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

In Godwin v Desjardins Financial Security Investments Inc.[1], the Supreme Court of British Columbia found that the Insurer breached its duty of good faith by failing to assess the plaintiff’s disability claims in a fair and balanced manner. Moreover, the Court awarded damages for mental distress in the amount of $30,000 and punitive damages of $30,000.

The plaintiff was a paralegal that became disabled due to a psychiatric condition (anxiety and depression). Her family doctor indicated that the plaintiff’s chances of going back to work were “extremely good” but that the plaintiff should not go back to her former employment.  The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months.

A psychiatrist hired by the insurance company conducted an Independent Medical Evaluation (IME). The psychiatrist found that the plaintiff’s symptoms might include more occupational (issues with her employer) and motivational factors than a severe and limiting psychiatric impairment. The claims examiner denied the plaintiff’s claim on the basis that her condition was not severe enough to cause significant and prolonged psychiatric impairments, despite the fact that the phrase “significant and prolonged psychiatric impairment” is not found in the definition of Total Disability set out in the insurance policy.

The Court also noted that the claims examiner’s notes do not give any weight to the fact that the plaintiff’s disability was recognized by Canada Pension Plan Disability benefits. See our article: “Frequently Asked Questions regarding Canada Pension Plan Benefits”.

Moreover, the claims examiner failed to note the serious discrepancies between the IME and the plaintiff’s treating therapists and physicians.  Given the inconsistencies in the diagnoses between the medical reports, it was necessary for the claims examiner to ensure that the medical consultant had fairly reviewed the medical reports submitted by the plaintiff to the insurance company.

The Court found that the claims examiner denial of benefits was severely flawed as “she was looking for reasons to deny coverage, even to the point of manufacturing reasons, rather than trying to find a basis in the evidence for paying the claim”.

Mental Distress and Punitive Damages

In citing the Supreme Court of Canada Fidler decision[2], which sets out the rationale for mental distress damages caused by breach of a disability insurance policy, the Court awarded mental distress damages of $30,000 and another $30,000 for punitive damages.  See our article: “Seeking punitive and mental distress damages in a Long-Term Disability (LTD) Claim”.

Here, the Court found that the defendant insurance company had failed to assess the plaintiff’s Own Occupation and Any Occupation claims in a fair and balanced manner and that these failures went beyond mere errors of judgment or misunderstandings. The claims examiner repeatedly failed to analyze and to weigh the evidence before her, and applied a test for disability that went beyond the Total Disability definition set out in the insurance policy. The Court concluded that the mental distress suffered by the plaintiff as a result of the delay in the payment of Any Occupation benefits was sufficient to warrant compensation for mental distress.

Notably, the Court held that had the insurance company’s conduct only marginally aggravated the plaintiff’s symptoms. Had the insurance company been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award would have been approximately $70,000 to $80,000.

In awarding punitive damages, the Court found that the claims examiner’s rejection of the Own Occupation coverage was severely flawed, as it imported improper considerations and concluded without any foundation that motivational factors were dominating the claim. As such, the denial of the claim was arbitrary.

Takeaways

• Claims examiners are required to weigh the totality of the medical evidence against the insurance policy requirements;
• A claims examiner cannot deny coverage on the basis of a test, such as “significant and prolonged impairment”, if such a test is not found in the definition of Total Disability set out in the insurance policy;
• A delay in payment of a disability claim may be sufficient to warrant mental distress compensation.

When initiating a proceeding regarding a denial of LTD benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer. In suitable cases, courts can award these damages.

[1] Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 (CanLII)

[2] Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 SCR 3,  2006 SCC 30 (CanLII)

Ravenlaw gratefully acknowledges the contribution of this post by articling student Megan Fultz

Cannabis is set to be legalized in Canada on October 17, 2018, but the Federal Government has continued to stress that, until that time, the law will be enforced. In the meantime, numerous marijuana dispensaries are operating, only a small portion of them legal and licensed by Health Canada.

Workers at these unlicensed dispensaries have rightfully questioned what legal rights they have while the sale of cannabis remains illegal. This post will consider the various sources of a worker’s rights, and whether those rights extend to employees of an illegal enterprise.

Statutory employment rights

Workers in Ontario have rights under several employment-related statutes, including in areas of health and safety, human rights, and minimum employment standards. None of these statutes exclude employees on the basis that they work for an illegal enterprise, and therefore should apply equally to employees of an unlicensed cannabis dispensary.

