In a recent victory for CUPE Local 109, Jessica Greenwood provided representation to an employee whose rights under the collective agreement and the Human Rights Code were violated due to an unfair termination of her employment.

In the July 29, 2019 decision, Arbitrator Eli A. Gedalof affirmed that an employer cannot rely on a pattern of innocent absenteeism to establish frustration of contract when the absences are due to exceptional events, the employee has demonstrated a substantial improvement in attendance, and there is objective evidence that the employee will be successful in maintaining regular attendance moving forward. The decision also affirms the employer’s obligation under the Human Rights Code to accommodate an employee’s disability to the degree of undue hardship.

The Union successfully argued that the City relied on an improper and discriminatory application of their Attendance Management Program (AMP) to the Grievor’s case.  This application of the AMP program served to hide the fact that the Grievor’s attendance had improved dramatically and was continuing to improve.

Arbitrator Gedalof ruled that the City had not met its burden under the first part of the test, by failing to establish repetitive and consistent absenteeism triggering the decision to terminate. Arbitrator Gedalof noted “far from demonstrating an escalating pattern of absence in 2018 leading up to her termination, the grievor demonstrated the opposite…. what precipitated the grievor’s termination was a single day of absence following an extended period of acceptable attendance. The grievor’s attendance in 2018 reflected a substantial improvement over an extended period of time, and effectively disrupted the pattern of absences in 2017”.

Even if the employer had met the first part of the test, the Arbitrator concluded that frustration of the employment contract would still not be established on the facts. The Union had satisfied the second part of the test, which places a burden on the grievor to present objective evidence demonstrating good reason to believe that any issues that contributed to the excessive absences have been addressed and the grievor will be able to provide regular and consistent attendance in the immediate and foreseeable future. Arbitrator Gedalof noted, “The most straightforward objective evidence of the grievor’s ability to attend work is that at the time of her termination, she had in fact been attending work regularly for an extended period of time.”

As a result, despite finding that the City had applied the AMP program absent bad faith, the City’s “decision to terminate the grievor without just cause, in the absence of frustration and due to attendance issues related to their medical condition, nonetheless violated the Collective Agreement and (s.5 of) the Human Rights Code”.

The Grievor was awarded re-instatement, with no loss of service or seniority, compensation for lost wages and benefits since the termination, and damages for the breach of the Code.

RavenLaw congratulates the Grievor and CUPE Local 109 for another successful defence of employee rights!

On September 17, 2019, Raphaëlle Laframboise-Carignan gave a presentation to the members of the Mood Disorders Ottawa (MDO) support group, a peer-run organization aimed at enhancing the lives of people with mood disorders. She presented on the topics of Short-Term Disability, Long-Term Disability, Canada Pension Plan Disability benefits, and accommodation in the workplace. Raphaëlle would like to thank the MDO group for inviting her to participate in their session.

How is the employment start date affected when an employee resigns, but then continues working under a new employment agreement for the same employer? The Ontario Court of Appeal has recently released two decisions that discuss how an employee resigning and then continuing to work affects the start date of their employment. The decisions show that the specific facts of the resignation and re-hire will determine whether an individual will be limited by the terms and conditions of their new employment agreement.

In Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449, the employee had agreed to waive his previous years of service to make the change from full-time to part-time hours. The Court determined that the employee was not bound by the new employment agreement because he had not intended to resign. By contrast, in Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469, the Court determined that an employee who resigned and then withdrew her resignation before her last day of work was bound by her new employment agreement.

Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449

In 1986, the employee started full-time employment as an architect. When the business was sold, the employee was notified that his employment would be terminated because of the sale. He signed a new offer of employment, which did not contain any termination provisions. In 2013, the employee wanted to reduce to part-time hours. The employer agreed, but only if the employee resigned and entered into a new employment agreement, where the employee specifically agreed to waive his previous years of service. The employer told him that these terms were non-negotiable. The employee agreed to these terms and changed to part-time employment.

Three years later, in 2016, the employee was dismissed without cause from his employment. The employer relied on the 2013 employment agreement and limited the employee to his minimum statutory entitlements, as though the employee had started his employment in 2013.

