Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

When the land border between Canada and the United States closed in March, thousands of people who make the daily commute to work across the border were left in a difficult situation.

United Steelworkers Local 2251 v Algoma Steel Inc. deals with one such person, a machinist apprentice at a steel plant in Sault Ste. Marie, Ontario.

Each day the employee made the approximately 30-minute commute from his home in Chippewa County in Northern Michigan to the plant in Sault Ste. Marie. Because he was crossing the border for employment reasons, he was exempted from the border closure and from the mandatory 14-day period of self-isolation. However, his employer wanted to go further in creating a “Covid free” worksite. It implemented a policy that any of its employees who enter the country must isolate for 14 days before attending work.

This employee has custody of his two young children on the weekends and they would not be entitled to cross the border with him. This made it impossible for him to enter into Canada fourteen days prior to entering the workplace. The Union challenged the application of the self-isolation policy and its impact on this employee.

The arbitrator reasoned that, while this policy would generally be reasonable, it would not be reasonable to apply it without considering obligations under the Human Rights Code to accommodate family status.  In this “unusual case,” the policy forced the employee “to make the difficult choice of having access to his two young children or to make a living.” The arbitrator also noted the fairly low rates of COVID-19 in the employee’s home area.

The Arbitrator concluded that the “competing legitimate rights” must be balanced. Instead of the blanket ban on employees crossing the border, the employer could assign him to work separately from other employees, require that he wear PPE, and take extra social distancing and sanitizing protocols. Consulting with the Union, it could consider mandatory testing and even restricting him from travel to designated COVID-19 “hot spots” in the United States.

While governments and employers have taken sweeping and necessary action, this case is a helpful reminder that the approach to fighting the pandemic cannot disregard important worker and human rights protections. Here, a nuanced resolution was possible in a relatively short period of time, highlighting the importance of unions in advocating for their members as we navigate the COVID-19 workplace.

If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On September 25, 2020, Jessica Greenwood will speak at the annual Kingston and the 1000 Islands Legal Conference. She will participate in a panel addressing employment litigation issues arising due to the COVID-19 pandemic.

This year’s conference is proceeding virtually. The conference is hosted by the Frontenac Law Association.

On September 10, 2020, Alison McEwen spoke at the Ottawa Six-Minute Employment Lawyer workshop, presented by the County of Carleton Law Association. Alison spoke on trends in the notice periods awarded in wrongful dismissal cases, including increases in notice periods for older workers.

On September 17, 2020, Andrew Astritis spoke at the Osgoode Hall Professional Development conference on Class Actions: Critical and Emerging Issues. Andrew participated in the panel on “#MeToo Comes to Class Actions”.

Andrew is part of the team at RavenLaw that has been representing current and former members of the Canadian Armed Forces in the class action involving sexual misconduct in the military, which was settled in 2019.

Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.

A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.

In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.

The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.

The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement.  Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.

The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016.  The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.

In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution.  The passage of time should not be relied on to “wash away” the fact of the allegation.  Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.

In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.

The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code.  While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.

With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.

Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.

This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time.  The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.

[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).

[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

Although we may live and work in “unprecedented” times, your rights to unionize your workplace have not changed. In several cases across the country, labour relations boards have rejected employers’ claims that the COVID-19 pandemic is no time to unionize. Even where it is unsafe to hold an in-person vote, the staff was laid off, or the employer is facing economic difficulties, boards have been clear that employees’ rights to collective bargaining are not on hold.

a) You can unionize even though it isn’t safe to hold an in-person certification vote

The Ontario Labour Relations Board has repeatedly ruled that the danger of in-person voting during the COVID-19 pandemic does not mean that certification votes should be delayed. In one case, the employer, a waste management company, argued that the Board should hold an in-person vote at its premises, over a single polling period of three hours. It claimed that its employees might not have the technology or skills to vote electronically. It suggested that if the Board was concerned about the safety of an in-person vote, the vote should be delayed until it is safe.

The Board rejected these arguments. While it found that an in-person vote would be unsafe and violate regulations, there was no reason not to hold an electronic vote because “employees have a right to determine whether or not they wish to be represented in their employment and to do so as soon as the electronic vote can be arranged.” Further, the electronic vote was not too difficult for employees to access and could be done by phone or computer.

In a similar case, the OLRB reasoned that delaying the vote until after the state of emergency is lifted could delay certification by months, “which would be prejudicial to the applicant and the affected employees.”

b) You may be able to unionize even though you and your coworkers were laid off

In a case from British Columbia, a theatre company argued that its employees could not unionize because it had laid them all off due to the pandemic.

The Board noted that, generally, employees who were laid off after an application can vote and those who were laid off before cannot. However, these are exceptional circumstances. The theatre had three categories of workers: regular full-time, regular part-time, and casual employees. The Board held that the test for whether employees who have been laid off can vote is whether they have a “sufficient continuing interest in the bargaining unit.”