This is consistent with the position the previous Ontario government took on this issue. Janet Deline, spokesperson for the former Ontario Ministry of Labour, stated in a Toronto Star article last year that all workers are entitled to certain government protections, even those working in unlicensed businesses. She was quoted saying, “When a Ministry of Labour Health and Safety inspector conducts an investigation, the focus is on the possible hazard and the health and safety of workers in the workplace, not whether or not the company is licensed.”

Therefore, a worker at a dispensary could likely enforce his or her rights under the Employment Standards Act, the Occupational Health and Safety Act, and the Human Rights Code. 

Statutory labour rights 

Workers in Ontario also have the right to join a union under the Labour Relations Act. That right, too, is not contingent on whether the employer is operating within the bounds of the law, meaning workers at a dispensary could exercise those rights and join a union.

In 2017, forty employees of a “Canna Clinic” unionized under Unifor. Katha Fortier, Unifor’s Assistant to the President, believes this is a first in Canada. These workers at Canna Clinic are primarily concerned with staff training and a safe work environment, issues that will continue to be relevant even after legalization. In response to this development, Janet Deline from the Ministry of Labour confirmed that, “Law enforcement and labour relations are totally separate areas in government.” 

Rights under an employment contract 

In addition to statutory rights, employees have rights under their employment contract, whether or not the contract is in writing. These rights can be enforced through a claim in court. It is unclear whether a court would enforce an employment contract in an unlicensed dispensary.

There is a long-standing, general principle of contract law which prohibits the enforcement of contracts that contemplate committing an illegal act. As this principle has evolved, courts have moved away from implementing a hard line of unenforceability for all illegal contracts. Courts consider: the serious consequences of invalidating the contract, the social utility of those consequences and a determination of the class of persons for whom the prohibition was enacted. There are certainly strong policy reasons not to apply this principle to an employment contract, particularly in light of the unequal bargaining between employers and employees. A strict application of this principle would ultimately benefit the employer—i.e. the entity operating the illegal enterprise—by permitting the employer to avoid its obligations to the employee. 

While not a court ruling, a 2016 decision of the Ontario Workplace Safety and Insurance Appeals Tribunal discussed how the doctrine of illegality applied in the context of undocumented workers. The Tribunal held:

The doctrine of illegality does not exist to give one party to an illegal contract…an advantage over the other party… There is a public interest not in prohibiting employment arrangements but instead in ensuring that such arrangements comply with the employment laws of the province and that rights under these arrangements be enforceable. The potential for exploitation of individual workers would be considerable if employment laws were not enforceable.

However, the Tribunal was careful to distinguish employment contracts that violated labour laws from contracts in pursuit of an “illegal objective” such as “theft, gambling, prostitution or smuggling, etc.” Based on this distinction, it is possible courts would not enforce employment contracts in unlicensed marijuana dispensaries, as the ‘objective’ of those contracts is itself illegal.

Conclusion 

Employees in unlicensed dispensaries appear to be entitled to the same statutory protections as other workers, as well as the same opportunity to unionize. It is less clear whether these employees could pursue a claim in court for breach of their employment contracts. All things considered, workers in unlicensed dispensaries remain incredibly vulnerable. These establishments are regular targets of police raids and robberies, while frontline workers continue to face the possibility of criminal charges themselves.

[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 28, 2018, RavenLaw will be hosting a conference at the CUPE 1974 Union Hall (680 Innovation Drive in Kingston’s east end). The conference will focus on successfully assisting individuals and union members in their applications for long-term disability benefits. Featured speakers include highly experienced legal professionals; Dr. Finestone, a pain specialist; and Chantal Pullen, an Occupational Therapist.

The conference is free to attend and will be followed in the new year with a conference on assisting workers in appealing decisions denying LTD benefits.

For more information on how to register, please go to:

https://www.eventbrite.com/e/long-term-disability-conference-kingston-tickets-49908088436?aff=ebdssbdestsearch

On September 25, 2018, Morgan Rowe will present as part of a CCLA panel on “Effectively Collaborating with, and Representing, Persons with Disabilities”. The panel will discuss issues which arise for lawyers relating to professionalism, disability identity and perception, and how to ensure greater inclusivity for people with disabilities when providing legal services.

For more information or to register, please visit the conference’s event page.

Chronic Pain and Disability Claims

Ravenlaw gratefully acknowledges the contribution of this post by articling student Megan Fultz

Recent estimates indicate that about 6 million people in Canada (approximately 19% of our population) experience some form of chronic pain. Because chronic pain is experienced differently by each individual, and can present itself in many different forms, it is difficult to diagnose. Individuals living with chronic pain often face significant barriers to appropriate treatment and accommodation in all aspects of life, including the workplace. Chronic pain can make it difficult or impossible to continue working, leading to a claim for long-term disability (LTD) benefits. The LTD claims process is challenging for those with chronic pain, because it can be hard to prove that the individual meets the requirements for LTD benefits due to his or her chronic pain.

