RavenLaw was proud to support this year’s Ten Oaks Project Camp Bowl-a-Thon. This annual event helps bring much-needed funds to the Ten Oaks Project organization and connects children and youth from LGBTQ+identities, families and communities with their supporters. This year’s event surpassed the $40,000 fundraising goal.
The Ten Oaks Project engages and connects children and youth from LGBTQ+ communities through programs and activities rooted in play.
The Federal Court of Appeal recently issued a decision overhauling the state of federal employment law. In Wilson v Atomic Energy of Canada Ltd, 2015 FCA 17, the Court rejected the generally accepted approach to unjust dismissal complaints under the Canada Labour Code (“Code”), which applies to workers who are employed in federally regulated industries. The decision in Wilson has profound implications for non-unionized federally regulated employees. Mr. Wilson is currently seeking leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada.
For most unionized workers, terms and conditions of employment are governed by collective agreements which include a requirement that the employer only terminate an employee where there is just cause for dismissal. Just cause is a high threshold for an employer to meet and provides substantial protection for unionized workers.
Section 240 of the Code provides non-unionized federal workers with the right to make “unjust dismissal” complaints, provided they have been employed for at least 12 months and they allege that they have been dismissed “unjustly”. The Code also provides statutory remedies for federal workers who are dismissed unjustly, including reinstatement to employment, which are not available to non-unionized provincial workers.
At common law, non-unionized employees who work for provincially regulated employers – the vast majority of employers in Canada – can be dismissed without cause provided that employers provide reasonable notice of termination, or pay in lieu or reasonable notice. A dismissal that is both without cause and without reasonable notice is a wrongful dismissal. Read more about termination in the provincial sphere here.
Prior to Wilson, there was an established line of cases holding that federal employers could only dismiss employees for cause, similar to the just cause protections provided for in collective agreements. Leading employment law scholars, Innis Christie and Geoffrey England, have explained that the Code’s unjust dismissal provisions were intended to:
“provide the non-unionized employee with substantially similar protections against unjust discharge as the unionized employee enjoys under a collective agreement.”
However, Code adjudicators have disagreed on this point and there are conflicting decisions on whether the Code permits dismissals on a without cause basis. As Code adjudicators are bound by decisions of the Federal Court of Appeal, Wilson settles the disagreement, unless the Supreme Court of Canada grants leave to appeal and weighs in on the issue.
A Code adjudicator determined that AECL had violated the Code by terminating Wilson on a without cause basis. AECL applied for judicial review of this decision at the Federal Court, and the Federal Court overturned the adjudicator’s decision. Mr. Wilson appealed the Federal Court’s decision to the Federal Court of Appeal.
In Wilson, the Federal Court of Appeal concluded that:
The Court also explained the role of Code adjudicators in unjust dismissal complaints:
However, beyond commenting that “unjust” is a term that “sits alongside and gathers much, if not all, of its meaning from well-established common law and arbitral cases concerning dismissal”, the Court declined to interpret the meaning of “unjust”. It will now be up to Code adjudicators to determine the meaning of “unjust” through the development of case law.
The Federal Court of Appeal’s decision marks a major departure from an established line of cases, and creates considerable uncertainty in the law going forward. The Federal Court of Appeal left open the meaning of “unjust”, the very basis for section 240 complaints, which may now make it more difficult for a worker to assess the merits of an unjust dismissal complaint. Mr. Wilson’s leave application will thus be closely followed by federal workers and their advocates, who undoubtedly hope the Supreme Court will intervene on this important issue.
Some of the questions that may be raised, if the appeal is heard by the Supreme Court, include:
It is hoped that an appeal before the Supreme Court will bring clarity to these issues, and resolve them in a manner that is consistent with the protections Parliament intended to afford to federally regulated employees.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
In addition to compensation for long-term disability benefits, it is possible to also claim damages for mental distress from the insurance company, as well as punitive damages to punish the company for its conduct. However, to successfully claim these amounts, the relevant legal tests must be satisfied. The Ontario Court of Appeal recently rendered a decision which clarifies the test to be applied in determining punitive and mental distress damages.
In Fernandes v Penncorp Life Insurance Company, 2014 ONCA 615, the plaintiff ran a successful brick laying business in Kitchener, Ontario, when he injured his back after two separate falls. After the second fall, he never worked as a brick layer again. Mr. Fernandes was, at the time of his injury, 40 years old with an equivalent of a grade 8 education.
