Criminal Law

Have you been charged with a crime? Have you been denied legal aid? We may be able to help. Visit our criminal law page to read more able the kinds of cases we can take on.

Family Law

Do you need advice about custody and access? Questions about child support? DLS may be able to assist. To find out more about these services, visit our family law page.

Refugee and Immigration Law

Have you made a refugee claim? Do you need help filing a Pre-Removal Risk Assessment or Humanitarian & Compassionate Grounds application? We may be able to help.

Housing Law

Are you a tenant in rental housing? Is your landlord trying to evict you? Does your apartment need repair? We may be able to help.

University Affairs

Are you a student at the University of Toronto? Have you been charged with an academic offence? Do you need advice about an academic appeal? Read more about our services for students to see if we can assist.

Employment Law

Lost your job?  Treated unfairly at work?  Problems with your employer?  We may be able to assist you.

Legal Education Workshops

We provide plain language workshops on a variety of legal topics. To request a workshop or learn more about our PLE program, contact us.


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News

Equal Pay for Equal Work

By Lauren Wildgoose (Student in Employment Law Division)

We don’t want employers to pay employees less because of something as arbitrary as their sex or their race. So why would we let them do it because they work part time? As it turns out, the recent changes to the Employment Standards Act (ESA) through Bill 47 might actually let employers do both.[1]

Previous changes to the ESA prevented employers from paying part-time workers (or casual, seasonal, or temporary employees) less than their full-time counterparts for doing “substantially the same work”. However, Bill 47, passed in November 2018, revoked this modest protection.

The concentration of vulnerable populations in part-time work means that in practice, the removal of this protection will unfairly target women, racialized minorities, and recent immigrants.

Just look at the numbers:

  • In 2015, two thirds of part-time employees were women. [2]
  • In 2008, recent immigrants were 16% of the part-time workforce but only 10% of the total workforce.[3]
  • In 2014, white men were 27% more likely to be employed full-time (and permanently) than racialized men.[4]
  • In 2014, white women were 18% more likely to be employed full time than racialized women.[5]

Because of this distribution of women, racialized minorities and recent immigrants in the part-time workforce, the revocation of “equal pay for equal work,” based on employment status, arguably constitutes adverse effects discrimination against these groups. Adverse effects discrimination happens where the government enacts a law that seems neutral and applies to everyone, but disproportionately imposes a burden on certain groups defined by gender, place of origin, or other protected grounds.[6]

At its root, the revocation of the equal pay for equal work provisions allows employers to pay employees less based on a characteristic that has no connection to the employee’s merit, and no other rational justification.

Some employers might object, arguing that the revocation of the equal pay for equal work provision has nothing to do with race or gender; lawmakers were simply trying to preserve employers’ flexibility to pay people differently according to the needs of their business.

However, adverse effects discrimination need not be deliberate; the law just needs to have a disproportionate impact on a protected group. While the intention of the revocation may not be to discriminate against women, racialized minorities and recent immigrants, the effect of the law is to impose on them a very real burden that the whiter, more male-dominated, full-time workforce, does not have to face.

Furthermore, the ESA already contained exceptions to “equal pay for equal work” for reasons of seniority, merit, or any other factor apart from sex and employment status [emphasis added]. This means that if an employer had a valid reason for paying a part-time employee less than a full-timer, like the fact that they have been there longer or have additional responsibilities, they were already entitled to do so.

The revocation of equal pay for equal work through Bill 47 does more than just discriminate against people on the basis of employment status. It singles out some of our society’s more vulnerable and condones putting a lower price on the work they do.

[1] Michael Mitchell and John Murray (2017) Changing Workplaces Review: Agenda for Workplace Rights,
Final Report at 178, online: https://files.ontario.ca/books/mol_changing_workplace_report_eng_2_0.pdf p. 177; Parkdale Community Legal Services and Workers’ Action Centre, “Making Ontario Open for Business Act: Submission to the Standing Committee on Finance and Economic Affairs Review of Bill 47” (November 2018) at 12, online: http://workersactioncentre.org/wpcontent/uploads/2018/11/Policy_papers_WAC__PCLS_submission_to_the_Standing_Committee_re_Bill_47_file.pdf.  

[2] Statistics Canada, CANSIM Table 282-0008 – Labour Force Survey Estimates, by North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016) as cited in Michael Mitchell and John Murray, (May 2017) at 178.

[3] Andrea M. Noack and Leah F. Vosko, Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context (Toronto: Law Commission of Ontario, 2011) Online: http://www.lco-cdo.org/wp-content/uploads/2012/01/ vulnerable-workers-call-for-papers-noack-vosko.pdf as cited in Michael Mitchell and John Murray (2017) at 178.

