Ravenlaw gratefully acknowledges the contribution of this post by articling student Claire Michela.

Regulated in Ontario since 1993, midwives are an overwhelmingly female-dominated profession represented by their Association of Midwives (AOM). Regulation was a proud moment for midwives, as it was a public recognition of their contributions to Ontario’s health care system. Recently, the Divisional Court found that the Ministry of Health (MOH)’s decision to raise the wages of midwives slowly, compared to other health care workers, amounts to systemic pay discrimination.

In 1993, the MOH and AOM worked together to develop funding principles to guide midwives’ future pay increases. Based on a third-party assessment, the AOM and MOH decided that doctors working in Community Health Centres (CHCs) had comparable levels of skill, effort, responsibility, and working conditions to Midwives, and the two groups should be paid on par.

But, starting in 2004, midwives’ wages were frozen and negotiations became strained. As similarly situated CHC doctors’ wages continued to increase, midwives’ pay was minimally increased for a number of years. As the pay gap broadened, the AOM filed a human rights complaint for gender discrimination in 2013.

In 2018, the Human Rights Tribunal of Ontario concluded that the MOH’s refusal to negotiate fair pay increases was discriminatory. This finding of discrimination meant that gender was a factor in midwives’ lower pay compared to similarly situated health care workers.

Despite the Tribunal’s decision, the MOH still could not agree on an appropriate amount to compensate midwives for years of discriminatory under-payment. The case returned to the Tribunal, which decided that the MOH must provide a 20% pay increase retroactive to 2011, human rights damages for those who signed on to the complaint, and interest to compensate midwives for lost time.

The MOH was unsatisfied and brought both Tribunal decisions to the Divisional Court for judicial review. At the Divisional Court, the MOH tried to argue that there was no pay discrimination because the midwives’ gender was not a factor in the MOH’s decision to pay midwives less than CHC doctors. However, the Court’s decision reminds the MOH that in human rights cases, intent to discriminate is never required.

The Divisional Court found the MOH’s arguments about why the Tribunal decisions were unreasonable to be “disingenuous” because they “fail to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim.”

Discrimination is systemic when the policies or practices of organizations result in an adverse impact for a protected group. In this case, the MOH’s pay policies were discriminatory toward midwives because their pay was raised remarkably slowly (an adverse impact) compared to similarly situated health care workers.

Systemic discrimination has been a topic of public debate recently, as the Black Lives Matter movement has gained traction around the world. The case of the pay of midwives in Ontario demonstrates how systemic discrimination is a subtle form of discrimination that can creep in over time and that it may be unintentional. However, as noted by the court, in human rights law, intention is not required for systemic discrimination to exist.

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

The implementation of physical distancing measures in the face of the global COVID-19 pandemic has raised a number of issues for workers with family obligations. Many workers are now being asked to work from home on a regular basis. At the same time, schools and childcare institutions have been closed and are only in the process of reopening, with the future success of these efforts remaining uncertain. Other workers face the need to care for sick family members, preventing them from fully meeting their work obligations.

Human Rights law, which has been found to provide certain protections to allow workers to balance their family and work obligations, can play an important role in navigating these issues.

How am I protected as a parent and an employee?

Human Rights law seeks to protect people from adverse consequences flowing from the fact that they exhibit one of the protected characteristics enumerated by the legislation. In this case, the protected characteristic is called “family status”.

The protection from discrimination on the basis of family status has been interpreted to protect people from adverse consequences in their employment flowing from their family care obligations. What is protected, however, may depend on whether your employer is federally or provincially regulated.

In Ontario, it is generally enough to show that the employer’s rule has a substantial negative effect on the parent/child or family care relationship and the responsibilities that attach to it. In assessing whether there a prima facie case of discrimination has been made out, the decision maker can look at the supports available to the claimant, but the claimant is not required to exhaust all options in attempting to self-accommodate.

Case law from the Human Rights Tribunal of Ontario provides a helpful foundation for parents juggling work and family obligations, including the obligation to assist their children with e-learning and other activities meant to replace school while schools are closed in response to COVID-19. Parents will be expected to make reasonable efforts to meet all of their obligations, but employers will also be expected to make reasonable concessions and allow for accommodations that will help parents to meet their obligations.

Employees who are federally regulated may have a more onerous test to meet. The Federal Court of Appeal has stated that an employer is only obligated to accommodate a family obligation when it arises from a “legal obligation”, as opposed to a “personal choice”. The implications of this requirement in the COVID-19 context remain to be seen, particularly given decisions from arbitrators and human rights tribunals, such as the arbitration award in SMS Equipment, indicating that additional requirements in the family status context are not appropriate.