The Board found that the regular full-time employees and regular part-time employees did have that connection and had not been laid off until after the application. Because of the timing of the layoff, they were eligible to vote.

Most of the regular part-time workers had been laid off before the application. Nonetheless, the Board found that they had a sufficient continuing interest in the bargaining unit. The Employer had emailed staff, committing to bringing as many people as possible back, as soon as possible. Although the Employer was not able to predict when it would reopen, it had not indicated that it would be ceasing operations. Because the closure was temporary, the Board found that “there is a continuing, tangible, felt relationship between the part-time employees and the Employer and a reasonable expectation of recall.”

However, the Board found that “the casual employees’ connection to the Employer was more tenuous.” They worked on an on-call basis and the Employer would only call them if their particular skill set would be useful for a production. They didn’t have the “reasonable expectation of recall” necessary to show that they had a sufficient continuing interest in the bargaining unit, and so were not eligible to vote.

Unfortunately for the employees, the fact that the casual employees were not eligible to vote meant that they didn’t have the support required to go forward with the application.

c) You can unionize even though your employer is experiencing economic uncertainty

In a case from the Alberta Labour Relations Board, an Employer in the not-for-profit childcare sector argued that the Board should not certify a bargaining agent during the COVID-19 pandemic due to the “business uncertainty” facing the Employer. It argued that unionization would increase its “administrative and financial burden” and set the collective bargaining process up to fail.

The Board soundly rejected this argument, finding no legal authority for the proposition that certification can be refused because of the employer’s economic circumstances. It rejected the Employer’s suggestion that we are in a “historically unique” situation. It found no precedent for refusing certification, despite the fact “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”

The Board noted that “the Code is clear: certification under the Code is an employee choice.” The Board concluded that, “put bluntly, the suggestion the Board should refuse to permit certification at times when an employer faces economic uncertainty is anathema to the purpose of the Code and its certification sections.” The Employer’s argument went against the basic principles of labour relations: “to ask why the Board would ‘bother’ with a certification in economic circumstances where that bargaining may be difficult takes a dim view of labour relations indeed.”

The Board reasoned that the Code creates a process for employees to freely select their bargaining agents in order to satisfy the constitutional requirements of “meaningful collective bargaining.” Nothing in the process asks whether the employer favours certification. It noted that while employers face difficult choices, so too do employees and “those uncertainties may well be a factor in employees making the choice, through the certification process, to pursue workplace goals through a bargaining agent at that time.”

In other words, while employers are facing difficult times, so are workers. And workers’ rights to unionize have not changed, even in these “unprecedented” times. Now, more than ever, may be a good time to unionize your workplace and face those uncertainties together.

The COVID-19 pandemic, its economic impact, and the recent protests regarding the systemic oppression of people of colour have all highlighted the need for robust protections for workers in Canada. As protests continue around the world, we must reflect on systemic racism in Canada. Throughout Canadian society, structural inequalities create vulnerability that manifests in precarious employment. Precarious employment has many definitions, but generally references employment that is uncertain, low paying, and with limited benefits and protections. If we hope to eliminate precarious employment, we need additional protections for workers.

Ontario Reduces Protections for Employees During the Pandemic

The early socio-demographic data in Ottawa shows that racialized groups and immigrants are over-represented in COVID-19 diagnoses compared to their relative population size. Diverse communities in Ottawa have rates of COVID-19 almost twice of those communities with the least diversity. Similar trends are being reported across the country. The economic effects of coronavirus are also being borne by precarious workers.

The existing legislation governing employment relationships in Canada does not prevent precarious employment. As a result, many employers rely on precarious employment as part of their business model. While there has been some progress in holding employers accountable, many businesses that form part of the ‘gig’ economy have exploited this model. We saw this recently with Foodora’s exit from Canada following an Ontario Labour Relations Board decision that would have allowed its employees to unionize.

While gaps already existed in employment legislation, some protections for workers have been removed in response to the COVID-19 pandemic.  For example, the Ontario government recently amended the Employment Standards Act with a new regulation creating Infectious Disease Emergency Leave. This regulation essentially prevents employees from claiming constructive dismissal under the Employment Standards Act when their hours are reduced or eliminated for an extended period due to COVID-19.

Migrant Workers: A Case Study in Precarious Employment

While precarious employment can create vulnerability, it also compounds vulnerability that may already exist. The spread of COVID-19 within the migrant worker community is an example of compounded vulnerability: Migrant workers are an essential component of Ontario’s commercial agriculture, but they have long been a vulnerable and marginalized community as a result of several factors, including their immigration status, employment conditions, and exclusion from some labour relations legislation. In Ontario, agricultural workers are governed by a separate labour relations statute with fewer protections than the one that covers most Ontario employees. In late May 2020, an outbreak of COVID-19 began in southwestern Ontario, and by June, at least 187 migrant workers across southwestern Ontario had tested positive for COVID-19. By July, it was reported that almost 1,000 migrant farm workers have tested positive for COVID-19.

