April 28, 2021 marks the 30th National Day of Mourning in Canada. Community members are asked on this day to take some time to remember workers who have been killed, injured, or suffered illness due to workplace related hazards and occupational exposures.  

In the era of the Covid-19 pandemic, it has become especially apparent that some workers face greater risks when providing front line and essential services to the community. Many times, the workers who are placed in the most precarious positions are those that already face systemic barriers to equality.  Many are not able to work in the protection of their home, or access unpaid sick leave when providing care, food, transportation, and other vital services.  Frontline and essential workers have become ill, and some have even lost their lives due to work related exposures to the virus and other health hazards.

All Canadians should enjoy an equal right to workplaces that are safe, healthy, and respectful of every individual’s dignity. We encourage you to take some time today to reflect on the many sacrifices Canadian workers make when providing goods and services, and how you can demonstrate your support and commitment to the promotion of safe workplaces. 

On June 22, 2021, Sean McGee presented as part of a panel at l’Association des juristes d’expression francaise de l’Ontario’s annual congress. The panel addressed new developments in many areas of law, with Sean presenting specifically on ten key recent cases in the area of labour law.

RavenLaw is proud to sponsor an upcoming evening of music in support of Ottawa Blues for Youth, in connection with the Royal Ottawa Hospital. Ottawa Blues for Youth was created in the fall of 2020 by Anita Manley, with funds raised going to support Youth Mental Health at the Royal.

The event will be held on October 23, 2021, with ticket sales beginning in mid-August. For more information, click here.

On June 24, 2021, James Cameron and Karen Sisson presented as part of the Law Society of Ontario’s annual Six-Minute Employment Lawyer update. James and Karen presented on the interconnections between Long-Term Disability claims, the duty to accommodate disabilities in the workplace, and wrongful dismissal cases.

There is a common misconception that contracting COVID-19 automatically results in eligibility for long-term disability benefits. Unfortunately, this is not the case, and only in specific circumstances relative to an individual’s limitations and restrictions would filing a claim be appropriate. Today, we will find out why that is and provide information to help you determine your eligibility for long-term disability benefits, otherwise known as LTD.

Elimination Period

The first factor to consider is the elimination period or the amount of time an employee must wait between the first day they are unable to work due to illness or injury and the first day they are eligible to receive LTD benefits. The elimination period varies depending on your LTD policy. During this period, the individual must continuously be unable to work because of their disability. The employee may be required to use all remaining sick days or apply for short term disability benefits during this period of time. Before applying, carefully examine the policy booklet provided by your employer. Ensure it’s the latest version, as updates to qualifying terms and conditions could either simplify or complicate matters further.

Definition of Disability 

The second factor to consider is the definition of disability as set out in your benefits policy. In order to be eligible for LTD benefits, the individual applying must meet the definition of disability as set out in the policy. These vary slightly depending on the insurance company. However, there are usually two key timeframes to bear in mind when considering your application. The first, which usually applies for the first 24 months after the end of the elimination period, is to prove that you cannot perform your own occupation because of the injury or illness. After 24 months, the employee must demonstrate that they cannot perform the duties of any occupation because of the injury or illness in question. 

Causes of Rejection for LTD Benefits

As covered in our May post on this particular subject, there are five common reasons why you may be denied LTD benefits: 

1. Insufficient medical evidence to back your claim;
2. You do not qualify as per your workplace’s current long-term disability policy;
3. You are capable of securing employment in another occupation, whether in your field or otherwise;
4. Your employer’s insurance policy excludes specific conditions, potentially preexisting in nature;
5. A lack of “objective medical evidence” – a common hardship faced by those living with chronic fatigue syndrome, fibromyalgia or mental health conditions.

In addition, late applicants who miss the deadline may be ineligible, which can result in a stressful and economically frustrating experience. Always ensure you apply before the posted deadline to avoid this needless complication. While there may be steps available to you to secure your benefits, they involve lengthy court proceedings that are best avoided.

