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:
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.
In a recent decision, the Federal Court of Appeal conclusively determined that federal public service adjudicators may hear and decide on cases where the Federal Government revokes an employee’s reliability status and then terminates her for the loss of that status.
The adjudicator in the case at hand had found that the employer did not have a legitimate concern that the Grievor posed a security risk when it decided to revoke her reliability status and then terminate her. He therefore found that the Grievor’s termination had been without cause and ordered her reinstatement.
Before the Federal Court of Appeal, the Government argued that this decision should be overturned. The Government took the position that federal public service adjudicators could only consider whether an employee was terminated for cause and did not have the power to consider whether the Government’s decision to revoke an employee’s reliability status was justified.
The Federal Court of Appeal squarely rejected this claim, finding that the adjudicator’s approach was “the only reasonable approach to be taken.” In doing so, the Court overturned a number of cases which had limited employees’ right to grieve where they were terminated due to the loss of reliability status. The Court concluded that these cases were “no longer valid,” cementing the right of employees to bring forward grievances in these circumstances and for public service adjudicators to determine whether a revocation leading to termination is, in fact, justified.
The employee was represented by Andrew Raven of RavenLaw.
On October 31, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a Charter challenge to certain restrictive portions of Québec’s pay equity legislation.
In particular, in 2009, the Québec government made changes to its pay equity law which required employers to review their wage rates every five years to determine whether changes to wages had resulted in wage discrimination. However, the 2009 amendments to the Pay Equity Act also prevented affected employees from claiming any remedy for discrimination that occurred in between the five-year reviews.
Before the Supreme Court, unions, workers, and pay equity and women’s organizations joined together to argue that these amendments resulted in ongoing discrimination against women and breached their Charter rights.
Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada.
For the second time, a decision of the Canadian Human Rights Commission to dismiss a complaint regarding discrimination related to medicinal marijuana has been set aside by the courts. In McIlvenna v Bank of Nova Scotia, the Federal Court found that the Commission breached its duty of fairness and ignored obviously crucial evidence supporting a complaint that Scotiabank had called in a mortgage because of the presence of medicinal marijuana on the mortgaged property.
Background
The Applicant, Robert McIlvenna, had a mortgage with the Bank, and had applied for an additional line of credit to perform renovations on the mortgaged house, which was occupied by his son and daughter-in-law. The Bank refused the line of credit and called in Mr. McIlvenna’s mortgage, and he alleged the Bank took this action because it had learned that medicinal marijuana was being grown in the home under a Health Canada license. The Bank maintained that the reason for its actions was a violation of the terms of the mortgage.
The Canadian Human Rights Commission initially rejected the complaint without an investigation. That decision was overturned by the Federal Court of Appeal, which found it unreasonable for the Commission to refuse to investigate, when there was a live factual dispute between the parties as to whether the Bank made its decision on discriminatory grounds. (See the Federal Court of Appeal’s decision here.)
The complaint was returned to the Commission for investigation. Following its investigation, the Commission again dismissed the complaint, finding that further inquiry into the complaint was not warranted. Mr. McIlvenna again sought judicial review of the decision in Federal Court. Among his arguments, he raised the fact that there were internal Bank emails in the Commission’s investigation file, which clearly supported the McIlvennas’ allegation that the mortgage was called in because of the presence of medicinal marijuana.
Judgment of the Federal Court
In his judgment, dated July 19, 2017, Justice Boswell of the Federal Court allowed the Application for judicial review. He found that the Commission failed to investigate obviously crucial evidence before it—specifically, the internal Bank emails. The Court held:
“The content of these two emails, in particular the email sent July 15, 2010, is obviously crucial evidence given the relevant allegations in the Applicant’s human rights complaint and the contradictory statements by the Applicant and his son. A reasonable person would agree that this evidence was crucial because it lends credence to the Applicant’s position that his son’s growing of medical marijuana may have been a factor in the Bank’s decision to call in the mortgage. Although the July 15, 2010 email is certainly not conclusive of exactly what was said during the July 15th meeting, at the very least it tends to corroborate the Applicant’s claim that Ms. Joliat discussed the Bank’s policy on grow-ops during their meeting and is crucial in determining the merits of the Applicant’s claim.”