A Recent Example

Arbitrator Jesin recently dealt with a COVID-19-related family status grievance. The grievor, who works in Sault-St. Marie and lives in Michigan, had a unique situation brought on by COVID-19. While he was not required to self-isolate for fourteen days after entering Canada due to an exemption in the regulations, the employer had a rule that required it, effectively making it impossible to both work and see his young children.

Arbitrator Jesin held that it was unreasonable for the employer to apply its policy without accommodating the grievor’s family status. He suggested that the employer adapt the policy to fit better with the grievor’s circumstances and that it might consider other precautions such as increased PPE or restricting him from going to COVID-19 “hot spots” in the US.

This decision is notable for the fact that it does not consider the issue of whether it was the grievor’s choice to maintain his custody arrangement or take up residence in Canada. The duty to accommodate was taken as a given. The decision is an example of Ontario arbitrators’ willingness to go straight to the question of accommodation where an employee has experienced adverse consequences as a result of a work rule and their family realities.

Addressing Family Status Concerns

If you are having difficulty keeping up with both work and childcare obligations, you can ask your employer to accommodate you. This may mean a later start time, more reduced hours, or other accommodation measures that may be necessary in the circumstances. If the employer refuses to provide any accommodation, though not necessarily the requested accommodation, it will have to show that not only does the requested accommodation would interfere with a bona fide occupational requirement and that it would experience undue hardship if forced to accommodate.

If you have any questions about these issues or your employer has refused to provide an accommodation it may be time to contact an employment lawyer or your union.

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

A recent decision of the Manitoba Court of Queens Bench has found that legislation which purported to cap wage increases for unionized public sector employees infringed the Charter right to freedom of association.

Manitoba’s Progressive Conservative Party was elected in April 2016 and, shortly thereafter, Cabinet recommended adopting wage-freezing legislation modeled on legislation that had previously been used to limit increases to public sector wages in Nova Scotia. The legislation was passed within a year. The Public Service Sustainability Act (PSSA) created what it called a “sustainability period”. This meant that for the first two years following the expiration of a collective agreement no wage increases could be granted or awarded by an arbitrator. In the third year, increases were to be capped at 0.75% and 1.0% in the fourth.

The legislation received royal assent but was not proclaimed into force. Some speculated that the reason for its non-proclamation was to avoid the possibility that it would be held to be unconstitutional. However, the unions that challenged the legislation provided extensive evidence that, despite the non-proclamation of the legislation, the threat of the legislation’s ability to retroactively roll back negotiated wage increases hung over all collective bargaining tables, and was repeatedly adverted to by government and employer negotiators. Nearly all of the unions who were parties to the Charter challenge had concluded collective agreements with wage increases in line with the PSSA but indicated that their acceptance was conditional on the constitutionality of the PSSA and that they were signed “under duress”.

The constitutional challenge relied on the developing jurisprudence around section 2(d) of the Charter which guarantees freedom of association. Freedom of association has developed to include a right to collective bargaining free from substantial government interference and a right to strike. The most recent decisions from the Supreme Court are the 2015 trilogy of Mounted Police Association of Ontario, Meredith, and Saskatchewan Federation of Labour, as well as the Court’s subsequent decision in British Columbia Teachers’ Federation.  Those decisions advanced the law of freedom of association significantly in positive directions for unions. However, the Meredith decision found that wage restraint legislation imposed to address economic concerns arising out of the 2008 financial crisis was permissible in the context of the labour relations regime in place at the RCMP. Subsequently, appellate courts across the country dismissed constitutional challenges to that same federal wage restraint legislation.

A Significant Win for Freedom of Association

The Manitoba Federation of Labour case is important. It provides a clear and systematic analytical framework for dealing with legislation which freezes or limits increases on public sector wages achieved through collective bargaining.

The Court’s findings can be broken up into four parts:

1. The fact that the legislation was not proclaimed into force did not prevent the court from reviewing its constitutionality.
2. There is no duty on legislators to consult unions prior to legislating with respect to matters falling within the purview of collective bargaining. However, consultation or the lack thereof may be relevant in determining whether the legislation is justified.
3. The legislation substantially interfered with collective bargaining: monetary concerns are important concerns for union members and removing them from consideration in collective bargaining significantly compromises a unions ability to bargain on other issues.
4. The legislation could not be justified under section 1 of the Charter: general reduction in budget deficits, absent some emergency, was not a pressing and substantial objective. Additionally, the lack of consultation indicated that the government had not meaningfully explored other options which is required to meet the minimal impairment requirement of the proportionality branch of the test for justification under section 1 of the

In comparing the Manitoba legislation to the Federal legislation in Meredith, the Court noted that a significant difference between the two pieces of legislation was that the federal legislation sought to impose salary increases comparable to those that had been negotiated for comparable bargaining units in the public sector. Also, in this case, the legislation was imposed so as to have an effect on future collective bargaining rather than to provide certainty to bargaining that had been ongoing. The Court found that the enactment of the PSSA had wide-reaching consequences on labour relations and substantially interfered with a meaningful process of collective bargaining and thus infringed section 2(d) of the Charter.

