzi was the beneficiary of a streamlined system, his now Toronto-based colleague was not so lucky.

Richard took his bachelor of laws at the University of Sherbrooke and was called to the Quebec bar in 2002. He went to the University of Toronto to take his LLM, during which he says he “fell in love with the city.” He decided to move his practice to Ontario. He knew there would be challenges, after all he was trained and practised civil law in Quebec. “My only option at the time was the National Committee on Accreditation in Ottawa,” says Richard. The NCA mainly oversees the qualification of foreign lawyers. “Even though I was in the same country, I was considered a foreign lawyer because I am from Quebec.”

The NCA was established through efforts of the Council of Canadian Law Deans and requires foreign lawyers or Canadians with a foreign law degree to apply for an evaluation of their legal credentials and experience. Each year there are more than 900 inquires to the NCA resulting in more than 300 applications. The committee also evaluates credentials for lawyers from Quebec with civil law degrees who wish to join the bar in a Canadian common law jurisdiction.

The process meant Richard had to “obtain the equivalent of a common law degree” before he could apply to the bar in Ontario. That included a battery of tests. Richard decided that rather than waiting to take two or three tests in August and then finish the exams in January — the two months when the testing is held — he would take all of his six tests at once. “A lot of people take several sittings to do their exams, for me I wanted to get it over with,” he says.

While he fully admits the stress of taking all six tests in two days was self-inflicted, Richard hopes Quebec will implement the streamlined system within the next couple of years. “Maybe in a few years it will be a lot faster even for lawyers in Quebec.”

While the NCA evaluates lawyers from Quebec wishing to move to a common law province, it does not evaluate the credentials of lawyers wanting to join the Barreau du Quebéc or the Chambre des notaries du Quebec. Much like the NCA process, candidates wishing to become members of the bar in Quebec must meet the standards for equivalences of diplomas and training. This includes meeting appropriate language skills.

For Jantzi, by the time he wanted to move between Ontario and Alberta in 2006 the nine common law provinces had fully implemented the mobility agreement. The much-travelled University of Alberta law graduate had done his undergrad at the University of British Columbia, and articled under Justice Michael Kelen at the Federal Court in Ottawa. Upon completion of his articling, Jantzi was called to the bar in Ontario, but soon found himself Alberta bound.

He used the mobility agreement and was pleasantly surprised with how swiftly he was able to move from and become a member of the Alberta bar. “I really thought that it would be a lengthy process,” Jantzi says, recalling that because the agreement was so new he expected there to be the usual growing pains and jurisdictional hiccups. “At the end of the day, four months isn’t really such a bad thing.”

The mobility agreement is voluntary and reciprocal. Lawyers that work in a jurisdiction that has implemented it can make use of its provisions. It sets out guidelines for lawyers to work both temporarily and permanently in another province.

According to the federation’s web site, the temporary agreement requires lawyers to have, “liability insurance and defalcation coverage, and no outstanding criminal or disciplinary proceedings, no discipline record, and no restrictions or limitations on the right to practise may provide legal services in or with respect to the law of a reciprocating jurisdiction for up to 100 days in a calendar year, without a permit. They do not have to advise the host law society that they are providing legal services on a temporary basis in or with respect to the law of that jurisdiction. Lawyers who are not eligible for mobility without a permit may apply for a permit.”

A temporary agreement can last up to 100 days. Lawyers lose their temporary status by practising in a jurisdiction for more than 100 days or by establishing an “economic nexus” — opening an office to serve the public, opening and operating a trust account, or becoming a resident. If a lawyer loses his or her temporary status and must or wants to become permanent, it’s quite simple nowadays. Lawyers may wish to transfer permanently to another jurisdiction that has implemented the NMA, but only those “of good character may transfer permanently to another reciprocating jurisdiction without having to write transfer examinations or other examination,” according to the agreement.

They must also meet the regular qualifications for lawyers to practise law in the specific jurisdiction and they must certify that they understand and have reviewed reading materials, such as the provincial rules of professional conduct, required by the jurisdiction. Lawyers may be members of more than one law society. Lawyers that wish to move from province to province should contact the individual law society for complete rules. The requirements are not arduous but expect to pay upwards of $1,000 for the pleasure.

In 2006, the federation also signed the Territorial Mobility Agreement with the Northwest Territories, Nunavut, the Yukon, and the 10 provinces. This means that territorial law societies will participate in the mobility agreement provisions for permanent transfers under the NMA. The territories have not signed the temporary transfer provisions.

Much like the NMA, the TMA does not create rights; it only establishes a framework, and lawyers wishing to transfer to a territory to practise law are encouraged to contact the applicable law society for the exact requirements. The agreement with the territories expires on Jan. 1, 2012 giving the territorial law societies the time to decide if they want to become full members of the NMA.