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entered the premises knowing that they should not have and swam in the protected habit of the endangered snails, she rescinded the terminations.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

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

The Canada Pension Plan (CPP) disability benefit is a taxable monthly payment that is available to people who have contributed to the CPP while working and who are not able to work regularly at any job because of a disability.

Frequently Asked Questions Regarding Canada Pension Plan Benefits

1. Who is eligible for the CPP disability benefit?

To qualify for a CPP disability benefit, you must:

• have a severe and prolongeddisability
• be under the age of 65*[1]
• meet the CPP contribution requirements.

2. What is a severe and prolonged disability for the purposes of the CPP disability benefit?

To be eligible for a CPP disability benefit, you must have a severe and prolonged medical condition. What is important is how the medical condition and its treatment affect your ability to work at any job on a regular basis. Your condition must be expected to last at least one year or be likely to result in death.

3. What are the CPP contribution requirements?

To qualify for a CPP disability benefit, you must have contributed to the CPP while at work in:

• four of the last six years, or
• three of the last six years if you have contributed for at least 25 years.

However, there are certain provisions that may help you qualify for CPP disability benefits, even if you fail to meet these requirements. For example, you may be eligible if you stayed at home and raised children, if you applied too late for CPP disability benefits, if you are separated or divorced, if you lived and worked in another country, or if you were physically or mentally unable to apply for CPP disability at a specific time. You can obtain more information on these provision on the Service Canada website, by calling your nearest Service Canada centre, or by seeking legal advice.

4. When and how can you apply for CPP disability benefit?

You should apply as soon as you develop a severe and prolonged or terminal medical condition that prevents you from working regularly at any job.

You must apply for CPP disability in writing by printing out the main application form (ISP 1151), the consent forms, and any other necessary forms that can be found on the Service Canada website or at one of the Service Canada centers near you. Fill out the necessary forms and mail them to the nearest Service Canada office.

5. If the claim for CPP disability benefits is denied, what can you do?

If you disagree with the decision regarding your CPP disability application, you may request a reconsideration of the decision. A reconsideration is a new review of your application by Service Canada.

You must make your request for reconsideration in writing within 90 days after you are notified in writing of the decision. Your written request for reconsideration should be mailed to the return address on the decision letter.

Prepare your written request for reconsideration and include:

• your name, address, telephone number, and Social Insurance Number;
• a detailed explanation of why you want a reconsideration; and
• any new information that could affect the decision including any new medicals information or documents.

If you are still dissatisfied with the reconsideration decision, you can appeal to the Social Security Tribunal.

6. What if you are receiving a disability income from another source?

If you are receiving disability income from other sources, such as a private insurer or a provincial social assistance program, you may still be eligible to receive the CPP disability benefit. However, these other sources may adjust their payments if you are approved for a CPP disability benefit. For example, if you are receiving monthly Long Term Disability (LTD) benefits from your private insurer, once you are approved for CPP disability, your private insurer will reduce the amount of monthly LTD benefits you are entitled to by the amount you are now receiving under CPP disability. 

We are here to help navigate the CPP disability application and appeal process.  Consult one of our experienced Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for CPP disability benefits or if your claim for benefits has been denied. 

* If you are aged 60 to 64 and you think you might qualify for a CPP disability benefit, you may also want to apply for a CPP retirement pension. While you cannot receive both at the same time, you may qualify to begin receiving a retirement pension while you wait for your CPP disability benefit application to be assessed, which usually takes longer.

In Garreton v Complete Innovations Inc., 2016 ONSC 1178, a decision released earlier this year, the Ontario Divisional Court found that a termination provision in an employment contract was void because it would have violated the Employment Standards Act (“ESA”) if the employee had worked for the employer for more than five years. The Court held that the employer could not rely on the provision, even though in fact the employee had been terminated after less than five years of service. This decision provides important confirmation that potential future violations of the ESA can nullify a notice provision in an employment contract.

