The firm gratefully acknowledges the contribution to this post by articling student Zachary Rodgers.

The Office and Professional Employees International Union (OPEIU), represented by Wassim Garzouzi, recently scored a major victory for the privacy rights of workers across Canada. On December 9, 2019, Arbitrator Susan Ashley affirmed that employers in Canada cannot unilaterally impose random drug and alcohol testing on its unionized employees, despite the legalization of cannabis and the uniquely dangerous nature of the work in question.

The employer in this case, a helicopter company providing passenger transport to offshore oil operations, sought to initiate random drug and alcohol testing of its helicopter pilots (and other employees in safety sensitive positions) following the legalization of cannabis in Canada. At the time, the employer already had a robust drug and alcohol policy in place that allowed it to test employees in safety sensitive positions if there was reasonable cause to suspect the employee was under the influence of drugs or alcohol. The Union took no issue with “for cause” testing. The only issue at arbitration was whether the employer could force employees to submit to drug and alcohol testing at random (i.e. without cause).

The Union successfully argued that Canadian courts and arbitrators have long rejected random testing as an unreasonable violation of individual privacy rights. In Irving Pulp & Paper Ltd, the Supreme Court of Canada concluded that even in workplaces where safety is paramount, random testing is too great an infringement on employee privacy rights if there is no existing and pervasive problem of drug and alcohol use in the workplace.

Arbitrator Ashley rejected the employer’s argument that the legalization of cannabis in Canada had changed the legal landscape. She equally rejected the employer’s position that the uniquely dangerous work of flying helicopters offshore justified the violation of employees’ privacy rights. Significantly, the arbitrator found that, although oral swab testing is less invasive than other methods of drug testing, it still amounts to “an unjustified affront to the dignity and privacy rights of the affected employees.”

This award, in favour of the Union, is one of the first post-legalization decisions in Canada that affirms the Canadian model, which requires employers to demonstrate an existing and pervasive alcohol or drug problem in the workplace before random testing can be justified. Importantly, employers cannot rely on the legalization of cannabis to justify upending the status quo on drug testing in Canadian workplaces.

RavenLaw congratulates OPEIU on its hard-fought and successful defence of employee privacy rights in Canada.

Since our post on the introduction of the Canada Emergency Response Benefit (CERB) (which you can read here), the federal government has announced changes to the program to address some of the identified gaps in eligibility. Based on these most recent changes, many more individuals should qualify to receive the CERB. This post will outline who is now eligible, and who is still left out, of this important benefit.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

What has stayed the same?

To qualify for the CERB, you still need to be a resident of Canada of at least 15 years of age, and must have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year. These requirements have not changed with the expansion of the program.

What has changed?

Some of the eligibility criteria have been expanded, to allow more individuals to qualify for the CERB:

• You are no longer required to have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row. Instead, you can qualify for the CERB if you earned less than $1,000 in an eligibility period (that period is at least 14 days in a row if you are applying for the first time, and 4 weeks if you are applying again for a subsequent period).
• You can also qualify for the CERB if you are a seasonal worker who has exhausted your regular EI benefits, and are unable to undertake your seasonal work due to COVID-19. You must have received EI benefits for at least one week since December 29, 2019.
• Finally, you may qualify for the CERB if you have recently exhausted your regular EI benefits, and are unable to find work due to COVID-19. Again, you must have received EI benefits for at least one week since December 29, 2019.

These changes are retroactive to March 15.

Who is still left out?

The expansion of the CERB is welcome news, but, unfortunately, even the expanded version of this program still contains gaps that will leave many Canadians without access to this benefit.

Workers making $1,000 – $2,000 per month

One of the most important and much-needed changes to this program was to expand it to include workers who had experienced a significant reduction in hours, but who were still earning some income. Workers can now earn up to $1,000 per month and still access the CERB.

However, there is still an obvious gap in the program’s design—there are many workers who will be earning less from their employment than the value of the CERB, and yet they continue to be excluded from this benefit. It is unclear why the government did not expand access to all workers making less than the value of the CERB ($2,000 every four weeks), and simply deduct any amounts earned from the benefit.

Students seeking summer employment

As noted in our previous post, many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB, and most of them are unlikely to have been receiving EI regular benefits recently. Students who are about to graduate and were about to enter the job market will not have access to this benefit.