Why Securing LTD Compensation for COVID-19 is Difficult

In consideration of these aforementioned LTD eligibility specifics, claiming LTD benefits as a result of COVID-19 would be difficult because you must be able to demonstrate that, after the elimination period and during the first two years, your ongoing symptoms of COVID-19 restrict and limit you from performing the duties of your occupation. A COVID-19 LTD claim would only be successful in instances where your symptoms are severe enough to prevent you from working in your own job. That said, if your LTD benefits have been denied, whether in relation to COVID-19 symptoms or another injury or illness, there are extra steps you can take in an attempt to pursue them further. We have covered them in detail here and would be happy to assist with any questions you may have. 

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

When presented with a contract related to work, whether as an independent contractor, dependant contractor, or employee, it is vital that you closely examine the terms of the proposed agreement. Proposed contracts may contain non-competition clauses that limit your capacity to participate in rival business ventures, sometimes long after the contractual relationship has ended. 

In most industries, an overly burdensome non-competition clause will severely limit the employee/contractor’s ability to perform alternative work in their chosen field.  Because the restrictions can have such a severe impact, courts have established that an appropriate balance must be struck between the protection of proprietary business interests and the prevention of unreasonable restrictions on trade.

As such, when taken to court, there is a presumption that all non-competition clauses are unenforceable. The party seeking enforcement must demonstrate that the clause is enforceable by showing the clause was freely entered into and that the terms are reasonable and necessary for the protection of proprietary business interest (such as a trade secret, a customer list, or a specific vulnerability to unfair competition). 

Two recent decisions of the Ontario Superior Court, 11766554 Canada Inc v Tingz Restaurant Bar LTD and Jihad Samaha (“Tingz”) and SI Systems Partnership v Geng (“SI Systems”) provide further clarity about the factors the Court will examine closely when determining if a non-competition clause is binding and enforceable. Both decisions place emphasis on the requirement to demonstrate that the signer is bound by the limitation, that the terms do not result in an unreasonable restriction on trade, and that the limitation is required for the protection of a legitimate business interest.

The agreement must be entered freely.

To be bound by a non-competition clause, a party must have entered into the agreement willingly and knowingly. In SI Systems, the Court found that identical non-competition clauses had bound one of the defendant consultants, but not the other. The consultant who was bound had signed the agreement with full knowledge of the non-competition clause, whereas the other consultant had the non-competition clause incorporated into a series of agreements, and the change of terms was never explicitly brought to their attention. The Court noted at paragraph 69, “an obscure clause that is buried in ‘fine print’ or complex language which could not be readily understood, or a provision that is startling and would be unanticipated, may engage a requirement to specifically draw the clause to the attention of the party”. 

The limitations must be reasonable.

Even if a non-competition clause is found to be binding, the presumption that a non-competition clause will be unenforceable still applies. To rebut that presumption, the clause must contain unambiguous and reasonable limitations. The two main limitations a court will consider is the geographic scope covered and the duration of the clause. 

In Tingz, the Court found that the geographic restriction of the clause, which spanned the entire City of Ottawa, was unreasonably broad and beyond that which would be required to provide protection against a loss of customers. As such, the Court stated that the clause was likely unenforceable. 

Likewise, in SI Systems, the clause sought to prevent the consultants from performing any consultation work on any contract between the RCMP and an alternative service provider. The Court found that this limitation was far too broad to be enforceable, given the abundance of RCMP contracts for IT services, and the fact that the RCMP is national, so the clause would restrict work across Canada. 

The limitations must be necessary to prevent harm

Further consideration of the Court is that a non-competition clause will only be enforceable if it is necessary and rationally connected to the protection of a proprietary interest. 

In Tingz, the Court found that it was reasonably foreseeable that a former business partner opening a rival restaurant with very similar characteristics just down the block from Tingz would cause serious harm. In that case, enforcing the clause was necessary for the protection of Tingz’s customer base. 

In SI Systems, despite one of the contractors being bound by the non-competition clause, the limitation was still unenforceable against him, as it was found to not be necessary or rationally connected to the protection of a proprietary interest. Prohibiting the consultants from performing any consultation work on contracts that involved IT service to the RCMP would not provide protection of a specific proprietary interest of the Applicant. It would simply limit the capacity of competing organizations to hire experienced consultants and successfully bid on RCMP contracts. Such an outcome is very restrictive, and the Court found it to be an unreasonable restraint on trade.

