As part of its coverage on International Women’s Day, the Ottawa Citizen interviewed Andrew Raven to discuss the 20^th anniversary of the Federal Public Service Pay Equity settlement. Andrew had represented the Public Service Alliance of Canada in this historic pay equity complaint, which sought to address systemic gender-based wage discrimination across the federal public service.

The final settlement, valued at $3.6 billion, affected over 200,000 federal government employees and remains the largest pay equity award in Canadian history. Since then, PSAC has continued to fight for pay equity on behalf of its members, including at Canada Post, the Government of the Northwest Territories, and at various separate employers in the federal government. While progress has been made in the last 20 years concerning pay equity, much remains to be done to address this important issue.

RavenLaw is pleased to announce that Anna Lichty has been appointed to the Board of Directors of the Kiwanis Club of Ottawa.

The Kiwanis Club of Ottawa is a not-for-profit organization and registered charity with members who effect positive change within the Ottawa community by volunteering their time and raising funds for programs that promote youth literacy and leadership, help individuals with special needs and assist those struggling in the community.

Anna is thrilled to be joining the Board of Directors. Anna is an active member of the Kiwanis Club of Ottawa and previously a member of the youth group Circle K of the University of Ottawa. She looks forward to continuing to assist the Kiwanis Club of Ottawa with their initiatives.

Attempting to return to work after receiving long-term disability insurance benefits can seem daunting. Many questions arise, but one we often hear is “what happens if I fail or get sick again?”  The short answer is that it depends on the amount of time that has passed since you returned work. You may start receiving long-term disability benefits again without having to wait.  Or in other words, without having to satisfy another “elimination period”.

Most long-term disability insurance policies have terms dealing with successive periods of total disability.  If you have returned to work and are unsuccessful or become ill again, then it will be important to review the terms of your policy with a disability benefits lawyer. The terms and time limits to qualify may vary from policy to policy.

Recurrent Disability

Long term disability insurance policies will often have certain requirements. Some will allow an employee to restart benefits if they become ill or are unable to work due to the same illness or cause within a specific time period.  For example, an employee with Fibromyalgia attempts to return to work following a one-year absence. A progressive return to work plan is established and the employee returns to work.  Unfortunately, she suffers from a flair up of her symptoms and her treating physician provides the insurance company with a medical report stating that the employee is unable to work.  Providing the recurrence took place within the time limit, this employee would qualify for an immediate reinstatement of benefits. Typically, the time limit for a recurrence of the same illness is 12 months.

Related Disability

Long term disability insurance policies will also often have provisions allowing benefits to be reinstated. This occurs if the employee becomes ill or is otherwise unable to work due to a related illness within a specific period of time, typically 6 months.  A related illness is one that results from the same cause as the initial illness or disability.  For example, an employee who develops mental health issues as a result of a physical disability. If they cannot work, this would be considered totally disabled due to a related disability.  An employee whose related illness renders them totally disabled would qualify for an immediate reinstatement of benefits. Of course, this is providing the recurrence took place within the time limit provided in the policy.

Unrelated Disability

In the event of Total Disability due to an unrelated cause or illness, Long term disability insurance policies also often provide for a reinstatement of benefits.  In this case the time limit is typically one month.  If this period has passed, then the employee will be required to satisfy the “elimination period” before having access to long term disability benefits.

Unfortunately, insurance companies may refuse to reinstate benefits even if the employee is within the time limit provided in the policy. They may argue that the fact that the employee was able to return to work temporarily demonstrates that they are not totally disabled.

Insurance companies may also refuse to reinstate benefits. This occurs when they do not believe the employee is experiencing a recurrence of the same illness or disability. It can also happen because they do not believe the new disability is related to the previous illness or disability.

Contact a disability benefits lawyer for assistance if your claim for reinstatement of long-term disability benefits is denied. We can often assist in resolving the issue with the insurance company. We can take action to obtain the necessary updated medical information or medical reports from the employee’s treating physicians or specialists.

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

In a recent decision, a labour arbitrator found that an employer had failed to exhaust the search for accommodation options for an employee with a permanent disability before attempting to terminate her employment. 

