We are thrilled to announce that Jessica Greenwood is joining Ravenlaw!

Jessica has been successfully advocating on behalf of unions and employees her entire career. She is a proud Kingstonian and Queen’s alumni. Before joining our firm, Jessica worked at one of the largest trade unions in the country where she regularly appeared before labour arbitration boards. She brings talent, results and experience.

Jessica will be leading our Kingston office where she will continue advocating on behalf of workers and unions.

In addition, Peggy Smith, who has been working in association with our firm since January 1, 2018, will continue to service Kingston area clients.

Welcome Jessica!

The dreaded answer is:   “it depends…”

Fortunately, the Ontario Court of Appeal in Barber v The Manufacturers Life Insurance Company  (Manulife Financial) (“Barber v Manulife”)[1]  has clarified whether to file a claim for long term disability benefits in the Ontario Superior Court or to proceed in arbitration.

Firstly, one must determine whether the essential character of the dispute concerns LTD benefits.  If so, does the claim’s essential character arise from the interpretation, application, administration or violation of the Collective Agreement?  If the answer is yes, than it is the arbitrator, not the court, that has exclusive jurisdiction to decide.[2]

But wait! How do you know whether the essential character arises from the interpretation, application, administration or violation of the Collective Agreement?  Simply put, how do we determine whether the arbitrator has the jurisdiction to decide benefit entitlement claims such LTD claims?

The Ontario Court of Appeal[3] has adopted the following four categories from Brown & Beatty which help answer this question:

1. Where the collective agreement does not set out the benefit sought to be enforced, the claim is inarbitrable;
2. Where the collective agreement stipulates that the employer is obliged to provide certain medical or sick-pay benefits, but does not incorporate the plan into the agreement or make specific reference to it, the claim is arbitrable;
3. Where the collective agreement only obliges the employer to pay the premiums associated with the insurance plan, the claim is inarbitrable; and
4. Where the insurance policy is incorporated into the collective agreement the claim is arbitrable.

In Barber v Manulife, Adrian Barber became disabled from her employment as a Port Hope police constable. She applied for LTD benefits under a group policy insurance; insured by Manulife. The collective agreement, which governed Ms. Barber’s employment, required the employer to offer disability insurance coverage to the Port Hope Police Association’s members.  Ms. Barber appealed Manulife’s decision to terminate her benefits at the Superior Court of Justice. However, her claim was dismissed because the motions judge found that the collective agreement granted exclusive jurisdiction to the labour arbitration process. In other words, the Superior Court found it did not have jurisdiction over Ms. Barber’s matter.

The Ontario Court of Appeal agreed with the motions judge. The collective agreement established Ms. Barber’s rights to LTD benefits. In fact, the provisions within the collective agreement did more than merely oblige the employer to pay premiums for insurance: they covered the terms, the amount of the disability benefits and the definition of total disability.  The Court of Appeal noted that the employer could have changed insurers as long as the benefits defined in the collective agreement continued.

Takeaways

An arbitrator may have jurisdiction in determining LTD entitlements when:

• The collective agreement does more than merely oblige the employer to pay insurance premiums;
• The provisions of the collective agreement covers the terms of the LTD benefits;
• The amount of the disability benefits is specified;
• “total disability” is defined in the collective agreement;
• The insurance policy is incorporated in the collective agreement.

The courts will have jurisdiction, even in a unionized setting, when the collective agreement does not set out the benefit or only obliges the employer to pay the premium. Jurisdiction and the time lines will be determined by this analysis, so examine the collective agreement and the jurisprudence carefully before deciding whether to grieve or sue.

[1] Barber v The Manufacturers Life Insurance Company (Manulife Financial), 2017 ONCA 164.

[2] Weber v Ontario Hydro, [1995] 2 SCR 929, at paras 11, 52 and 54.

[3] London Life Insurance Co. v Dubreuil Brothers Employees Assn. (2000), 49 OR (3d) 766, at para 10.

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

On November 28, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a challenge under the Canadian Human Rights Act to discriminatory provisions of the Indian Act registration scheme.

RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, one of 14 organizations that intervened to argue in favour of a broad and purposive approach to interpreting human rights laws. Particularly, PSAC intervened to argue that the Canadian Human Rights Act should allow individuals to bring human rights challenges against government programs and benefits schemes, even where the discrimination in the program or benefit arises because of legislation.

Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of PSAC.

Dependent Children benefits resulting from Canada Pension Plan Disability (“CPPD”) benefits may be deducted from the Long Term Disability (“LTD”) benefits.  Some insurance contracts will explicitly exclude CPP Dependent Children benefits from being deducted from LTD benefits while others will state that monthly LTD benefits are reduced by CPP disability benefits including the benefits dependent children. However, insurance contracts are not always as explicit. As such, an ambiguous clause could lead a judge or decision maker to conclude that the CPP Dependent Children benefits should not be deducted from the monthly LTD benefits.

In Hennig v Clarica Life Insurance Co.[1] (“Hennig”) the Court decided that the insurance company was not entitled to deduct any CPP Dependent Children Benefits from the LTD benefits.  Importantly, the Court held that the CPP Dependent Children benefits were found to be beneficially owned by the children under the Canada Pension Plan Act[2]. The double recovery resulting to the family was found to be irrelevant because the disability coverage was bought and paid for privately. Therefore, the plaintiff was entitled to the full benefit provided by the insurance contract without the insurer being entitled to deduct the Dependent Children benefits.

The Court reached this decision by applying the contra proferentem interpretation rule. This Latin maxim means that if the words in a contract are ambiguous the contract should be interpreted against the one who wrote the words. In this context, the contra proferentem rule, favoured the interpretation of “received” as meaning beneficial and legal receipt rather than benefits paid in trust to the insured’s children. The Court concluded that the portions of the insurance company’s policy which purport to allow such a deduction were ambiguous because they did not clearly indicate whether monies received by the plaintiff fell within the types of payments the insurance company was entitled to deduct from any disability payments.

The case of Dubasoff v Mutual Life Assurance Company of Canada[3] is another illustration of the courts reluctance to deduct child benefit amounts from Long Term Disability payments.

For unionized employees, arbitrators will look at the collective agreement to determine whether the benefits for dependent children will be deducted.  See our article: “Where should unionized employees appeal their Long Term Disability benefits claims”, if you are unsure whether you must file a claim in Superior Court or file a grievance to contest the denial of Long Term Disability benefits.

In London (City) v London Civil Employees Local 107[4], the arbitrator concluded that the CPPD child benefits did not fall within the ambit of “all income sources participated in by the employer and employee” The Arbitrator emphasized that there must be a sufficiently clear expression of intention by the parties to deduct the CPPD child benefits from the LTD benefits.

In Ruffolo v Sun Life Assurance Company of Canada[5], the opposite conclusion was reached.  There, the plaintiffs were receiving Long Term Disability benefits under group insurance policies issued by the defendant insurer. They also received disability benefits for their dependent children under the Canada Pension Plan Act. The insurer deducted the CPPD Dependent Children Benefit from the LTD amounts payable under the insurance policy. The insurance policy provided that “monthly LTD benefits are to be reduced by the disability income to which the disabled member is entitled under a government plan (including benefits under the Canada Pension Plan, including benefits for dependent children)”. The Ontario Court of Appeal upheld the Trial Court’s decision, finding that the CPP Dependent Children benefits were incorporated by contractual consent into the concept “disability income to which the disabled member is entitled”. As such, the insurance company was entitled to deduct the benefits for dependent children from the LTD benefits.

Takeaways:

• There must be a clear intention in the insurance contract to allow the deduction of Dependent Children Benefits from LTD benefits;
• If the insurance contract explicitly provides that Dependent Children Benefits are to be deducted from LTD benefits, it is likely that the Court will enforce this provision;
• If the language in the insurance contract is ambiguous a court will likely conclude that the Dependent Children Benefits should not be deducted from LTD benefits.

It is important to examine the insurance contract, the collective agreement (if applicable), the legislation and the jurisprudence carefully to determine whether the Dependent Children Benefits can be deducted from LTD monthly benefits.

[1] Hennig v Clarica Life Insurance Co. (2001), 33 CCLI (3d) 280; affirmed (2003), 2003 Carswell Alta 269 (Alta CA)

[2] Canada Pension Plan, RSC, 1985, c C-8.

[3] Dubasoff v Mutual Life Assurance Co., [1995] 123 DLR (4^th) 577 (SK CA)

[4] London (City) v London Civil Employees Local 107 [2006] L.V.I. 3602-6.

