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.
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.
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.
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.
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.
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.
On September 19, 2018, Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. Morgan’s presentations addressed the most effective ways to represent union members in cases involving the duty to accommodate for human rights reasons and in harassment complaints.
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.]
On November 8, 2017, Michael Fisher spoke as part of the panel “Fitness to Work: Ensuring a Safe Work Environment in an Era of Marijuana, Opioids, and Other Drugs,” at Lancaster House’s Human Rights and Labour Law Conference in Ottawa. The panel focused on the common misperceptions on the use of medical marijuana and other drugs, impairment testing in safety sensitive workplaces, an employee’s duty to disclose their use of medical marijuana and other prescription drugs, and balancing accommodation and safety obligations.
In a pair of recent decisions, the Federal Public Sector Labour Relations and Employment Board confirmed the broad and purposive approach to the statutory freeze on terms and conditions of employment during collective bargaining. In Public Service Alliance of Canada v Treasury Board (Correctional Service Canada) and Public Service Alliance of Canada v Canada Revenue Agency, the Board found that the employer had violated the freeze by altering terms and conditions of employment without the union’s consent.
The Federal Public Sector Labour Relations Act, like labour law in most jurisdictions, contains a prohibition on altering the terms and conditions of employment while a union and employer are engaged in collective bargaining. The provision states that, unless the parties otherwise agree, “each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit” until either a collective agreement is reached or a strike could be commenced. This is referred to as a “freeze” on terms and conditions of employment. The purpose of the statutory freeze is to maintain the status quo, and provide stability during the collective bargaining process.
In the Correctional Service Canada case, the Union argued that the employer had violated the freeze by reducing the hours of work of full-time term employees to four days per week, contrary to its longstanding practice. The Board agreed, finding that there was “no evidence that the respondent had made any reductions to the hours of work of the affected employees before the freeze period”, and therefore there was an established pattern of full-time employment for term employees, which created a reasonable expectation that hours would not be reduced during the freeze period.
In the Canada Revenue Agency case, the Union argued that the employer violated the freeze by eliminating the ability of employees to select variable and flexible work hours commencing before 8:00 a.m. The Board agreed, holding: “It was demonstrated that before September 2014, employees had been able to request flexible and super-compressed work schedules for years and that their requests had been approved. Thus, a pattern had been established. Once notice to bargain was given, it was reasonable for the employees to expect that it would continue.”
Both decisions endorse the “business as before” approach to statutory freeze complaints, which requires consideration of the entire pattern of the employment relationship prior to the freeze, in order to determine whether there was a violation. The Board rejected the narrower approach advocated by the employer in both cases, and also rejected the claim that the employer retained discretion to modify hours of work pursuant to legislation. As the Board stated in Canada Revenue Agency, to accept that argument “would render the protection conferred under the statutory freeze provision meaningless and it could lead to an absurd interpretation of the Act.”
The Public Service Alliance of Canada was represented in both cases by Amanda Montague-Reinholdt of RavenLaw.
Morgan Rowe is honored to be a “Featured Volunteer” on the REACH Canada website. Morgan has volunteered with REACH as part of its pilot project providing legal information clinics to individuals with disabilities in Ottawa. Morgan also provides pro bono legal services through REACH’s lawyer referral service. REACH has provided this service and public education for individuals living with disabilities since 1981. RavenLaw is a long-term, proud supporter of REACH.