The firm gratefully acknowledges the contribution to this post by articling student Zachary Rodgers.

The Office and Professional Employees International Union (OPEIU), represented by Wassim Garzouzi, recently scored a major victory for the privacy rights of workers across Canada. On December 9, 2019, Arbitrator Susan Ashley affirmed that employers in Canada cannot unilaterally impose random drug and alcohol testing on its unionized employees, despite the legalization of cannabis and the uniquely dangerous nature of the work in question.

The employer in this case, a helicopter company providing passenger transport to offshore oil operations, sought to initiate random drug and alcohol testing of its helicopter pilots (and other employees in safety sensitive positions) following the legalization of cannabis in Canada. At the time, the employer already had a robust drug and alcohol policy in place that allowed it to test employees in safety sensitive positions if there was reasonable cause to suspect the employee was under the influence of drugs or alcohol. The Union took no issue with “for cause” testing. The only issue at arbitration was whether the employer could force employees to submit to drug and alcohol testing at random (i.e. without cause).

The Union successfully argued that Canadian courts and arbitrators have long rejected random testing as an unreasonable violation of individual privacy rights. In Irving Pulp & Paper Ltd, the Supreme Court of Canada concluded that even in workplaces where safety is paramount, random testing is too great an infringement on employee privacy rights if there is no existing and pervasive problem of drug and alcohol use in the workplace.

Arbitrator Ashley rejected the employer’s argument that the legalization of cannabis in Canada had changed the legal landscape. She equally rejected the employer’s position that the uniquely dangerous work of flying helicopters offshore justified the violation of employees’ privacy rights. Significantly, the arbitrator found that, although oral swab testing is less invasive than other methods of drug testing, it still amounts to “an unjustified affront to the dignity and privacy rights of the affected employees.”

This award, in favour of the Union, is one of the first post-legalization decisions in Canada that affirms the Canadian model, which requires employers to demonstrate an existing and pervasive alcohol or drug problem in the workplace before random testing can be justified. Importantly, employers cannot rely on the legalization of cannabis to justify upending the status quo on drug testing in Canadian workplaces.

RavenLaw congratulates OPEIU on its hard-fought and successful defence of employee privacy rights in Canada.

On March 5, 2020, Anna Lichty and Megan Fultz represented Ravenlaw at the 2020 uOttawa Career Day at the Ottawa Conference and Event Centre.

Anna and Megan hosted four Community & Public Lawyering Roundtables, conducted a series of mock interviews with students interested in labour and employment law, and had the opportunity to meet and discuss our firm’s work with many first and second-year law students at a networking lunch. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at Ravenlaw, please contact us at studentrecruitment@ravenlaw.com.

This week, the Government has started accepting applications from employers for the Canada Emergency Wage Subsidy (CEWS), part of the Government’s economic response to the COVID-19 pandemic crisis. This new benefit is unprecedented in scope and is likely to be well received by many employers and employees. However, the design of this benefit arguably leaves too much power in the hands of employers.

What is the CEWS?

The CEWS is a wage subsidy intended to help employers that are struggling due to COVID-19, allowing them to recall employees that have been laid off, and to avoid future layoffs. Eligible employers will receive a subsidy for up to 12 weeks between March 15 and June 6, provided they can show the required reduction in revenue for that period. The Government has not imposed any size limit on eligible employers and has extended the benefit to all types of businesses, as well as not-for-profit organizations and charities. Only public institutions, such as schools and hospitals, are excluded.

How much does the subsidy cover?

The subsidy will cover up to 75% of wages on the first $58,700 that an employee earns, up to a maximum of $847 a week. There are special calculations for employees whose pay has been reduced since before the crisis, and for non-arm’s length employees.

Employees who have been laid off can become eligible retroactively for the CEWS if the employer rehires them. However, if those employees have received the Canada Emergency Response Benefit (CERB), and they will earn more than $1000 per month as a result of being rehired, they will have to repay the CERB.

Does the CEWS give too much power to employers?

This program is new and therefore may be revised and adjusted in response to public criticism, similar to the CERB. The Government may want to consider some of the ways in which this program’s design places too much power in the hands of employers.

No obligation on employers to pay remaining 25% of wages

The Government is not requiring employers to pay the remaining 25% of employees’ wages as a condition of eligibility for the CEWS. The Government has stated publicly that it “expects” employers to make best efforts to pay the remaining salary amounts, but it is unclear whether there will be any mechanism to enforce that expectation. As a result, there is a concern that many employers will recall employees at only 75% of their previous pay rate, or even potentially reduce the pay of existing employees. This program should obviously not create an incentive for employers to pay their workers less.

