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.

When selecting a Long Term Disability Benefits Lawyer, or Long Term Disability Law Firm, it is important that they have the knowledge and experience in areas that will have a direct impact on your Long Term Disability claim and/or severance package. These areas of expertise include employment law, pension law, and human rights law.

Why Hire an Employment Lawyer?

Battling with an insurance company can be stressful and the interaction with employment law can be complex. A lawyer skilled in the intricacies of Long Term Disability Benefits law can ease the pressure, especially for someone interacting with an insurance company while simultaneously battling with physical or emotional ill-health. Getting caught between an insurance company pushing you to return to work and an employer who doesn’t think you’re ready to return to work can be stressful. Having a lawyer to strategically navigate you through that insurance company-employer stand-off to get your rightful Long Term Disability rights or severance package, is a heavyweight off the shoulders. In Long Term Disability cases you often do not have to pay legal fees upfront. Under a contingency arrangement, a client only pays when he or she gets money from the insurance company. This arrangement gives clients much needed legal expertise and significantly more power when taking on the financial might of an insurance company. 

Getting the Right LTD Answers

Employment law can impact your Long Term Disability claim against an insurance company. What happens if I lose my job while on Long Term Disability benefits? What happens if I receive a severance package while receiving Long Term Disability payments? Does my pension continue to accrue? What do I do if my insurance company asks me to apply for Canada Pension Plan Disability benefits (CPPD benefits)? What happens if you get fired while you are claiming Long Term Disability benefits? These are all questions a skilled employment lawyer can answer.

Frustration of Contract

Frustration of contract is a legal term. When an employee is unable to return to work, employers will raise the concept of frustration of contract or will claim that the employment contract is frustrated. A frustrated contract effectively terminates the employee and employer relationship.  This is a common occurrence when clients are off work and receiving disability payments. Usually, an employer will claim frustration of the contract after an employee has been off work on disability for approximately two years. If an employee can show medical evidence that there is a reasonable prospect of returning to work, an employer may not be able to claim frustration of contract. If an employer is successful, it would result in termination of employment without the non-statutory elements of a severance package.

Severance Package and Long Term Disability

It is possible that an employer offers a severance package to an employee who is on Long Term Disability leave. However, it is important to consult a disability lawyer before agreeing to such a severance package. Most Long Term Disability contracts state that any income received will be used to offset your Long Term Disability payments. In other words, the severance package amount you receive could go directly into the pockets of your insurance company. Your lawyer may be able to restructure a settlement with the employer to avoid offsetting an LTD payment. 

Is Long Term Disability Insurance Mandatory?

No, it is not a legal requirement but you would be unwise not to have it. In the event that you are unable to work, long term disability coverage will provide income replacement of approximately 50 to 70% of your pre disability salary. Without LTD, you may qualify for Ontario Disability Support Program at around $10,000-$12,000 a year and Canada Pension Plan Disability at about $14,000 a year until age 65. 

Canada Pension Plan Disability Benefits

Many insurance contracts require eligible employees to apply for Canada Pension Plan Disability benefits. A lawyer with Canada Pension Plan Disability benefits expertise will be able to assist you through this process.

Please see our article “Applying for a Canada Pension Plan Disability Benefit.” If you’re cut off LTD benefits, it is often a good strategic move to apply for CPP disability benefits. To qualify for those benefits you must demonstrate that your injury or illness is severe and will be prolonged. These benefits can also be paid up to 12 months retroactively but if you’re already getting LTD benefits any retroactive benefit may be clawed back by the insurance company. Please see our article on LTD Benefit Offsets. 

Further details can also be found here on the official Government of Canada website.

Pensions and Long-Term Disability

If you are contributing to a pension plan where your pensionable time accrues while you are receiving Long Term Disability benefits and short term disability benefits you will want a lawyer knowledgeable in pension law to represent you. Federal public servants who have been off work for a period of 18 to 24 months will typically receive an options letter requiring them to resign, medically retire or return to work with approval from Health Canada. Negotiating a settlement for LTD benefits with the insurance company can be a complex process because the insurance company will want to claw back medical retirement benefits that the employee would be entitled to if they medically retire before age 65. 