The government has reiterated that more help may be on the way for students, but no specifics have been provided so far.

Workers who have been unemployed for a long period

The benefit has been extended to anyone who has exhausted their EI regular benefits, only if they have received at least one week of EI benefits after December 29, 2019. Therefore, any unemployed workers who ran out of EI benefits before that time are still ineligible for the CERB.

Is it time for a universal benefit?

The most recent changes to the CERB will be met with criticism and questions about who continues to be left behind, in response to which the government will in all likelihood tweak the program further. Instead of the current piecemeal, incremental approach, many have called on the government to simply grant a $2,000 per month benefit to all Canadians, and reclaim it from those who did not need it through taxes next year. It remains to be seen whether this view will gain any traction within the government.

Updated information about the CERB and how to apply can be found here.

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

Workers infected with COVID-19 “out of and in the course of” their employment are entitled to benefits under the Ontario Workplace Safety and Insurance Act, 1997, including for lost wages, healthcare costs and permanent impairments arising from the disease. If a worker contracted COVID-19 outside of work, they will not be eligible for such benefits.

Worker’s compensation benefits are only available to workers who have symptoms of COVID-19, according to the agency that decides worker’s compensation claims, the Workplace Safety and Insurance Board (WSIB). WSIB’s policy indicates that benefits will not be available for those who are caring for others or who are self-isolating without any symptoms. This approach may not hold where an individual, despite being asymptomatic, ultimately tests positive for COVID-19 that is linked to the workplace.

WSIB considers two main questions to determine whether a worker’s symptoms are work related. First, did the worker’s employment create a risk of contracting the disease to which the public at large is not normally exposed?

In answering that question, WSIB will consider whether

• A contact source to COVID-19 within the workplace has been identified;
• The nature and location of employment activities place the worker at risk for exposure to infected persons or substances; and
• There was an opportunity for transmission of COVID-19 in the workplace via a compatible route to transmission.

Information about the work environment, the worker’s job duties and the use of personal protective equipment are relevant to answering that question.

Second, has the worker’s COVID-19 condition been confirmed? WSIB will determine that question by considering whether

• The time from the date of the exposure and the onset of the illness are clinically compatible with COVID-19 established to exist in the workplace; and
• There is a medical diagnosis and, if not, whether the worker’s symptoms are clinically compatible with symptoms produced by COVID-19.

There may be other relevant factors and WSIB will decide each claim on its own merit, having regard to the worker’s individual circumstances.

Workers may be exposed to COVID-19 in and out the workplace. A worker is entitled to benefits if it can be proven that work-related duties or requirements were a significant contributing factor to the worker contracting the disease.

Workers experiencing confirmed symptoms of COVID-19 and unable to work may report their illness to WSIB, in addition to reporting these symptoms to their employer.

Not all Ontario workers are covered by WSIB, however. If you are unsure of your eligibility, you can contact WSIB for more information, or contact our firm to discuss your situation further.

[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

The Government of Canada has started accepting applications for the Canada Emergency Response Benefit (CERB) this week, as part of its response to the COVID-19 pandemic crisis. While this benefit is going to provide crucial support to many who have lost income due to the pandemic, there are lingering questions about who has been excluded from the benefit, and whether the Government will provide further support to those who have been left out.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

Who is eligible for the CERB?

To qualify for the CERB, you must be a resident of Canada of at least 15 years of age, and must:

• Have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year; AND
• Have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row.

Who is NOT eligible for the CERB?

There are unfortunately many people excluded from this benefit, despite also being significantly impacted by the COVID-19 pandemic.

Workers with reduced hours/income

Many workers have not lost all of their income due to the pandemic, but have seen a dramatic drop in their hours of work. Since they still have some level of income, they are ineligible for the CERB—this is true even if their income from employment is less than the value of the CERB.

Students seeking summer employment

Many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB. Similarly, students who are about to graduate and were about to enter the job market will not have access to this benefit.

Seasonal and unemployed workers

Like students, many workers have seasonal jobs, and therefore have not lost current income. Instead, they have lost or are likely to lose out on expected employment in the coming months. These workers do not fit the criteria for the CERB.

And, of course, any workers who are currently unemployed will not qualify for the CERB, and may be at or near the end of their EI benefits with no reasonable prospect of future employment.