The motion judge determined that the employee had not waived his years of service. On appeal, the Ontario Court of Appeal found that the 2013 agreement to waive the employee’s previous service was in violation of the Employment Standards Act, because neither the employer or employee actually intended the employee to resign at the time. The Court found the agreement was constructed to circumvent statutory notice and severance based on the employee’s actual years of service.

Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469

In 1993, the employee started her employment as a dental hygienist. Over the course of her employment, she was required to sign a series of employment agreements. In 2005, the employee gave her notice of resignation, but then she changed her mind before her last day of work. Her employer agreed to let the employee stay but required her to sign a new contract. When the employee was terminated without cause in December 2012, the employer relied on the newest employment agreement to limit her statutory entitlement to one year of service.

The trial judge found that the employee’s employment had continued uninterrupted since 1993, and she was not limited to one year of service. The trial judge found that none of the three employment contracts signed by the employee during her employment were enforceable because they lacked consideration. Therefore, the trial judge determined that the employee was wrongfully dismissed and assessed her damages at 15 months’ notice.

On appeal, the employer argued that the trial judge erred in failing to take account of the employee’s 2005 resignation. The Court of Appeal held that the employee’s resignation, even though it was rescinded, opened the door to the employer instituting a new contract. Even though the employee never stopped working, there was effectively a resignation and a re-hiring, which broke the employee’s length of service. The Court determined a valid contract had been formed after the employee’s resignation because the employee offered to be employed again and the employer accepted her offer. The employee was therefore limited to the minimum statutory entitlements under the Employment Standards Act as though she had started her service after her resignation.

Commentary

These two decisions from the Ontario Court of Appeal, highlight that the circumstances of the resignation and the subsequent re-hire will be crucial to determining an employee’s start date. If neither the employee nor the employer intends for the employee to resign, and the new employment agreement is just a legal fiction, then the courts will likely find that employee’s previous years of service count when determining their reasonable notice entitlements. However, if the employee did intend to resign, but changes their mind, then the employer may be entitled to ask the employee to sign a new employment agreement, waiving the employee’s previous years of service.

[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 proud to again support the Annual Women’s Legal Education and Action Fund (LEAF) Ottawa Persons Day Breakfast, held on October 25, 2019. This year’s breakfast focused on women’s rights and climate change, and how to consider the impact of climate change on gender equality when finding ways to create a more sustainable future for all people.

LEAF is a charitable non-profit organization that works to advance the equality rights of women and girls in Canada. The annual fundraising breakfast commemorates the Persons Case – the October 18, 1929 decision of the Judicial Committee of the Privy Council that ruled that women were to be considered persons under the law and should be eligible to sit in the Canadian Senate. Proceeds from the Persons Day breakfast contribute to LEAF’s litigation efforts and help to sustain equality education programs such as LEAF at Work, the Only Yes Means Yes Campaign, and the Reproductive Justice Campaign.

On January 28, 2019, RavenLaw appeared before the Québec Court of Appeal to argue in support of a challenge under section 2(d) of the Canadian Charter of Rights and Freedoms to restrictions on collective bargaining in the Federal Public Sector Labour Relations Act. Appearing for the intervener, the Public Service Alliance of Canada, RavenLaw argued that section 113 of the Act, which excludes pension and staffing issues from collective bargaining, violates the freedom of association, including by preventing workers from exercising their constitutionally protected right to strike on important workplace issues.

PSAC was represented by Andrew Astritis from RavenLaw.

Ask most healthy working people to name their greatest financial asset, and more than likely, they will say ‘my house.’ A fair response. After all, maintaining and paying for a home is where a significant chunk of our income and time is spent. 

But for most healthy working people, it’s the wrong answer: A far greater financial asset is their ability to earn an income over the course of their career, often a long period of time. The consequences of not being able to do so can be financially devastating.

