On October 11, 2017, Morgan Rowe spoke to University of Ottawa students as part of the “Introduction to the Study of Law” class. She presented on issues related to the life of an employment contract, from formation to termination, as well as workers’ rights during employment. Morgan specifically addressed issues that arise when employment contracts conflict with the Employment Standards Act.
Megan Fultz, one of RavenLaw’s 2017 Human Rights/Social Justice interns, is co-author of a ground-breaking report on the legalization of cannabis which was published by the Global Strategy Lab of the uOttawa Centre for Health Law, Policy and Ethics. The report titled “Reconciling Canada’s Legalization of Non-Medical Cannabis with the UN Drug Control Treaties”, identifies the legal barriers the government will face with the legalization of cannabis and proposes innovative solutions. The report was cited by the New York Times upon the introduction of legislation by the Canadian government to legalize the recreational use of cannabis. Congratulations Megan!
On November 30, 2017, Morgan Rowe will present at the 3rd Annual Council of Canadians with Disabilities Conference. This year, the conference will be addressing the duty to accommodate. Morgan will be presenting on issues related to accommodating disabilities in education.
CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.
For more information or to register, please visit the conference’s event page.
RavenLaw gratefully acknowledges the contribution of this post by summer student Emily Cumbaa
A recent case before the Ontario Divisional Court examined ODSP’s reimbursement rate for medical travel. After many years of receiving reimbursement that only covered their operational travel costs, Ontarians who are on disability support can now seek reimbursement at a rate that covers both operational and ownership costs associated with their travel for medical treatments, such as appointments with out-of-town specialists. The case and the subsequent policy changes reveal that advancements in disability rights are slow, uneven, and hard-won.
The Case
Wayne Corrigan is a recipient of benefits under the Ontario Disability Support Program (“ODSP”), Ontario’s program providing income and other financial supports for individuals with a disability. Mr. Corrigan frequently travels between Oshawa and Toronto for specialized medical treatments.
A Regulation under the Ontario Disability Support Program Act states that benefits will be paid for “the cost of transportation that is reasonably required in any month for medical treatment for members of the benefit unit… if the cost of that transportation in the month is $15 or more” (O. Reg. 222/98, s. 44(1)1(iii.1)). Under ODSP policy, Mr. Corrigan could only be reimbursed for his medical travel at the rate of $0.18 per kilometre. However, Mr. Corrigan estimated that his actual travel costs were $0.45 per kilometre.
Mr. Corrigan asked ODSP to review its rate and reimburse him at the rate of $0.45 per kilometre. ODSP denied that request, and also denied an internal review. Mr. Corrigan then appealed to the Social Benefits Tribunal. The Tribunal denied Mr. Corrigan’s appeal.
The Tribunal relied on its reasoning from an earlier decision, which also denied extra reimbursement, distinguishing between operational and ownership costs associated with a vehicle. The Tribunal found that the phrase “cost of transportation” in the legislation included only operational, and not ownership costs.
Mr. Corrigan appealed the Tribunal’s decision to the Ontario Divisional Court. In October 2016, the Court ruled that limiting reimbursement for medical travel to only “operational” expenses was unreasonable. The Court sent the matter back to the Tribunal “for redetermination of the reasonable costs of transportation,” and emphasized both operational and ownership costs can be included in costs of transportation.
A quick note for everyone who is interested in administrative law: the Court found that the appropriate standard of review was reasonableness, despite both parties agreeing that correctness was the appropriate standard. The Court’s finding reinforces that administrative tribunals are owed substantial deference, even on a statutory appeal as opposed to an application for judicial review.
The Government’s Response
In January 2017, the Ontario government increased the mileage rate for medical travel to $0.41 per kilometre in the North and Northeast Regions of Ontario, and $0.40 per kilometre everywhere else in the province. This represents an increase of more than 220%. The medical travel mileage rates are retroactive to October 1, 2016.
The new rates also apply for self-employed persons on ODSP if they use their personal car for business travel to generate income. The business travel rates are not retroactive, and therefore came into effect on January 9, 2017.
The Takeaway
This case and the subsequent policy changes highlight that advancements in disability rights are:
Advancements are slow. When the new increases were announced, the rates for medical travel had not changed in 17 years. In that time, the cost of driving had increased substantially, largely driven by gas prices. The Social Benefits Tribunal had more than once denied an increase to the rate for medical travel.
Advancements are uneven. The Divisional Court noted that other programs paid higher rates for medical travel than ODSP. The rate increase also applies to Ontario Works recipients. But before the increase took effect, every municipality in the province was responsible for setting their own rate, creating differences across the province.
