On December 3, 2020, Andrew Astritis gave a guest lecture on Workers’ Rights and the Charter in the University of Ottawa’s English Common Law Program. Speaking to upper year labour law students, Andrew outlined recent developments in the law on these issues, including the 2015 Labour Law Trilogy in which the Supreme Court of Canada recognized the existence of a constitutional right to strike.
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 February 9, 2021, Alison McEwen will be speaking as part of the Lancaster House’s program “Understanding and Implementing Bill C-65”. Alison will be discussing the changes to workplace violence and harassment laws in federal workplaces, including the new obligations on employers, the impact on unions, and the supports available for employees affected by violence or harassment.
For more information or to register, please see Lancaster House’s website.
Sean McGee was recently interviewed on the evolving story around harassment allegations in the Governor General’s office, under former governor general Julie Payette. Sean provided his insights on the application of the federal government’s directives on workplace harassment and the types of remedies often available for employees who have experienced harassment.
The interview with the CBC was published in January 2021 and can be found on the CBC’s website.
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.]
In a recent grievance decision between the Limestone District School Board and CUPE Local 1480, Arbitrator Jesse Nyman found that changing a bargaining unit member’s work location may eliminate a position and create a vacancy, triggering the mandatory posting provisions of a collective agreement.
In 2013, the Employer decided to close two of its secondary schools in Kingston, Ontario and to construct a new secondary school. The grievance began when the Employer announced its intention to unilaterally transfer staff from one of the old schools to the new school when it opened.
At arbitration, the Union argued that, when an old school closes, the positions at that school cease to exist and when the new school opens, vacancies will be created that must be posted and filled in accordance with the posting and seniority provisions of the parties’ collective agreements. The Employer defended its intention to simply transfer staff from one school to another by arguing that there were no vacancies created, only a change in work location, and therefore no provisions of the collective agreements applied.
In his decision, the Arbitrator agreed with the Union’s position that the shutting down of the old schools and opening of the new school was a “school closure” within the meaning of the collective agreement. The Arbitrator also accepted the Union’s argument that the collective agreements prohibited the Employer from unilaterally transferring employees from one work location to another when a school closes. Rather, the posting provisions must be applied. The Arbitrator found that this interpretation was supported by the plain language of the agreements and the parties’ past practice regarding school-to-school transfers. The grievance was therefore allowed and the Board was ordered to post the new positions in accordance with the terms of the collective agreements.
This win for the Union highlights that a change of work location, depending on the language of the collective agreement, may trigger a vacancy that requires a position to be posted. This reinforces the importance of seniority rights for workers, which are almost always a key determinant in filling vacant positions.
The Union was represented by Julia Williams of RavenLaw.
On December 8, 2020, Alison McEwen will be speaking as part of Lancaster House’s annual “Bargaining in the Broader Public Sector” conference. Alison will present as part of a panel on bargaining and negotiation priorities in the post-COVID-19 world. The panel will discuss how the pandemic has caused broader policy shifts and how these shifts are likely to affect bargaining in the public sector.
RavenLaw is pleased to announce that one of its partners, Wassim Garzouzi, has been unanimously appointed as the President of the Canadian Association of Labour Lawyers (CALL) as of July 30, 2020. CALL is a voluntary organization comprised of approximately 600 lawyers who represent the labour movement across Canada. The Association endeavours to protect and advance the interests of workers in the forums where labour law is made and administered. Wassim’s presidency marks the first time that a Black, Indigenous, or Person of Colour has been named to the CALL executive since its founding in the late 1980s.
Wassim, who was previously elected to the role Regional Vice-President (Ontario), has been a member of CALL Council since 2016.
Congratulations to Wassim on his historic appointment!