Most people have only a hazy understanding of the financial consequences of being unable to continue working due to mental or physical illness. We know that during our working lives, there is always the possibility of being laid off from one job and having to find another, but if chronic illness or a serious accident prevents us from working at all, the option of finding another job disappears. In fact, there are limited options for those employees; one of the options is Long Term Disability (LTD). 

As employment lawyers, we understand that few people think about the possibility of their working lives coming to a premature end. When it does happen, the questions are inevitably many. Here are answers to just a few basic LTD questions:  

How Do You Obtain Long Term Disability Benefits?

Most people who have Long Term Disability benefits have them through their employery, and typically, the cost of these benefits is shared between the employee and the employer. Having the employer pay for some (or all) of the benefits, while superficially attractive, also results in the benefit being taxable. Meaning if you ever receive money under the LTD policy, you will have to pay tax on the amounts you receive.

If, on the other hand, you pay for the full cost of the LTD policy, any money received would be non-taxable. Having a non-taxable benefit can make a huge difference in the event you need to rely on LTD benefits, as you are often receiving only a portion of your prior income and may be struggling to live off significantly reduced income. 

It is important to explore with your employer or your union whether your salary can be increased by the value of the employer contribution, and then you can make the full payment for the  LTD policy.

Another option is to buy full LTD insurance yourself if your employer does not offer this benefit as part of your remuneration package. 

Do You Have Sufficient Long Term Disability Benefits?

The answer to this question will depend on a variety of factors, including age, savings, cost of benefits, number of dependents, etc. It is also probable that the answer will change over time as your personal circumstances change. Given the importance of the benefit, should you be unable to work, it is important to seek advice from an LTD insurance expert.

What Happens To Your Long Term Disability Benefit If You Lose Your Job?

It is extremely common for people to lose their LTD benefits shortly after they lose their jobs. Termination letters typically contain provisions ending Long Term Disability benefits after the statutory notice period found in the Employment Standards Act. This period is often a matter of weeks rather than months.

After this period, former employees are frequently left with no LTD benefits while they look for other work. Insurers will often not sell LTD insurance to the unemployed, and that compounds an already stressful situation.

One way to avoid this scenario is to purchase LTD insurance independently. (See next question).   

How Can You Protect Yourself, such that Long Term Disability Benefits Are Not Lost?

One method of ensuring LTD protection in the face of uncertain job security is to have your own LTD benefits policy that you have arranged for outside of your employer. That way, should you lose your job, your coverage continues. This type of arrangement will be particularly important for those with precarious employment.

Own Occupation Disability Insurance – The Gold Standard, but what is it?

Most LTD policies provide for “own occupation” disability insurance coverage for a period of two years. This means that should you be unable to perform the essential functions of your own job, you would meet the definition of disability and should receive benefits.

After that initial period (usually two years), in most insurance policies, the coverage definition changes to “any occupation.” This means that even if you continue to be unable to complete the essential functions of your own job, say as a teacher, if you can do any work, you may no longer be entitled to benefits. If this other occupation is something for which the employee is suitable by reason of their background, the insurer can insist they take the job or risk having their benefits cut off.

It is possible to independently purchase “own occupation” disability insurance coverage at an increased cost. This will provide you with LTD benefits, should you be unable to perform the essential duties of your own occupation. It will typically last until age 65.

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

In 2017, the Public Servants Disclosure Protection Tribunal rendered its first decision on the merits of a reprisal complaint under the Public Servants Disclosure Protection Act. As the first decision on the merits, a number of critical issues of legal principle were raised by the parties. Ultimately, the Tribunal ruled on several of these issues, a ruling which had significant implications for future Tribunal cases. In particular, the Tribunal concluded:

• Intent, in the sense of vengeance, must be proven in order to establish reprisal;

• Minor or insignificant reprisals were not protected by the Act, effectively imposing a de minimus standard; and

• An employee cannot receive reprisal protection for subsequent disclosures of the same wrongdoing.

In addition to these legal rulings, the Tribunal dismissed the complaint on the facts, concluding that the employee had not proven that she experienced negative effects as a result of the alleged reprisal measures.

