On June 22, 2021, Sean McGee presented as part of a panel at l’Association des juristes d’expression francaise de l’Ontario’s annual congress. The panel addressed new developments in many areas of law, with Sean presenting specifically on ten key recent cases in the area of labour law.
RavenLaw is proud to sponsor an upcoming evening of music in support of Ottawa Blues for Youth, in connection with the Royal Ottawa Hospital. Ottawa Blues for Youth was created in the fall of 2020 by Anita Manley, with funds raised going to support Youth Mental Health at the Royal.
The event will be held on October 23, 2021, with ticket sales beginning in mid-August. For more information, click here.
On June 24, 2021, James Cameron and Karen Sisson presented as part of the Law Society of Ontario’s annual Six-Minute Employment Lawyer update. James and Karen presented on the interconnections between Long-Term Disability claims, the duty to accommodate disabilities in the workplace, and wrongful dismissal cases.
On August 30, 2021, Raphaëlle Laframboise-Carignan and Anna Lichty were called to the Bar in Nunavut and were sworn before Justice Cooper in Iqaluit, NU. Both Raphaëlle and Anna were presented by Alison McEwen who has been a member of the Law Society of Nunavut since 2015.
RavenLaw is proud to represent employees and unions in the northern territories of Canada, including in the Northwest Territories (Michael Fisher), the Yukon (Morgan Rowe), and Nunavut (Alison, Raphaëlle, and Anna).
On February 24, 2021, Morgan Rowe presented as part of a panel on pay equity issues in Canada, hosted by the University of Ottawa Association of Women and the Law and Employment Law Student’s Society. The panel discussed the ongoing work needed to address the gender pay gap, as well as the impacts of the recent federal Pay Equity Act and the Supreme Court of Canada’s 2018 decision striking down portions of Quebec’s pay equity legislation.
Andrew Raven, Andrew Astritis and Morgan had appeared before the Supreme Court on behalf for the intervener, the Public Service Alliance of Canada, to argue in support of a Charter challenge during the Quebec pay equity case.
In a recent court decision, the Federal Court of Appeal overturned the decision of the Canada Border Service Agency to reject the classification grievances of over 45 management employees.
The Court found that CBSA’s decision was unreasonable because it refused to reclassify the managers’ position on the basis that it did not perform certain decision-making responsibilities, when this was not actually a requirement of the classification rules or guidelines. Furthermore, the Court found that CBSA had misapprehended and failed to identify any mistake in the Classification Grievance Committee report which had recommended upwardly reclassifying the managers’ position.
This is the third time these employees have been successful in overturning CBSA’s decision to reject their grievances. Recognizing the exceptional nature of these circumstances, the Court of Appeal concluded that it would not be appropriate to return the decision to CBSA for redetermination a fourth time.
As the Court stated: “This Court’s intervention rests on its core strength which is determining if the justification for a decision is reasonable. Having found that the Deputy Head’s rejection of the Committee’s recommendation was unreasonable, and considering that in three attempts to justify his conclusion, the Deputy Head has been unable to formulate a rationale which withstands review on a deferential standard, this Court is not overreaching in requiring the Minister to accept an expert recommendation that he is unable to justify rejecting.”
The Court therefore ordered CBSA to render a new decision, consistent with the recommendation of the Classification Grievance Committee. This should bring to a close more than a decade of litigation that the Appellants have had to pursue to have their classification grievances appropriately addressed by their employer.
The Appellants were represented by Andrew Raven and Morgan Rowe of RavenLaw.
When Ontarians think about pay packages upon the termination of their job, they often use the term “severance packages”. That term can include a number of different types of pay, including statutory termination, notice outlined in an employment contract, and notice at common law. However, despite the similar naming convention, the three are unique.
Severance packages in Ontario consist of the amount legally owed to you by an employer when the employer terminates your employment. This will always include the minimum provincially regulated standard pay and benefits. It can also include amounts that are outlined in an employment contract over and above the mandated minimum amount, assuming that the contract clause is valid. Lastly, if your contract is silent on amounts upon termination, or if the contract clause is not valid, you are entitled to reasonable notice at common law. The employer is obligated to pay the employee their entitlements. However, where entitlements are not clear or there is debate as to whether or not the employee has the entitlement, legal disputes can arise.
Below we lay out five things to look out for when considering a severance package offered by an employer.
The Ontario Employment Standards Act, 2000 (ESA) states, should you have maintained continuous employment for a minimum of three months, that your employer owes you notice in the form of advance notice or the equivalent of one week’s pay per year that you have remained with them, to a maximum of eight weeks. The ESA also outlines statutory severance, which is paid as long as the employee has five years of service and the employer in question must meet a minimum payroll threshold of $2.5 million annually. This is an additional week per year of service, up to 26 weeks.