Justice Boswell found that the Investigator “glossed over this evidence”, and failed to investigate the Bank’s policy on marijuana “grow-ops” in determining whether the Bank had a reasonable, non-discriminatory explanation for calling in the mortgage. The Court went on to find the ultimate decision unreasonable, because the Commission’s analysis “essentially ignores the evidence contained in Ms. Joliat’s two emails”, despite the fact that these emails supported the McIlvennas’ version of events. The complaint was referred back to the Commission for re-determination and, if necessary, further investigation.
The Applicant was represented in the Federal Court by Andrew Astritis and Amanda Montague-Reinholdt of RavenLaw.
On November 4, 2017, RavenLaw participated in the 6th annual Workers’ Bowl, an annual fundraiser in Toronto for the Workers’ Action Centre, a worker-based organization that advocates for fair working conditions for vulnerable workers. The Workers’ Action Centre has a Workers’ Rights Info Line that workers can call for support, offers workshops on workers’ rights and is part of the campaign to raise the minimum wage to $15.
The bowling tournament is hosted by the Ontario Employment Education & Research Centre (OEERC), a non-profit that works with community partners such as the Workers’ Action Centre to educate workers on their rights and provide supports to workers whose rights have been violated.
This is the second year that the RavenLaw team – Wassim Garzouzi, Morgan Rowe, Anna Lichty, and Marlee Olson – has joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.
In a recent decision, the Ontario Superior Court affirmed that departing employees can owe a duty of good faith and a fiduciary duty to their former employer, and a violation of those duties can give rise to a significant damages award. This decision marks an important reminder to employees regarding their obligations when leaving their employment.
Background
The Prim8 Group Inc. is a communications agency who hired Richard Tisi, initially on a contract basis and then as a one-third shareholder, director and officer of the agency, to develop websites for Prim8 clients. Tisi, together with an employee, Ian MacArthur, developed customized management software for Prim8.
A dispute arose between Tisi and Prim8, and Tisi left his employment. When he left, he took his computer equipment, including access to the customized management software. Shortly thereafter, MacArthur also left Prim 8, and he and Tisi began working on a competing business. Prim8 sued for inducement to breach contract, as well as conversion and breach of fiduciary duty.
Judgment of the Ontario Superior Court
In The Prim8 Group Inc. v. Tisi and MacArthur 2016 ONSC 5662, Prim8 was successful in its action against Tisi and MacArthur. The Court found that Prim8 had established its claims for breach of duty, conversion and inducing breach of contract, and awarded approximately $100,000 in damages, together with costs, against the Defendants.
The Court found that “employees owe their employers a general duty of good faith and loyalty (or fidelity) as an implied term of their employment contract.” The Court further held that, as a senior officers of the corporation, Tisi owed a fiduciary duty of “loyalty, good faith and avoidance of conflict of duty and self-interest.” The Court held that Tisi had breached his fiduciary duty in taking the computer equipment and customized management software assets of Prim8, and converting them to his own use. The Court also found that Tisi actively impeded Prim8’s ability to make changes to its client websites. The Court assessed damages for the replacement of the assets taken by Tisi, together with damages for lost billings to Prim8’s former clients.
Both Tisi and MacArthur were also held liable for a failure to give proper notice of their departure. Tisi was also found to have induced MacArthur to breach his contract with Prim8.
Discussion
Tisi and MacArthur found themselves in a position that no employee wants or expects to be in—having moved on to new employment, they were taken to court by their former employer because of breaches of their obligations upon departure. This case stands as an important reminder to employees, particularly senior employees, that their duties to their employer do not necessarily end at the moment they tender their resignation. All employees should seek legal advice concerning notice and fiduciary obligations to their former employers, if they are planning to leave their employment.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]