The employee sought judicial review of the Tribunal decision. In a judgment rendered this month, the Federal Court of Appeal dismissed the application, concluding that the Tribunal’s findings that there was no negative effect on the employee could not be set aside.

Counsel had urged the Court to address the legal issues given their impact upon other cases. The Court declined to do so, because this would take it “too far into a law-making role”. In spite of this, the Court went on to comment upon the Tribunal’s analysis as follows:

“But we wish to add that many of the legal conclusions reached by the Tribunal in this case warrant critical scrutiny. As a matter of administrative law, other members of the Tribunal are not bound by the legal conclusions reached here… If the particular case requires it, and until this Court settles the matter, a member of the Tribunal is free to conduct her or his own analysis and reach different legal conclusions.”

By this language, it would appear that the Court has signaled that the reasoning of the Tribunal on these legal issues need not be followed in the future, a conclusion which represents significant progress for complainants who are victims of reprisal.

The employee in this matter was represented by David Yazbeck and Michael Fisher of our firm.

When selecting a Long Term Disability Benefits Lawyer, or Long Term Disability Law Firm, it is important that they have the knowledge and experience in areas that will have a direct impact on your Long Term Disability claim and/or severance package. These areas of expertise include employment law, pension law, and human rights law.

Why Hire an Employment Lawyer?

Battling with an insurance company can be stressful and the interaction with employment law can be complex. A lawyer skilled in the intricacies of Long Term Disability Benefits law can ease the pressure, especially for someone interacting with an insurance company while simultaneously battling with physical or emotional ill-health. Getting caught between an insurance company pushing you to return to work and an employer who doesn’t think you’re ready to return to work can be stressful. Having a lawyer to strategically navigate you through that insurance company-employer stand-off to get your rightful Long Term Disability rights or severance package, is a heavyweight off the shoulders. In Long Term Disability cases you often do not have to pay legal fees upfront. Under a contingency arrangement, a client only pays when he or she gets money from the insurance company. This arrangement gives clients much needed legal expertise and significantly more power when taking on the financial might of an insurance company. 

Getting the Right LTD Answers

Employment law can impact your Long Term Disability claim against an insurance company. What happens if I lose my job while on Long Term Disability benefits? What happens if I receive a severance package while receiving Long Term Disability payments? Does my pension continue to accrue? What do I do if my insurance company asks me to apply for Canada Pension Plan Disability benefits (CPPD benefits)? What happens if you get fired while you are claiming Long Term Disability benefits? These are all questions a skilled employment lawyer can answer.

Frustration of Contract

Frustration of contract is a legal term. When an employee is unable to return to work, employers will raise the concept of frustration of contract or will claim that the employment contract is frustrated. A frustrated contract effectively terminates the employee and employer relationship.  This is a common occurrence when clients are off work and receiving disability payments. Usually, an employer will claim frustration of the contract after an employee has been off work on disability for approximately two years. If an employee can show medical evidence that there is a reasonable prospect of returning to work, an employer may not be able to claim frustration of contract. If an employer is successful, it would result in termination of employment without the non-statutory elements of a severance package.

Severance Package and Long Term Disability

It is possible that an employer offers a severance package to an employee who is on Long Term Disability leave. However, it is important to consult a disability lawyer before agreeing to such a severance package. Most Long Term Disability contracts state that any income received will be used to offset your Long Term Disability payments. In other words, the severance package amount you receive could go directly into the pockets of your insurance company. Your lawyer may be able to restructure a settlement with the employer to avoid offsetting an LTD payment. 

Is Long Term Disability Insurance Mandatory?

No, it is not a legal requirement but you would be unwise not to have it. In the event that you are unable to work, long term disability coverage will provide income replacement of approximately 50 to 70% of your pre disability salary. Without LTD, you may qualify for Ontario Disability Support Program at around $10,000-$12,000 a year and Canada Pension Plan Disability at about $14,000 a year until age 65. 

Canada Pension Plan Disability Benefits

Many insurance contracts require eligible employees to apply for Canada Pension Plan Disability benefits. A lawyer with Canada Pension Plan Disability benefits expertise will be able to assist you through this process.