Notably, the Court found that the government had failed to justify the Charter infringement at the first stage of the Oakes test. It emphasized that Courts should look with a large degree of skepticism on “dollars versus rights” controversies. The unions pointed to the fact that the government had introduced tax cuts at the same time as it pled poverty. The court found, upon a detailed review of various budgetary reports, that there was no budgetary crisis that could constitute a pressing and substantial objective. Courts rarely rely on this branch of the Oakes test to find that constitutional infringements cannot be justified. As such, this can be read as a striking indictment of legislating wage restraint for unionized employees for ideological or convenience reasons.

For the sake of completeness, the Court went on to consider the balance of the Oakes test including whether the PSSA minimally impaired the union members’ freedom of association while accomplishing its stated objective of limiting government expenditures. In determining whether the government employed the least-infringing option, the Court looked at the process that led up to the adoption of the legislation.  The government had indicated to the unions at all times prior to the passage of the legislation that this was the only option it would consider. The Court suggested that the government could have simply reduced budgets at government-funded employers and allowed bargaining to transpire in that context. The unions had gone so far as to propose less-impairing alternatives prior to the enactment of the legislation but the government had ignored their proposals.

The Court declared that the relevant sections of the PSSA violated the Charter, could not be justified and were thus of no force and effect.

Takeaways for Unions

There are significant practical lessons to be had from the unions’ success in this case in how to deal with legislated austerity measures for public sector wages.

First, it appears that the tactic of ratifying collective agreements conditionally with the proviso that it was done “under duress” can support the conclusion that collective bargaining was substantially interfered with and may allow the unions to later challenge the collective agreements, which were concluded under the threat of the legislation.

Second, the unions presented a united front with all affected public-sector unions working together to challenge the legislation fronted by the Manitoba Federation of Labour. This strategy appears to have assisted in presenting robust factual evidence and providing the Court with a complete picture of all facets of the government’s application of its policies under the legislation in negotiations with various bargaining units.

Third, while the decision confirms that pre-legislative consultation is not required for wage restraint legislation, it suggests that such consultation may assist the government in justifying any resulting infringement. It may be advisable for unions facing down impending wage-restraint legislation to make concrete alternative proposals which can be relied on later to show that the legislation was not the least rights-impairing option to address the government’s concerns.

Fourth, the unions brought forward significant amounts of expert evidence from labour relations scholars on a variety of issues including the importance of the leverage gained from being able to negotiate on monetary issues, the effect of these restrictions on the relationships between unions and their members, the impact of such legislation on the ongoing relationships between unions and management, the effect of the legislation on strike leverage, and consequences for government finances. The Court relied extensively on the expert reports provided by the union, demonstrating the importance of developing a significant evidentiary basis on both the section 2(d) and section 1 Charter issues.

This decision will hopefully chill efforts by governments to impose wage restraint through legislation. If not, it provides an effective roadmap for similar constitutional challenges to newly introduced legislation that will curtail bargaining rights.

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

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

When the land border between Canada and the United States closed in March, thousands of people who make the daily commute to work across the border were left in a difficult situation.

United Steelworkers Local 2251 v Algoma Steel Inc. deals with one such person, a machinist apprentice at a steel plant in Sault Ste. Marie, Ontario.

Each day the employee made the approximately 30-minute commute from his home in Chippewa County in Northern Michigan to the plant in Sault Ste. Marie. Because he was crossing the border for employment reasons, he was exempted from the border closure and from the mandatory 14-day period of self-isolation. However, his employer wanted to go further in creating a “Covid free” worksite. It implemented a policy that any of its employees who enter the country must isolate for 14 days before attending work.

This employee has custody of his two young children on the weekends and they would not be entitled to cross the border with him. This made it impossible for him to enter into Canada fourteen days prior to entering the workplace. The Union challenged the application of the self-isolation policy and its impact on this employee.

The arbitrator reasoned that, while this policy would generally be reasonable, it would not be reasonable to apply it without considering obligations under the Human Rights Code to accommodate family status.  In this “unusual case,” the policy forced the employee “to make the difficult choice of having access to his two young children or to make a living.” The arbitrator also noted the fairly low rates of COVID-19 in the employee’s home area.