Do I Need a Human Rights Lawyer?

LTD is not a human right but it is a sensible, if not vital, self-protection for all working people. When people return to work on a gradual or employer-accommodated basis, an employee can feel pressured by the insurance company and an employer. For example,  the employer can fail to provide appropriate accommodations for the employee and pressure the employee to stay on LTD until he or she is fully fit to return to work. In contrast, the insurer will usually insist that the employee do the exact opposite by pushing the employee to attempt a return to work. When an insurance company is pushing an employee to return to work too soon or if the employer is failing in its duty to accommodate, consider consulting a Long Term Disability Lawyer with experience in human rights law.

Can an employer refuse a return to work while on Long Term Disability? An employer has the duty to accommodate an employee who wishes to attempt a return to work. However, this duty is not limitless, an employer has the obligation to accommodate an employee’s return to work up to the point of undue hardship. Please see our article “The Duty to Accommodate”. Insurance companies will sometimes argue that it is reasonable for the employer to accommodate the employee’s limitations and cease to pay Long Term Disability benefits. This is not necessarily a valid reason to terminate Long Term Disability benefits and the employee may wish to appeal the insurer’s decision. 

Return to Work

As mentioned above, an employer has the duty to accommodate a return to work, and a partial return to work can prevent an employer from being able to claim that an employment contract is frustrated. Some insurance contracts will allow the insured person to receive income from their employer – in addition to Long Term Disability payments – without being subject to an offset. The insurance policy typically has provisions pertaining to a rehabilitation program allowing the employee to claim employment income while in receipt of LTD benefits for a certain period of time. 

Choosing a Long Term Disability Benefits Lawyer: Other Considerations

When applying for Long Term Disability Benefits or when your Long Term Disability Benefits are denied, choose a lawyer who has contacts with medical experts that will assist in providing evidence to support your claim.

• Check Google reviews for the firm or the lawyer; and
• Meet with multiple lawyers and law firms to determine the best fit for you.

Please see the following articles concerning what to expect should your Long Term Disability be denied:

1. 1. WHAT TO DO IF (AND WHEN) YOUR CLAIM FOR LONG TERM DISABILITY (“LTD”) INSURANCE IS DENIED
   2. NAVIGATING YOUR CLAIM FOR LONG-TERM DISABILITY (“LTD”) INSURANCE

The Federal Court of Appeal recently overturned a decision of the Federal Public Sector Labour Relations and Employment Board (“Board”), which had denied any damages to an employee who was sexually harassed and sexually assaulted in her workplace. The Court found the Board’s decision unreasonable, and criticized the Board Member’s reasons for reflecting improper stereotypes about sexual assault.

Background

The Applicant (pursuing her case under the pseudonym Jane Doe) was subject to months of verbal sexual harassment by a co-worker, culminating in an incident that the employer acknowledged was a sexual assault. She filed a grievance against her employer for failing to provide a harassment-free workplace. The employer acknowledged that the applicant had experienced sexual harassment and sexual assault, but argued that it was not liable for the co-worker’s conduct, or that the Board had no jurisdiction to award damages.

In its decision regarding the Applicant’s grievance, the Board accepted that the Applicant had experienced sexual harassment, contrary to the Canadian Human Rights Act. The Board rejected the employer’s argument that it did not have jurisdiction to award damages to the Applicant. However, the Board found that the Applicant was not entitled to any damages. Among the reasons given, the Board stated:

• The “incident” the Applicant experienced was “a vulgar prank”;
• There were steps that a “confident employee” such as the Applicant could have taken to deal with the harassment, if the work environment had truly been as difficult to cope with as she described;
• It was “unlikely, to say the least” that the “vulgar prank” caused the “extreme emotional impact” she described.