Please see our article “Applying for a Canada Pension Plan Disability Benefit.” If you’re cut off LTD benefits, it is often a good strategic move to apply for CPP disability benefits. To qualify for those benefits you must demonstrate that your injury or illness is severe and will be prolonged. These benefits can also be paid up to 12 months retroactively but if you’re already getting LTD benefits any retroactive benefit may be clawed back by the insurance company. Please see our article on LTD Benefit Offsets. 

Further details can also be found here on the official Government of Canada website.

Pensions and Long-Term Disability

If you are contributing to a pension plan where your pensionable time accrues while you are receiving Long Term Disability benefits and short term disability benefits you will want a lawyer knowledgeable in pension law to represent you. Federal public servants who have been off work for a period of 18 to 24 months will typically receive an options letter requiring them to resign, medically retire or return to work with approval from Health Canada. Negotiating a settlement for LTD benefits with the insurance company can be a complex process because the insurance company will want to claw back medical retirement benefits that the employee would be entitled to if they medically retire before age 65. 

Do I Need a Human Rights Lawyer?

LTD is not a human right but it is a sensible, if not vital, self-protection for all working people. When people return to work on a gradual or employer-accommodated basis, an employee can feel pressured by the insurance company and an employer. For example,  the employer can fail to provide appropriate accommodations for the employee and pressure the employee to stay on LTD until he or she is fully fit to return to work. In contrast, the insurer will usually insist that the employee do the exact opposite by pushing the employee to attempt a return to work. When an insurance company is pushing an employee to return to work too soon or if the employer is failing in its duty to accommodate, consider consulting a Long Term Disability Lawyer with experience in human rights law.

Can an employer refuse a return to work while on Long Term Disability? An employer has the duty to accommodate an employee who wishes to attempt a return to work. However, this duty is not limitless, an employer has the obligation to accommodate an employee’s return to work up to the point of undue hardship. Please see our article “The Duty to Accommodate”. Insurance companies will sometimes argue that it is reasonable for the employer to accommodate the employee’s limitations and cease to pay Long Term Disability benefits. This is not necessarily a valid reason to terminate Long Term Disability benefits and the employee may wish to appeal the insurer’s decision. 

Return to Work

As mentioned above, an employer has the duty to accommodate a return to work, and a partial return to work can prevent an employer from being able to claim that an employment contract is frustrated. Some insurance contracts will allow the insured person to receive income from their employer – in addition to Long Term Disability payments – without being subject to an offset. The insurance policy typically has provisions pertaining to a rehabilitation program allowing the employee to claim employment income while in receipt of LTD benefits for a certain period of time. 

Choosing a Long Term Disability Benefits Lawyer: Other Considerations

When applying for Long Term Disability Benefits or when your Long Term Disability Benefits are denied, choose a lawyer who has contacts with medical experts that will assist in providing evidence to support your claim.

• Check Google reviews for the firm or the lawyer; and
• Meet with multiple lawyers and law firms to determine the best fit for you.

Please see the following articles concerning what to expect should your Long Term Disability be denied:

1. 1. WHAT TO DO IF (AND WHEN) YOUR CLAIM FOR LONG TERM DISABILITY (“LTD”) INSURANCE IS DENIED
   2. NAVIGATING YOUR CLAIM FOR LONG-TERM DISABILITY (“LTD”) INSURANCE

What Are Long Term Disability Benefits Offsets?

What Are Long Term Disability Income Offsets?

In the Long Term Disability Benefit context, offsets are other sources of employment or employment-like income. Offsets will be deducted from the amount of Long Term Disability benefit allowed to a claimant by an insurance company.

How Does LTD Coverage Work?

Insurers typically design their insurance Long Term Disability coverage contracts so they become ‘payers of last resort.’ This means that other sources of employment income are deducted, or offset from what the LTD insurer would otherwise pay in Long Term Disability benefits.

