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!

Ask most healthy working people to name their greatest financial asset, and more than likely, they will say ‘my house.’ A fair response. After all, maintaining and paying for a home is where a significant chunk of our income and time is spent. 

But for most healthy working people, it’s the wrong answer: A far greater financial asset is their ability to earn an income over the course of their career, often a long period of time. The consequences of not being able to do so can be financially devastating.

Most people have only a hazy understanding of the financial consequences of being unable to continue working due to mental or physical illness. We know that during our working lives, there is always the possibility of being laid off from one job and having to find another, but if chronic illness or a serious accident prevents us from working at all, the option of finding another job disappears. In fact, there are limited options for those employees; one of the options is Long Term Disability (LTD). 

As employment lawyers, we understand that few people think about the possibility of their working lives coming to a premature end. When it does happen, the questions are inevitably many. Here are answers to just a few basic LTD questions:  

How Do You Obtain Long Term Disability Benefits?

Most people who have Long Term Disability benefits have them through their employery, and typically, the cost of these benefits is shared between the employee and the employer. Having the employer pay for some (or all) of the benefits, while superficially attractive, also results in the benefit being taxable. Meaning if you ever receive money under the LTD policy, you will have to pay tax on the amounts you receive.

If, on the other hand, you pay for the full cost of the LTD policy, any money received would be non-taxable. Having a non-taxable benefit can make a huge difference in the event you need to rely on LTD benefits, as you are often receiving only a portion of your prior income and may be struggling to live off significantly reduced income. 

It is important to explore with your employer or your union whether your salary can be increased by the value of the employer contribution, and then you can make the full payment for the  LTD policy.

Another option is to buy full LTD insurance yourself if your employer does not offer this benefit as part of your remuneration package. 

Do You Have Sufficient Long Term Disability Benefits?

The answer to this question will depend on a variety of factors, including age, savings, cost of benefits, number of dependents, etc. It is also probable that the answer will change over time as your personal circumstances change. Given the importance of the benefit, should you be unable to work, it is important to seek advice from an LTD insurance expert.

What Happens To Your Long Term Disability Benefit If You Lose Your Job?

It is extremely common for people to lose their LTD benefits shortly after they lose their jobs. Termination letters typically contain provisions ending Long Term Disability benefits after the statutory notice period found in the Employment Standards Act. This period is often a matter of weeks rather than months.

After this period, former employees are frequently left with no LTD benefits while they look for other work. Insurers will often not sell LTD insurance to the unemployed, and that compounds an already stressful situation.

One way to avoid this scenario is to purchase LTD insurance independently. (See next question).   

How Can You Protect Yourself, such that Long Term Disability Benefits Are Not Lost?

One method of ensuring LTD protection in the face of uncertain job security is to have your own LTD benefits policy that you have arranged for outside of your employer. That way, should you lose your job, your coverage continues. This type of arrangement will be particularly important for those with precarious employment.

Own Occupation Disability Insurance – The Gold Standard, but what is it?

Most LTD policies provide for “own occupation” disability insurance coverage for a period of two years. This means that should you be unable to perform the essential functions of your own job, you would meet the definition of disability and should receive benefits.

After that initial period (usually two years), in most insurance policies, the coverage definition changes to “any occupation.” This means that even if you continue to be unable to complete the essential functions of your own job, say as a teacher, if you can do any work, you may no longer be entitled to benefits. If this other occupation is something for which the employee is suitable by reason of their background, the insurer can insist they take the job or risk having their benefits cut off.

It is possible to independently purchase “own occupation” disability insurance coverage at an increased cost. This will provide you with LTD benefits, should you be unable to perform the essential duties of your own occupation. It will typically last until age 65.

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

On October 12, 2018, Morgan Rowe presented as part of the Union of Taxation Employees’ National Health and Safety Conference. Morgan’s presentation addressed the proposed changes to federal harassment protections introduced by Bill C-65, as well as recent cases on harassment and work place violence in federal workplaces.

On January 28, 2019, RavenLaw appeared before the Québec Court of Appeal to argue in support of a challenge under section 2(d) of the Canadian Charter of Rights and Freedoms to restrictions on collective bargaining in the Federal Public Sector Labour Relations Act. Appearing for the intervener, the Public Service Alliance of Canada, RavenLaw argued that section 113 of the Act, which excludes pension and staffing issues from collective bargaining, violates the freedom of association, including by preventing workers from exercising their constitutionally protected right to strike on important workplace issues.

PSAC was represented by Andrew Astritis from RavenLaw.

On October 15, 2018, David Yazbeck appeared before the House of Commons Standing Committee on Industry, Science and Technology, acting on behalf of Copyright Visual Arts – Droits d’auteur Arts visuels (COVA-DAAV). Currently, the Committee is undertaking a review of the Copyright Act. David’s presentation related to recommendations by COVA-DAAV regarding improvements to the Act which would assist visual artists.

In particular, COVA-DAAV is recommending three changes to the Act:

1. The inclusion of limitations on the educational fair dealing provisions so that the interests of visual artists and users are more balanced, and interference in collective licensing is removed;
2. The removal of the 1988 cut-off date for the exhibition right so that artists with works created prior to that date would benefit from that right as it applies to those works; and
3. The establishment of the artist’s resale right, a right which would require the payment of a royalty on transactions of secondary public art sales (i.e. where an artist’s work is sold subsequent to the first sale).

While all of these measures may seem minor, visual artists have among the lowest incomes in Canada and each measure would benefit visual artists immensely.

The full presentation can be viewed here.