On February 9, 2021, Alison McEwen will be speaking as part of the Lancaster House’s program “Understanding and Implementing Bill C-65”. Alison will be discussing the changes to workplace violence and harassment laws in federal workplaces, including the new obligations on employers, the impact on unions, and the supports available for employees affected by violence or harassment.
For more information or to register, please see Lancaster House’s website.
Sean McGee was recently interviewed on the evolving story around harassment allegations in the Governor General’s office, under former governor general Julie Payette. Sean provided his insights on the application of the federal government’s directives on workplace harassment and the types of remedies often available for employees who have experienced harassment.
The interview with the CBC was published in January 2021 and can be found on the CBC’s website.
There is a common misconception that contracting COVID-19 automatically results in eligibility for long-term disability benefits. Unfortunately, this is not the case, and only in specific circumstances relative to an individual’s limitations and restrictions would filing a claim be appropriate. Today, we will find out why that is and provide information to help you determine your eligibility for long-term disability benefits, otherwise known as LTD.
The first factor to consider is the elimination period or the amount of time an employee must wait between the first day they are unable to work due to illness or injury and the first day they are eligible to receive LTD benefits. The elimination period varies depending on your LTD policy. During this period, the individual must continuously be unable to work because of their disability. The employee may be required to use all remaining sick days or apply for short term disability benefits during this period of time. Before applying, carefully examine the policy booklet provided by your employer. Ensure it’s the latest version, as updates to qualifying terms and conditions could either simplify or complicate matters further.
The second factor to consider is the definition of disability as set out in your benefits policy. In order to be eligible for LTD benefits, the individual applying must meet the definition of disability as set out in the policy. These vary slightly depending on the insurance company. However, there are usually two key timeframes to bear in mind when considering your application. The first, which usually applies for the first 24 months after the end of the elimination period, is to prove that you cannot perform your own occupation because of the injury or illness. After 24 months, the employee must demonstrate that they cannot perform the duties of any occupation because of the injury or illness in question.
As covered in our May post on this particular subject, there are five common reasons why you may be denied LTD benefits:
In addition, late applicants who miss the deadline may be ineligible, which can result in a stressful and economically frustrating experience. Always ensure you apply before the posted deadline to avoid this needless complication. While there may be steps available to you to secure your benefits, they involve lengthy court proceedings that are best avoided.
In consideration of these aforementioned LTD eligibility specifics, claiming LTD benefits as a result of COVID-19 would be difficult because you must be able to demonstrate that, after the elimination period and during the first two years, your ongoing symptoms of COVID-19 restrict and limit you from performing the duties of your occupation. A COVID-19 LTD claim would only be successful in instances where your symptoms are severe enough to prevent you from working in your own job. That said, if your LTD benefits have been denied, whether in relation to COVID-19 symptoms or another injury or illness, there are extra steps you can take in an attempt to pursue them further. We have covered them in detail here and would be happy to assist with any questions you may have.
[Note: This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
When presented with a contract related to work, whether as an independent contractor, dependant contractor, or employee, it is vital that you closely examine the terms of the proposed agreement. Proposed contracts may contain non-competition clauses that limit your capacity to participate in rival business ventures, sometimes long after the contractual relationship has ended.
In most industries, an overly burdensome non-competition clause will severely limit the employee/contractor’s ability to perform alternative work in their chosen field. Because the restrictions can have such a severe impact, courts have established that an appropriate balance must be struck between the protection of proprietary business interests and the prevention of unreasonable restrictions on trade.
As such, when taken to court, there is a presumption that all non-competition clauses are unenforceable. The party seeking enforcement must demonstrate that the clause is enforceable by showing the clause was freely entered into and that the terms are reasonable and necessary for the protection of proprietary business interest (such as a trade secret, a customer list, or a specific vulnerability to unfair competition).
