That doesn’t seem like a shocking proposition, but Uber fought up to the Supreme Court of Canada to argue Canadian courts had no jurisdiction to determine whether it had acted improperly. The Supreme Court of Canada said Uber was wrong. Now a major class action on behalf of drivers can go ahead.

Uber thought it had covered itself when it required drivers to agree that they had to make any claims by going to an arbitration in Europe, leaving them with no access to justice through Canadian courts. A strong majority decision of the Supreme Court of Canada rejected that argument and said the clause was unenforceable.

It said that the clause was unconscionable.

The Court held that the idea of going to arbitration, rather than the courts, is acceptable when it is freely negotiated between the parties.  Where unfair bargains are linked to unfair bargaining, however, the courts can protect vulnerable people in the agreements they are given to sign. The courts will look to whether one party to a deal was unable to protect their interests when the person agreed to the terms. The Supreme Court also said Canadian courts can intervene where one party is disadvantaged by terms they did not understand or appreciate. Not every standard contract can be ignored by the courts, but when they are hard to understand and lopsidedly in favour of one party, there is a good chance that some of their terms can’t be enforced.

In the Uber case, a driver would have been required to pay an up-front US$14,500 administration fee just to start the arbitration process.  For the driver in question, that was a sizeable percentage of the amount he earned in a year.  He would have to use the law of the Netherlands and was left with the impression he would have to go to Amsterdam to argue his case.  The Court found that the arbitration clause made any of the driver’s rights unenforceable in the real world.

As a result, the Court said Uber drivers can make their claims in Canadian courts. A proposed $400M claim involving the misclassification of Uber drivers can finally now proceed.

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.]

If you have recently started a new job, you may be surprised to learn that your employer’s insurance plan might not cover long-term disability entitlement for people with pre-existing medical conditions. You may be even more surprised to learn that human rights legislation allows for an employer to exclude some people with pre-existing conditions from disability insurance plans.

Overview

Canada has both federal and provincial human rights legislation prohibiting discrimination on the basis of protected grounds, such as disability. The federal legislation, the Canadian Human Rights Act, applies to federally regulated employers, such as airlines and banks. The Ontario Human Rights Code applies to provincially regulated employers. You can learn more about how human rights legislation applies to federal and provincial employees here.

Both the federal and provincial statutes outline situations in which it is not discriminatory for an employer’s disability insurance plan to exclude people with pre-existing medical conditions. Under the federal legislation, plans can exclude a person with a pre-existing condition, who has received medical treatment for that condition, for the first year the person is insured. Under Ontario’s legislation, a plan can exclude a person with a pre-existing condition if it substantially increases the risk for the insurer. Pre-existing conditions are often defined broadly, so almost any medical condition for which you receive treatment may be defined as a pre-existing condition.

Federal Law

Under a regulation of the Canadian Human Rights Act, it is not discriminatory if an employer’s disability income insurance plan does not pay benefits to an employee who, during the first year an employee is insured under the plan, becomes disabled as a result of a pre-existing condition. An injury, accident or sickness that started before the employee became insured can qualify as a pre-existing condition, so long as the employee received medical care, treatment or services, drug therapy or prescribed medicine during the year before becoming insured under the plan.

Ontario Law

Under the Ontario Human Rights Code, it is not discriminatory for an employer’s disability insurance plan to make a reasonable and bona fide exclusion because of a pre-existing disability that substantially increases the risk to the insurer. Unlike the federal statute, Ontario’s statute does not contain any time limit on the exclusion. However, the Ontario Human Rights Code does outline that if an employee is excluded from a group insurance contract because of a disability, the employer must pay the employee compensation equivalent to what the employer would contribute to the insurance contract for an employee without a disability.