You are entitled to these payments on termination regardless of anything your contract says. Your employer can never give you less than this payment (unless they are alleging something called just cause, see below). You also do not need to sign a release (see below) to get this payment. It comes to you without any requirement from you.
An employment contract can dictate severance package entitlements upon termination of employment. However, there are a few things to note: first, the contract can never give you less than your ESA minimum payments. If it attempts to give you less than ESA minimum payments, the termination clause in the contract is void. Second: the contract clause may or may not be valid for a number of other reasons. If the contract clause is not valid, you may still be entitled to common law notice (which is often longer than what is laid out in a contract). Third, even if the contract clause is valid, it may not disentitle you to common law notice.
Carefully inspect your employment contract to verify whether the termination clause is valid and fully restricts your entitlements, which an experienced Ontario employment lawyer can verify with ease.
In the event your position is terminated, it can be with cause (the employer has a reason for ending your employment immediately and without any payments required) or without cause (no reason required by the employer). Terminating an employee for cause, and so disentitling them to any severance package, is a high bar. It requires serious misconduct or behaviour from the employee. If your employer has attempted to terminate you for cause, seek the help of an experienced employment lawyer, as the allegation of cause may not be legitimate and you may be entitled to a severance package.
Should you have been wrongfully dismissed due to human rights issues or other violations on behalf of the employer, it is imperative that you reach out to an employment lawyer to verify your termination pay and/or severance package eligibility. Unlike other types of dismissals, if you have been dismissed because of a human rights violation, you may be entitled to have your job back. You may also be entitled to additional sums of money for such violations. This will vary depending on the context of your specific experience.
If an employer is asking you to sign a release form, read it carefully as you may be inadvertently absolving them of any legal responsibility. Employers may make you an offer of a little extra money over and above statutory minimum payments to sign this release. However, if you are entitled to common law notice, you may be signing away your rights for much less than you are entitled to. Taking this form to a lawyer for analysis and guidance is a proactive step to take.
The more informed you are, the more protected you are in terms of the severance amount owing to you. Alternatively, if you have been laid off due to the COVID-19 pandemic, please see our article on the subject.
[Note: This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]
There is a common misconception that contracting COVID-19 automatically results in eligibility for long-term disability benefits. Unfortunately, this is not the case, and only in specific circumstances relative to an individual’s limitations and restrictions would filing a claim be appropriate. Today, we will find out why that is and provide information to help you determine your eligibility for long-term disability benefits, otherwise known as LTD.
The first factor to consider is the elimination period or the amount of time an employee must wait between the first day they are unable to work due to illness or injury and the first day they are eligible to receive LTD benefits. The elimination period varies depending on your LTD policy. During this period, the individual must continuously be unable to work because of their disability. The employee may be required to use all remaining sick days or apply for short term disability benefits during this period of time. Before applying, carefully examine the policy booklet provided by your employer. Ensure it’s the latest version, as updates to qualifying terms and conditions could either simplify or complicate matters further.
The second factor to consider is the definition of disability as set out in your benefits policy. In order to be eligible for LTD benefits, the individual applying must meet the definition of disability as set out in the policy. These vary slightly depending on the insurance company. However, there are usually two key timeframes to bear in mind when considering your application. The first, which usually applies for the first 24 months after the end of the elimination period, is to prove that you cannot perform your own occupation because of the injury or illness. After 24 months, the employee must demonstrate that they cannot perform the duties of any occupation because of the injury or illness in question.
As covered in our May post on this particular subject, there are five common reasons why you may be denied LTD benefits:
In addition, late applicants who miss the deadline may be ineligible, which can result in a stressful and economically frustrating experience. Always ensure you apply before the posted deadline to avoid this needless complication. While there may be steps available to you to secure your benefits, they involve lengthy court proceedings that are best avoided.
In consideration of these aforementioned LTD eligibility specifics, claiming LTD benefits as a result of COVID-19 would be difficult because you must be able to demonstrate that, after the elimination period and during the first two years, your ongoing symptoms of COVID-19 restrict and limit you from performing the duties of your occupation. A COVID-19 LTD claim would only be successful in instances where your symptoms are severe enough to prevent you from working in your own job. That said, if your LTD benefits have been denied, whether in relation to COVID-19 symptoms or another injury or illness, there are extra steps you can take in an attempt to pursue them further. We have covered them in detail here and would be happy to assist with any questions you may have.
[Note: 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 1, 2021, Dayna Steinfeld presented as part of the Manitoba Association of Newcomer Serving Organizations panel on COVID-19 issues in the workplace. Dayna presented on labour and employment law issues from the union and employee-side perspective.