The trial judge awarded the plaintiff approximately $236,000 in compensation, and also awarded significant punitive and mental distress damages. Mr. Fernandes was awarded $200,000 in punitive damages because the insurance company had not “dealt with the claim fairly and in a balanced way”. He was also awarded $100,000 for mental distress damages for the failure of the insurance company to pay him what they had contracted to pay him. Notably, Mr. Fernandes had originally only sought $25,000 for these mental distress damages. Finally, Mr. Fernandes was awarded full legal costs amounting to about $212,000.
The insurance company appealed the trial judge’s decision regarding the awards for punitive and mental distress damages, as well as full indemnity costs.
The Ontario Court of Appeal allowed the appeal in part, reducing the legal costs awarded by $30,000 and reducing the mental distress damages awarded. However, the Court upheld the finding that punitive and mental distress damages were payable in respect of Mr. Fernandes’ treatment by the insurance company.
Punitive Damages
The Court summarized the key applicable principles for a finding of punitive damages as follows:
Applying those principles, the Court of Appeal found that there was sufficient evidence to support the conclusion that punitive damages were appropriate in Mr. Fernandes’ case.
Mental Distress Damages
The Court noted that the Supreme Court of Canada in Fidler has held damages for mental distress for breach of contract may be awarded “where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made”. This however, does not obviate the need to prove the actual loss.
Here, both parties agreed that an objective of the insurance policy was to secure a psychological benefit and that at the time, the parties reasonably contemplated that the failure to pay benefits could cause the respondent mental distress. However, the insurance company contested the amount awarded.
The Court noted that there was no good explanation how the trial judge had arrived at the figure of $100,000, or what facts justified such an amount. It noted further that the award appeared inordinately high and entirely disproportionate, as compared to other awards and noted that the award was four (4) times greater than that requested by Mr. Fernandes. It finally noted that mental distress damages are to be compensatory and not punitive and reduced the award from $100,000 to $25,000.
In order to successfully bring a claim for punitive damages or mental distress damages in the context of an LTD claim, it is important to advance the facts upon which those claims can be supported. The trial judge must have a factual basis to grant the amounts sought, and which will satisfy the tests as articulated in the Ontario Court of Appeal’s judgment.
When initiating a proceeding regarding a denial of long-term disability benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer.
We are here to help navigate the LTD application process. Consult one of our experienced Long Term 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.]
Please note that our office will be closed on Friday, April 3, 2015 and Monday, April 6, 2015.
Applying for long-term disability (LTD) benefits can feel like a game of cat and mouse, in which the insurer repeatedly invites claimants to appeal the denial of benefits internally. Often these internal appeals are met with further denials. What many claimants may not realize is that, while these internal appeals and denials are occurring, the time limit to bring a court action continues to run.
In Ontario, most long-term disability (LTD) policies give you two years to sue the insurer, and a few provide even less time. This time limit is known as a “limitation period”, and you may be unable to claim lost benefits in court if you permit that period to expire.
One important question is what event actually triggers the running of the limitation period. While it is impossible to predict in the abstract, the law in Ontario since December 2014 is that the two-year timeframe (or, more rarely, the one-year timeframe) begins to run the moment you receive an “unequivocal denial” of your claim.
In other words, the clock will start to run when the insurer clearly denies your claim. The fact that the insurer invites you to pursue an internal appeal does not mean that the limitation period is not running. Once your claim has been clearly denied, the lawsuit clock starts ticking, and the time limit is likely not restarted by bringing an internal appeal.
The take-away from the law on limitation periods in long-term disability (LTD) claims is that you should take action quickly after your claim is first denied. Even if you are still pursuing internal appeals, do not assume they prolong your right to sue, because the opposite is likely true.
A disability lawyer with expertise in long-term disability benefits can provide you with specialized advice, including on the issue of whether your claim has been clearly denied and your time limit for suing the insurer has started. So once you’ve received that first denial, contact a lawyer for a consultation to decide whether you should commence an action, and to learn about what other legal options might be available to you.
We are here to help navigate the LTD application process. Consult one of our experienced Long Term 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.]
David Yazbeck has been named an Advisor to FOLKRUM, Ottawa’s community music venue. FOLKRUM is an independent, not-for-profit organization working toward the creation of a creativity hub and music facility to serve Ottawa, Outaouais, the valley and surrounding areas.