Employers decide the level of government benefit for workers

The CEWS (up to $847 per week) is a far more valuable benefit than the CERB ($500 per week). A worker who has been laid off due to COVID-19 is only eligible for the CERB, but that worker’s employer could choose to rehire them solely for the purposes of accessing the CEWS, thereby granting that worker access to a significantly larger benefit.

This program therefore gives a huge amount of power to employers to basically decide how much financial relief their workers will receive during this crisis. One way to fix this flaw is to increase the value of the CERB to make it equivalent to the CEWS.

Will the CEWS strengthen a claim of constructive dismissal?

While the CEWS appears to place workers at the mercy of their employers in many respects, one way in which it may hand some power back to workers is in claims for constructive dismissal.

Many employment law experts have questioned how courts will consider claims of constructive dismissal in these extraordinary circumstances. Some argue that the COVID-19 crisis may justify greater changes to the employment relationship than have previously been accepted, on the theory that a reasonable person in the employee’s position would not consider the change to amount to a dismissal in this unique context.

The CEWS offers significant relief to employers in meeting payroll obligations, and so it may play a role in the constructive dismissal analysis. A reasonable employee may, for example, consider themselves constructively dismissed if they are laid off or have their wages reduced, if the employer cannot prove that these changes were necessary despite the presence of the CEWS benefit.

These questions, unfortunately, will not be answered by the courts for some time. Therefore, it is important for employees to obtain legal advice before claiming constructive dismissal, to fully understand the risks and consequences.

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

In Walker v Canada (Attorney General), the Federal Court of Appeal set aside a decision of the Federal Public Sector Labour Relations and Employment Board upholding the dismissal of a longer-service and discipline-free public service employee because the Board decision-maker failed to consider whether the employee’s state of mind mitigated her alleged misconduct.

The employee’s union, the Public Service Alliance of Canada, argued that “many of the actions for which [the employee] was disciplined were motivated by a desire to protect herself and other employees from threatening and possibly dangerous acts of her subordinate” whom she genuinely feared.

It is well-established, the Federal Court of Appeal concluded, that a labour adjudicator’s inquiry into the appropriate penalty for alleged misconduct “requires review of all the relevant surrounding circumstances, including mitigating factor’s such as the employee’s state of mind, which has a direct bearing on culpability.” Yet, the decision-maker in this case not only failed to address this issue but went so far as to state, on a related issue, that it was “not my role to determine whether … [the employee] had a legitimate fear for her safety.”

This judicial review decision represents one of the first times where the Federal Court of Appeal has applied the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov. Vavilov instructed that an administrative decision-maker’s failure to address fundamental arguments raised before it may result in the decision being unreasonable due to a lack of transparency and intelligibility.

As the employee’s fear of her co-worker was central to her defence, the Court of Appeal found that it was directly relevant to the issues the decision-maker was required to determine and could have changed the outcome of the case. The Court of Appeal concluded that the Board decision-maker’s “failure to consider whether such fear constituted a mitigating factor renders it decision … unreasonable as it is impossible to discern from the decision what weight would have been attributed to this factor by the Board, had it considered it.”

The Federal Court of Appeal returned the matter to a different Board decision-maker for redetermination.

Andrew Raven and Michael Fisher appeared for the Applicant.

Our law firm pauses today to recognize the National Day of Mourning, a day to honour those who have been killed, injured, or made ill as a result of their work. Every worker has the right to a safe and healthy workplace. One workplace death, injury, or illness is one too many.

These extraordinary times remind us of the importance of a safe and healthy workplace. Sadly, many frontline workers around the world have died or become ill because of exposure to the coronavirus in their work. All of us at RavenLaw would like to express our incredible gratitude to the workers performing essential work during the COVID-19 pandemic. We will continue to fight on their behalf for adequate health and safety protections.

Unions and coronavirus. Some may wonder what the connection could be between these two words.

The connection is not so strange as you might think. Unions have worked for a century or more to improve terms and conditions of employment. That has included championing sick and disability leave benefits. When quarantine was a more common practice, unions negotiated pay maintenance provisions for people who were quarantined. Unions themselves are also employers whose employees get sick from time to time. The list goes on.

At a time when the extent, seriousness and consequences of the current coronavirus outbreak are not yet fully known, it is important for unions to turn their minds to the problems potentially caused by the virus and its spread and what measures to take to make sure employees are protected.

For some time, unions have been trying to help employers understand the pitfalls of presenteeism. That’s the phenomenon where someone attends work because they can’t afford to miss a day’s pay, because they are afraid of the consequences when they take time off work during a probationary period, or they misread the employer’s signals about loyalty and dragging yourself into work when you just don’t feel up to it.

