On December 10, 2014, the Canada Industrial Relations Board (“CIRB”) released its decision finding that an employer, the Listuguj Mi’gmaq First Nation Council, breached its duty to bargain in good faith when it failed to communicate to the union its reasons for deciding not to ratify a first collective agreement.

The employer and the union, the Public Service Alliance of Canada, reached a tentative agreement on a first collective agreement on December 2, 2010. However, by February of 2011, the employer had not yet held the Council meeting needed to decide whether to ratify the tentative collective agreement. After the union filed a bad faith bargaining complaint, the Council meeting was held, and on March 17, 2011, the employer advised the union that it had decided not to ratify the tentative agreement. The employer did not communicate the reasons for its decision and did not do so until March 27, 2012, when evidence was given on the issue at the oral hearing into the bad faith bargaining complaint before the CIRB.

The CIRB held that the employer had an obligation to communicate more than simply the decision not to ratify. In the circumstances of the case, the employer also had an obligation to communicate the reasons for its decision not to ratify. Although employer did ultimately communicate the reasons for its decision, it was not until it was compelled to give evidence in a hearing before the CIRB. The communication was therefore not made in a timely matter. The CIRB concluded that the employer was in breach of the obligation under section 50(a) of the Canada Labour Code to make every reasonable effort to enter into a collective agreement.

The CIRB granted extensive remedies for the employer’s failure to bargain in good faith.

The Public Service Alliance of Canada was represented by Andrew Raven, Michael Fisher and Mary Mackinnon of our firm.

The Supreme Court of Canada’s recent decision in Mounted Police Association of Ontario v Attorney General of Canada (“MPAO“) reboots the Court’s case law on freedom of association. This landmark ruling has significant potential implications for the development of the law and for workers’ rights.

Legal impact of MPAO

For labour and constitutional lawyers, the most significant outcome of the case is the Court’s rejection of the “effective impossibility” test and the confirmation that workers seeking to make their case under section 2(d) of the Charter need only demonstrate that government action has substantially interfered with their right to collective bargaining. The Court also clarified the relationship between collective bargaining and freedom of association, explaining that the freedom of association always requires that workers enjoy a meaningful right to collectively bargain.

Impact on RCMP members

MPAO’s immediate impact for RCMP members is profound. It confirms that RCMP members have a constitutionally protected right to collectively bargain through an independent association of their choosing. While RCMP members are not necessarily entitled to be included in the Public Service Labour Relations Act (“PSLRA”), the Court ruled that their exclusion from this Act violates the freedom of association, noting the RCMP’s long-standing hostility to unionization of the force, including the imposition of the unconstitutional Staff Relations Representative Program. On its face, this would appear to require the Government to provide a statutory regime to protect certain basic rights for RCMP members. While the Court’s previous ruling in Attorney General of Canada v Fraser highlights the limits of this requirement, the decision in MPAO nonetheless underscores the seriousness with which the Court viewed the Government’s approach to associational activity within the RCMP.

Impact on workers’ rights 

This decision has broad potential implications for other workers, although the precise impact in circumstances beyond the RCMP is uncertain. For example, the judgment could open the door for other groups of workers to challenge their exclusion from statutory collective bargaining regimes. Vulnerable workers who have been historically excluded, such as students and casual employees who work for the federal public service, could potentially rely on MPAO to argue that, like RCMP members, the purpose of their exclusion from the PSLRA was to prevent them from engaging in collective bargaining, and therefore that exclusion should be struck down.

Alternatively, these workers could argue that, although they fall outside a statutory bargaining regime, the Government is nonetheless required to bargain with the chosen representatives of these workers, or the representatives of a subgroup of these workers, otherwise known as a minority union. The Court explained in MPAO that it is permissible for the Government to impose a statutory model of representation based on majoritarianism and exclusivity. These groups can argue, however, that there is no reason why such a model would automatically apply where Parliament has not imposed it. Requiring the Government to bargain with subgroups of excluded workers would recognize the constitutional rights of all employees to a process of collective bargaining while respecting Parliament’s right to impose a particular statutory regime if it so chooses.

MPAO further implies that workers who have been excluded from collective bargaining because of the perceived sensitive nature of their work – such as members of management in the federal public service or non-civilian members of the Canadian Armed Forces – are also entitled to a process of meaningful collective bargaining. Although the Government could try to justify certain restrictions to this right under section 1 of the Charter, it cannot simply presume such limits exist. Nor can it avoid providing these workers with the right to be represented through an independent association of their choosing simply because the Government has decided to develop a less adversarial bargaining process.  