The Arbitrator concluded that the “competing legitimate rights” must be balanced. Instead of the blanket ban on employees crossing the border, the employer could assign him to work separately from other employees, require that he wear PPE, and take extra social distancing and sanitizing protocols. Consulting with the Union, it could consider mandatory testing and even restricting him from travel to designated COVID-19 “hot spots” in the United States.

While governments and employers have taken sweeping and necessary action, this case is a helpful reminder that the approach to fighting the pandemic cannot disregard important worker and human rights protections. Here, a nuanced resolution was possible in a relatively short period of time, highlighting the importance of unions in advocating for their members as we navigate the COVID-19 workplace.

If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.

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

The COVID-19 pandemic, its economic impact, and the recent protests regarding the systemic oppression of people of colour have all highlighted the need for robust protections for workers in Canada. As protests continue around the world, we must reflect on systemic racism in Canada. Throughout Canadian society, structural inequalities create vulnerability that manifests in precarious employment. Precarious employment has many definitions, but generally references employment that is uncertain, low paying, and with limited benefits and protections. If we hope to eliminate precarious employment, we need additional protections for workers.

Ontario Reduces Protections for Employees During the Pandemic

The early socio-demographic data in Ottawa shows that racialized groups and immigrants are over-represented in COVID-19 diagnoses compared to their relative population size. Diverse communities in Ottawa have rates of COVID-19 almost twice of those communities with the least diversity. Similar trends are being reported across the country. The economic effects of coronavirus are also being borne by precarious workers.

The existing legislation governing employment relationships in Canada does not prevent precarious employment. As a result, many employers rely on precarious employment as part of their business model. While there has been some progress in holding employers accountable, many businesses that form part of the ‘gig’ economy have exploited this model. We saw this recently with Foodora’s exit from Canada following an Ontario Labour Relations Board decision that would have allowed its employees to unionize.

While gaps already existed in employment legislation, some protections for workers have been removed in response to the COVID-19 pandemic.  For example, the Ontario government recently amended the Employment Standards Act with a new regulation creating Infectious Disease Emergency Leave. This regulation essentially prevents employees from claiming constructive dismissal under the Employment Standards Act when their hours are reduced or eliminated for an extended period due to COVID-19.

Migrant Workers: A Case Study in Precarious Employment

While precarious employment can create vulnerability, it also compounds vulnerability that may already exist. The spread of COVID-19 within the migrant worker community is an example of compounded vulnerability: Migrant workers are an essential component of Ontario’s commercial agriculture, but they have long been a vulnerable and marginalized community as a result of several factors, including their immigration status, employment conditions, and exclusion from some labour relations legislation. In Ontario, agricultural workers are governed by a separate labour relations statute with fewer protections than the one that covers most Ontario employees. In late May 2020, an outbreak of COVID-19 began in southwestern Ontario, and by June, at least 187 migrant workers across southwestern Ontario had tested positive for COVID-19. By July, it was reported that almost 1,000 migrant farm workers have tested positive for COVID-19.

The Role of Unions in Preventing Precarious Employment

Marginalized communities are more likely to work in precarious, low-paying, and part-time employment. The data so far has shown that individuals with post-secondary education and high-earning dual income households are more likely to be able to work from home, therefore they have a lower likelihood of work interruption because of the pandemic.

One of the ways workers’ employment conditions can be protected is through unions. Unions can use the strength of a united collective to push for better working conditions, higher salaries, and job protections. The COVID-19 pandemic has shown just how important these rights are for workers. While some precarious workers are unionized, many are not.

You can learn more about employment rights and how labour organization movements have protected workers through the Canadian Human Rights Museum’s exhibit Rights on the Job, on now until October 2020.

What Now?

All workers have been impacted by the COVID-19 pandemic, whether they are on the front lines, risking their lives to protect and provide for their communities, working from home to help stop the spread of COVID-19, or have had their work hours reduced or eliminated. All workers deserve to be protected. No workers should have to rely on precarious employment.

As a community, we must better protect precarious workers. This can include supporting the labour movement, encouraging unionization, pushing legislators to adopt broader protections for workers, combatting structural inequalities, and engaging in these endeavours through an anti-racist lens. If you have questions about your specific employment situation, we encourage you to seek legal advice.

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

It’s not unusual for Long Term Disability (LTD) benefits to be denied, and there are various reasons why this may happen. Below are the top five reasons why Long Term Disability benefits are denied to those who are either mentally or physically unable to work.

1. Insufficient medical evidence

LTD denials by the insurance company can happen at the beginning of the application process because the applicant or the applicant’s doctor filled out the required forms incorrectly or inadequately. Despite the fact that you and your doctor have filled out the required forms and provided access to your medical file, the insurance company may deny your LTD benefit because the medical documents do not support your claim. Unfortunately, the insurance company is unlikely to explain why or where the documents are lacking. 