Potential Challenges to the Human Rights Legislation

As of July 2019, no federal courts or tribunals have addressed the pre-existing condition exclusion in disability insurance plans. At that time, in Ontario, only one case, Ontario (Human Rights Comm.) v. North American Life Assurance Co., had assessed the exclusion for pre-existing conditions. In that case, the Ontario Human Rights Commission argued that an insurance plan’s pre-existing condition exclusion clause was discriminatory and requested that the court declare it illegal. However, the Ontario Supreme Court upheld the Board of Inquiry’s finding that the insurance plan’s exclusion clause related to a substantial increase in risk because the complainant had a pre-existing disability. Therefore, the exclusion clause was reasonable and bona fide. The Court found that the Human Rights Code provision relating to pre-existing disability exclusions must be read in the context of the insurance industry, which is a for-profit industry. Therefore, the Court determined that it is not discriminatory for a disability insurance plan to exclude pre-existing disabilities that considerably increase the possibility of future insurance financial liability, so long as the exclusion is reasonable in the insurance industry and made in good faith.

Recently, in Talos v. Grand Erie District School Board, the Human Rights Tribunal of Ontario declared that the provision of Ontario’s Human Rights Code that allowed for employee benefits to be cut off at age 65 was unconstitutional. Perhaps a similar challenge to the provisions allowing people with pre-existing conditions to be excluded from employer disability insurance plans may one day be successful.

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

Workers infected with COVID-19 “out of and in the course of” their employment are entitled to benefits under the Ontario Workplace Safety and Insurance Act, 1997, including for lost wages, healthcare costs and permanent impairments arising from the disease. If a worker contracted COVID-19 outside of work, they will not be eligible for such benefits.

Worker’s compensation benefits are only available to workers who have symptoms of COVID-19, according to the agency that decides worker’s compensation claims, the Workplace Safety and Insurance Board (WSIB). WSIB’s policy indicates that benefits will not be available for those who are caring for others or who are self-isolating without any symptoms. This approach may not hold where an individual, despite being asymptomatic, ultimately tests positive for COVID-19 that is linked to the workplace.

WSIB considers two main questions to determine whether a worker’s symptoms are work related. First, did the worker’s employment create a risk of contracting the disease to which the public at large is not normally exposed?

In answering that question, WSIB will consider whether

• A contact source to COVID-19 within the workplace has been identified;
• The nature and location of employment activities place the worker at risk for exposure to infected persons or substances; and
• There was an opportunity for transmission of COVID-19 in the workplace via a compatible route to transmission.

Information about the work environment, the worker’s job duties and the use of personal protective equipment are relevant to answering that question.

Second, has the worker’s COVID-19 condition been confirmed? WSIB will determine that question by considering whether

• The time from the date of the exposure and the onset of the illness are clinically compatible with COVID-19 established to exist in the workplace; and
• There is a medical diagnosis and, if not, whether the worker’s symptoms are clinically compatible with symptoms produced by COVID-19.

There may be other relevant factors and WSIB will decide each claim on its own merit, having regard to the worker’s individual circumstances.

Workers may be exposed to COVID-19 in and out the workplace. A worker is entitled to benefits if it can be proven that work-related duties or requirements were a significant contributing factor to the worker contracting the disease.

Workers experiencing confirmed symptoms of COVID-19 and unable to work may report their illness to WSIB, in addition to reporting these symptoms to their employer.

Not all Ontario workers are covered by WSIB, however. If you are unsure of your eligibility, you can contact WSIB for more information, or contact our firm to discuss your situation further.

[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

Workers are typically thought of as either “employees” or “independent contractors”. Employers seek to classify their workforce as “contractors” to avoid paying for mandatory benefits under the Employment Standards Act (ESA), among other things, which only protects employees as defined under the ESA.

However, Canadian courts recognize an intermediate position where, although the worker is not an employee, they are still economically dependent on one contract. These so-called “dependent contractors” are entitled to reasonable notice upon termination of the contractual relationship.

In a recent decision, the Ontario Court of Appeal in Thurston v Ontario (Children’s Lawyer), 2019 ONCA 640, clarified the circumstances in which someone can be classified as a “dependent contractor”. The Court ruled that a dependent contractor relationship is one in which there is “a certain minimum economic dependency, which may be demonstrated by compete or near-complete exclusivity.”[1] This decision could be highly relevant for workers in the modern economy who depend on precarious contract work to make a living.

