On July 21, David Yazbeck will be moderating a Lancaster House Conference on “Minding Your Own Business: Privacy rules on collecting, using, and disclosing employee information” The conference will discuss the potential conflict between employee privacy and employer concerns about the impact employees’ online activity can have on their reputations. The panel will discuss the law related to background checks, including “social media checks”, the latest cases on surveillance and biometric identification technologies, the legal rules with respect to personal information on the employer’s devises, and an employer’s ability to access employees’ medical information.

More information about the conference can be found here.

The story of Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to same-sex couples on the basis of her Christian faith, has made headlines across the US and Canada in recent weeks. On September 3, 2015, United States District Judge David Bunning held Davis in contempt, sending the clerk to jail. The controversy continues after her release – court proceedings are ongoing, and Davis returned to work on September 15, ordering her office to alter the marriage license templates to remove her name and title and substitute “pursuant to federal court order”.

While this story has brought widespread attention to the tension between equality rights and religious freedom, the issue of how to reconcile competing rights claims is not new. Increasingly in the years since the Canadian Charter of Rights and Freedoms came into force, Canadian courts have had to grapple with how to resolve this tension. The Saskatchewan Court of Appeal’s decision in the Marriage Commissioners case provides insight into how a Canadian court would address the Kim Davis case in the context of the Charter.

The Saskatchewan Marriage Commissioners Case

On the heels of legal and political developments that legalized same-sex marriage in Canada, some marriage commissioners in Saskatchewan began refusing to solemnize same-sex marriages on the basis that their religious beliefs prevented them from doing so. The issue led to numerous legal proceedings pursuant to the Saskatchewan Human Rights Code as well as a civil court action. The Saskatchewan government proposed two possible amendments to the provincial Marriage Act that would allow marriage commissioners to opt out of performing same-sex marriages, and asked the Saskatchewan Court of Appeal to give its opinion on whether the amendments were consistent with the Charter.

The Court’s Decision

The Court acknowledged that the purpose of the proposed amendments was to accommodate the religious beliefs of marriage commissioners. However, a law can violate section 15 guarantee of equality if the effect of the law is to deny equal protection or benefit. In this regard, the Court held that the effect of the proposed amendments would be to draw a distinction on the ground of sexual orientation – same-sex couples contacting a marriage commissioner to have their marriage solemnized may be denied where a heterosexual couple would not. The Court found that this distinction was contrary to the Charter and that the distinction could not be justified, even though the issue involved the Charter-protected religious freedom of marriage commissioners.

The Kim Davis case through a Canadian lens

The Court’s commentary in the Marriage Commissioners decision provides a good indication of how a Canadian court would deal with a situation similar to the Kim Davis case in Canada. The Court emphasized the fact that marriage commissioners are public office holders and do not act as private citizens when they discharge their official duties. Those duties involve performing secular civil marriage ceremonies. Indeed, a ceremony performed by a marriage commissioner was the only form of non-religious marriage solemnization available in Saskatchewan. As the state must provide services on an impartial and non-discriminatory basis, individuals who voluntarily become public office holders must carry out their duties in line with that basic principle, as opposed to shaping their duties to reflect their personal beliefs.

A court considering the Kim Davis case in Canada would likely emphasize that she is a public office holder, similar to secular marriage commissioners. Her duties therefore include issuing marriage licences in accordance with the law, which now extends marriage equality to same-sex couples. Thus, the court would likely conclude that Davis cannot act upon her religious beliefs in denying marriage licenses, if that act discriminates against the public on the basis of sexual orientation. In essence, the competing rights claim is less of a competition where one side is filling a public and secular role. Although Canadians are free to hold personal religious beliefs, that right does not necessarily extend into the public realm, particularly where significant equality rights are at stake.

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

We are very proud to announce that Elyssa Yoo has been awarded this year’s Raven, Cameron, Ballantyne & Yazbeck LLP Prize for achieving the highest standing in the Human Rights Laws in Canada course at the University of Ottawa Faculty of Law, Common Law Section.

Every year, our firm sponsors a prize for the student who achieves the highest standing in the “Human Rights Laws in Canada” course at the law school. Human rights law is a fundamental component of our legal system and a major component of our law practice. It is important to recognize achievements in this area, and to encourage students to pursue human rights law when they practice.

Congratulations Elyssa, and best of luck in your legal career!

RavenLaw’s commitment to the University of Ottawa has been recognized through an invitation by the University to become a member of the Doric Pillar within the University’s philanthropic leaders association, known as the Tabaret Society. The Doric Pillar recognizes the crucial support offered by annual donors to the University.

The Tabaret Society is named after Father Joseph-Henri Tabaret, who is widely considered to be the “builder” of the University of Ottawa. The Society honours those whose philanthropic leadership plays a vital role in forging the leaders of tomorrow.

The 2015 Tabaret Society members will be honoured at a reception at the University of Ottawa on September 30, 2015.

In a recent decision, the Federal Court of Appeal revived a pay equity complaint made by the Public Service Alliance of Canada (“PSAC”) on behalf of workers in certain female-dominated groups at Nav Canada. PSAC filed the complaint in 2002, but the Canadian Human Right Commission dismissed the complaint without an investigation in 2012. In its decision of July 28, 2015, the Federal Court of Appeal ruled that the Commission’s decision was unreasonable and sent the complaint against Nav Canada back to the Commission for further proceedings.