[5] Ruffolo v Sun Life Assurance Company of Canada, 2009 ONCA 274 (leave to appeal to SCC refused)

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

Raven, Cameron, Ballantyne and Yazbeck LLP is pleased to announce its association with Peggy Smith LLP.  Peggy has been serving union and individual clients in the Kingston area for more than 30 years in the fields of labour, employment and human rights.  Together, we look forward to serving unions and individuals in the Kingston area.

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

In Godwin v Desjardins Financial Security Investments Inc.[1], the Supreme Court of British Columbia found that the Insurer breached its duty of good faith by failing to assess the plaintiff’s disability claims in a fair and balanced manner. Moreover, the Court awarded damages for mental distress in the amount of $30,000 and punitive damages of $30,000.

The plaintiff was a paralegal that became disabled due to a psychiatric condition (anxiety and depression). Her family doctor indicated that the plaintiff’s chances of going back to work were “extremely good” but that the plaintiff should not go back to her former employment.  The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months.

A psychiatrist hired by the insurance company conducted an Independent Medical Evaluation (IME). The psychiatrist found that the plaintiff’s symptoms might include more occupational (issues with her employer) and motivational factors than a severe and limiting psychiatric impairment. The claims examiner denied the plaintiff’s claim on the basis that her condition was not severe enough to cause significant and prolonged psychiatric impairments, despite the fact that the phrase “significant and prolonged psychiatric impairment” is not found in the definition of Total Disability set out in the insurance policy.

The Court also noted that the claims examiner’s notes do not give any weight to the fact that the plaintiff’s disability was recognized by Canada Pension Plan Disability benefits. See our article: “Frequently Asked Questions regarding Canada Pension Plan Benefits”.

Moreover, the claims examiner failed to note the serious discrepancies between the IME and the plaintiff’s treating therapists and physicians.  Given the inconsistencies in the diagnoses between the medical reports, it was necessary for the claims examiner to ensure that the medical consultant had fairly reviewed the medical reports submitted by the plaintiff to the insurance company.

The Court found that the claims examiner denial of benefits was severely flawed as “she was looking for reasons to deny coverage, even to the point of manufacturing reasons, rather than trying to find a basis in the evidence for paying the claim”.

Mental Distress and Punitive Damages

In citing the Supreme Court of Canada Fidler decision[2], which sets out the rationale for mental distress damages caused by breach of a disability insurance policy, the Court awarded mental distress damages of $30,000 and another $30,000 for punitive damages.  See our article: “Seeking punitive and mental distress damages in a Long-Term Disability (LTD) Claim”.

Here, the Court found that the defendant insurance company had failed to assess the plaintiff’s Own Occupation and Any Occupation claims in a fair and balanced manner and that these failures went beyond mere errors of judgment or misunderstandings. The claims examiner repeatedly failed to analyze and to weigh the evidence before her, and applied a test for disability that went beyond the Total Disability definition set out in the insurance policy. The Court concluded that the mental distress suffered by the plaintiff as a result of the delay in the payment of Any Occupation benefits was sufficient to warrant compensation for mental distress.

Notably, the Court held that had the insurance company’s conduct only marginally aggravated the plaintiff’s symptoms. Had the insurance company been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award would have been approximately $70,000 to $80,000.

In awarding punitive damages, the Court found that the claims examiner’s rejection of the Own Occupation coverage was severely flawed, as it imported improper considerations and concluded without any foundation that motivational factors were dominating the claim. As such, the denial of the claim was arbitrary.

Takeaways

• Claims examiners are required to weigh the totality of the medical evidence against the insurance policy requirements;
• A claims examiner cannot deny coverage on the basis of a test, such as “significant and prolonged impairment”, if such a test is not found in the definition of Total Disability set out in the insurance policy;
• A delay in payment of a disability claim may be sufficient to warrant mental distress compensation.

When initiating a proceeding regarding a denial of LTD benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer. In suitable cases, courts can award these damages.

[1] Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 (CanLII)

[2] Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 SCR 3,  2006 SCC 30 (CanLII)

On December 8, 2017, Andrew Astritis presented to the Canadian Association of University Teachers’ Senior Grievance Officer Forum. Andrew’s presentation addressed the issue of Discipline and Accommodation, and the role of human rights analysis in assessing employee misconduct.