From our experience, doctors often fail to explain in enough detail why the patient’s symptoms are a barrier to performing the duties of their existing job or some alternative employment. It is advised that both you, as the applicant, and your physician clearly outline why you cannot work and explain how your medical condition prevents you from working. This will include such information as the frequency and intensity of the medical symptoms. 

If you are denied because the medical documents do not support your claim, you will have the opportunity to provide more information to the insurer. With the support of your family doctor or other treating physician, you can provide additional evidence to support your claim. The insurance company will typically give more weight to the opinion of a specialist than a family physician. You can also get the assistance of an LTD lawyer to complete the required forms. 

If you are turned down a second time, you will likely have to initiate an appeal process and sue the insurer.

2. You do not meet the policy’s definition of total disability

Each LTD insurance policy defines what it means to be “totally disabled.” At first glance, it might seem like an insurmountable threshold to attain but usually, in the first two years, it means that a person is unable to perform the usual duties and responsibilities of their own occupation. 

If you are unable to do your job, make sure to indicate total disability on the form. If you answer on the form that you do not meet the definition of total disability, the insurance company will interpret your response as an agreement you are able to work. 

If you have filled out the form incorrectly, but your treating physician’s opinion is that you cannot work, you can contest the denial of benefits.

3. You can work in another occupation

After two years, the definition of “total disability” often changes, and the insurance company takes the position that an individual is disabled only if they cannot work in any occupation. It is at this time that many individuals who are in receipt of LTD benefits are cut off If your physician continues to advise that you cannot work in any occupation, you can use that as evidence that you should continue to receive benefits. If the insurance company rejects that medical opinion, you can contest the decision to deny your LTD benefits. 

4. You have an excluded or pre-existing medical condition

Some insurance policies may exclude certain conditions, deny coverage for pre-existing medical conditions, or have a waiting period for claims due to a pre-existing medical condition. It is important to review the policy to see if and when you are covered for pre-existing medical conditions. If you are denied coverage due to a non-disclosed pre-existing condition,  depending on the context it may be worthwhile to initiate an appeal.

5. Lack of objective medical evidence

Individuals with invisible disabilities such as mental health conditions, fibromyalgia, chronic pain, and chronic fatigue syndrome are often denied due to a lack of so-called objective medical evidence. These diagnoses are often based on self-reported symptoms and their effect on daily living. Insurance companies often deny these claims because there is no official test or diagnostic image to confirm the existence of the illness or disease. Despite the lack of an official test or diagnostic, a denial of LTD benefits in these circumstances can be contested.

If any of the above reasons are cited in the decision to deny or stop paying your LTD benefits, we strongly recommend you contact a lawyer in order to discuss the next steps.

Note: This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

The COVID-19 pandemic gave most Canadians a renewed understanding and appreciation for the essential, life-saving work performed by healthcare professionals. However, early on in the crisis, this appreciation felt empty to many workers who were being denied access to adequate personal protective equipment (PPE) and other measures to protect themselves and their patients.

One particularly stark example led the Ontario Superior Court to take the very rare step of intervening in the midst of a labour dispute, and ordering a group of employers to ensure that nurses had access to adequate PPE and other protective measures.

Background

At the height of the spread of the coronavirus in Canada, the Ontario Nurses Association presented grievances against four employers operating long-term care homes. The union maintained that these employers had violated the Collective Agreements, as well as health and safety legislation and public health directives, by withholding PPE from nurses and failing to implement necessary controls to prevent the spread of COVID-19 among residents and staff.

Because of the length of time it would take for those grievances to reach arbitration, the union also applied for an injunction in the Ontario Superior Court, seeking urgent relief while the grievances remained pending. The union asked for an Order that the employers allow nurses to make PPE decisions on an ongoing basis at the point of care, and that they isolate and cohort residents and the staff attending to them so that those who were infectious were kept separate from and treated by different nurses than those who were not. The Court heard the injunction request on April 22, and released its decision the following day.

Injunction decision

The Court’s decision paints a very grim picture of what was occurring in the long-term care homes. All four had experienced COVID-19 outbreaks, with over a hundred residents infected and more than fifty deaths. At least seven nurses had also contracted COVID-19, with one requiring hospitalization.

Despite this dire situation, the evidence before the Court was that nurses were being denied access to PPE, including N95 masks, on the grounds that they were scarce and needed to be conserved. This was clearly contrary to public health directives, which stated that, if a health care worker determines at point of care that N95 masks are necessary, they must be provided. The homes were also not isolating and cohorting infected residents and were allowing infected and non-infected residents to be cared for by the same nurses.

