On September 25, 2020, Jessica Greenwood will speak at the annual Kingston and the 1000 Islands Legal Conference. She will participate in a panel addressing employment litigation issues arising due to the COVID-19 pandemic.
This year’s conference is proceeding virtually. The conference is hosted by the Frontenac Law Association.
On September 10, 2020, Alison McEwen spoke at the Ottawa Six-Minute Employment Lawyer workshop, presented by the County of Carleton Law Association. Alison spoke on trends in the notice periods awarded in wrongful dismissal cases, including increases in notice periods for older workers.
On September 17, 2020, Andrew Astritis spoke at the Osgoode Hall Professional Development conference on Class Actions: Critical and Emerging Issues. Andrew participated in the panel on “#MeToo Comes to Class Actions”.
Andrew is part of the team at RavenLaw that has been representing current and former members of the Canadian Armed Forces in the class action involving sexual misconduct in the military, which was settled in 2019.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.
A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.
In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.
The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.
The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement. Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.
The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016. The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.
In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution. The passage of time should not be relied on to “wash away” the fact of the allegation. Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.
In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.
The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code. While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.
With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.
Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.
This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time. The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.
[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).
[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).
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.]
You are disabled and cannot work. Your workplace provides Long Term Disability (LTD) coverage as part of your health benefits package. If you are unable to work for health reasons, the LTD insurance benefits coverage should provide you with income protection while you are unable to work for reasons related to your illness or disability. You apply for LTD benefits but the insurance company denies your claim. What can you do?
First and foremost, do not give up. A high percentage of LTD claims are denied for a variety of reasons. Insurance companies save money when individuals simply accept the denial or do not have the resources to contest their decision. Most LTD insurance policies provide for an internal appeal process which must be started within a specific time frame, usually 60 days. An individual may also choose to proceed immediately to litigation. We recommend consulting with legal counsel to discuss your available options.
As stated above, most LTD insurance policies provide an internal appeal process where individuals can contest the insurance company’s denial of their claim. It is important to remember that because this is an internal process, the insurance company is reviewing its own decision. It is therefore unsurprising that a significant amount of appeals are denied. We often do not recommend proceeding with the internal appeal process unless you have new, additional medical information to provide to the insurance company during the appeal process. A repetition or reframing of information already provided is unlikely to be successful in convincing the insurance company to reverse its initial decision.
Federal public servants have access to an additional step in the appeal process. Depending on whether they are covered by the Public Service Management Insurance Plan (for non-unionized employees) or by the Disability Insurance Plan (for unionized employees) individuals may request an independent review of their case. The Board of Trustees of the PSMIP or the DI Plan Board of Management then have the ability to make recommendations to the insurance company regarding the case. The insurance companies responsible for these plans most often accept the recommendations following these reviews. If you are unionized, contact your union to see if they are able to assist. If you are not unionized or if your union is unable to assist, we recommend you contact experienced legal counsel for advice.
Your best option to successfully challenge the denial of your LTD claim and enforce your rights may be to sue the insurance company in court. This can be done immediately after the initial denial or following an unsuccessful appeal. Filing a Statement of Claim against an insurance company starts a legal process where various steps are required to be taken by both parties prior to trial.
While proceeding with litigation may be a daunting process, it is important to know that the litigation process is designed to encourage the parties to settle the case. For example, in Ontario, mediation is mandatory. Mediation is a process for resolving disputes where the parties meet with an independent mediator who assists the parties in reaching an agreement. It is our experience that many cases settle at mediation. However, if a mutually satisfactory agreement cannot be reached, the case proceeds to the next step of the process. There are further opportunities to discuss settlement throughout the litigation process, up until trial.
Regardless of how you decide to challenge the insurance company’s denial of your LTD benefits, it is very important to keep track of your timelines. Proceeding through the internal appeal process does not necessarily stop the clock for starting a legal action in court. Generally, you have two (2) years from the initial denial of your LTD claim to pursue legal action though there are exceptions to this general rule. It is important to review the LTD insurance policy and applicable provincial limitation period to understand the time limits for your particular case.
If your LTD benefits are denied, we recommend that you seek advice from competent experienced lawyers as soon as possible following your initial denial in order to be properly advised of your rights and the options available to you to obtain a satisfactory resolution.
We are here to help navigate the LTD application process. Consult one of our experienced 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.]
An employer must reimburse employee relocation expenses if it does not have specific evidence that it could have staffed a vacant position through other means, according to a recent Federal Public Sector Labour Relations and Employment Board decision.