More help may be on the way

The Government has received numerous inquiries about the gaps in the eligibility for the CERB, and has assured Canadians that additional help will be coming for these groups. Prime Minister Trudeau has publicly stated that the Government is exploring ways to help everyone in Canada that needs it, and should have more to say in the coming days about additional supports. He has specifically referred to forthcoming help for students, and to the possibility of extending the CERB to cover workers with reduced hours.

Updated information about the CERB and how to apply can be found here.

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

RavenLaw is proud to welcome two new lawyers to our team: Sean McGee and Alison McEwen.

Sean practises in the areas of Labour Law, Employment Law, and Litigation. He represents unions across Canada, with a focus on Ottawa, Eastern Ontario, and Toronto. For more information about Sean, visit: https://ravenlaw.com/people/sean-mcgee.

Alison practices in the areas of Labour Law, Employment Law, and Litigation. She also represents unions across Canada, with a focus on Ottawa and Eastern Ontario. For more information about Alison, visit: https://ravenlaw.com/people/alison-mcewen.

Long Term Disability (LTD) is intended to provide income replacement coverage if you are unable to work due to injury or illness. Long term disability benefits will normally commence once your short term disability benefits, if you have this coverage, have been exhausted. Most Long Term Disability policies contains a waiting period or elimination period, before you can start receiving payments. Once the elimination period passes, the insurance company has to determine whether you are “totally disabled”, i.e. unable to do your job, or in some cases any job, due to an injury or illness. If you meet this definition, which can vary from policy to policy, then your Long Term Disability coverage can begin. The following are some important points you should be aware of when applying for Long Term Disability benefits.

How long is my Elimination Period?

Your insurance policy will provide a specific elimination period, as these vary between insurance companies. In many cases the elimination period is set to correspond with short term benefits. For example, many plans that include short term disability coverage are designed so that your elimination period ends when the short term benefits run out, which means your benefits become payable without a gap in coverage.

How long is the elimination period? Will you be able to access short-term benefits in the meantime? Does your policy say that you have to apply for Employment Insurance benefits? How is your elimination period calculated? These questions would be answered in your policy. Taking the time to read your policy can prevent costly mistakes and loss of time  in the application process.

What is the impact of returning to work on my Elimination Period?

It is very important to understand how your elimination period is calculated. Depending on the method of calculation, you may restart the elimination period if you return to work. This would delay the payment of Long Term Disability benefits. For example, suppose that your policy prescribes a 90 day elimination period. If your policy calculates the period in terms of “consecutive days”, returning to work for just one day during that period  may restart the 90 day waiting period. On the other hand, if your elimination period allows for “interrupted periods”, the you can go to work on certain days without restarting the 90 day process.

If You Have a Recurrent Disability, You May Get to Skip the Elimination Period

If you received Long Term Disability in the past for the same illness or disability, then most Long Term Disability policies contain a clause allowing you to skip the elimination period.  This is usually found in the policy under the heading of “recurrent disability”. The policy will typically treat this later period of disability as a continuation of the earlier period, provided it is within the time limit stated in the policy. For example, suppose you previously went on Long Term Disability with a back injury, and eventually returned to work. If you become disabled later on due to back pain from the same injury, your benefits can be reinstated immediately, without the need to wait for the elimination period to end.

On the one hand, these clauses are useful because they allow you to avoid waiting through another elimination period for the same disability. On the other hand, any time limit for payment of benefits runs from the start of the first period of disability. This means that if your policy pays benefits for two years per claim, the two-year period would not restart the second time you go on Long Term Disability for the same disability. For more information, see our article on Successive Periods of Total Disability.

My Elimination Period is Over and I’m Still Disabled – Do I have to Apply for Long Term Disability?

Receiving short term benefits, if you have this type of coverage, does not automatically entitle you to Long Term Disability coverage even if your disability has not changed. You should start your Long Term Disability application as soon as you know that you are unable to return to work before of illness or injury. At this point, your insurance company will want proof that you are “totally disabled” under the terms of the policy before they approve your claim. The application process can be long and difficult, and it often requires lots of medical evidence. For more information on how to navigate through the Long Term Disability application process, please see our article.

Getting Approved for Long Term Disability – Do I Meet the Definition for “Total Disability”?