At the injunction hearing, the employers conceded that two of the three elements of the test for an injunction were satisfied—there was a serious issue to be tried in the underlying grievances, and there was a risk of irreparable harm if an injunction was not granted. They argued, however, that the balance of convenience favoured dismissing the application, because the risk to the nurses had to be balanced against the risks to all other staff and residents. The employers essentially argued that the nurses were trying to secure PPE for themselves to protect their own self-interest, at the expense of others.

The Court was unimpressed, to say the least, with this argument:

“I can imagine that the irony of that submission is not lost on the Applicants. One need only read the affidavits of the individual nurses in this Application record to understand that they spend their working days, in particular during the current emergency situation, sacrificing their personal interests to those of the people under their care. And given the nature of the pandemic, they do this not only for the immediate benefit of their patients but for the benefit of society at large. To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark.”

The Court concluded: “Where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those that they treat.” The Court ordered that the employers comply with the public health directives, including providing nurses with access to fitted N95 facial respirators and other appropriate PPE when assessed by a nurse at point of care to be appropriate and required.

Extraordinary measures for extraordinary times

An injunction is a very unusual legal remedy, and the injunction in this case was particularly unusual. The fact that the Court felt compelled to intervene in the middle of a labour dispute—something it is generally reluctant to do—and order the employers to take active steps to protect staff and residents is a reflection of what exceptional times were are currently living in.

It is also a testament to the seriousness of COVID-19 and the importance of frontline workers during the unprecedented crisis that virus has caused. On that topic, two important points are worth noting.

First, the nurses who sought this injunction, as well as other public sector workers in Ontario, are all currently subject to Bill 124, legislation that caps increases to pay and benefits to a total of 1% per year for a period of three years. The Ontario government has disingenuously claimed it is unable to intervene and override this cap. However, in addition to obviously having the power to repeal the legislation, Bill 124 authorizes the government to exempt any collective agreement from the cap. Given the consensus that healthcare workers are nothing short of heroes in the current context, the government should clearly grant exemptions and allow these workers to be paid what they deserve.

Second, the Ontario government recently announced that it will allow agricultural workers to continue working even if they test positive for COVID-19, provided they are asymptomatic. Like the situation the nurses faced in these long-term care homes, this decision appears to be clearly guided by societal, economic considerations, rather than the best interests of the workers. The agricultural workers and their advocates may want to explore whether similar extraordinary legal action is appropriate to protect themselves, and the Ontario government should heed the lesson from the Court’s decision in the ONA case—the broader public good cannot come at the expense of the health and safety of workers.

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

We are now months into the COVID-19 pandemic, and it can feel at times like we are living in a completely different world. One can wonder whether life will ever be the same.

It appears, however, there are some things that never change—as Foodora couriers in Canada learned recently, one of those things is the lengths to which some employers will go to avoid a union drive. Foodora has unceremoniously fled the country, rather than face the prospect of collective bargaining.

Foodora and the Canadian Union of Postal Workers

Foodora and the Canadian Union of Postal Workers (CUPW) had been engaged in a long battle over CUPW’s application for certification as bargaining agent of the food delivery app’s couriers in Canada. The union scored a historic victory in that battle in February of this year, when the Ontario Labour Relations Board ruled that the couriers were dependent contractors for the purposes of the Labour Relations Act, and were therefore able to access the collective bargaining regime under that legislation.

Two months later, Foodora announced that it was closing all operations in Canada effective May 11, 2020, shortly after which it filed for bankruptcy protection. To justify its decision, the company pointed to economic reasons and the supposed saturation of the Canadian food delivery app market. The suspicious timing of Foodora’s move was lost on absolutely no one, however, and its claims of economic hardship were particularly unconvincing, since the food delivery business has exploded during the pandemic.

Foodora’s History of Shutting Down

If there were any doubt about Foodora’s true motivations, the company has a history of shutting down in the face of a legal challenge to its misclassification of employees. In Australia, like in Canada, Foodora attempted to characterize its couriers as independent contractors. When Australia’s Fair Work ombudsman challenged that classification, Foodora fled the jurisdiction.

CUPW has, unsurprisingly, filed an unfair labour practice complaint, arguing that the decision to shut down was motivated at least in part by a desire to avoid unionization. Unfortunately, though, even if this complaint is successful, the union and its members can only hope to receive some monetary compensation. Although CUPW has asked for reinstatement of employees in its complaint, the labour board likely cannot order Foodora to restore its Canadian operations, a remedy it has declined to grant in the past.

Lessons to be Learned

What are the lessons to be learned from the Foodora unionization drive, and its abrupt end? Some have argued, with good reason, that this case exposes the obvious flaws in our labour relations regime. The odds are stacked against unions and their members, particularly in certain sectors like the ‘gig’ economy, making it virtually impossible to successfully unionize. As a result, the legislature needs to seriously consider alternate modes of organizing and bargaining, so that workers like the Foodora couriers are not left behind. (See here for an interesting paper on organizing gig economy workers, published by the ILO.)