Background

Ms. Thurston was a sole practitioner lawyer who provided legal services to the Office of the Children’s Lawyer (“OCL”) for 13 years. Each year, the OCL had Ms. Thurston and its other lawyers sign a fixed-term contract, which made up about 40% of Ms. Thurston’s annual income. According to the contract, the OCL made no guarantee of the total value or volume of work that Ms. Thurston would receive, and the OCL could terminate the contract in any circumstances, without notice. When the OCL decided not to renew her contract in 2015, Ms. Thurston claimed that she was a dependent contractor, and therefore that she was entitled to 20 months’ notice of termination.

The Motion Judge’s Decision

When Ms. Thurston filed her lawsuit at the Superior Court claiming that she was a dependent contractor, the OCL brought a motion asking the judge to dismiss the case. The motion judge ruled against the employer. The motion judge noted that the relationship was continuous and permanent for 13 years and that Ms. Thurston was seen as an employee by the public. In addition, 40% of Ms. Thurston’s average billings from her legal practice came from OCL. The OCL appealed the motion judge’s decision to the Court of Appeal.

The Court of Appeal’s Decision

The Court of Appeal reversed the motion judge’s decision and dismissed Ms. Thurston’s case. The court reaffirmed that a worker claiming “dependent contractor” status must lead evidence showing “minimum economic dependency” on the contract. The court explained that a plaintiff demonstrates economic dependence with evidence of near-complete exclusivity:

In distinguishing dependent from independent contractors, McKee made clear that exclusivity of service provision, and therefore of income, is key. As the court put it, “exclusivity is determinative, as it demonstrates economic dependence”; exclusivity, the court said, is a “hallmark” of the dependent contractor category: McKee, at para. 34. In Keenan, at para. 25, this court emphasized that exclusivity was “integrally tied to the question of economic dependency” and that the determination of exclusivity requires consideration of the full history of the relationship in question.[2]

The court based its conclusion on other court decisions that considered this issue and identified near-complete exclusivity as the key factor. In some cases, courts have decided that someone can be a dependent contractor if “substantially more than a majority” of the dependent contractor’s income was earned through one contract.

In Ms. Thurston’s case, the court ruled that she failed to establish the required degree of exclusivity which would demonstrate her economic dependence on the OCL. Ms. Thurston maintained an independent legal practice throughout her time with the OCL, and her work with the OCL only averaged 39.9% of her annual billings – hardly exclusive service. The court confirmed that “near-exclusivity necessarily requires substantially more than 50% of billings.”[3] While the OCL was certainly an important client for her, the Court of Appeal found that the motion judge’s decision failed to appropriately consider the facts and apply the exclusivity test, and for that reason, the motion judge’s decision was unreasonable in the court’s opinion.

Discussion

The Court of Appeal’s decision is a step backwards for dependent contractors who rely on one contracting party for a large portion of their income but would not meet the Court’s onerous “near-complete exclusivity” threshold. Although the decision simply reaffirmed what the Court of Appeal has said in previous decisions (see for example McKee v Reid’s Heritage Homes Ltd., 2009 ONCA 916; Keenan v Canac Kitchens Ltd., 2016 ONCA 79), nevertheless, the Court’s guidance in this case on what constitutes a dependent contractor is useful to those who work through contracting parties. This case is the latest in a long line of decisions confirming that in classifying a work relationship, courts will focus on the substance of the relationship. For workers whose income depends on precarious contract relationships, this means that an employer cannot hide behind the “independent contractor” label if the facts point to a different conclusion.

If you have any questions regarding your employment situation, consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP. 

[1] Thurston v. Ontario (Children’s Lawyer), 2019 ONCA 640  at para 23.

[2] Thurston, supra, at para 25.

[3] Thurston, supra at para 30.

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

By Geoff Dunlop and Raphaёlle Laframboise-Carignan

Since our post on the introduction of the Canada Emergency Response Benefit (CERB) (which you can read here), the federal government has announced changes to the program to address some of the identified gaps in eligibility. Based on these most recent changes, many more individuals should qualify to receive the CERB. This post will outline who is now eligible, and who is still left out, of this important benefit.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

What has stayed the same?

To qualify for the CERB, you still need to be a resident of Canada of at least 15 years of age, and must have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year. These requirements have not changed with the expansion of the program.

What has changed?

