[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.

March 8^th is International Women’s Day, a day that marks the social, economic, cultural and political achievements of women. Not just a celebration, International Women’s Day is a call to action for all the work that remains to be done. At a time when recent reports reveal that Canadian women earn only 72% of men’s wages for similar work, it is important to reflect on the labour roots of International Women’s Day and the struggles that remain for working women in Canada and around the world.

History of International Women’s Day

The origins of International Women’s Day can be traced back to the early 1900s. At that time, work was increasingly industrialized, leading to dangerous and unfair working conditions. In response, women began organizing to demand better working conditions, including shorter working hours and better pay. In 1908, 15,000 female garment workers marched through New York City to call for these improvements. This march would inspire the International Ladies Garment Workers’ Union to stage a strike to protest working conditions in the city’s sweatshops. Although this initial strike was short-lived, it led to a General Strike, which lasted for three months and brought important gains for many workers.

In 1909, the Socialist Party of America, a social-democratic political party in the United States, designated February 28 as National Women’s Day in honour of the garment workers’ strike.

At the same time, European women were struggling to achieve greater fairness and protections in the workplace. In 1910, a second International Conference of Working Women was held in Copenhagen, with over 100 women from 17 countries in attendance, including union leaders and the first 3 women elected to the Finnish Parliament. At this Conference, Clara Zetkin, leader of the Women’s Office of the German Social Democratic Party, tabled a proposal for an annual woman’s day – a day for women to collectively raise their demands for better working conditions, suffrage and political representation. The proposal was unanimously approved.

As a result of Zetkin’s efforts, the first International Women’s Day was observed on March 19, 1911 in Austria, Denmark, Germany and Switzerland. More than one million women and men attended rallies to mark the day, raising awareness of issues of women’s rights to work, to vocational training and discrimination in the workplace, as well as the right to vote and hold political office. Sadly, only a week after the first International Women’s Day, a deadly fire at the Triangle Shirtwaist Factory in New York City killed more than 140 working women. This tragedy brought greater attention to the issues of workplace conditions that the garment workers had protested in 1908.

International Women’s Day became increasingly prominent in Europe and became a vehicle for the peace movement during World War I. Protesting the war, Russian women observed the day for the first time in 1913. In 1914, women around Europe held solidarity rallies on March 8. In 1917, Russian women selected March 8 as a day of protest and held a strike for “Bread and Peace”. The women continued to strike for 4 days and were joined by other protests and strikes, contributing to the forced abdication of Czar Nicholas II. The Provisional Government then granted Russian women the right to vote. March 8 was later declared a national Soviet holiday by Lenin.

In 1975, International Women’s Year, the United Nations officially sanctioned International Women’s Day and began celebrating International Women’s Day on March 8 of every year. International Women’s Day is now an official holiday in many countries around the world.

International Women’s Day – Today and in the Future

Nowadays, International Women’s Day is a day for celebrating the achievements of women. The history of International Women’s Day reminds us that these achievements include the role of women in advancing the rights of workers around the world. Women have played a significant role in the labour movement, and the radical action of working women has led to important social change.

March 8^th is also a day to reflect on the work yet to be done. In the workplace alone, issues of pay inequity, the disproportionate burden of childcare, gender-based job discrimination, and sexual harassment continue to impact Canadian women. Globally, women face significant inequalities in all areas of their lives. For example, harkening back to the roots of International Women’s Day in the activism of New York’s garment workers in 1908, the day was marked in Bangladesh this year by garment workers protesting for safe working conditions, equal pay and an end to violence against women.

All workers, women and men, in Canada and abroad, should use this day to reflect on the ways in which women’s rights and workers’ rights intersect, and how both movements can work in concert to advance the cause of equality.

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

The Federal Court of Appeal recently upheld the Canada Industrial Relations Board’s decision to order binding resolution of a disputed issue in first contract negotiations between the Public Service Alliance of Canada (PSAC) and the Listuguj Mi’gmaq First Nations Council (the employer) as a remedy for the employer’s breach of the duty to bargain in good faith.

Paragraph 50(a) of the Canada Labour Code requires the parties to negotiate in good faith and make every reasonable effort to enter into a collective agreement. The Board concluded the employer violated that duty by failing to communicate its reasons to PSAC for refusing to ratify a tentative agreement until after the Board initiated unfair labour practice proceedings. During the Board’s hearing, the employer revealed its intent to renegotiate the tentative agreement’s employment equity provisions to give it the authority to terminate a bargaining unit member when a qualified First Nations member was available for the position. The tentative agreement already provided a preference for qualified First Nations members in employment, a principle supported by PSAC. But as the Federal Court of Appeal emphasized, the employer’s new demand was “highly unusual” and “one that would be difficult for any trade union to ever agree to.”

The Board crafted a detailed remedy including an order that, if the parties were unable to reach agreement on the issue of preferential hiring within a 60-day period, it would order a binding method of resolving that particular term of their agreement. In its application for judicial review, the employer argued that the Board’s order was unreasonable because, among other things, it bore no rational connection to its breach of the Code and interfered with free collective bargaining. In rejecting those arguments, the Federal Court of Appeal found that the order was tied to the employer’s breaches of the Code found by the Board. What’s more, “given the prospect of binding arbitration failing agreement, the remedial order issued by the Board may well have facilitated compromise and thus furthered the process of collective bargaining.”

Read the full text of the Federal Court of Appeal’s decision here. The Board’s decision is available here.

The Public Service Alliance of Canada was represented by Andrew Raven and Michael Fisher of RavenLaw.

Please note that our office will be closed on Friday, March 25, 2016 and Monday, March 28, 2016 in recognition of the Easter holiday.

As a member of a CSA Group Working Group, David Yazbeck contributed to the development of the Whistleblowing Guideline, which will be available for purchase on the CSA Group website on January 12, 2016. The Guideline sets out best practices for whistleblowing arrangements within an organization. This is aimed at the public and private sectors, as well as NGOs and voluntary organizations.

David Yazbeck is one of the leading practitioners in the area of whistleblower law. He was one of many experts or interested persons who were appointed to the CSA Group working group to establish the Whistleblowing Guideline.

The partners of Raven, Cameron, Ballantyne & Yazbeck are pleased to announce the selection of the successful 2016 Raven, Cameron, Ballantyne & Yazbeck Human Rights/Social Justice Internship candidates, Max Halparin and Samantha Dubord. Both Max and Samantha are in the second year of their studies at the University of Ottawa, Faculty of Law. We congratulate Max and Samantha on their achievement and look forward to working with them this summer when the internship takes place.

This is the eleventh consecutive year that our firm has offered this Human Rights/Social Justice internship. Every summer, we provide paid employment to a student from the University of Ottawa Law School with placements in our firm and two social justice or human rights organizations. This year, Samantha and Max will be working with the National Educational Association of Disabled Students and a joint venture with the Canadian Council for Refugees, South Ottawa Legal Clinic and the University of Ottawa. Previous placements for our internship have included the Workers’ History Museum, International Development Research Centre, EGALE Canada, Amnesty International, the Ottawa Coalition to End Violence Against Women, the Council of Canadians, REACH Canada, and many other organizations which provide significant contributions in the areas of social justice and human rights.