The Role of Unions in Preventing Precarious Employment

Marginalized communities are more likely to work in precarious, low-paying, and part-time employment. The data so far has shown that individuals with post-secondary education and high-earning dual income households are more likely to be able to work from home, therefore they have a lower likelihood of work interruption because of the pandemic.

One of the ways workers’ employment conditions can be protected is through unions. Unions can use the strength of a united collective to push for better working conditions, higher salaries, and job protections. The COVID-19 pandemic has shown just how important these rights are for workers. While some precarious workers are unionized, many are not.

You can learn more about employment rights and how labour organization movements have protected workers through the Canadian Human Rights Museum’s exhibit Rights on the Job, on now until October 2020.

What Now?

All workers have been impacted by the COVID-19 pandemic, whether they are on the front lines, risking their lives to protect and provide for their communities, working from home to help stop the spread of COVID-19, or have had their work hours reduced or eliminated. All workers deserve to be protected. No workers should have to rely on precarious employment.

As a community, we must better protect precarious workers. This can include supporting the labour movement, encouraging unionization, pushing legislators to adopt broader protections for workers, combatting structural inequalities, and engaging in these endeavours through an anti-racist lens. If you have questions about your specific employment situation, we encourage you to seek legal advice.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

You are disabled and cannot work.  Your workplace provides Long Term Disability (LTD) coverage as part of your health benefits package.  If you are unable to work for health reasons, the LTD insurance benefits coverage should provide you with income protection while you are unable to work for reasons related to your illness or disability.  You apply for LTD benefits but the insurance company denies your claim.  What can you do?

1. Do not give up!

First and foremost, do not give up.  A high percentage of LTD claims are denied for a variety of reasons.  Insurance companies save money when individuals simply accept the denial or do not have the resources to contest their decision.  Most LTD insurance policies provide for an internal appeal process which must be started within a specific time frame, usually 60 days.  An individual may also choose to proceed immediately to litigation.  We recommend consulting with legal counsel to discuss your available options.

2. Internal Appeal

As stated above, most LTD insurance policies provide an internal appeal process where individuals can contest the insurance company’s denial of their claim.  It is important to remember that because this is an internal process, the insurance company is reviewing its own decision. It is therefore unsurprising that a significant amount of appeals are denied.  We often do not recommend proceeding with the internal appeal process unless you have new, additional medical information to provide to the insurance company during the appeal process.  A repetition or reframing of information already provided is unlikely to be successful in convincing the insurance company to reverse its initial decision.

Federal public servants have access to an additional step in the appeal process.  Depending on whether they are covered by the Public Service Management Insurance Plan (for non-unionized employees) or by the Disability Insurance Plan (for unionized employees) individuals may request an independent review of their case.  The Board of Trustees of the PSMIP or the DI Plan Board of Management then have the ability to make recommendations to the insurance company regarding the case. The insurance companies responsible for these plans most often accept the recommendations following these reviews.  If you are unionized, contact your union to see if they are able to assist.  If you are not unionized or if your union is unable to assist, we recommend you contact experienced legal counsel for advice.

3. Litigation

Your best option to successfully challenge the denial of your LTD claim and enforce your rights may be to sue the insurance company in court. This can be done immediately after the initial denial or following an unsuccessful appeal. Filing a Statement of Claim against an insurance company starts a legal process where various steps are required to be taken by both parties prior to trial.

While proceeding with litigation may be a daunting process, it is important to know that the litigation process is designed to encourage the parties to settle the case.  For example, in Ontario, mediation is mandatory. Mediation is a process for resolving disputes where the parties meet with an independent mediator who assists the parties in reaching an agreement. It is our experience that many cases settle at mediation.  However, if a mutually satisfactory agreement cannot be reached, the case proceeds to the next step of the process.  There are further opportunities to discuss settlement throughout the litigation process, up until trial.

4. The clock is ticking…

Regardless of how you decide to challenge the insurance company’s denial of your LTD benefits, it is very important to keep track of your timelines.  Proceeding through the internal appeal process does not necessarily stop the clock for starting a legal action in court.  Generally, you have two (2) years from the initial denial of your LTD claim to pursue legal action though there are exceptions to this general rule.  It is important to review the LTD insurance policy and applicable provincial limitation period to understand the time limits for your particular case.

If your LTD benefits are denied, we recommend that you seek advice from competent experienced lawyers as soon as possible following your initial denial in order to be properly advised of your rights and the options available to you to obtain a satisfactory resolution.