On Friday, March 20, 2015, Andrew Astritis participated in an upper-year human rights seminar in the University of Ottawa’s common law program. The class addressed developments in family status accommodation, including the decision in Canada (Attorney General) v Johnstone. Andrew Raven and Andrew Astritis appeared as counsel on behalf of Ms Johnstone.
In a recent arbitration decision, Ontario Public Service Employees Union, Local 464 v Ottawa Hospital, Arbitrator Mary Ellen Cummings found that the Ottawa Hospital’s application of its short-term sick leave benefits discriminated against employees with chronic disabilities, contrary to the Human Rights Code. The collective agreement language at issue in the case is common throughout most of the hospital sector in Ontario, and this decision sets an important precedent for how absences due to chronic illnesses must be handled in the province.
Background
The case related to sick leave benefits under the Hospitals of Ontario Disability Income Plan (“HOODIP”). Under HOODIP, employees have up to 15 weeks of short-term sick pay benefits for each period of absence. Article 16.03 in the Collective Agreement states: “No sick pay benefit is payable under HOODIP for the first fifteen hours of absence for the sixth and subsequent period(s) of absence in the same fiscal year”. The Ottawa Hospital applied this rule such that any absences separated by three weeks or more were treated as distinct “periods of absence”, even if the absences were all due to the same chronic illness. The Ontario Public Service Employees Union filed a policy grievance against the Hospital, arguing that this interpretation of “period of absence” discriminated against employees who have chronic illnesses that periodically reoccur (e.g. migraines, Crohn’s Disease).
Arbitrator’s Decision
The Arbitrator found that the use of a three-week gap to identify distinct periods of absence had an adverse impact on employees with chronic illnesses compared to other employees receiving sick leave benefits. Employees with frequent, short absences due to a chronic illness will reach their sixth and subsequent “period of absence” more quickly than other employees, due to the nature of their disability. Treating these absences as a “new ailment”, simply because they were separated by three weeks, failed to address the circumstances of employees with chronic illnesses.
Arbitrator Cummings further found that this discrimination was not justified as reasonable and bona fide. She rejected the Hospital’s argument that it would be too onerous to determine whether absences were due to a chronic disability, holding: “looking at the individual needs of employees with disabilities and determining to what extent accommodation is required is the minimum required of all employers under the Code.”
The grievance was allowed, and the Hospital was directed to stop counting absences separated by more than three weeks as a distinct period of absence when the employee has a chronic illness. The Arbitrator further directed the employer to look at absences of employees with chronic illnesses and determine whether the employee can be accommodated, and if so how. She emphasized that accommodation may take many possible forms, and so a single remedy would be inappropriate.
This Award sets an important precedent, not only for collective agreements in the hospital sector with similar language, but also more broadly for treatment of employees’ absences when they are due to a chronic, recurring illness. Arbitrator Cummings’ decision provides strong confirmation that there is not a ‘one size fits all’ approach to managing employees’ attendance, and employers must look at each individual’s circumstances and needs.
The Union was represented by Wassim Garzouzi and Amanda Montague-Reinholdt from Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.
On February 19th, 2015, RavenLaw Articling student, Taylor Akin, joined the Ottawa Rape Crisis Centre’s Board of Directors. The ORCC provides support and counseling to women who are survivors of sexual violence. Taylor has been interested in violence against women initiatives since her undergraduate degree and had the opportunity to take classes on gender-based violence in law school. After a year of volunteering with the ORCC, Taylor is very pleased to be the newest member of the Board.
David Yazbeck is quoted in “Charter vetting challenge heading to Federal Court”, an article in the January 2015 edition of The Lawyers Weekly magazine. The article discusses the upcoming Federal Court case of Schmidt v A.G. Canada. The Applicant, Edgar Schmidt, a former Department of Justice lawyer, sued the government in 2012. The lawsuit alleges that the Minister of Justice was failing to live up to his responsibilities under s. 4.1 of the Department of Justice Act and s. 3 of the Canadian Bill of Rights to vet all regulations and government bills tabled or presented by a cabinet minister in the House of Commons, and report any inconsistencies with the Canadian Charter of Rights and Freedoms or Canadian Bill of Rights.
David Yazbeck is representing Mr. Schmidt in the Federal Court case.