In Sodexo Canada Ltd v Canadian Union of Public Employees, Local 145, Arbitrator Randi Abramsky recognized that the search for accommodation for the grievor’s disability had been a long and difficult one. Nonetheless, she determined that the employer had not yet met the point of undue hardship in accommodating the grievor when it attempted to end her employment in mid-2018.

The Arbitrator found that the employer had not addressed two considerations which were fundamental to its duty to accommodate. First, the employer could not establish that the grievor was unable to perform a modified version of her former position using assistive equipment. Second, even if the grievor could not perform her own position, the Arbitrator found that the employer had not looked beyond the grievor’s original work location to attempt to find position she could perform at other worksites.

As a result, the Arbitrator concluded that the employer had breached its procedural duty to accommodate the grievor, contrary to the Human Rights Code. She therefore directed the employer to work with the grievor and the Union to explore these accommodation options, with the issue of damages and compensation for the breach to be determined once the accommodation process concluded.

The Union was represented in this case by Morgan Rowe of RavenLaw.

David Yazbeck was one of several experts from across the globe who was recently invited to speak on effective whistleblower protection with Financier Worldwide Magazine, based in Birmingham, UK. David provided his insight into establishing effective whistleblower protection, whether through legislation or through internal company policies.

The article was published in February 2019 and can be found on the Financier Worldwide Magazine website.

In a recent victory for CUPE Local 109, Jessica Greenwood provided representation to an employee whose rights under the collective agreement and the Human Rights Code were violated due to an unfair termination of her employment.

In the July 29, 2019 decision, Arbitrator Eli A. Gedalof affirmed that an employer cannot rely on a pattern of innocent absenteeism to establish frustration of contract when the absences are due to exceptional events, the employee has demonstrated a substantial improvement in attendance, and there is objective evidence that the employee will be successful in maintaining regular attendance moving forward. The decision also affirms the employer’s obligation under the Human Rights Code to accommodate an employee’s disability to the degree of undue hardship.

The Union successfully argued that the City relied on an improper and discriminatory application of their Attendance Management Program (AMP) to the Grievor’s case.  This application of the AMP program served to hide the fact that the Grievor’s attendance had improved dramatically and was continuing to improve.

Arbitrator Gedalof ruled that the City had not met its burden under the first part of the test, by failing to establish repetitive and consistent absenteeism triggering the decision to terminate. Arbitrator Gedalof noted “far from demonstrating an escalating pattern of absence in 2018 leading up to her termination, the grievor demonstrated the opposite…. what precipitated the grievor’s termination was a single day of absence following an extended period of acceptable attendance. The grievor’s attendance in 2018 reflected a substantial improvement over an extended period of time, and effectively disrupted the pattern of absences in 2017”.

Even if the employer had met the first part of the test, the Arbitrator concluded that frustration of the employment contract would still not be established on the facts. The Union had satisfied the second part of the test, which places a burden on the grievor to present objective evidence demonstrating good reason to believe that any issues that contributed to the excessive absences have been addressed and the grievor will be able to provide regular and consistent attendance in the immediate and foreseeable future. Arbitrator Gedalof noted, “The most straightforward objective evidence of the grievor’s ability to attend work is that at the time of her termination, she had in fact been attending work regularly for an extended period of time.”

As a result, despite finding that the City had applied the AMP program absent bad faith, the City’s “decision to terminate the grievor without just cause, in the absence of frustration and due to attendance issues related to their medical condition, nonetheless violated the Collective Agreement and (s.5 of) the Human Rights Code”.

The Grievor was awarded re-instatement, with no loss of service or seniority, compensation for lost wages and benefits since the termination, and damages for the breach of the Code.

RavenLaw congratulates the Grievor and CUPE Local 109 for another successful defence of employee rights!

In March 2019, David Yazbeck was re-elected as an Institutional Board Member for the Workers’ History Museum. David’s re-election continues RavenLaw’s long-standing support for the Workers’ History Museum. In addition to David’s role as a Board Member, RavenLaw has been an institutional member of the Board of Directors for a number of years.

The Workers’ History Museum was founded in 2011 with the goal of developing and preserving workers’ history, heritage, and culture in the National Capital Region and Ottawa Valley.