Two recent decisions of the Ontario Superior Court, 11766554 Canada Inc v Tingz Restaurant Bar LTD and Jihad Samaha (“Tingz”) and SI Systems Partnership v Geng (“SI Systems”) provide further clarity about the factors the Court will examine closely when determining if a non-competition clause is binding and enforceable. Both decisions place emphasis on the requirement to demonstrate that the signer is bound by the limitation, that the terms do not result in an unreasonable restriction on trade, and that the limitation is required for the protection of a legitimate business interest.
To be bound by a non-competition clause, a party must have entered into the agreement willingly and knowingly. In SI Systems, the Court found that identical non-competition clauses had bound one of the defendant consultants, but not the other. The consultant who was bound had signed the agreement with full knowledge of the non-competition clause, whereas the other consultant had the non-competition clause incorporated into a series of agreements, and the change of terms was never explicitly brought to their attention. The Court noted at paragraph 69, “an obscure clause that is buried in ‘fine print’ or complex language which could not be readily understood, or a provision that is startling and would be unanticipated, may engage a requirement to specifically draw the clause to the attention of the party”.
Even if a non-competition clause is found to be binding, the presumption that a non-competition clause will be unenforceable still applies. To rebut that presumption, the clause must contain unambiguous and reasonable limitations. The two main limitations a court will consider is the geographic scope covered and the duration of the clause.
In Tingz, the Court found that the geographic restriction of the clause, which spanned the entire City of Ottawa, was unreasonably broad and beyond that which would be required to provide protection against a loss of customers. As such, the Court stated that the clause was likely unenforceable.
Likewise, in SI Systems, the clause sought to prevent the consultants from performing any consultation work on any contract between the RCMP and an alternative service provider. The Court found that this limitation was far too broad to be enforceable, given the abundance of RCMP contracts for IT services, and the fact that the RCMP is national, so the clause would restrict work across Canada.
Further consideration of the Court is that a non-competition clause will only be enforceable if it is necessary and rationally connected to the protection of a proprietary interest.
In Tingz, the Court found that it was reasonably foreseeable that a former business partner opening a rival restaurant with very similar characteristics just down the block from Tingz would cause serious harm. In that case, enforcing the clause was necessary for the protection of Tingz’s customer base.
In SI Systems, despite one of the contractors being bound by the non-competition clause, the limitation was still unenforceable against him, as it was found to not be necessary or rationally connected to the protection of a proprietary interest. Prohibiting the consultants from performing any consultation work on contracts that involved IT service to the RCMP would not provide protection of a specific proprietary interest of the Applicant. It would simply limit the capacity of competing organizations to hire experienced consultants and successfully bid on RCMP contracts. Such an outcome is very restrictive, and the Court found it to be an unreasonable restraint on trade.
If you have questions or concerns about the implications of a contractual non-competition clause in a work-related agreement, our experienced Ontario employment lawyers will be happy to advise you. Please call 613-567-2901 or email info@ravenlaw.com to request further information.
In a recent contract case, Callow v Zollinger, 2020 SCC 45, the Supreme Court confirmed that damages can flow from a contractual breach of good faith when one party knowingly misleads the other. Good faith between parties is an unwritten obligation found in contracts. The exact nature of that obligation may vary some, depending on the type of contract.
Now, the Court has clarified the legal obligation to perform a contract in good faith includes a responsibility to avoid misleading the other party. This may have a significant effect on employment contracts, as employees are entitled to rely on what an employer says it will do, including representations made beyond the precise wording of the contract.
Callow v Zollinger involved a contract between a group of condominiums, represented by property manager Mr. Zollinger, and a lawn and winter maintenance company, represented by Mr. Callow. The contract was terminated with ten days’ notice, allowed by the contract’s wording. However, Mr. Zollinger knew the condominiums had decided to terminate the winter maintenance contract months prior, and yet he did not inform Mr. Callow and allowed him to perform extra work during the summer months.
The Court found Mr. Zollinger breached the good faith obligation by failing to disclose that the contract would end before the winter. Mr. Zollinger knew Mr. Callow was completing the extra work because Mr. Callow thought the contract would continue through the winter, as it had in years past. Additionally, because Mr. Callow did not know the contract was ending, he, therefore, could not seek out other winter maintenance work until the last minute which was detrimental to his business. The condominiums benefitted from Mr. Callow’s extra work during the summer months knowing that the work was done on the basis the contract would continue.