Judgment of the Federal Court of Appeal

In its judgment issued on October 10, 2018, the Federal Court of Appeal overturned the Board’s decision. The Court held that the Board had improperly denied damages to the Applicant because the sexual assault was not solely responsible for the Applicant’s psychological injury. The Court noted that it was not in dispute that the sexual assault had caused the Applicant to experience harm, and it was not necessary for it to be the sole cause of that harm. The Court conclusively held that, “once pain and suffering caused by a discriminatory practice are established, damages should follow”.

In view of the Court’s finding that the Board’s decision was unreasonable, the Court found it unnecessary to decide whether the Board Member’s decision also gave rise to a reasonable apprehension of bias. Nonetheless, the Court chose to comment on two problematic aspects of the Board Member’s reasons.

First, the Court noted that the Board never referred to the culminating incident as a sexual assault, instead calling it a “vulgar prank”. The Court noted that there may be a number of reasons for a decision-maker to choose to use certain language; however, “it is necessary to take care not to inappropriately downplay or diminish the seriousness of unacceptable conduct. The sexual assault at issue in this case could not be reasonably characterized as a “prank”.”

Second, the Court commented on the Board Member’s apparent reliance on stereotypes about how someone would react to sexual harassment or sexual assault. Noting the Supreme Court’s caution against presuming how people who experience sexual assault will behave, the Court stated:

In my view, characterizing an employee as a “confident employee who handled the work easily and had aspirations of joining the management team” (reasons, paragraph 142) similarly does not permit an inference to be made that such an employee would react in a particular way to an escalating number of sexually explicit and violent comments made by a co-worker. One employee might complain immediately to management while another might “go along to get along”. It was an error for the Board to conclude that the applicant exaggerated how difficult it was to cope with her work environment on the basis that the Board characterized the applicant to be a “confident” employee.

Equally, because there is no one typical response by victims to a sexual assault, there was no basis for the Board to infer mainly from the applicant’s responses that the co-worker’s conduct could not have caused the harm described by the applicant. This is particularly troublesome when the Board’s own concept of logic or common sense was substituted for its assessment of the actual evidence before it.

The Applicant was represented before the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.

What Are Long Term Disability Benefits Offsets?

What Are Long Term Disability Income Offsets?

In the Long Term Disability Benefit context, offsets are other sources of employment or employment-like income. Offsets will be deducted from the amount of Long Term Disability benefit allowed to a claimant by an insurance company.

How Does LTD Coverage Work?

Insurers typically design their insurance Long Term Disability coverage contracts so they become ‘payers of last resort.’ This means that other sources of employment income are deducted, or offset from what the LTD insurer would otherwise pay in Long Term Disability benefits.

If you’re a unionized public servant, your LTD coverage is provided by SunLife and if you’re a public service executive, the insurer is Industrial Alliance. For public servants, SunLife and Industrial Alliance are the only alternatives. If you work in the private sector and your employer is providing LTD coverage, the offsets will likely be similar to those in the public service plan. If you’re insuring yourself, you can always negotiate fewer offsets, but they will cost you more money in premiums. If you don’t want any offset, the better alternative might be Critical Illness Insurance, which gets you a specific fixed payment for a specific injury or illness.

Here are some examples of how LTD coverage works:

• Suppose you have LTD benefits which pay you $5,000 per month and you become eligible for a pension or a medical retirement which pays $3,000 per month. The insurer will see this new source of income and reduce the payment of $5000 to $2000 per month. The employee will still have a monthly income of $5,000, but it will consist of two cheques totalling $5,000, of which the insurer will only pay the difference between the pension and the original LTD benefit.
• Suppose you are unable to work and you’re not able to provide the same level of financial support to your family. It’s likely that you think you’re going to get LTD benefits plus Canada Pension Plan Disability (CPPD) and your kids are going to be looked after, at least to some extent. If you are getting $1,000 a month from LTD, but your CPPD gives you $800 a month and there’s a $200 monthly child benefit for each of your three kids, that’s a total of $1,400 a month from sources outside your LTD payment. All that money, including the $200 for the children, are classified as offsets and will reduce your LTD to zero.
• If you are in a car accident and you are paid damages for injuries, that would not be an offset. If you are paid damages for loss of income that would be an offset.
• Savings or registered retirement savings plans (RRSPs), are not considered offsets and cannot be deducted from Long Term Disability benefits.