Advancements are hard-won. ODSP and the Tribunal were both reluctant to review and increase the medical travel rate. It is not surprising, therefore, that the Income Advocacy Support Centre reported that the rate increases were the result of years of advocacy work. This work included legal supports, a letter to the Minister, and collaboration between community and advocacy groups.
Thankfully for people on ODSP who must travel with their car for medical reasons, they can now be reimbursed at a rate that reflects their actual travel costs.
[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 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.
Several media outlets have reported on the class action lawsuit filed on Monday by members of It’s Just 700, a Canada-wide online resource and peer support group for survivors of Military Sexual Trauma (MST). The representative plaintiffs, Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie, have given interviews about their experiences in the Canadian military and the reasons they have decided to come forward and pursue justice on behalf of victims of sexual assault and sexual harassment in the Canadian Armed Forces.
You can read more about the lawsuit here:
CBC News: Ex military members go to court alleging sexual assaults, misconduct
CTV News: Class-action lawsuit launched against military over alleged sexual misconduct
iHeart Radio: Military & Veterans Group Filing Class Action over Sex Assaults
L’actualité: Agressions sexuelles dans l’armée : la résistance s’organise
Radio-Canada: Agressions sexuelles : recours collectif contre l’armée canadienne
Ottawa Now with Evan Solomon: LISTEN: Military Veterans launching lawsuit against Feds after Sex Assaults while on duty
CTV News: Former Armed Forces member shares tale of alleged sexual assault
If you or a family member are a current or former member of the Canadian Armed Forces who has experienced sexual assault or sexual harassment in the military, you can contact our firm at armedforcesclassaction@ravenlaw.com.
For media inquiries, please contact Andrew Raven at 613-567-2902 or araven@ravenlaw.com.
David Yazbeck, who has extensive experience representing employees in relation to whistleblowing generally and the Public Servants Disclosure Protection Act specifically, was recently invited by the House of Commons Standing Committee on Government Operations and Estimates to testify as part of its review of the Act. David testified on February 9th in order to provide his perspective on the effectiveness of the law.
The PSDPA provides a method for federal public service employees to disclose information that they believe could show that a wrongdoing has been committed or is about to be committed. It is also intended to protect employees who have made disclosures from reprisal.
Further information regarding the Committee’s review of the PSDPA can be found here.
Please note our office will be closed from December 24, 2016 until January 2, 2017. We will reopen for regular business hours on Tuesday, January 3, 2017 at 8:30 am.
Warmest wishes for a happy holiday season and a wonderful new year.
In a recent judgment from the Federal Court of Appeal, the Court has provided some needed clarification regarding the interpretation of the Public Servants Disclosure Protection Act. Sylvie Therrien was a whistleblower who went public with information regarding the use of quotas in order to reduce employment insurance costs. Eventually, Ms. Therrien was suspended, had her reliability status revoked, and was terminated. Ms. Therrien filed grievances against those three actions which proceeded before an adjudicator from the Public Service Labour Relations and Employment Board. None of the grievances alleged reprisal, however.
Ms. Therrien filed a complaint with the Public Sector Integrity Commissioner alleging that each of these actions also represented reprisal for her public disclosure. Upon receipt of the complaint, the Commissioner’s Office refused to assess it on the basis that it was being dealt with as part of the grievance process.
In its January 17, 2017 decision, the Court of Appeal set aside the Commissioner’s decision. The Court made two important rulings. First, the Court said that the Commissioner could not refuse to deal with a complaint simply because the actions in the complaint are referred to in some other proceeding. Rather, the Commissioner has an obligation to determine whether that other proceeding would actually deal with the reprisal allegations on their merits.
Second, the Commissioner’s Office had advised Ms. Therrien’s counsel that it would be assessing the admissibility of the complaint on the basis of one section of the Act but then decided not to deal with the complaint on the basis of another section of the Act. The Court found that this was procedurally unfair.
Although the matter has been sent back to the Commissioner’s Office to be dealt with, the Commissioner has decided to hold the complaint in abeyance pending the outcome of Ms. Therrien’s adjudication proceedings.
Ms. Therrien is represented by David Yazbeck of RavenLaw, in both the reprisal complaint and the grievances.
Morgan Rowe recently delivered a guest lecture in the University of Ottawa’s Labour Law I course. The lecture addressed the rules governing the relationship between unions and their members, union security provisions, and the evolving role of unions in society.