The decision dealt with two grievances filed by Border Services Officers with the Canada Border Services Agency. Both employees had requested to move to a new city in order to fill a vacant position. Under the NJC Relocation Directive, employees who request a move to fill a vacant position are entitled to reimbursement for a wide range of relocation expenses, unless the employer can establish that it could have filled the vacant position without relocation expenses.
In both cases before the Board, the employer alleged that it could have filled the vacancies in issue with a freshly-trained recruit. At hearing, however, the employer’s witnesses testified that there were more vacancies than available recruits at the time of the grievances and that they had no way of knowing if the vacancies in issue would have, in fact, been filled if the grievors had not relocated.
The Board found that this evidence was insufficient to meet the employer’s obligation to prove that it could have filled the vacant positions without relocation expenses. As the Board concluded, the employer’s assertion that it could have filled the vacancies “must not be a hollow statement; there must be some facts behind it to back it up.” The Board therefore ordered that CBSA reimburse both grievors for their eligible relocation expenses, as the employer’s reason for refusing to do so was “without factual underpinning.”
The grievors and the Public Service Alliance of Canada were represented by Morgan Rowe.
On May 29, 2020, Ontario made new regulations under the Employment Standards Act, 2000 to address the legal effects of widespread layoffs. These layoffs arose both from employers having a lack of business and the need of many to take time off work due either to the direct or downstream effects of COVID-19 and the measures taken to lessen the spread of the coronavirus.
The Employment Standards Act, 2000 already allowed for emergency leave for employees who were infected, under mandated isolation, or caring for a close family member. The new regulations primarily provide new rights to employers who lay off employees due to coronavirus.
The regulations allow employers to avoid the temporary layoff provisions of the Employment Standards Act which convert a temporary layoff into a termination of employment after a certain time period has elapsed. The regulations provide relief from employers by converting the temporary layoff into infectious disease emergency leave as opposed to a termination. The regulations also allow employers to stop contributing to employee benefit plans while employees are on infectious disease emergency leave.
The regulations were released on May 29, 2020, meaning that employers who laid off employees in early March will be exempt from the application of the 13-week and 35-week thresholds required for a layoff to be deemed a termination of employment. They also deem any complaints that were filed with the Ministry of Labour alleging termination or severance of employment due to a reduction in hours caused by COVID-19 not to have been filed.
How do these new regulations affect my rights?
These new regulations primarily affect your ability to assert that your employer has constructively dismissed you by reducing your hours or not allowing you to work for an extended period of time due to COVID-19. The regulations are fairly clear that such a claim cannot be asserted against your employer with the Ministry of Labour Training and Skills Development Employment Standards Branch.
These regulations risk severely curtailing the remedies available to the some of the province’s most vulnerable workers who may face practical challenges to accessing court-ordered common-law remedies.
However, these regulations appear to only affect the Employment Standards Act, 2000, and not the common law which also provides entitlements for employees in certain situations. As a general rule, the Employment Standards Act, 2000 does not affect an employee’s ability to bring a common law claim against their employer. You may still be able to assert a constructive wrongful dismissal claim at common law if you have been laid off work or if there has been a reduction in your hours (to learn more about what you could claim, see What is Reasonable Notice?). In Popescu v Wittman Canada Inc the Ontario Superior Court confirmed that a constructive dismissal can occur despite the preconditions for constructive dismissal under the Employment Standards Act, 2000 not having been met, meaning it does not have to be a constructive dismissal under the Act to be a constructive dismissal at common law.
These new regulations may also influence the interpretation of existing employment contracts. It is possible that common-law courts will develop their own doctrines to deal with the impact of COVID-19 on employment contracts. Your ability to assert a constructive dismissal will depend heavily on the terms of your employment contract and your individual circumstances. You should seek legal advice before deciding what to do.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
Many individuals have long term disability (LTD) benefit coverage through their employer. These are group policies that apply to all employees in the workplace. A group policy is a legal contract often containing technical language which may be difficult to understand. Insurance companies will use this technical language when denying or terminating long term disability benefits. We have identified some of the commonly used terms and have attempted to demystify them here for you. It is always important to remember, however, that this does not replace legal advice and if you have any questions about your policy or specific situation, you should contact an experienced long-term disability lawyer.
This is the amount of time an individual must be an employee before he or she can make a claim for LTD benefits. The qualifying period can vary depending on the policy.
This is the amount of time an individual must wait between the first day he or she is unable to work due to disability, usually the first day of sick leave, and the first day they are eligible to receive LTD benefits. The elimination period can vary depending on the policy. Individuals who do not have access to paid sick leave or short term disability benefits can apply for EI Sickness Benefits.
