RavenLaw is pleased to congratulate University of Ottawa student Nick Continelli on being awarded the 2015-2016 Raven, Cameron, Ballantyne & Yazbeck Prize in Human Rights Law. The prize is awarded to the student who achieves the highest standing in the Human Rights Law in Canada course in the Common Law section. We congratulate Nick for this significant achievement!
By: James Cameron and Morgan Rowe
“You look fine!” “It’s all in your head.” For individuals with invisible disabilities, comments like these are a fundamental reality. As Pain Awareness Month draws to a close and we look ahead to the beginning of Mental Illness Awareness Week on October 2, it is important to take time to recognize the specific societal and attitudinal barriers that individuals with invisible disabilities experience in everyday life.
The term “invisible disabilities” refers to symptoms and functional limitations which are not always obvious to an observer. Many of our clients, for instance, have post-concussion syndrome, fibromyalgia, depression, chronic pain, bi-polar disorder, etc., none of which may be apparent from the outside.
While Canadian society is improving at recognizing and accommodating “visible” disabilities, people with invisible disabilities still often experience added difficulties due to the invisible nature of their symptoms. This can lead to problems in the workplace and with LTD insurers.
As the Ontario Human Rights Commission has recognized, for example, individuals with certain kinds of invisible disabilities, particularly mental health and addiction issues, continue to experience significant levels of stigmatization and social exclusion, despite the fact that almost one in five Canadian adults will experience these conditions at some point in their lives. In addition, people with psychosocial disabilities are more likely to have low incomes than people without psychosocial disabilities.
As we take time next week to recognize the struggles for inclusion which still face individuals with mental health issues and work to build more general awareness regarding the experiences of individuals living with invisible disabilities, I want to highlight the recent Ottawa Citizen article regarding a local artist, May Mutter, with post-concussion syndrome herself, who is making the invisible spectacularly visible through body art. Her project, called A Caged Mind, uses body painting to provide visual interpretations of what a concussion is. Her moving video and fantastic art can both be viewed here.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
Last month, the Supreme Court of Canada delivered the latest in a recent line of landmark victories for workers’ rights. In Wilson v Atomic Energy of Canada Ltd, the Court restored the decision of a Canada Labour Code adjudicator that non-unionized employees under federal jurisdiction cannot be dismissed from their employment without just cause. After the opposite conclusion was reached by both lower courts, and by a minority of the Supreme Court, it is worth reflecting on how close federally regulated employees came to losing such a significant right.
Joseph Wilson was terminated from his employment with Atomic Energy of Canada Ltd. in 2009. The employer did not purport to have just cause for the termination, but rather stated that the reason for dismissal was “on a non-cause basis” with “a generous dismissal package”. Mr. Wilson filed an unjust dismissal complaint pursuant to the Canada Labour Code. The adjudicator found that employers under this regime cannot make a termination “just” by offering severance packages; rather, an employee can only be terminated if there is just cause.
The employer applied for judicial review of this decision to the Federal Court. The Court allowed the application, finding that nothing in the Code prevented employers from dismissing non-unionized employees on a without-cause basis and offering a severance package. The Federal Court of Appeal agreed.
In a 6-3 split decision, the Supreme Court allowed the appeal and restored the adjudicator’s decision. There were four separate sets of reasons in the judgment, with the majority of the Court concurring with the reasons of Justice Abella on the merits of the appeal.
Justice Abella held that the standard of review for this decision was reasonableness, and that deference was owed to the expertise of labour adjudicators under the Code. She held that the adjudicator’s decision in this case was reasonable, and was consistent with the purpose of the scheme under the Code, which was intended to provide non-unionized employees with similar protections available to unionized employees, as confirmed by statements from the Minister of Labour when the legislation as introduced. She further found that the adjudicator’s approach was consistent with the overwhelming majority of past adjudications since this regime was enacted.
The dissenting judges of the Court held that the standard of review was correctness. They found that the unjust dismissal regime under the Code was simply a procedural option for federal employees, and did not alter the common law approach to dismissal of non-unionized employees. They concluded that a dismissal without cause is not unjust per se, if adequate notice is provided.
Wilson is a remarkable decision for a number of reasons: it affirmed the deference owed to administrative decision-makers interpreting their home statutes; it sparked a lively debate among the Supreme Court bench as to whether or not the standard of review analysis from Dunsmuir needs to be re-examined; and it restored likely the most significant employment right for non-unionized employees in any jurisdiction in Canada. Perhaps the most remarkable aspect of the Wilson judgment is how close we came to the opposite result.