The Nav Canada employees received pay equity cheques for the years 1985 – 1996, years when they worked for Transport Canada, but did not receive wage adjustments for the years following the creation of Nav Canada in 1996. This has meant that the Nav Canada workers have lost out on the full benefits of a 1999 pay equity settlement between PSAC and the government. As counsel for PSAC, Andrew Raven of RavenLaw, told the Ottawa Citizen, the Court’s decision “has important implications for all pay equity complainants” and could make it possible for the Nav Canada employees to receive retroactive wage adjustments for the years between 1997 – 2011.

PSAC was represented at the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.

Morgan Rowe will be celebrating the paperback launch of her book, Exploring Disability Identity and Disability Rights through Narratives: Finding a Voice of Their Own, on May 14, 2015. The book explores the relationship between disability, human rights, and personal identity in the lives of Canadians with disabilities. The book launch is being hosted by Octopus Books. More details about the event can be found here.

Andrew Astritis will be presenting at the 2015 Accommodation Law Conference, hosted by Labour Law Online – Centre for Labour-Management Development. The conference, which takes place on April 22 and 23, 2015 at the Chateau Laurier in Ottawa, will address recent development in human rights and accommodation law, including a summary of recent cases in the area. More information on the conference is available here.

On Friday, March 20, 2015, Andrew Astritis participated in an upper-year human rights seminar in the University of Ottawa’s common law program. The class addressed developments in family status accommodation, including the decision in Canada (Attorney General) v Johnstone. Andrew Raven and Andrew Astritis appeared as counsel on behalf of Ms Johnstone.

RavenLaw was proud to sponsor the 16^th Annual County of Carleton Law Association/ Great Canadian Theatre Company Lawyer Play. The annual fundraiser supports the operations of Great Canadian Theatre Company (GCTC) and benefits a charity partner, which this year was StreetSmarts. Over the last 15 years, the Lawyer Play fundraiser has raised over $1.2 million dollars for GCTC and designated charity partners. Each year, the play’s cast is composed entirely of members of Ottawa’s legal community. This year’s play, Parfumerie, ran from April 15 – 18, 2015 and featured RavenLaw lawyer Amanda Montague-Reinholdt as Miss Ritter.

In addition to compensation for long-term disability benefits, it is possible to also claim damages for mental distress from the insurance company, as well as punitive damages to punish the company for its conduct. However, to successfully claim these amounts, the relevant legal tests must be satisfied. The Ontario Court of Appeal recently rendered a decision which clarifies the test to be applied in determining punitive and mental distress damages.

Background

In Fernandes v Penncorp Life Insurance Company, 2014 ONCA 615, the plaintiff ran a successful brick laying business in Kitchener, Ontario, when he injured his back after two separate falls. After the second fall, he never worked as a brick layer again. Mr. Fernandes was, at the time of his injury, 40 years old with an equivalent of a grade 8 education.

The trial judge awarded the plaintiff approximately $236,000 in compensation, and also awarded significant punitive and mental distress damages. Mr. Fernandes was awarded $200,000 in punitive damages because the insurance company had not “dealt with the claim fairly and in a balanced way”. He was also awarded $100,000 for mental distress damages for the failure of the insurance company to pay him what they had contracted to pay him. Notably, Mr. Fernandes had originally only sought $25,000 for these mental distress damages. Finally, Mr. Fernandes was awarded full legal costs amounting to about $212,000.

The insurance company appealed the trial judge’s decision regarding the awards for punitive and mental distress damages, as well as full indemnity costs.

Decision of the Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeal in part, reducing the legal costs awarded by $30,000 and reducing the mental distress damages awarded. However, the Court upheld the finding that punitive and mental distress damages were payable in respect of Mr. Fernandes’ treatment by the insurance company.

Punitive Damages

The Court summarized the key applicable principles for a finding of punitive damages as follows:

• Punitive damages are designed to address the objectives of retribution, deterrence and denunciation, not to compensate the plaintiff.
• They are awarded only where compensatory damages are insufficient to accomplish these objectives.
• They are the exception rather than the rule.
• The impugned conduct must depart markedly from ordinary standards of decency; it is conduct that is malicious, oppressive or high-handed and that offends the court’s sense of decency.
• In addition to the breach of contract, there must be an independent actionable wrong.
• In a case of breach of an insurance contract for failure to pay insurance benefits, a breach by the insurer of its contractual duty to act in good faith constitute an independent actionable wrong.

Applying those principles, the Court of Appeal found that there was sufficient evidence to support the conclusion that punitive damages were appropriate in Mr. Fernandes’ case.

Mental Distress Damages

The Court noted that the Supreme Court of Canada in Fidler has held damages for mental distress for breach of contract may be awarded “where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made”. This however, does not obviate the need to prove the actual loss.

Here, both parties agreed that an objective of the insurance policy was to secure a psychological benefit and that at the time, the parties reasonably contemplated that the failure to pay benefits could cause the respondent mental distress. However, the insurance company contested the amount awarded.

The Court noted that there was no good explanation how the trial judge had arrived at the figure of $100,000, or what facts justified such an amount. It noted further that the award appeared inordinately high and entirely disproportionate, as compared to other awards and noted that the award was four (4) times greater than that requested by Mr. Fernandes. It finally noted that mental distress damages are to be compensatory and not punitive and reduced the award from $100,000 to $25,000.

Commentary

In order to successfully bring a claim for punitive damages or mental distress damages in the context of an LTD claim, it is important to advance the facts upon which those claims can be supported. The trial judge must have a factual basis to grant the amounts sought, and which will satisfy the tests as articulated in the Ontario Court of Appeal’s judgment.

When initiating a proceeding regarding a denial of long-term disability benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer.

We are here to help navigate the LTD application process. Consult one of our experienced Long Term 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.  

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