The goal for unions is to protect the employee from wage loss if they become ill or are required to care for a family worker. It is also to protect co-workers from infection. The reason employers should listen is that it is a classic case where the benefits mentioned above may also prevent significant losses to the employer’s operation.

Unions should speak with employers to deal with issues raised by COVID-19. Those discussions should be happening now.

The following is a preliminary checklist for that discussion:

• If the employer can’t be persuaded to make permanent changes to sick leave or other benefits, discuss having a temporary protocol that expires on a fixed date or event.
• One of the goals of the protocol should be to provide an incentive to employees with symptoms of influenza not to come to work.
• Discuss what medical information is required and at what stage. Who will pay for any medical certificates?
• If the collective agreement does not provide for benefits during a quarantine, then discuss what happens in the case of an employee who cannot report to work during quarantine.
• What measures are available to allow the person to work from home? What salary maintenance is available?
• What if the person is required to care for a person who is diagnosed with the virus? There are statutory rights to some days with pay in many jurisdictions, but none of them would provide enough available paid days for a virus to run its course. That is even more true if the caregiver becomes the patient at some point.
• These issues may present both health and safety issues and worker’s compensation issues in the workplace. An employer that deals inappropriately with the problem may find that there are consequences that go beyond the losses that go along with an infected workforce.
• If an employer is not responsive to any of the above, the issues may be raised in a health and safety committee.
• Does the protocol have to say that it is in addition to any provisions of the collective agreement?
• The employer should be explicit and clear about expectations for employees who have or are concerned they have symptoms of influenza. They should do so even if they believe there may be some individuals who may err on the side of staying home.
• There have been concerns about comments about people appearing to come from countries where there have been outbreaks. It is important to reinforce the importance of human rights in every workplace.

Most employers do some level of emergency preparedness planning. It just makes good sense. Planning is something you do before there is a problem.

It may be that there are no serious problems in the majority of workplaces. On the other hand, it is easy to see that, if there is a more serious problem, it will likely be too late to get appropriate measures in place.

Anyone tried to buy an N-95 mask recently?

What do you do when your arbitration is coming up but no one can meet face to face? The answer, for a number of arbitrators, is that you find another way to hold the hearing.

There are many reasons a party may not want to go ahead with a hearing.  In some cases, a party can ask to postpone the date. Examples include the illness of a representative or of an important witness.  It is important to remember, though, that no one has a right to an adjournment, or a veto over going ahead with a hearing.  The same is true about the way the hearing is held.  Traditionally, everyone meets in the same physical location and the evidence is presented.  Unless there is something in the collective agreement though, it’s a tradition, not a legal requirement.

It is important to remember that the Arbitrator controls the process for getting the grievance resolved.  That means deciding when the hearing is held and how it is held.

Arbitrators Goodfellow, Johnston and Luborsky, in three separate and very recent decisions, refused requests for adjournments in circumstances where the parties could not be in the same location. As an example, arbitrator Goodfellow said in a Toronto Transit Commission case that:

I am, quite simply, not persuaded that there is any risk to the TTC of it not being able to put its best foot forward, factually, or of me being deprived of the most truthful and reliable evidence, legally, to fully and fairly adjudicate the issues in dispute, simply because Mr. Grimaldi (and, possibly, one other witness) will testify remotely with Ms. Rogers having testified in-person. Finally, to be clear, I am completely unpersuaded that any Zoom-related “privacy issues” have any meaningful role to play in the process.

It is not enough to say that there may be credibility issues, so the case must proceed in person.  Arbitrators have a wide range of things they can do to manage any hearing – including electronic hearings.  It is true that technology is not perfect and there will inevitably be some glitches.  On the other hand, the same could be said for many in-person arbitrations.

There will still be situations where an arbitrator will adjourn an arbitration and reschedule for a later date.  Arbitrator Misra did that when Mount Sinai Hospital asked to postpone the hearing.  In that case, though, she was dealing with a pay issue that had remained unresolved for two years and the hospital was scrambling to find the resources to deal directly with the consequences of COVID-19 on patients. The different result in that situation was understandable.

As with any other request, most arbitrators will balance various factors.  One of the most important is the significant interest the parties have in having cases decided quickly. Against that, the party asking to put off a hearing (usually the employer) will have to show real prejudice that would be caused by going ahead and using a new technology.  The arbitrator will consider real  difficulties that are caused by proceeding with a case, but an increase in the work required to prepare and present evidence will not likely be enough.

Parties will have to decide whether they want to go forward with their cases, and they may have legitimate reasons to agree to postpone.  On the other hand, as we navigate a new and challenging labour relations reality, remember that arbitrators may be sympathetic when someone says that the hearing must go on.