We are here to help navigate the LTD application process. Consult one of our experienced Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

In a recent decision, the Federal Public Sector Labour Relations and Employment Board found that an employer’s actions, which made it more difficult for an employee to participate in a health and safety complaint hearing, were reprisals and in violation of the Canada Labour Code.

The employee had been summonsed to attend as a witness for a two-day hearing before the Occupational Health and Safety Tribunal. Because he worked an afternoon shift, the employee requested a shift change so that he would not have to return to work after the hearing. The employer, Canada Border Services Agency, denied the request and ordered the employee to return to the workplace immediately after the end of the hearing. The employee followed this direction but received a one-day suspension because he did not arrive in the workplace by 5:25PM, as the employer preferred.

The Board concluded that both the refusal to allow the employee a shift change and the suspension were reprisals for the employee’s participation in the health and safety hearing. These actions therefore violated the provisions of the Canada Labour Code which protect employees from being penalized for testifying in a proceeding under the Code.

Specifically, the Board found that the decision to deny the shift change was inconsistent with the employer’s practice for other employees who were allowed shift changes to attend hearings. It also held that the imposition of a 5:25PM return-to-work time was arbitrary and in bad faith as the employee had no control over when the hearing would end. Given the unreasonableness of the employer’s actions in both circumstances, the Board concluded that it was not convinced that the employee’s participation in a health and safety hearing played no part in the employer’s decisions to penalize him.

The complainant and the Public Service Alliance of Canada were represented by Morgan Rowe.

Have you missed the deadline to apply for long term disability (LTD) benefits? There might still be a recourse available.

What does the law say?

Law makers realized that in some cases, claimants will miss the deadline to apply for LTD benefits even though they acted reasonably. A late claim could be devastating for individuals who can no longer return to work and are denied benefits. Many provinces have enacted laws, such as the Courts of Justice Act and the Insurance Act in Ontario, which allow courts to grant “relief from forfeiture.” This relief is intended for individuals who will be disproportionately penalized for failing to respect the insurance plan deadlines, especially in cases where leniency will not cause significant harm to the insurer.

How will a court decide?

The decision whether or not to grant relief is entirely discretionary and will turn on the facts of each specific case. However, courts have developed a test to determine if claimants acted reasonably and if granting the relief will unjustly harm the insurer (Kozel v. The Personal Insurance Company).

Courts will only grant relief from forfeiture if there was imperfect compliance with a policy term, not if there was a breach of an important part of the contract. In general, missing the window to claim benefits has been considered imperfect compliance (Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co.).

There are 3 main factors that the court will assess in determining whether to grant relief from forfeiture:

1. conduct of the applicant;
2. gravity of the breach; and
3. disparity between the possible harm to the denied claimant and the harm to the insurer.

1. Conduct of the applicant

First, courts will analyze the reasonableness of the claimant’s actions. They are likely to consider the following issues:

• How quickly did you act once you realized the claim was late?

Claimants are expected to act expeditiously once they realize that they have missed the deadline to claim LTD benefits. The line here is not clear-cut, but courts have found that claimants acted unreasonably when they showed “ongoing negligence” or when they learned of overdue payments but then still took many months to respond.

• What if you did not know you were eligible?

In Dube v. RBC Life Insurance Co., the claimant had received conflicting information regarding his LTD benefits and then left an envelope containing important information unopened for many months. As a result, he was not aware that he could make a claim, even though he was in touch with the employer and the insurance company. The court found that while he had not been “the model of perfect diligence” but that his actions were not unreasonable. They granted him relief.

• What if your employer gave you the wrong advice?

The Court might be less likely to fault employees in cases where employers were partially responsible for the lapse. Although it is not firmly established that employers have a duty of care to assist employees in applying for benefits, the Ontario Superior Court has referenced such a duty in some recent cases (see, e.g., Ferguson v Halton, 2018 ONSC 5675).

2. Gravity of the breach

Second, courts will examine the potential harm to the insurer if the application is allowed after the deadline. The insurer could argue that given the delay, it lost the ability to make a timely medical investigation or to assist the claimant in rehabilitation in order to avoid a longer-term absence from work. That’s what the insurer argued in Nguyen v. SSQ Life Insurance Co., but the Ontario Superior Court found that although there was harm, it was not sufficient to prevent a claim for relief from forfeiture and the late claim was allowed to proceed.

3. Balancing of damages

Third, courts will compare the harm to the applicant caused by the loss of coverage with the harm to the insurer by having to consider the late application. At this stage, courts will evaluate the income the claimant will lose if relief is not granted and weigh it against the damages suffered by the insurer. 

CONCLUSION

Relief from forfeiture is entirely discretionary and it is up to the court to assess the particular details of each case and decide whether to grant it. In general, Ontario courts seem to be showing some leniency for late claimants. If you have missed the deadline to apply for LTD and been denied benefits as a result, consult a lawyer.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Anna Rotman.