[4] Walter Lewchuk, Michelynn Laflèche et al., The Precarity Penalty: The Impact of employment Precarity on individuals, households and communities – Executive Summary (May 2015) at 7.

[5] Ibid at 7.

[6] Ontario Human Rights Commission v. Simpsons‑Sears Ltd. qtd in Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 at 63, 151 DLR (4th) 577.

[7] Supra note 4 at 6.

[8] Ibid at 3.

Bill C-75 and Student Representation in Criminal Courts

Bill C-75, an omnibus bill making numerous amendments to the Criminal Code, has passed third reading in the House and will likely become law in the new year. The Bill’s changes include raising the maximum penalty for summary conviction offences to 2 years less a day. The Bill, as it stands, will significantly restrict the work of DLS’s Criminal Law division and prevent us from providing free legal representation to our clients charged with criminal offences. 

Currently, s. 802.1 of the Criminal Code allows law students to represent accused if the maximum sentence they face is 6 months incarceration or less. This means DLS can help with most summary offences. If Bill C-75 raises the maximum sentence for summary convictions without changing s. 802.1, students would be barred from doing any substantive work on criminal files, including running trials for our clients. Students would be restricted to appearing in court only to schedule further appearances (set dates). 

This change will be a serious setback to our already disadvantaged clients. For a segment of the population, DLS is the only representation they can find. Legal Aid will only give certificates to people at risk of imprisonment and community legal clinics do not represent clients for criminal matters. This means that any one charged with a criminal offence who cannot afford a lawyer, but is not at risk of jail time, is left to navigate the criminal justice system on his or her own. Just because our clients are not facing a risk of jail, it does not mean they are not facing serious consequences. Fines, restrictive probation conditions, and criminal records are only some of the penalties our clients face. 

Lack of representation has serious consequences. Empirical research by Prof. Paré at the University of Western Ontario shows that clinic representation makes accused less likely to plead guilty.1 Unfamiliar with the justice system, unrepresented accused are more likely to plead guilty to “get it over with”. This will create a risk of wrongful convictions.  

study by Legal Aid also found that self-represented accused are less likely to raise Charter arguments. Without representation, many are unable to recognise when their rights have been infringed. Even if they know the police did something they shouldn’t have, it is confusing to try and turn that into a legal argument. Less representation means less protection for people’s rights. 

The change will also deprive students of the ability to get hands on experience in the criminal courts. The Criminal Law Division is DLS’s largest division. It provides students with a chance to learn practical skills that can’t be taught in the classroom. This makes for better lawyers with stronger connections to the community. 

This change even undercuts the Government’s own stated goals of the Bill. Bill C-75 is meant to clear delay from the justice system; but leaving people without representation will only make the problem worse. In their report on court delays, the Standing Senate Committee on Legal and Constitutional Affairs found that unrepresented accused contribute to unnecessary delays in the justice system. The change proposed in Bill C-75 only serve to undermine Parliament’s attempt to address the backlog in our courts. 

In its current form, Bill C-75 will drastically limit the work of the Criminal Law Division at DLS and Student Legal Clinics across Canada. This Bill will leave thousands without representation, creating a barrier to access to justice, increasing backlogs in the courts and may result in wrongful convictions. In addition, it will deprive students of practical clinical education which puts them face to face with segments of the population who are most in need of legal assistance. 

There is one way these problems can be avoided: The Lieutenant Governor of Ontario can make an order exempting students from the restriction in s. 802.1. There may be a concern about students representing clients who are facing more serious offences should an Order in Council be made; however, it is possible for the order to specify a sub list of offences for which students would be allowed to provide representation. 

The best hope of DLS and our clients is to have the Lieutenant Governor make this order. It’s already been done in Alberta and it can be done here in Ontario, too. If you want to help, please write to your local MPP urging him or her to support this order should Bill C-75 be passed into law as it currently stands. 

1 Paul-Phillipe Paré, Dale E Ives, and Jason Voss (2008). The Effects of Differential Representation on Outcomes in Summary conviction Criminal Cases (Unpublished) page 12.

Submission to the City of Toronto on Zoning for Secondary Suites

Whether or not our clients have a housing law issue, we very often have a housing problem: we can’t find any! At least, not housing that is safe, affordable, and anywhere close to the communities, families, jobs, and schools to which we are connected.

This summer, City of Toronto staff proposed changes that would remove some of the barriers to building more “secondary suites”, such as basement apartments, in places like Scarborough where our clients are often stuck renting in illegal and dangerous rooming houses. We call on the City to do this (and a whole lot more!) to increase the limited supply of these rental housing options. You can read our submission here.

We are grateful for the funding provided by Legal Aid Ontario, the Law Foundation of Ontario, the Faculty of Law and students at the University of Toronto.