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.]

What is Lyme Disease?

Lyme disease is an inflammatory and infectious disease spread to humans through tick bites. It is caused by borrelia bacteria, which commonly infects animals. Ticks pick up the bacteria by biting infected animals and then passing it on to other animals, including humans. The disease can develop within days, weeks, or even years after infection if left untreated or improperly treated. In more extreme scenarios, albeit in an ever-increasing number of cases, it can gradually result in long-term disability, leaving people unable to work. This inevitably begs the question: Is there such a thing as a Lyme Disease Disability Claim? The short answer is yes but negotiating disability benefits for Lyme disease is often a long, arduous, and frustrating process. 

What are the Symptoms of Lyme Disease?

Chronic Lyme disease symptoms can be diverse and vary in intensity, often making accurate diagnosis difficult or impossible, which is why claiming disability benefits for Lyme disease can be a long stressful process. Initial symptoms can include the development of a rash (sometimes shaped like a “bull’s eye” mark) and flu-like symptoms. Other symptoms can include fever, headache, nausea, jaw pain, light sensitivity, red eyes, muscle aches, and neck stiffness. They can also include arthritis, severe fatigue, headaches, vertigo, sleep disturbances, and mental confusion and can lead to significant functional impairment. Any mix of these symptoms can result in an individual being incapable of continuing to work.

How is it Diagnosed?

There is no accepted diagnostic test for Lyme disease, but according to the Public Health Agency of Canada, cases are on the rise – both literally and statistically. In the early 2000s, cases known to have been contracted in Canada were relatively rare but during the latter part of the decade reached a reported high of more than 2,000 cases. Because the disease causes so many and varied symptoms that can be confused with other ailments, the real figure is almost certainly much higher. 

Because diagnosis is based on symptoms and history of tick exposure, those applying for disability benefits for Lyme disease face challenges when dealing with health and insurance systems.

What options are available to me if I require Disability Benefits for Lyme disease?

People who are unable to work as a result of the symptoms associated with a diagnosis of Lyme disease have a couple of potential options: Canada Pension Plan (CPP) Disability benefits or Long-Term Disability (LTD) benefits. 

The main purpose of the CPP Disability is to support you if you have a mental or physical disability that regularly stops you from doing any type of substantially gainful work or have a disability that is long-term and of indefinite duration, or is likely to result in death. To qualify for CPP disability benefits, you must have been employed for ]four of the past six years and paid into the CPP program. You will also be required to show that your disability is severe enough to prevent you from working.

The other option is to apply for LTD insurance if you are enrolled in a plan. An LTD plan is commonly part of employee benefits packages and provides benefits should you be unable to work.

How do I apply for Long Term Disability benefits for Lyme disease?

To make a successful claim for LTD benefits for Lyme disease, it is important to work closely with your doctor. You will need to discuss your symptoms, limitations, restrictions, and potential treatment options. Your doctor will then be required to provide a diagnosis, describe your symptoms, and record his or her findings. The insurance company will use this information to assess your level of functional impairment and determine whether you qualify for Lyme disease disability benefits.

Because the symptoms of Lyme disease are so diverse and common to so many other diseases and illnesses, confirming an LTD claim for Lyme disease will be challenging. 

The foundation for a successful disability claim for Lyme disease is a detailed record of symptoms you are experiencing, along with notes describing how those symptoms prevent you from working. Those notes should also include all the treatments you have undergone, along with their intended effect and their actual effect. 

For these reasons, it is crucial to record how the disease has progressed and identify any possible patterns and/or correlations with other factors (environment, sleep, diet, activity level, etc.). In all cases, it is important to be honest and candid about your symptoms and to keep lines of communication open with your physician.

Throughout the LTD claims process, you and your doctor will be asked to provide information on a number of important areas including your symptoms, their impact on you (limitations/restrictions etc.), and any progress or regression you experience. You will be required to report on all treatments you have received, the impact of those treatments, and the future plans and prospects for managing your condition.

What if my Claim is Denied?

If your disability claim for Lyme disease is denied, you can fight the decision through the insurance company’s internal appeal process. This can be done with the help of a disability lawyer. The insurance company may change their decision if you are able to provide new or additional medical evidence. You can also hire a disability lawyer to pursue legal action against the insurance company. No matter which route you choose, seeking legal advice as quickly as possible after benefits are refused is extremely important as there are time limits to both the internal appeal process and to pursuing litigation.

We are here to help navigate the LTD application process. Consult one of our experienced 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.]

Sources:

https://www.webmd.com/rheumatoid-arthritis/arthritis-lyme-disease#2-6

https://canlyme.com/lyme-basics/symptoms/

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.