There are two main takeaways: (1) misleading actions can attract monetary damages in court and (2) the contract’s specific wording does not end the parties’ obligations—breaches can occur when one party’s actions are misleading, even if allowed within the wording of the contract.
Courts have consistently recognized that employers have unique power and control over their employees, particularly compared to other contractual relationships. The employer’s higher degree of control over employees requires a higher degree of honesty.
Courts have already imposed good faith obligations specifically on employers, such as the requirement to act in good faith when dismissing employees. When terminating an employee, employers must avoid “being untruthful, misleading or unduly insensitive” and instead be “candid, reasonable, honest, and forthright.”
Given the reasoning in Callow, the Court seems to expand this responsibility by holding there is a contractual responsibility to correct the other party’s mistaken impressions and avoid knowingly misleading statements or lying by omission.
In the employment context, an employer’s misleading statements or promises could be detrimental to employees in a wide variety of situations including pay increases, promotions, scheduling changes, the choice of whether and how to provide work, and term contract renewal. Additionally, independent contractors can expect greater protections after Callow, even though they do not have employee status, since the duty of honest performance applies to all contracts.
If your employer misled you or lied to you about your employment conditions, even if they followed their obligations as written under the contract, an employment lawyer can advise you about whether your employer breached their contractual obligation of good faith, giving rise to a claim for damages.
A long-term disability (LTD) claim is essential for those unable to work due to a debilitating medical condition or injury. If you cannot work because of a medical condition or injury, it may be possible to secure LTD benefits. Today, let’s examine how to submit a long-term disability claim in more detail. In addition, we’ll cover what happens if you are denied including next steps.
Among your responsibilities is the need for a firm understanding of your elimination period. This is otherwise known as the waiting period – the amount of time you must be disabled for prior to applying. Submitting your claim too early is sometimes a risk, as you may be turned down for not proving beyond a reasonable doubt your inability to work. Most of the time, however, early applicants will simply be required to wait. While waiting for the elimination period to end, you should instead gather as much medical documentation in support of your claim as possible. We also recommend consulting your employer’s policy booklet to ensure all their terms and conditions are met. The more thorough and complete your claim and supporting documentation is, the better the chances you’ll have of getting accepted – all while reducing the risk of delays.
When submitting a long-term disability claim, there are normally three important statements you must include with it. Sometimes only two are needed – one from yourself and a doctor – but this depends on the employer in question. The so-called “big three” are as follows:
Your first-hand statement needs to be clear and concise about your physical and/or mental limitations and/or restrictions. For instance, if you are diagnosed with depression, list the specific conditions and symptoms that prevent you from working. You should also detail why you cannot work in your field of expertise – do not hold back on any critical factors and remain as accurate as possible. And don’t worry if you run out of room – a second sheet can be attached without voiding your application.
In most cases, the employer in question must provide equally clear, concise and thorough documentation of your situation. This usually includes a complete list of the duties within your role, and whether it would be feasible to alter your role.
We’ve noticed that doctor’s statements can often be incomplete or difficult to interpret. That’s why our legal team is happy to resolve any conflicts by acting as a liaison between you and your doctor prior to submitting your claim. Doctors may have busier jobs than ever, but they still must provide ample detail on your symptoms, diagnosis, recommended treatments and whether you’ve undertaken them, and why you cannot perform your duties. All relevant medical documentation – treatment programs, visitation records and otherwise – must be attached with this statement. This statement is the most heavily scrutinized by claim analyzers for accuracy and legitimacy. Remember, LTD insurers are known to even monitor social media behaviour by the applicant to verify their honesty.
Sometimes a rejection can be remedied by providing more complete information or addressing any red flags. The clearer the picture for the individual analyzing the claim, the better. Usually, you won’t be denied and instead will receive a request for more medical evidence. Alternatively, if you aren’t following treatment recommendations by your doctor you may be denied LTD benefits. We’ve covered the main reasons why you would be denied in this blog post – give it a read to learn more.