Can the Insurer Force You to Apply for Long Term Disability Offsets?

The answer will depend upon the language of the particular insurance policy. Frequently, the answer will be yes, particularly for such benefits as Canada Pension Plan Disability Benefits.  If the insured person fails to apply for the CPPD benefits, the LTD insurer will assume they have and will deduct the value of that benefit from the LTD, even if they do not apply.  

In the case of CPPD, that value is approximately $14,000 annually. There may even be an obligation to appeal from a negative ruling concerning CPPD.

For benefits such as pensions, if a person is in receipt of a pension, that amount will likely be considered an offset and deducted.  

If a person is not getting a pension, whether they must apply for a pension will usually depend on the language of the insurance policy.

Severance Pay

Severance is usually considered an offset and the insurance company will deduct 100% of it from LTD.  So, there can be substantial benefits to remaining an employee while you’re on LTD and it may not be necessary to terminate your employment. This is important because many people who lose their job and go on LTD prior to getting a severance package, think they will get to keep both. If maintaining your employment status is not possible, there are strategies that might be available that allow you to keep some or all of the severance package. 

The takeaway here is that you should not assume you are going to have multiple sources of income if you are on LTD because the insurance company will want most of it. The insurance companies say that without offsets, everyone’s premiums would be higher. This is true, but they will not give people the option of paying higher premiums in exchange for greater protection. The complexities of Long Term Disability are not something most people even think about. They get a job, they take the benefits they are offered and forget about it . . . until they are faced with dealing with long-term sickness or injury.

Is Long Term Disability Insurance Mandatory?

No, it is not a legal requirement but you would be unwise not to have it.

The biggest financial asset for most people is not their house but their ability to work. Simply put, if you and your family need income in order to live, you need Long Term Disability insurance, which will give you 50-70 percent of your former income. Without LTD, you are left with the Ontario Disability Support Programme at around $10,000-$12,000 a year and Canada Pension Place Disability which is around $14,000 a year. If you were making a reasonable income prior to your injury, going down to that level is not pleasant. 

Have questions? Reach out to our team of experienced Long Term Disability lawyers to learn more about LTD coverage.

On September 28, 2018, RavenLaw will be hosting a conference at the CUPE 1974 Union Hall (680 Innovation Drive in Kingston’s east end). The conference will focus on successfully assisting individuals and union members in their applications for long-term disability benefits. Featured speakers include highly experienced legal professionals; Dr. Finestone, a pain specialist; and Chantal Pullen, an Occupational Therapist.

The conference is free to attend and will be followed in the new year with a conference on assisting workers in appealing decisions denying LTD benefits.

For more information on how to register, please go to:

https://www.eventbrite.com/e/long-term-disability-conference-kingston-tickets-49908088436?aff=ebdssbdestsearch

On January 27, 2018, Morgan Rowe will present at the Canadian Law and Society Association’s Mid-Winter Symposium. The theme of this year’s conference addresses the different ways that law and technology affect individuals’ lives. Morgan will be presenting on issues related to medical evidence requirements in disability and human rights cases.

For more information or to register, please visit the conference’s event page.

On September 25, 2018, Morgan Rowe will present as part of a CCLA panel on “Effectively Collaborating with, and Representing, Persons with Disabilities”. The panel will discuss issues which arise for lawyers relating to professionalism, disability identity and perception, and how to ensure greater inclusivity for people with disabilities when providing legal services.

For more information or to register, please visit the conference’s event page.

On February 21, 2018, RavenLaw will be hosting a conference on long-term disability claims in the federal public service.  This conference will provide information on how to increase the chances of making a successful LTD claim, including insight from highly experienced legal and medical professionals.

Please contact info@ravenlaw.com for registration information.