Conclusion

MPAO revitalizes the role of the Court as a protector of basic workers’ rights. The significance of this development will depend at least in part on the Court’s pending decision on the right to strike in the Saskatchewan Federation of Labour case, which is scheduled to be released this Friday.

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

On Thursday, December 11, 2014, Wassim Garzouzi was invited to give a presentation entitled “Introduction to Effective Labour Representation” to the members of the Local Executive Committee of the Ontario Public Service Employees Union, Local 415.

The Discussion dealt with a review of the Colleges Collective Bargaining Act, the CAAT-A Collective Agreement, as well as the roles and obligations of Union Stewards towards their membership.

On January 30, 2015, James Cameron and RavenLaw articling student Daniel Tucker-Simmons gave a presentation to Health Canada employees on the challenges of facilitating a successful return to work for employees off on disability leave.

The presentation, entitled “Navigating the Return to Work: Disability Deserves Dignity”, charted a roadmap for both managers and employees, beginning with the legal framework governing the duty to accommodate employees with disabilities, through to the process of accommodation itself. Focusing on the topic of mental disability, the talk concluded with a discussion on the necessity of destigmatizing mental disability in order to better welcome returning workers into a supportive workplace.

At the request of Health Canada, the presentation was organized by REACH, a nonprofit organization that advocates for equality for persons with disabilities.

If you have brought, or are considering bringing, a claim against your employer for wrongful dismissal, you may believe that you can sit back and watch daytime TV, waiting to recover your damages from the employer. That is not the case: you have a duty to “mitigate” your damages.

 Mitigating or reducing your damages by seeking alternate work

Mitigation means reducing the damages you have sustained by reason of the wrongful dismissal. Specifically, it means looking hard for new gainful employment.  The failure to properly mitigate your damages can result in your reasonable notice period damages being reduced.

Tips for mitigating your wrongful dismissal damages

• Look for reasonably comparable employment: You do not need to accept any job on offer. Your duty is to make reasonable efforts to find comparable employment.
• Keep records: It is important that you keep a record of your efforts, both in a hard copy and electronic file.  You should keep track of everything, including on-line searches, interviews, letters sent out and received, coffee and lunch meetings, etc.  At some point you may well be asked by a lawyer for your former employer what you have done to mitigate your damages.  These steps will ensure that have a complete answer.
• Keep track of any expenses incurred: As part of mitigation, you may incur some expenses—for example, to obtain training or to start a small business.  It may be possible to claim certain of these costs from your former employer.

Mitigating by continuing to work for the employer

Issues of proper mitigation also arise in constructive dismissal cases.  If, for example, the employer significantly reduces your salary or demotes you to a lower position, your employer may claim that the most effective form of mitigation consists of remaining in your former lower position for the length of the reasonable notice period.  When an employee is entitled to walk away in a constructive dismissal matter is a difficult one, requiring specialized advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

 [The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On December 11, 2014, Lancaster House is holding its annual Toronto Labour Arbitration conference, with workshops taking place before and after. David Yazbeck will be acting as the Union-side Co-chair for the conference and will participate as a moderator on a number of panels. Andrew Astritis will be speaking as union counsel on the panel dealing with family status discrimination.

Lancaster House is a leader in providing information on labour, employment and human rights law. Both Mr. Yazbeck and Mr. Astritis have participated in Lancaster House activities before. 

No matter what kind of employment problem you are facing—e.g. a claim for wrongful dismissal, constructive dismissal, or a human rights complaint—you may ultimately decide to settle your case for some form of compensation, rather than proceeding to a hearing. In that case, it is worth taking the time to think about the best way to structure your settlement agreement because different kinds of agreements and different kinds of compensation can lead to a wide range of tax consequences.

Seven key considerations in structuring a settlement agreement:

1. Compensation for lost income is fully taxable under the Income Tax Act because it is treated like any other employment income.
2. Compensation for the loss of employment, such as severance pay or reasonable notice (see: What is reasonable notice? ), is also fully taxable under the Income Tax Act. Unless certain limited exceptions apply, these kinds of compensation are considered “retiring allowances” under the Income Tax Act.
3. If part of your employment with your employer took place prior to 1996, you can roll a portion of a retiring allowance payment into an RRSP. The roll-over is tax-free, and you do not need existing room in your RRSP to roll-over eligible amounts. Similar rules exist for any part of your employment that took place prior to 1989.
4. Compensation for damages, such as for mental distress or pain and suffering, are not subject to tax. Damages must be reasonable, however, and there must be some proof to support the claim for damages. The claim for damages also has to be independent from the loss of employment. If the mental distress was caused by the loss of employment, then any damages for mental distress will be considered part of employment income or a retiring allowance and will be taxable.
5.  Damages for human rights violations are also non-taxable. Like damages for mental distress, they must be reasonable and similar to what a human rights tribunal might award. Be especially careful because, in some jurisdictions, legislation puts a maximum cap on damages for human rights in a tribunal’s award. In those cases, the amount characterized as human rights damages in the settlement agreement cannot go over the cap.
6.  Compensation for counselling services is not subject to tax. “Counselling services” have been defined to include job placement, re-employment, and retirement counselling services.
7.  Compensation for legal fees is deductible for employees. Where the payment is made directly from the employer to the employee’s legal adviser, this amount is non-taxable.

Conclusion

Both employees and employers need to take time to consider the structure of the settlement agreement and how to characterize any compensation changing hands. While the parties can reach agreements that maximize the benefits of the settlement for both sides, any settlement must be reasonable and grounded in the facts of the case. An unreasonable settlement agreement may be reviewed by the Canada Revenue Agency. For help determining the best structure of your settlement agreement, you should seek advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP to assist you in developing or reviewing a settlement agreement for your employment claim. 

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

On December 17, 2014, David Yazbeck will be moderating the Lancaster House Panel on Harassment and the Toxic Work Environment: Examining Rights and Remedies. This is one of a series of audio conferences presented by Lancaster House on a variety of topics affecting the workplace. Mr. Yazbeck has often acted as a moderator and speaker on these conferences.

For more information about this particular audio conference, visit the Lancaster House website here.

The process for successfully claiming long-term disability (“LTD”) insurance benefits can be complex and lengthy (See our article on “Navigating your Claim for Long-Term Disability (LTD) Insurance”). Unfortunately, part of that process often includes responding to a denial of your claim by the insurance company. This article summarizes the key steps to take if your disability claim has been denied.

When are you likely to be turned down for LTD insurance benefits? 

LTD policies usually have two different kinds of coverage.  For the first two years, the coverage provided is commonly known as “own occupation” coverage, meaning that if you can’t do the primary functions of your job, you are entitled to benefits.  After this period, the coverage often changes to “any occupation” coverage, meaning you will only continue to receive benefits if you cannot perform any job for which you are suited because of your background and not just your old job.  Claims for LTD benefits can be denied either before coverage starts, or after two years, when the definition changes.

Key Tips for Responding to a Denial of a Claim for LTD insurance benefits:

1. Don’t give up!

Many people are discouraged when they are turned down for LTD benefits.  They should not take it personally.  Refusals are often a part of the process, and are not necessarily an indication of whether your claim for LTD benefits will ultimately be determined.

2. Internal Appeals

It is possible to appeal internally to the insurance company.  The insurance company may alter its decision and provide LTD benefits, if new medical evidence is provided.  Unfortunately, in many cases, the internal appeal does not change the initial refusal.

3. Suing the insurance company for your LTD benefits

Often the only way to obtain benefits from an insurance company after your disability claim has been refused is to sue.  For many people, the prospect of litigating with an insurance company, particularly when you are disabled and without income, seems impossible.  We recommend that disabled people seek good advice from competent, experienced lawyers, who can properly advise you on your rights.  With the help of good counsel, you can enforce your rights and obtain the benefits for which you have paid.

Counsel work either on an hourly basis, or on a contingency basis (a percentage of the amount recovered).  Many people prefer to hire counsel on a contingency basis, because there is no payment of legal fees unless and until there is recovery from the insurance company.

In all cases, it is strongly advised that you seek advice as quickly as possible after benefits are refused, as there are time limits which may cause you to lose the right to sue the insurance company.

4.  Opportunities for Mediation

Although it may be necessary to start legal proceedings to enforce your legal rights, it is important to know that most cases settle at mediation.   Mediation is a negotiation session conducted by an experienced neutral facilitator.  The mediator will explore with the parties whether it is in their best interests to settle the claim for a lump sum or by reinstating the insured worker’s benefits.  The mediator will have the parties explore the risks and costs of litigation and help them to determine whether a settlement is preferable to carrying on to Trial.

Conclusion

If you have been turned down for LTD benefits, please do not give up.  If you retain good, experienced counsel and follow their advice, you stand a good chance of obtaining a satisfactory solution.

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.]

Our office will be closed on Monday, December 15th from 1:30 pm  to 5:00 pm. We will return to regular office hours on Tuesday, December 16th.