What is Chronic Pain?

Chronic pain is hard to define because pain itself is experienced at such an individual level. Pain for one person resulting from an injury or condition may be manageable, whereas pain from that same injury or condition may be totally disabling for another. Chronic pain is often defined as pain lasting longer than the average timeline for healing. When the pain someone experiences has outlived the expected time period for healing affected tissues, the pain has become chronic and the individual is experiencing Chronic Pain Syndrome (CPS). Unlike acute pain that is associated with a specific injury, chronic pain is long-lasting and persistent, and sometimes does not respond to medical treatments.

Chronic pain can stem from many causes. Sometimes people experience chronic pain as a symptom of another existing or acquired condition. Other times, Chronic Pain Syndrome is the condition, developing out of an injury or other physically traumatic event.

What is Fibromyalgia? 

Fibromyalgia is a condition characterized by chronic, widespread muscular-skeletal pain and other associated symptoms, including fatigue, difficulty concentrating, memory problems, and mood fluctuation. Fibromyalgia is an example of a prevalent, but difficult to diagnose, chronic pain condition. Many of the characteristics of Fibromyalgia will not show up in a medical test or scan and yet the condition itself can be incredibly debilitating.

Making a long-term disability benefits claim for chronic pain 

In order to make a successful claim for long-term disability benefits on the basis of chronic pain, it is important to work closely with your doctor in discussing possible causes of the pain and potential treatment options. If your chronic pain results from an injury or condition known to cause pain, it may be easier to identify and confirm this through medical testing. If you are living with Fibromyalgia, Chronic Pain Syndrome or another condition that is difficult to diagnose through medical testing, it may be more challenging to succeed in your claim. Either way, it is vital to demonstrate that you are pursuing any options available to you and following the treatment plan recommended to you by your doctor.

It is important throughout the LTD claims process to be diligent in keeping records of the pain you have experienced and the treatments you have undergone and their intended/actual effect. Especially if the cause of your pain is hard to identify and confirm, it is crucial that you are recording how it has progressed, so that any possible patterns may be identified and/or correlations with other factors (environment, sleep, diet, activity level, etc.) In all cases, it is very important to be honest and candid about your pain levels, and to keep lines of communication open with your doctors.

Throughout the LTD claims process, you and your doctor will need to be able to comment on several important areas: your symptoms, their impact on you (the limitations and restrictions they create in your life), any progress or regression you experience, any treatment accessed and its impact, and future plans to manage your condition.

Chronic Pain and Mental Health 

While chronic pain is primarily physical in nature, it can also have a substantial effect on an individual’s mental health and wellbeing. Living with pain for long periods of time – and sometimes for the entirety of a person’s life – can take a significant toll on an individual’s psychological state. When the cause of pain is unknown, but the symptoms persist, it can be even more frustrating and stressful for the affected individual. It is important to be aware of the effects of chronic pain on mental health, to document any mental health symptoms you are experiencing, and to work with your doctors to manage these symptoms as well.

Chronic pain affects millions of Canadians and continues to be a very challenging condition to manage. In order to successfully apply for LTD benefits for chronic pain and related conditions, it is important to document as much information as possible about your daily symptoms and treatments, and remain in open communication with your doctors throughout the process. 

[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 19, 2018, Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. Morgan’s presentations addressed the most effective ways to represent union members in cases involving the duty to accommodate for human rights reasons and in harassment complaints.

On September 20, 2018, James Cameron and Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. James and Morgan’s presentation addressed how to assist union members in successfully filing long-term disability applications and strategies for effective LTD benefit appeals and litigation.

On October 9, 2018, James Cameron will present as part of a panel discussing terminations in the federal public service. The panel will tackle how employees are terminated in the public service and when those terminations can be successfully challenged.

For more information or to register, please contact the event organizer.

In a recent decision, the Federal Court of Appeal conclusively determined that federal public service adjudicators may hear and decide on cases where the Federal Government revokes an employee’s reliability status and then terminates her for the loss of that status.

The adjudicator in the case at hand had found that the employer did not have a legitimate concern that the Grievor posed a security risk when it decided to revoke her reliability status and then terminate her. He therefore found that the Grievor’s termination had been without cause and ordered her reinstatement.