Another important takeaway from this case is that we need better oversight of businesses that improperly classify employees as independent contractors. The protections under the Labour Relations Act, as well as minimum standards under the Employment Standards Act, are afforded to “employees”, which, in the case of the Labour Relations Act, expressly includes “dependent contractors”. To avoid these protections, many companies characterize workers as independent contractors in their written contracts, or simply treat them as such, even when the relationship clearly meets the definition of an employment relationship.

Indeed, Foodora appears to be an example of a business whose success depends upon misclassifying its employees. The company’s hasty withdrawal from Canada following the Ontario Labour Relations Board’s ruling suggests that this ending to the Foodora story was, therefore, inevitable. If a company can only turn a profit by evading employment standards protections for its workers, it arguably should not be operating at all.

Employee Misclassification

This result, however inevitable, came at considerable expense to Foodora’s couriers and their union. The onus should not be on them to engage in a months-long legal battle to confirm their proper classification as employees. Employee misclassification appears to be rampant in the ‘gig’ economy, and so the time has long since past for the government to take a more proactive role in scrutinizing these businesses, to ensure that minimum employment standards are being met. Only significant oversight and serious penalties will stop other employers in the gig economy from using misclassification to their advantage.

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

Many workers have had their vacation plans put on hold by the COVID-19 pandemic, but still have vacation time to use. Here are the answers to some of the most frequently asked questions about taking vacations with pay.

How much vacation does my employer have to give me?

Your employment contract and any applicable employer policies may outline your vacation entitlements. If you’re a unionized worker, check your collective agreement.

In Ontario, the Employment Standards Act sets the bare minimum terms and conditions of employment for most workers. It guarantees an employee who has worked for an employer for less than five years at least two weeks of paid vacation after each year of employment. An employee who has worked for an employer for more than five years is guaranteed at least three weeks of paid vacation a year. These are minimums. An employer may provide more vacation to its employees, and some employees, including those represented by a trade union, may be able to negotiate greater vacation entitlements.

Some Ontario workers are exempt from this and other parts of the Employment Standards Act. The list includes lawyers, registered massage therapists and commissioned salespersons as well as workers employed in commercial fishing and on most farms. If you are one of these workers, your vacation entitlement is subject only to negotiation with the employer.

Other Ontario workers are employed by federally regulated employers such as banks, telecommunications companies and First Nations band councils. For these workers, the Canada Labour Code guarantees similar entitlements as the Ontario legislation, except that the federal legislation additionally entitles employees with 10 or more years of service to at least four weeks of vacation with pay.

What if I’ve been on leave because of COVID-19?

Some workers are eligible for infectious disease emergency leave under the Employment Standards Act or leave related to COVID-19 under Canada Labour Code as a result of the coronavirus pandemic. Workers can postpone their vacations until after the end of this leave, even if they were required to have taken it within the duration of the leave.

Is it the same for other types of leaves, too?

Yes. The Employment Standards Act entitles employees to various unpaid leaves of absence like pregnancy and parental leave, family responsibility leave and sick leave. Federally regulated employees are guaranteed similar entitlements under the Canada Labour Code, in addition to leave that enables Métis, Inuit and First Nations workers to engage traditional practices including hunting, fishing and harvesting.

Workers can defer their vacation during any such leaves. An employer cannot force employees to take vacation instead of any other leave entitlements.

I’m working from home. Can I wait until my office reopens to schedule vacation?

That may be up to your employer. An employer has the right to determine when any of its employees take vacation, unless an employee’s contract of employment or collective agreement says otherwise.

The only limit on this discretion is that employer’s must allow employees to take their vacation within ten months after the year in which it was earned.

You also cannot be forced to split up your vacation. An employer has to assign vacation in a single period of at least one week, under the Employment Standards Act, unless the employee agrees otherwise. The Canada Labour Code requires employer to approve vacation in a single period unless the employee asks to take it in more than one period.

If work has slowed down because of the coronavirus, employers may want employees to use up vacation while lockdown measures are in place. That said, an employer will typically attempt to agree with their employees when their vacation will be scheduled. In unionized workplaces, vacation may be scheduled on the basis of seniority.

What if I travel for vacation this summer?

You may want to stick close to home due to the COVID-19 public health precautions, even if lockdown restrictions are easing up in some places. The Ontario government is still advising residents to stay at home as much as possible and practice physical distancing to limit the spread of COVID-19. Anyone who may have been exposed to COVID-19 is advised to get tested and self-isolate for at least 14 days. The federal government is advising that we avoid all non-essential travel outside of Canada. It is presently mandatory for all travellers entering Canada to isolate or quarantine themselves for 14 days to limit the spread of COVD-19.