If you have questions or concerns about the implications of a contractual non-competition clause in a work-related agreement, our experienced Ontario employment lawyers will be happy to advise you. Please call 613-567-2901 or email info@ravenlaw.com to request further information. 

In a recent contract case, Callow v Zollinger, 2020 SCC 45, the Supreme Court confirmed that damages can flow from a contractual breach of good faith when one party knowingly misleads the other. Good faith between parties is an unwritten obligation found in contracts. The exact nature of that obligation may vary some, depending on the type of contract. 

Now, the Court has clarified the legal obligation to perform a contract in good faith includes a responsibility to avoid misleading the other party. This may have a significant effect on employment contracts, as employees are entitled to rely on what an employer says it will do, including representations made beyond the precise wording of the contract. 

Contractual Obligations Must be Performed in Good Faith 

Callow v Zollinger involved a contract between a group of condominiums, represented by property manager Mr. Zollinger, and a lawn and winter maintenance company, represented by Mr. Callow. The contract was terminated with ten days’ notice, allowed by the contract’s wording. However, Mr. Zollinger knew the condominiums had decided to terminate the winter maintenance contract months prior, and yet he did not inform Mr. Callow and allowed him to perform extra work during the summer months.

The Court found Mr. Zollinger breached the good faith obligation by failing to disclose that the contract would end before the winter. Mr. Zollinger knew Mr. Callow was completing the extra work because Mr. Callow thought the contract would continue through the winter, as it had in years past. Additionally, because Mr. Callow did not know the contract was ending, he, therefore, could not seek out other winter maintenance work until the last minute which was detrimental to his business. The condominiums benefitted from Mr. Callow’s extra work during the summer months knowing that the work was done on the basis the contract would continue.

There are two main takeaways: (1) misleading actions can attract monetary damages in court and (2) the contract’s specific wording does not end the parties’ obligations—breaches can occur when one party’s actions are misleading, even if allowed within the wording of the contract.

What Does the Duty of Good Faith Mean for Employment Cases?

Courts have consistently recognized that employers have unique power and control over their employees, particularly compared to other contractual relationships. The employer’s higher degree of control over employees requires a higher degree of honesty. 

Courts have already imposed good faith obligations specifically on employers, such as the requirement to act in good faith when dismissing employees. When terminating an employee, employers must avoid “being untruthful, misleading or unduly insensitive” and instead be “candid, reasonable, honest, and forthright.” 

Given the reasoning in Callow, the Court seems to expand this responsibility by holding there is a contractual responsibility to correct the other party’s mistaken impressions and avoid knowingly misleading statements or lying by omission.

In the employment context, an employer’s misleading statements or promises could be detrimental to employees in a wide variety of situations including pay increases, promotions, scheduling changes, the choice of whether and how to provide work, and term contract renewal. Additionally, independent contractors can expect greater protections after Callow, even though they do not have employee status, since the duty of honest performance applies to all contracts.

If your employer misled you or lied to you about your employment conditions, even if they followed their obligations as written under the contract, an employment lawyer can advise you about whether your employer breached their contractual obligation of good faith, giving rise to a claim for damages. 

A long-term disability (LTD) claim is essential for those unable to work due to a debilitating medical condition or injury. If you cannot work because of a medical condition or injury, it may be possible to secure LTD benefits. Today, let’s examine how to submit a long-term disability claim in more detail. In addition, we’ll cover what happens if you are denied including next steps.

Make the Most of the Elimination Period

Among your responsibilities is the need for a firm understanding of your elimination period. This is otherwise known as the waiting period – the amount of time you must be disabled for prior to applying. Submitting your claim too early is sometimes a risk, as you may be turned down for not proving beyond a reasonable doubt your inability to work. Most of the time, however, early applicants will simply be required to wait. While waiting for the elimination period to end, you should instead gather as much medical documentation in support of your claim as possible. We also recommend consulting your employer’s policy booklet to ensure all their terms and conditions are met. The more thorough and complete your claim and supporting documentation is, the better the chances you’ll have of getting accepted – all while reducing the risk of delays.