Chronic Pain and Disability Claims

Ravenlaw gratefully acknowledges the contribution of this post by articling student Megan Fultz

Recent estimates indicate that about 6 million people in Canada (approximately 19% of our population) experience some form of chronic pain. Because chronic pain is experienced differently by each individual, and can present itself in many different forms, it is difficult to diagnose. Individuals living with chronic pain often face significant barriers to appropriate treatment and accommodation in all aspects of life, including the workplace. Chronic pain can make it difficult or impossible to continue working, leading to a claim for long-term disability (LTD) benefits. The LTD claims process is challenging for those with chronic pain, because it can be hard to prove that the individual meets the requirements for LTD benefits due to his or her chronic pain.

What is Chronic Pain?

Chronic pain is hard to define because pain itself is experienced at such an individual level. Pain for one person resulting from an injury or condition may be manageable, whereas pain from that same injury or condition may be totally disabling for another. Chronic pain is often defined as pain lasting longer than the average timeline for healing. When the pain someone experiences has outlived the expected time period for healing affected tissues, the pain has become chronic and the individual is experiencing Chronic Pain Syndrome (CPS). Unlike acute pain that is associated with a specific injury, chronic pain is long-lasting and persistent, and sometimes does not respond to medical treatments.

Chronic pain can stem from many causes. Sometimes people experience chronic pain as a symptom of another existing or acquired condition. Other times, Chronic Pain Syndrome is the condition, developing out of an injury or other physically traumatic event.

What is Fibromyalgia? 

Fibromyalgia is a condition characterized by chronic, widespread muscular-skeletal pain and other associated symptoms, including fatigue, difficulty concentrating, memory problems, and mood fluctuation. Fibromyalgia is an example of a prevalent, but difficult to diagnose, chronic pain condition. Many of the characteristics of Fibromyalgia will not show up in a medical test or scan and yet the condition itself can be incredibly debilitating.

Making a long-term disability benefits claim for chronic pain 

In order to make a successful claim for long-term disability benefits on the basis of chronic pain, it is important to work closely with your doctor in discussing possible causes of the pain and potential treatment options. If your chronic pain results from an injury or condition known to cause pain, it may be easier to identify and confirm this through medical testing. If you are living with Fibromyalgia, Chronic Pain Syndrome or another condition that is difficult to diagnose through medical testing, it may be more challenging to succeed in your claim. Either way, it is vital to demonstrate that you are pursuing any options available to you and following the treatment plan recommended to you by your doctor.

It is important throughout the LTD claims process to be diligent in keeping records of the pain you have experienced and the treatments you have undergone and their intended/actual effect. Especially if the cause of your pain is hard to identify and confirm, it is crucial that you are recording how it has progressed, so that any possible patterns may be identified and/or correlations with other factors (environment, sleep, diet, activity level, etc.) In all cases, it is very important to be honest and candid about your pain levels, and to keep lines of communication open with your doctors.

Throughout the LTD claims process, you and your doctor will need to be able to comment on several important areas: your symptoms, their impact on you (the limitations and restrictions they create in your life), any progress or regression you experience, any treatment accessed and its impact, and future plans to manage your condition.

Chronic Pain and Mental Health 

While chronic pain is primarily physical in nature, it can also have a substantial effect on an individual’s mental health and wellbeing. Living with pain for long periods of time – and sometimes for the entirety of a person’s life – can take a significant toll on an individual’s psychological state. When the cause of pain is unknown, but the symptoms persist, it can be even more frustrating and stressful for the affected individual. It is important to be aware of the effects of chronic pain on mental health, to document any mental health symptoms you are experiencing, and to work with your doctors to manage these symptoms as well.

Chronic pain affects millions of Canadians and continues to be a very challenging condition to manage. In order to successfully apply for LTD benefits for chronic pain and related conditions, it is important to document as much information as possible about your daily symptoms and treatments, and remain in open communication with your doctors throughout the process. 

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

On March 1, 2018, James Cameron presented as part of the Advocates Society’s 2018 Courthouse series, speaking on complex motions and applications. James also presented a guest lecture to law school students at Queens University that same day, addressing issues arising in legal negotiations.