At RavenLaw, our legal professionals can help you with unbiased, expert feedback on your LTD application, statements and attached documentation. If anything is unclear, missing or otherwise, we can work with you on resolving any grey areas. Reach out to us to get started!
On September 24, 2020, RavenLaw hosted its fall LTD conference via video conference. The conference focused on long-term disability claims in the context of post-concussion syndrome and brain injuries.
The conference was attended by many union representatives of several federal public sector unions and by non-unionized employees. A neurological physiotherapist, Amaal Mirani of Lifemark Physiotherapy, provided a medical view on the fundamentals of concussions and post-concussion syndrome, their effects on the brain, and available treatments. Two guest speakers also shared their personal stories about dealing with post-concussion syndrome in both private and public sector employment, as well as their experiences pursuing claims against their insurance companies for long-term disability benefits.
Finally, James Cameron, Kim Patenaude, and Anna Lichty of RavenLaw provided a legal perspective on litigating long-term disability claims for clients with post-concussion syndrome and other brain injuries.
For unions, another round of negotiations has often meant getting back into a familiar pattern: deliver notice to bargain, prepare proposals, have a series of sometimes constructive, sometimes frustrating discussions across the bargaining table, perhaps resort to strike or face a lockout, then arrive at a collective agreement.
A union may have a right to a range of information that is relevant to collective bargaining. Unions have a right to receive information about changes an employer is considering that may have a major impact on the bargaining unit. That is particularly true in response to certain employer positions like a declaration of an inability to pay. They have that right even if they don’t ask, as the obligation to disclose is part of the duty to bargain in good faith. If they ask, the obligation is probably even more extensive. You can look at a decision called PSAC v. Forintek Canada Corp. for details about how the Ontario Labour Relations Board applied this principle several decades ago. It is still good law.
Employers may be thinking about a variety of options as COVID-19 remains one of the central features of the economy – from local markets to international trade. A Union and its members are entitled to know what decisions have been made and what decisions are being considered. To be in the best position to prepare demands, to negotiate for appropriate contract terms and to speak with members about whether a tentative collective agreement is reasonable, it is more important than ever to create a comprehensive request for information and disclosure.
Each request will be different and will depend on the sector of the economy, local conditions, and the relationship between the Union and the employer. Whatever the circumstances, no union should go into bargaining (or if already there, sign a tentative agreement) without making the request.
The information may be significant, or there may not be much. It may be that the employer is forthcoming, or it may be necessary to extract it like you were doing dentistry. In any event, it is much better to have made the request than to be surprised two months after signing the agreement with a reorganization, or a series of layoffs, or some other change that had been in the works for a considerable period of time.
This is one of the obligations the parties have in bargaining. It is more important than ever to make sure the other side lives up to its obligations.
On October 16, 2020, the Supreme Court of Canada upheld a Charter challenge to portions of the RCMP pension plan, which had been applied to prevent employees from buying back periods of service during which they had temporarily reduced hours of work for childcare reasons.
In its decision, the majority of the Supreme Court concluded that the pension law had a disproportionate, negative impact on women due to their sex. Particularly, the majority noted that the evidence demonstrated both that the Appellants themselves had been negatively impacted by the pension scheme due to childcare responsibilities and that, more broadly, women as a group face disadvantages related to balancing work and childcare obligations. The majority also accepted that the specific negative impact in this case perpetuated historical gender biases in pension plans. The majority concluded that the pension law therefore breached the equality rights of women, contrary to section 15 of the Charter.
As the Government could not provide a pressing or substantial reason to justify the negative impact on women, the Court directed the Government to design remedial measures to address the negative impacts on the pensions of the Appellants and others in the same position.
Andrew Astritis and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, to support the Appellants in their arguments that the pension law discriminates against women and other parents because of their childcare obligations.
On October 20-21, 2020, Sean McGee presented as part of Lancaster House’s annual Ottawa Human Rights and Labour Law Conference. Sean presented as part of the panel “2020 Vision – Key Precedents from an Unprecedented Year,” which reviewed recent, important labour and human rights decisions.