Background

The Plaintiff, Marcela Garreton, was terminated for cause by her employer, Complete Innovations Inc (“CI”), after a little over two years of employment. She brought a claim for wrongful dismissal in Small Claims Court, and obtained an award of $25,000, amounting to five months’ notice.

Ms. Garreton had a written employment contract which set out the notice period, in the event that her employment was terminated without cause:

Otherwise Complete Innovations Inc. may at any time terminate this agreement by providing the Employee with (1) one week notice if their duration of continuous employment with the Company is more than 3 months but less than 1 year. (2) weeks prior written notice of intention to terminate if the Employee duration of continuous employment with the Company is more than 1 year but less than (3) years. If the duration of continuous employment with the Company is more than 3 years each additional year will entitle the Employee to (1) one additional week of notice to a maximum of 8 weeks. … Complete Innovations Inc. shall maintain on your behalf your employee benefits for a period of not less than the period required by applicable statute.

The contract did not provide for any severance pay in addition to the above notice provision. It therefore failed to provide a minimum standard prescribed by sections 64 and 65 of the ESA, which entitles employees with five years or more of service to severance if they work for employers with a payroll of over $2.5 million.

The trial judge had declined to determine whether the termination provision in the contract was enforceable, because the employer did not rely on it in support of the termination. The Divisional Court found the failure to address this issue to be an error of law, and therefore considered the question of whether the Plaintiff would be limited to the two weeks’ notice prescribed in the contract. The Court held that a termination provision can be invalid if, at some point during the potential life of the contract, it would fall below the ESA minimum standards:

In my view, the employment contract must be considered at the time it is executed. If the termination provision is not onside with notice provisions and severance provisions (if applicable) of the Act at the outset, then it is void and unenforceable. Potential violation in the future is sufficient. As Low J. states, “It is not that difficult to draft a clause that complies completely with the Act, no matter the circumstance.”

The Court ultimately concluded that the trial judge made no error in finding that there was no just cause to terminate Ms. Garreton, and, therefore, the Court upheld the award of $25,000.

Discussion

This decision has significant implications for many employees with written employment contracts. It provides clarity regarding the issue of whether a termination clause in a contract will be void only if it falls below the employee’s entitlements at the time of termination, or whether a potential future violation is sufficient.

Prior to this case, there were differing lines of authority on this issue at the Superior Court level. In Wright v. The Young and Rubicam Group of Companies (Wunderman), 2011 ONSC 4720, the judge had found that a notice provision in an employment contract was void for potentially violating the ESA. In Ford v Keegan, 2014 ONSC 4989, the judge disagreed with the result in Wright, and found that the contract must “conform to provincial employment standards legislation for the particular employee, in the particular circumstances”.

In this case, the Divisional Court rejected the analysis in Ford, and instead favoured the conclusion in Wright. As a result, employees will now have a stronger chance of nullifying a notice provision in an employment contract, even if the provision would have only hypothetically run afoul of the ESA if they had continued working for the employer for a longer period. This decision thus provides greater protections for employees, who typically have little to no control over the terms of their employment contracts, and places a greater obligation on employers to ensure that a contract meets the ESA minimums from the outset.

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

On April 7, 2016, James Cameron presented on “When Mental Health Interferes with Work, What You Need to Know”, an Infobytes session presented by the Association of Professional Executives of the Public Service of Canada (“APEX”). Together with registered psychologist, Dr. Ron Seatter, James spoke on the legal and medical issues that arise when mental health issues interfere with work. The session included information on rights, entitlement, time limits, coverage and sick leave, from a legal perspective. The presentation also addressed information on what types of issues might result in a need to see a psychologist versus a psychiatrist, paperwork and/or reports which might be required, what happens if an insurer denies a claim, appeal rights, and what kind of expert evidence might be required if a dispute goes to court.

On March 28, 2016, Morgan Rowe spoke about disability rights and her book, Exploring Disability Identity and Disability Rights Through Narratives, on Disability Beat. Disability Beat is a radio program about and for people with disabilities, emphasizing social justice, community supports, inclusion and accessibility.

The program is available to listen to here.