The “Big Three”

When submitting a long-term disability claim, there are normally three important statements you must include with it. Sometimes only two are needed – one from yourself and a doctor – but this depends on the employer in question. The so-called “big three” are as follows:

Employee Statement

Your first-hand statement needs to be clear and concise about your physical and/or mental limitations and/or restrictions. For instance, if you are diagnosed with depression, list the specific conditions and symptoms that prevent you from working. You should also detail why you cannot work in your field of expertise – do not hold back on any critical factors and remain as accurate as possible. And don’t worry if you run out of room – a second sheet can be attached without voiding your application. 

Employer Statement

In most cases, the employer in question must provide equally clear, concise and thorough documentation of your situation. This usually includes a complete list of the duties within your role, and whether it would be feasible to alter your role. 

Practitioner (Doctor) Statement

We’ve noticed that doctor’s statements can often be incomplete or difficult to interpret. That’s why our legal team is happy to resolve any conflicts by acting as a liaison between you and your doctor prior to submitting your claim. Doctors may have busier jobs than ever, but they still must provide ample detail on your symptoms, diagnosis, recommended treatments and whether you’ve undertaken them, and why you cannot perform your duties. All relevant medical documentation – treatment programs, visitation records and otherwise – must be attached with this statement. This statement is the most heavily scrutinized by claim analyzers for accuracy and legitimacy. Remember, LTD insurers are known to even monitor social media behaviour by the applicant to verify their honesty.

What if I’m Turned Down?

Sometimes a rejection can be remedied by providing more complete information or addressing any red flags. The clearer the picture for the individual analyzing the claim, the better. Usually, you won’t be denied and instead will receive a request for more medical evidence. Alternatively, if you aren’t following treatment recommendations by your doctor you may be denied LTD benefits. We’ve covered the main reasons why you would be denied in this blog post – give it a read to learn more. 

Need Help with Your LTD Claim, ASAP? Contact RavenLaw Today!

At RavenLaw, our legal professionals can help you with unbiased, expert feedback on your LTD application, statements and attached documentation. If anything is unclear, missing or otherwise, we can work with you on resolving any grey areas. Reach out to us to get started!

On December 3, 2020, Andrew Astritis gave a guest lecture on Workers’ Rights and the Charter in the University of Ottawa’s English Common Law Program. Speaking to upper year labour law students, Andrew outlined recent developments in the law on these issues, including the 2015 Labour Law Trilogy in which the Supreme Court of Canada recognized the existence of a constitutional right to strike.

In a recent court decision, the Federal Court of Appeal overturned the decision of the Canada Border Service Agency to reject the classification grievances of over 45 management employees.

The Court found that CBSA’s decision was unreasonable because it refused to reclassify the managers’ position on the basis that it did not perform certain decision-making responsibilities, when this was not actually a requirement of the classification rules or guidelines. Furthermore, the Court found that CBSA had misapprehended and failed to identify any mistake in the Classification Grievance Committee report which had recommended upwardly reclassifying the managers’ position.

This is the third time these employees have been successful in overturning CBSA’s decision to reject their grievances. Recognizing the exceptional nature of these circumstances, the Court of Appeal concluded that it would not be appropriate to return the decision to CBSA for redetermination a fourth time.

As the Court stated: “This Court’s intervention rests on its core strength which is determining if the justification for a decision is reasonable. Having found that the Deputy Head’s rejection of the Committee’s recommendation was unreasonable, and considering that in three attempts to justify his conclusion, the Deputy Head has been unable to formulate a rationale which withstands review on a deferential standard, this Court is not overreaching in requiring the Minister to accept an expert recommendation that he is unable to justify rejecting.”

The Court therefore ordered CBSA to render a new decision, consistent with the recommendation of the Classification Grievance Committee. This should bring to a close more than a decade of litigation that the Appellants have had to pursue to have their classification grievances appropriately addressed by their employer.

The Appellants were represented by Andrew Raven and Morgan Rowe of RavenLaw.