On September 17, 2019, Raphaëlle Laframboise-Carignan gave a presentation to the members of the Mood Disorders Ottawa (MDO) support group, a peer-run organization aimed at enhancing the lives of people with mood disorders. She presented on the topics of Short-Term Disability, Long-Term Disability, Canada Pension Plan Disability benefits, and accommodation in the workplace. Raphaëlle would like to thank the MDO group for inviting her to participate in their session.

In a recent judgment, the Ontario Court of Appeal overturned a lower court decision and held that there is no independent tort of harassment in Ontario. The Court explained that there was no support in the case law in Canada or internationally to extend the law to recognize this new tort. This judgment has left many Ontario employees wondering – what recourse do I have now, if I experience workplace harassment? This post will explore some of the possible options you may still have to pursue your rights, depending on your particular circumstances.

Discriminatory harassment – human rights complaint

Is the workplace harassment you are experiencing based on a prohibited ground of discrimination? For example, is it harassment based on your sex, race, age, or disability? If so, you could bring an Application to the Human Rights Tribunal of Ontario, alleging that you have experienced discrimination and harassment in the course of your employment. If the Tribunal finds in your favour, you could be awarded monetary compensation, reinstatement to your employment if you’ve been terminated, and systemic orders against your employer to comply with human rights legislation going forward.

Workplace harassment in a unionized environment – grievance

Are you a unionized employee? If so, you could talk to your union about filing a grievance about the workplace harassment. Many unionized workplaces have collective agreement protections against harassment, or employer policies prohibiting harassment in the workplace, that can form the basis of a grievance. Harassment grievances are often challenging to succeed in, but if successful, an arbitrator has broad discretion to award an appropriate remedy.

Failure of employer to conduct harassment investigation – Ministry of Labour complaint

​Did you ask your employer to investigate the harassment incident, and the employer failed to do so? If so, you could file a complaint with the Ministry of Labour. All Ontario workplaces have obligations to implement appropriate harassment policies and programs under the Occupational Health and Safety Act, and a Ministry of Labour inspector could order the employer to comply with the Act if it has failed to do so. However, this avenue of recourse is limited, as a Ministry inspector cannot investigate whether workplace harassment actually occurred, and cannot award any individual remedies to an employee.

Harassment leading to resignation – claim for constructive dismissal

Was the harassment so severe that it led you to resign from your employment? If so, you may be able to pursue a claim for constructive dismissal in court. This claim requires conduct by your employer that is inconsistent with an intention to continue to be bound by your employment contract, including creating a toxic work environment due to harassment. If successful in a claim of constructive dismissal, a court may award you damages similar to what you would receive if your employment had been wrongfully terminated.

Flagrant or outrageous harassment – claim for intentional infliction of mental distress

Depending on the severity of the workplace harassment, you may still have a tort claim available in the courts. In Merrifield​, the Ontario Court of Appeal noted that the tort of intentional infliction of mental distress still exists in the employment context, and is available in situations where someone like Merrifield would seek to claim damages for harassment. The test for intentional infliction of mental distress is stricter than the test the lower court had articulated for harassment, however; it requires conduct that : a) is flagrant and outrageous ; b) is calculated to produce harm; and c) results in visible and provable illness. This is a relatively high threshold to meet, but if it can be met, it could result in an award of general damages.

If all else fails – attempt to revive the tort of harassment?

Curiously, the Ontario Court of Appeal left the door open to accept the existence of the tort of harassment in the future. The Court held that it did “not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”. The Court did not elaborate on what those appropriate contexts might be. Accordingly, if none of the above avenues of recourse apply, but the claim for workplace harassment is compelling based on the evidence, it may be worth revisiting the potential existence of this tort.

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

RavenLaw was pleased to be invited to consult on this year’s Lancaster House Human Rights and Labour Law conference in Ottawa and to present on multiple panels. The annual two-day conference addresses a wide range of topical and emerging issues in the area of labour and human rights law.

Andrew Astritis served on the conference’s Advisory Committee this year, helping to plan the event. Wassim Garzouzi presented on October 10, 2019 as part of the panel “Taking Stock, Looking Ahead: Major caselaw and legislative update.” Morgan Rowepresented on October 11, 2019, discussing the difficult questions that arise when workers experience illnesses and disabilities due to workplace stress, bullying, and interpersonal conflicts.