In order to qualify for LTD benefits, an individual must meet the definition of total disability in the contract. It does not mean that an individual must be absolutely physically or mentally incapable of doing anything related to her or his own occupation. At the outset, being totally disabled generally means that an individual is unable to perform the regular duties of her or his own occupation. In the majority of LTD group insurance policies, the definition of total disability changes 24 months after the end of the elimination period. At this point, in order to continue receiving LTD benefits, an individual must be unable to perform the duties of any occupation.
This is the work an individual performs at the time she or he becomes disabled. The insurance company does not look at the specific job, but the occupation in general. If the insurance policy defines total disability as being unable to perform the regular duties of your own occupation, an individual is not required to find employment in a different field even if she or he can perform other tasks that are not related to her or his own occupation. For example, a dentist would not be required to work as a clerk even if she or he can sit at a desk and use a computer.
As mentioned above, most insurance policies provide a change in the definition of total disability 24 months after the end of the elimination period. In order to continue to receive LTD benefits, an individual will be required to show that she or he is unable to perform the regular duties of any occupation. It will be important to refer to the terms of the insurance policy as any occupation may be further defined with additional language. Often policies will refer to any occupation for which an individual is reasonably qualified based on education, training or experience, or any occupation for which an individual may reasonably become qualified by education, training or experience. At this point, an individual may no longer qualify for LTD benefits if she or he can perform duties of another position for which they are qualified or can become qualified. For example, if the dentist could no longer physically work as a dentist, he or she may be qualified and able to teach courses.
If you are unable to work and are applying for LTD benefits or if your benefits have been denied or have been terminated, please contact an experienced long-term disability lawyer for advice.
We are here to help navigate the LTD application process. Consult one of our experienced 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.]
If you’ve settled, or are in the process of settling, a legal case against your employer, you may have been asked to agree to what lawyers call a “non-disparagement clause”. These clauses come in many different forms but at their core, they all ask the individual employee to agree, going forward, not to “disparage” their employer or former employer. In fact, some go further and also prohibit individuals from disparaging other employees who are also employed by the employer.
But what does a non-disparagement clause actually mean, and what does an employee give up by agreeing to one?
On their face, non-disparagement clauses look severe. “To disparage” means to criticize or belittle someone or something or to represent them as being of little worth. Put simply, it means saying, doing, or writing something about someone that could cause a third-party to view that person in a negative way.
Disparagement is a lower standard than defamation. While defamation requires someone to have said something false and damaging, disparagement can also capture something that is true but still damaging.
Non-disparagement clauses can also apply to indirect actions, such as where an individual who has signed a non-disparagement agreement encourages someone else to make disparaging statements. Even statements made in later lawsuits have, in some cases, been found to be a breach of a prior non-disparagement agreement (see e.g. Antoncic v Ontario (Community Safety and Correctional Services)).
There are limits to non-disparagement clauses, however. An obvious but important limit is that non-disparagement clauses do not cover statements made before the clause was agreed to. This can be particularly important when the clause is agreed to as part of a settlement at the end of a long, combative legal fight, where both parties have likely already made negative statements about each other.
Another key limitation is that purely factual statements have often been found not to equal disparagement. For example, in Ibrahim v Hilton Toronto Hotel, the Human Rights Tribunal of Ontario found that a statement that an employee “lost his [human rights] case and did not receive a penny” was an incorrect summary of what had happened in the employee’s case but did not actually disparage the employee.
Other similar decisions have found that simply saying that a case was settled or that one person had sued another does not amount to disparagement. These decisions indicate that, where statements are factual and do not inherently imply anything negative about a party, they do not result in the breach of a non-disparagement clause.
Even though there are limits, once you agree to a non-disparagement clause, it is important to be careful to avoid violating that agreement. If a clause is breached, a decision-maker will often have the power to enforce the non-disparagement clause and award a remedy to the other party for the breach.
Many non-disparagement clauses will identify a specific penalty for a violation, such as returning any money that has been paid to you as part of the settlement.
Where no specific penalty is identified or where no money has been paid, a decision-maker will typically award general damages for the harm caused by the breach. The amount of damages will be determined on a case-by-case basis and will depend on the level of harm caused to the opposing party. In cases where no real harm has been caused, decision-makers have still awarded damages for the breach of the settlement agreement itself.
Although there are limits on what qualifies as “disparagement”, employees should think carefully when deciding whether to agree to a non-disparagement provision in a settlement. While these clauses will not harm employees in many cases, they will impact what employees can say about their employers or former employers, and it is important to fully understand that impact before signing off.
Where possible, employees should consider getting legal advice before agreeing to a non-disparagement clause or before taking any steps that they are worried might breach an existing clause. An employment lawyer may be able to help you negotiate different language for a non-disparagement provision or guide you on how to avoid an unintended breach.