Once you have applied for Long Term Disability and your elimination period has passed, the benefits become “payable”, but before you actually get “paid”, the insurance company has to determine that you remain unable to do your occupation. To make this decision, the insurance company looks at the medical documentation and compares it to the definition of “total disability” in your policy. If you meet the definition your Long Term Disability claim will be approved and your benefits will begin.

If there is excessive delay in providing your long term disability benefits, you may have a claim for aggravated (bad faith) and punitive damages against the insurance company. Please see our article “Mental Distress and Punitive Damages in a Long Term Disability Claim”.

Once your benefits begin, they usually continue for 24 months. This 24 month period is called “own occupation” coverage because the insurance company defines total disability as being unable to do the essential duties of your own occupation, whether in your current work place or not.

After 24 months however, the definition of total disability usually changes. If you want to continue receiving benefits you need proof that your disability leaves you unable to perform the duties of any occupation for which you are reasonably qualified. This rule applies even if you are still unable to return to work at your original job. In practice this means that you may lose your benefits even if your medical situation remains unchanged.

Take away

The Long Term Disability application process can be long, complicated and stressful. A Long Term Disability applicant faces a number of legal and administrative hurdles at a time of great vulnerability. It is easy to make mistakes that cause costly delays. An experienced disability lawyer can help you understand the terms of your policy and how to make your way through the application process.

We are here to help navigate the Long Term disability claim 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 disability 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.]

By: Raphaelle Laframboise-Carignan, Anna Lichty and Geoff Dunlop (articling student)

As an employee, once you have applied for Long Term Disability (LTD) benefits, you have certain responsibilities you must fulfil to ensure that your claim for benefits is accepted or to ensure that you continue receiving benefits. The specifics of these responsibilities will be listed in the benefits policy and will usually include the following:

• Making reasonable efforts to recover

As part of your responsibilities, the insurance company expects that you will make efforts to recover from your illness or injury. This includes being under the care of a physician, specialist, or other treatment providers and also requires you to participate in any reasonable and customary treatment or rehabilitative program.

If you and your treating physician(s) believe that you cannot take part in a program recommended by the insurance company, you will need to provide medical evidence as to why you cannot take part. This should state that your participation in a program would hinder your recovery efforts and explain why in detail.

• Making reasonable efforts to attempt a return to work 

The insurance company will also expect you to make reasonable efforts to attempt to return to work either in your own occupation or in an alternate job.

Usually, a return to work will start gradually, taking your physicians’ advice regarding hours, schedule, restrictions, and limitations. The return to work may also consist of modified duties for a certain period, depending on your physician’s advice.

• Applying for other benefits 

Your policy will most likely set out your responsibility to apply for other benefits that you may qualify for, such as Canada Pension Plan (CPP) Disability benefits. Some policies will even ask that you appeal any decision denying those benefits.

Insurers usually set up their insurance policies, so they become the “payors of last resort”. This means that other sources of income, such as CPP Disability benefits, are deducted or offset from your LTD benefit. You will also be required to let your insurance company know if you apply for other benefits and they are approved. Those new benefits may reduce the amount you receive from the insurance company.

For more information on this topic, please refer to our article on long term disability offsets.

• Reporting other income 

The insurance company will expect you to report any income you are receiving from sources other than your LTD claim.

It is important for you to advise your caseworker about any other sources of income from other employment or benefits. If you do not advise your insurance company, you could be responsible for repaying some or all of the LTD benefits you have already received.

Check your specific policy to see what qualifies as reportable income, but generally, it consists of the following:

• CPP Disability Benefits;
• WSIB payments;
• Notice or Severance payment from your employer if you are terminated; and
• Employment Income not previously approved by the insurance company.
• Cooperating with the Insurance Company regarding your health 

 It is important to cooperate with your insurance company and provide them with updated medical documents and medical information when they ask for them. This might include surgery dates, new diagnosis, new findings, test results, and new medications.

Unlike the employment context, where there is no obligation to provide all medical reports or diagnoses to your employer when on sick leave or when making an accommodation request, dealing with an insurance company is different. You are required to provide them with medical reports and diagnosis to show that you meet the definition of disability as set out in the LTD policy.

It is also valuable to inform the insurance company of your progress or setbacks regarding your illness/injury.

We are here to help navigate the Long Term Disability claim 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 disability 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.]