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

Cannabis is set to be legalized in Canada on October 17, 2018, but the Federal Government has continued to stress that, until that time, the law will be enforced. In the meantime, numerous marijuana dispensaries are operating, only a small portion of them legal and licensed by Health Canada.

Workers at these unlicensed dispensaries have rightfully questioned what legal rights they have while the sale of cannabis remains illegal. This post will consider the various sources of a worker’s rights, and whether those rights extend to employees of an illegal enterprise.

Statutory employment rights

Workers in Ontario have rights under several employment-related statutes, including in areas of health and safety, human rights, and minimum employment standards. None of these statutes exclude employees on the basis that they work for an illegal enterprise, and therefore should apply equally to employees of an unlicensed cannabis dispensary.

This is consistent with the position the previous Ontario government took on this issue. Janet Deline, spokesperson for the former Ontario Ministry of Labour, stated in a Toronto Star article last year that all workers are entitled to certain government protections, even those working in unlicensed businesses. She was quoted saying, “When a Ministry of Labour Health and Safety inspector conducts an investigation, the focus is on the possible hazard and the health and safety of workers in the workplace, not whether or not the company is licensed.”

Therefore, a worker at a dispensary could likely enforce his or her rights under the Employment Standards Act, the Occupational Health and Safety Act, and the Human Rights Code. 

Statutory labour rights 

Workers in Ontario also have the right to join a union under the Labour Relations Act. That right, too, is not contingent on whether the employer is operating within the bounds of the law, meaning workers at a dispensary could exercise those rights and join a union.

In 2017, forty employees of a “Canna Clinic” unionized under Unifor. Katha Fortier, Unifor’s Assistant to the President, believes this is a first in Canada. These workers at Canna Clinic are primarily concerned with staff training and a safe work environment, issues that will continue to be relevant even after legalization. In response to this development, Janet Deline from the Ministry of Labour confirmed that, “Law enforcement and labour relations are totally separate areas in government.” 

Rights under an employment contract 

In addition to statutory rights, employees have rights under their employment contract, whether or not the contract is in writing. These rights can be enforced through a claim in court. It is unclear whether a court would enforce an employment contract in an unlicensed dispensary.

There is a long-standing, general principle of contract law which prohibits the enforcement of contracts that contemplate committing an illegal act. As this principle has evolved, courts have moved away from implementing a hard line of unenforceability for all illegal contracts. Courts consider: the serious consequences of invalidating the contract, the social utility of those consequences and a determination of the class of persons for whom the prohibition was enacted. There are certainly strong policy reasons not to apply this principle to an employment contract, particularly in light of the unequal bargaining between employers and employees. A strict application of this principle would ultimately benefit the employer—i.e. the entity operating the illegal enterprise—by permitting the employer to avoid its obligations to the employee. 

While not a court ruling, a 2016 decision of the Ontario Workplace Safety and Insurance Appeals Tribunal discussed how the doctrine of illegality applied in the context of undocumented workers. The Tribunal held:

The doctrine of illegality does not exist to give one party to an illegal contract…an advantage over the other party… There is a public interest not in prohibiting employment arrangements but instead in ensuring that such arrangements comply with the employment laws of the province and that rights under these arrangements be enforceable. The potential for exploitation of individual workers would be considerable if employment laws were not enforceable.

However, the Tribunal was careful to distinguish employment contracts that violated labour laws from contracts in pursuit of an “illegal objective” such as “theft, gambling, prostitution or smuggling, etc.” Based on this distinction, it is possible courts would not enforce employment contracts in unlicensed marijuana dispensaries, as the ‘objective’ of those contracts is itself illegal.

Conclusion 

Employees in unlicensed dispensaries appear to be entitled to the same statutory protections as other workers, as well as the same opportunity to unionize. It is less clear whether these employees could pursue a claim in court for breach of their employment contracts. All things considered, workers in unlicensed dispensaries remain incredibly vulnerable. These establishments are regular targets of police raids and robberies, while frontline workers continue to face the possibility of criminal charges themselves.

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

On January 12, 2018, James Cameron’s article on best practices for reducing costs and delay in long-term disability and disability insurance litigation was published in The Lawyers Daily. The article can be found (with subscription) on The Lawyers’ Daily website.

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