Labour adjudicators have been ruling on unjust dismissal complaints under the Code for nearly forty years. As we learned from the Supreme Court’s judgment, there have been more than 1740 adjudications and decisions under this regime. Of those, only 18 decisions departed from the approach adopted by the adjudicator in Mr. Wilson’s case, and held that employees could be dismissed without just cause.
One would think that this number was so low, it could be easily dismissed as an outlier position. And yet, on the strength of essentially 1% of the decisions rendered on this issue, the entire unjust dismissal regime was nearly upended. The Federal Court held that the conclusion that employees could only be terminated for just cause was unreasonable. The Federal Court of Appeal held that, because there was such a deep jurisprudential conflict on this issue, the Court must intervene and pronounce upon the correct interpretation. Its chosen interpretation sided with the 18 decisions out of 1740.
Justice Abella flatly rejected the notion that this amounted to a conflict in the case law: “What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters.” Moreover, she unequivocally endorsed the approach of the adjudicator in Mr. Wilson’s case, finding not only that it was reasonable, but that the opposite approach was unreasonable and contrary to the purpose of the Code’s protections.
However, even at the Supreme Court level, three of the nine judges held that the correct approach under this scheme permitted non-unionized employees to be dismissed without cause. In other words, if two members of the Supreme Court had gone the other way, the right of tens of thousands of employees across Canada not to be dismissed without just cause would have been permanently lost.
Other than simply breathing a sigh of relief that the right result was reached, what should workers’ advocates take away from this case? Here are three thoughts:
[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 12, 2016, 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.
On September 14, 2016, James Cameron will present at the Canadian Institute’s Disability Insurance Conference. James will be discussing litigation strategies in LTD benefit claims, specifically addressing how to prove your case with medical evidence and best practices for settlement discussions.
On April 1, 2016, Morgan Rowe spoke to CBC Radio about a recent decision by the Human Rights Tribunal of Ontario that accepted that miscarriage is a disability. In its decision, rendered on March 14, 2016, the Tribunal rejected an employer’s request to have a Human Rights Code complaint dismissed on the basis that the employee had failed to establish the existence of a disability. Morgan represented the employee in the case before the Tribunal.
Morgan’s interview with CBC Radio is available here. CBC has also reported Morgan’s interview here.
On August 21, 2015, an Adjudicator of the Public Service Labour Relations and Employment Board reinstated two long service Parks Canada employees who were terminated for entering a restricted area at a National Park site and swimming in an underground cave pool that contained an endangered species of snail. While Adjudicator Gobeil was satisfied that the grievors had entered the premises knowing that they should not have and swam in the protected habit of the endangered snails, she rescinded the terminations. In determining that termination was not an appropriate sanction, Adjudicator Gobeil considered the 30 years of service of one of the grievors and the 14 years of service of the other grievor. In addition, both grievors had clean disciplinary records and the termination resulted from a single, unplanned incident.
The grievors were reinstated effective the date of the decision.
The grievors were represented by Wassim Garzouzi of RavenLaw.
Andrew Astritis will be speaking at a Council for Canadians with Disabilities (“CCD”) program entitled “Providing Accessible and Quality Legal Services to Clients with Disabilities” on Friday, April 8, 2016 at Gillespie’s Court Reporting at 1300 Slater Street, Ottawa. CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.
Tickets for the program are available here. For more information, please contact vmena085@uottawa.ca
Celine Girouard, a Paralegal at RavenLaw, will be playing for Team Canada at the World Dodgeball championships. Celine and the rest of Team Canada will be travelling to Melbourne this summer for the competition.
Congratulations Celine and best of luck to Team Canada!
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
The Disability Tax Credit is a non-refundable, transferable tax credit used to reduce income tax payable on your annual income tax return.
A person with a severe and prolonged impairment in physical or mental functions.
A “severe” impairment can mean any of the following which must exist at least 90% of the time:
A “prolonged” impairment is one that has lasted or is expected to last 12 consecutive months.
Yes, you can be reassessed retroactively for up to 10 years. For more information on reassessments, check the Canada Revenue Agency website.
Shawinigan-Sud Tax Centre
PO Box 4000, Station Main
Shawinigan QC
G9N 7V9
Chief of Appeals
Sudbury Tax Services Office
1050 Notre Dame Avenue
Sudbury ON P3A 5C1
We are here to help you understand the tax credit and other benefits that may be available to you as a result of your disability. Consult one of our experienced Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.
[1] The CRA treats vision as its own category, and not as one of the basic activities of daily living. Nevertheless, the “cumulative effects of significant restrictions” can include vision plus one or more of the basic activities of daily living.