If you’re a unionized public servant, your LTD coverage is provided by SunLife and if you’re a public service executive, the insurer is Industrial Alliance. For public servants, SunLife and Industrial Alliance are the only alternatives. If you work in the private sector and your employer is providing LTD coverage, the offsets will likely be similar to those in the public service plan. If you’re insuring yourself, you can always negotiate fewer offsets, but they will cost you more money in premiums. If you don’t want any offset, the better alternative might be Critical Illness Insurance, which gets you a specific fixed payment for a specific injury or illness.

Here are some examples of how LTD coverage works:

• Suppose you have LTD benefits which pay you $5,000 per month and you become eligible for a pension or a medical retirement which pays $3,000 per month. The insurer will see this new source of income and reduce the payment of $5000 to $2000 per month. The employee will still have a monthly income of $5,000, but it will consist of two cheques totalling $5,000, of which the insurer will only pay the difference between the pension and the original LTD benefit.
• Suppose you are unable to work and you’re not able to provide the same level of financial support to your family. It’s likely that you think you’re going to get LTD benefits plus Canada Pension Plan Disability (CPPD) and your kids are going to be looked after, at least to some extent. If you are getting $1,000 a month from LTD, but your CPPD gives you $800 a month and there’s a $200 monthly child benefit for each of your three kids, that’s a total of $1,400 a month from sources outside your LTD payment. All that money, including the $200 for the children, are classified as offsets and will reduce your LTD to zero.
• If you are in a car accident and you are paid damages for injuries, that would not be an offset. If you are paid damages for loss of income that would be an offset.
• Savings or registered retirement savings plans (RRSPs), are not considered offsets and cannot be deducted from Long Term Disability benefits.

Can the Insurer Force You to Apply for Long Term Disability Offsets?

The answer will depend upon the language of the particular insurance policy. Frequently, the answer will be yes, particularly for such benefits as Canada Pension Plan Disability Benefits.  If the insured person fails to apply for the CPPD benefits, the LTD insurer will assume they have and will deduct the value of that benefit from the LTD, even if they do not apply.  

In the case of CPPD, that value is approximately $14,000 annually. There may even be an obligation to appeal from a negative ruling concerning CPPD.

For benefits such as pensions, if a person is in receipt of a pension, that amount will likely be considered an offset and deducted.  

If a person is not getting a pension, whether they must apply for a pension will usually depend on the language of the insurance policy.

Severance Pay

Severance is usually considered an offset and the insurance company will deduct 100% of it from LTD.  So, there can be substantial benefits to remaining an employee while you’re on LTD and it may not be necessary to terminate your employment. This is important because many people who lose their job and go on LTD prior to getting a severance package, think they will get to keep both. If maintaining your employment status is not possible, there are strategies that might be available that allow you to keep some or all of the severance package. 

The takeaway here is that you should not assume you are going to have multiple sources of income if you are on LTD because the insurance company will want most of it. The insurance companies say that without offsets, everyone’s premiums would be higher. This is true, but they will not give people the option of paying higher premiums in exchange for greater protection. The complexities of Long Term Disability are not something most people even think about. They get a job, they take the benefits they are offered and forget about it . . . until they are faced with dealing with long-term sickness or injury.

Is Long Term Disability Insurance Mandatory?

No, it is not a legal requirement but you would be unwise not to have it.

The biggest financial asset for most people is not their house but their ability to work. Simply put, if you and your family need income in order to live, you need Long Term Disability insurance, which will give you 50-70 percent of your former income. Without LTD, you are left with the Ontario Disability Support Programme at around $10,000-$12,000 a year and Canada Pension Place Disability which is around $14,000 a year. If you were making a reasonable income prior to your injury, going down to that level is not pleasant. 

Have questions? Reach out to our team of experienced Long Term Disability lawyers to learn more about LTD coverage.

On February 13, 2019, Morgan Rowe will present a workshop on human rights law, worker’s rights and how these two sets of rights can be used to help individuals with disabilities challenge barriers in employment. The workshop will be hosted by OPIRG Carleton and the Carleton Disability Awareness Centre.

For more information about the workshop, please visit the event page.