RavenLaw was pleased to be invited to consult on this year’s Lancaster House Human Rights and Labour Law conference in Ottawa and to present on multiple panels. The annual two-day conference addresses a wide range of topical and emerging issues in the area of labour and human rights law.

Andrew Astritis served on the conference’s Advisory Committee this year, helping to plan the event. Wassim Garzouzi presented on October 10, 2019 as part of the panel “Taking Stock, Looking Ahead: Major caselaw and legislative update.” Morgan Rowepresented on October 11, 2019, discussing the difficult questions that arise when workers experience illnesses and disabilities due to workplace stress, bullying, and interpersonal conflicts.

In a recent judgment, the Ontario Court of Appeal overturned a lower court decision and held that there is no independent tort of harassment in Ontario. The Court explained that there was no support in the case law in Canada or internationally to extend the law to recognize this new tort. This judgment has left many Ontario employees wondering – what recourse do I have now, if I experience workplace harassment? This post will explore some of the possible options you may still have to pursue your rights, depending on your particular circumstances.

Discriminatory harassment – human rights complaint

Is the workplace harassment you are experiencing based on a prohibited ground of discrimination? For example, is it harassment based on your sex, race, age, or disability? If so, you could bring an Application to the Human Rights Tribunal of Ontario, alleging that you have experienced discrimination and harassment in the course of your employment. If the Tribunal finds in your favour, you could be awarded monetary compensation, reinstatement to your employment if you’ve been terminated, and systemic orders against your employer to comply with human rights legislation going forward.

Workplace harassment in a unionized environment – grievance

Are you a unionized employee? If so, you could talk to your union about filing a grievance about the workplace harassment. Many unionized workplaces have collective agreement protections against harassment, or employer policies prohibiting harassment in the workplace, that can form the basis of a grievance. Harassment grievances are often challenging to succeed in, but if successful, an arbitrator has broad discretion to award an appropriate remedy.

Failure of employer to conduct harassment investigation – Ministry of Labour complaint

​Did you ask your employer to investigate the harassment incident, and the employer failed to do so? If so, you could file a complaint with the Ministry of Labour. All Ontario workplaces have obligations to implement appropriate harassment policies and programs under the Occupational Health and Safety Act, and a Ministry of Labour inspector could order the employer to comply with the Act if it has failed to do so. However, this avenue of recourse is limited, as a Ministry inspector cannot investigate whether workplace harassment actually occurred, and cannot award any individual remedies to an employee.

Harassment leading to resignation – claim for constructive dismissal

Was the harassment so severe that it led you to resign from your employment? If so, you may be able to pursue a claim for constructive dismissal in court. This claim requires conduct by your employer that is inconsistent with an intention to continue to be bound by your employment contract, including creating a toxic work environment due to harassment. If successful in a claim of constructive dismissal, a court may award you damages similar to what you would receive if your employment had been wrongfully terminated.

Flagrant or outrageous harassment – claim for intentional infliction of mental distress

Depending on the severity of the workplace harassment, you may still have a tort claim available in the courts. In Merrifield​, the Ontario Court of Appeal noted that the tort of intentional infliction of mental distress still exists in the employment context, and is available in situations where someone like Merrifield would seek to claim damages for harassment. The test for intentional infliction of mental distress is stricter than the test the lower court had articulated for harassment, however; it requires conduct that : a) is flagrant and outrageous ; b) is calculated to produce harm; and c) results in visible and provable illness. This is a relatively high threshold to meet, but if it can be met, it could result in an award of general damages.

If all else fails – attempt to revive the tort of harassment?

Curiously, the Ontario Court of Appeal left the door open to accept the existence of the tort of harassment in the future. The Court held that it did “not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”. The Court did not elaborate on what those appropriate contexts might be. Accordingly, if none of the above avenues of recourse apply, but the claim for workplace harassment is compelling based on the evidence, it may be worth revisiting the potential existence of this tort.

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

In March 2019, David Yazbeck was re-elected as an Institutional Board Member for the Workers’ History Museum. David’s re-election continues RavenLaw’s long-standing support for the Workers’ History Museum. In addition to David’s role as a Board Member, RavenLaw has been an institutional member of the Board of Directors for a number of years.

The Workers’ History Museum was founded in 2011 with the goal of developing and preserving workers’ history, heritage, and culture in the National Capital Region and Ottawa Valley.