 If I don’t use it, can I lose it?

Your employment contract may limit the amount of vacation with pay you can carry over from one year to the next. If that is the case, then you may be required to forfeit any unused vacation entitlements beyond the minimum guarantees in the Employment Standards Act or Canada Labour Code. An employer can never deprive employees of these minimum statutory entitlements.

When do I get my vacation pay?

Vacation pay is due at the start of your vacation or the next regular pay day, although in some cases Ontario employers will pay their employees the vacation pay that has accrued in each pay period. Workers entitled to two weeks’ vacation must receive vacation pay of at least 4% of their gross wages in the prior year. Workers entitled to three weeks’ vacation must receive at least 6% of their gross wages in the prior year. Federally regulated employees entitled to four weeks of vacation with pay must receive at least 8% of their gross wages in the prior year.

If I don’t take vacation, do I still get vacation pay?

 Vacation pay accrues on wages earned as soon as you start working. The employer holds onto it until you take vacation. You can agree to forego vacation, if the Director of Employment Standards approves, but your employer cannot forego paying your vacation pay. But, really, you should take your vacation.

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

Have you missed the deadline to apply for long term disability (LTD) benefits? There might still be a recourse available.

What does the law say?

Law makers realized that in some cases, claimants will miss the deadline to apply for LTD benefits even though they acted reasonably. A late claim could be devastating for individuals who can no longer return to work and are denied benefits. Many provinces have enacted laws, such as the Courts of Justice Act and the Insurance Act in Ontario, which allow courts to grant “relief from forfeiture.” This relief is intended for individuals who will be disproportionately penalized for failing to respect the insurance plan deadlines, especially in cases where leniency will not cause significant harm to the insurer.

How will a court decide?

The decision whether or not to grant relief is entirely discretionary and will turn on the facts of each specific case. However, courts have developed a test to determine if claimants acted reasonably and if granting the relief will unjustly harm the insurer (Kozel v. The Personal Insurance Company).

Courts will only grant relief from forfeiture if there was imperfect compliance with a policy term, not if there was a breach of an important part of the contract. In general, missing the window to claim benefits has been considered imperfect compliance (Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co.).

There are 3 main factors that the court will assess in determining whether to grant relief from forfeiture:

1. conduct of the applicant;
2. gravity of the breach; and
3. disparity between the possible harm to the denied claimant and the harm to the insurer.

1. Conduct of the applicant

First, courts will analyze the reasonableness of the claimant’s actions. They are likely to consider the following issues:

• How quickly did you act once you realized the claim was late?

Claimants are expected to act expeditiously once they realize that they have missed the deadline to claim LTD benefits. The line here is not clear-cut, but courts have found that claimants acted unreasonably when they showed “ongoing negligence” or when they learned of overdue payments but then still took many months to respond.

• What if you did not know you were eligible?

In Dube v. RBC Life Insurance Co., the claimant had received conflicting information regarding his LTD benefits and then left an envelope containing important information unopened for many months. As a result, he was not aware that he could make a claim, even though he was in touch with the employer and the insurance company. The court found that while he had not been “the model of perfect diligence” but that his actions were not unreasonable. They granted him relief.

• What if your employer gave you the wrong advice?

The Court might be less likely to fault employees in cases where employers were partially responsible for the lapse. Although it is not firmly established that employers have a duty of care to assist employees in applying for benefits, the Ontario Superior Court has referenced such a duty in some recent cases (see, e.g., Ferguson v Halton, 2018 ONSC 5675).

2. Gravity of the breach

Second, courts will examine the potential harm to the insurer if the application is allowed after the deadline. The insurer could argue that given the delay, it lost the ability to make a timely medical investigation or to assist the claimant in rehabilitation in order to avoid a longer-term absence from work. That’s what the insurer argued in Nguyen v. SSQ Life Insurance Co., but the Ontario Superior Court found that although there was harm, it was not sufficient to prevent a claim for relief from forfeiture and the late claim was allowed to proceed.

3. Balancing of damages

Third, courts will compare the harm to the applicant caused by the loss of coverage with the harm to the insurer by having to consider the late application. At this stage, courts will evaluate the income the claimant will lose if relief is not granted and weigh it against the damages suffered by the insurer. 

CONCLUSION

Relief from forfeiture is entirely discretionary and it is up to the court to assess the particular details of each case and decide whether to grant it. In general, Ontario courts seem to be showing some leniency for late claimants. If you have missed the deadline to apply for LTD and been denied benefits as a result, consult a lawyer.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Anna Rotman.