Before the Federal Court of Appeal, the Government argued that this decision should be overturned. The Government took the position that federal public service adjudicators could only consider whether an employee was terminated for cause and did not have the power to consider whether the Government’s decision to revoke an employee’s reliability status was justified.

The Federal Court of Appeal squarely rejected this claim, finding that the adjudicator’s approach was “the only reasonable approach to be taken.” In doing so, the Court overturned a number of cases which had limited employees’ right to grieve where they were terminated due to the loss of reliability status. The Court concluded that these cases were “no longer valid,” cementing the right of employees to bring forward grievances in these circumstances and for public service adjudicators to determine whether a revocation leading to termination is, in fact, justified.

The employee was represented by Andrew Raven of RavenLaw.

RavenLaw gratefully acknowledges the contribution of this post by summer student Emily Cumbaa

A recent case before the Ontario Divisional Court examined ODSP’s reimbursement rate for medical travel. After many years of receiving reimbursement that only covered their operational travel costs, Ontarians who are on disability support can now seek reimbursement at a rate that covers both operational and ownership costs associated with their travel for medical treatments, such as appointments with out-of-town specialists. The case and the subsequent policy changes reveal that advancements in disability rights are slow, uneven, and hard-won.

The Case

Wayne Corrigan is a recipient of benefits under the Ontario Disability Support Program (“ODSP”), Ontario’s program providing income and other financial supports for individuals with a disability. Mr. Corrigan frequently travels between Oshawa and Toronto for specialized medical treatments.

A Regulation under the Ontario Disability Support Program Act states that benefits will be paid for “the cost of transportation that is reasonably required in any month for medical treatment for members of the benefit unit… if the cost of that transportation in the month is $15 or more” (O. Reg. 222/98, s. 44(1)1(iii.1)).  Under ODSP policy, Mr. Corrigan could only be reimbursed for his medical travel at the rate of $0.18 per kilometre. However, Mr. Corrigan estimated that his actual travel costs were $0.45 per kilometre.

Mr. Corrigan asked ODSP to review its rate and reimburse him at the rate of $0.45 per kilometre. ODSP denied that request, and also denied an internal review. Mr. Corrigan then appealed to the Social Benefits Tribunal. The Tribunal denied Mr. Corrigan’s appeal.

The Tribunal relied on its reasoning from an earlier decision, which also denied extra reimbursement, distinguishing between operational and ownership costs associated with a vehicle. The Tribunal found that the phrase “cost of transportation” in the legislation included only operational, and not ownership costs.

Mr. Corrigan appealed the Tribunal’s decision to the Ontario Divisional Court. In October 2016, the Court ruled that limiting reimbursement for medical travel to only “operational” expenses was unreasonable. The Court sent the matter back to the Tribunal “for redetermination of the reasonable costs of transportation,” and emphasized both operational and ownership costs can be included in costs of transportation.

A quick note for everyone who is interested in administrative law: the Court found that the appropriate standard of review was reasonableness, despite both parties agreeing that correctness was the appropriate standard. The Court’s finding reinforces that administrative tribunals are owed substantial deference, even on a statutory appeal as opposed to an application for judicial review.

The Government’s Response

In January 2017, the Ontario government increased the mileage rate for medical travel to $0.41 per kilometre in the North and Northeast Regions of Ontario, and $0.40 per kilometre everywhere else in the province. This represents an increase of more than 220%. The medical travel mileage rates are retroactive to October 1, 2016.

The new rates also apply for self-employed persons on ODSP if they use their personal car for business travel to generate income. The business travel rates are not retroactive, and therefore came into effect on January 9, 2017.

The Takeaway

This case and the subsequent policy changes highlight that advancements in disability rights are:

1. slow;
2. uneven; and
3. hard-won.

Advancements are slow. When the new increases were announced, the rates for medical travel had not changed in 17 years. In that time, the cost of driving had increased substantially, largely driven by gas prices. The Social Benefits Tribunal had more than once denied an increase to the rate for medical travel.

Advancements are uneven. The Divisional Court noted that other programs paid higher rates for medical travel than ODSP. The rate increase also applies to Ontario Works recipients. But before the increase took effect, every municipality in the province was responsible for setting their own rate, creating differences across the province.

Advancements are hard-won. ODSP and the Tribunal were both reluctant to review and increase the medical travel rate.  It is not surprising, therefore, that the Income Advocacy Support Centre reported that the rate increases were the result of years of advocacy work. This work included legal supports, a letter to the Minister, and collaboration between community and advocacy groups.

Thankfully for people on ODSP who must travel with their car for medical reasons, they can now be reimbursed at a rate that reflects their actual travel costs.

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