Some of the eligibility criteria have been expanded, to allow more individuals to qualify for the CERB:

• You are no longer required to have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row. Instead, you can qualify for the CERB if you earned less than $1,000 in an eligibility period (that period is at least 14 days in a row if you are applying for the first time, and 4 weeks if you are applying again for a subsequent period).
• You can also qualify for the CERB if you are a seasonal worker who has exhausted your regular EI benefits, and are unable to undertake your seasonal work due to COVID-19. You must have received EI benefits for at least one week since December 29, 2019.
• Finally, you may qualify for the CERB if you have recently exhausted your regular EI benefits, and are unable to find work due to COVID-19. Again, you must have received EI benefits for at least one week since December 29, 2019.

These changes are retroactive to March 15.

Who is still left out?

The expansion of the CERB is welcome news, but, unfortunately, even the expanded version of this program still contains gaps that will leave many Canadians without access to this benefit.

Workers making $1,000 – $2,000 per month

One of the most important and much-needed changes to this program was to expand it to include workers who had experienced a significant reduction in hours, but who were still earning some income. Workers can now earn up to $1,000 per month and still access the CERB.

However, there is still an obvious gap in the program’s design—there are many workers who will be earning less from their employment than the value of the CERB, and yet they continue to be excluded from this benefit. It is unclear why the government did not expand access to all workers making less than the value of the CERB ($2,000 every four weeks), and simply deduct any amounts earned from the benefit.

Students seeking summer employment

As noted in our previous post, many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB, and most of them are unlikely to have been receiving EI regular benefits recently. Students who are about to graduate and were about to enter the job market will not have access to this benefit.

The government has reiterated that more help may be on the way for students, but no specifics have been provided so far.

Workers who have been unemployed for a long period

The benefit has been extended to anyone who has exhausted their EI regular benefits, only if they have received at least one week of EI benefits after December 29, 2019. Therefore, any unemployed workers who ran out of EI benefits before that time are still ineligible for the CERB.

Is it time for a universal benefit?

The most recent changes to the CERB will be met with criticism and questions about who continues to be left behind, in response to which the government will in all likelihood tweak the program further. Instead of the current piecemeal, incremental approach, many have called on the government to simply grant a $2,000 per month benefit to all Canadians, and reclaim it from those who did not need it through taxes next year. It remains to be seen whether this view will gain any traction within the government.

Updated information about the CERB and how to apply can be found here.

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

On March 4, 2020, Morgan Rowe presented a workshop on human rights law, worker’s rights, and how these two sets of rights can be used to help individuals with disabilities challenge barriers in employment. The workshop was hosted by CUPE Local 2626.

The firm gratefully acknowledges the contribution to this post by articling student Zachary Rodgers.

The Office and Professional Employees International Union (OPEIU), represented by Wassim Garzouzi, recently scored a major victory for the privacy rights of workers across Canada. On December 9, 2019, Arbitrator Susan Ashley affirmed that employers in Canada cannot unilaterally impose random drug and alcohol testing on its unionized employees, despite the legalization of cannabis and the uniquely dangerous nature of the work in question.

The employer in this case, a helicopter company providing passenger transport to offshore oil operations, sought to initiate random drug and alcohol testing of its helicopter pilots (and other employees in safety sensitive positions) following the legalization of cannabis in Canada. At the time, the employer already had a robust drug and alcohol policy in place that allowed it to test employees in safety sensitive positions if there was reasonable cause to suspect the employee was under the influence of drugs or alcohol. The Union took no issue with “for cause” testing. The only issue at arbitration was whether the employer could force employees to submit to drug and alcohol testing at random (i.e. without cause).

The Union successfully argued that Canadian courts and arbitrators have long rejected random testing as an unreasonable violation of individual privacy rights. In Irving Pulp & Paper Ltd, the Supreme Court of Canada concluded that even in workplaces where safety is paramount, random testing is too great an infringement on employee privacy rights if there is no existing and pervasive problem of drug and alcohol use in the workplace.

Arbitrator Ashley rejected the employer’s argument that the legalization of cannabis in Canada had changed the legal landscape. She equally rejected the employer’s position that the uniquely dangerous work of flying helicopters offshore justified the violation of employees’ privacy rights. Significantly, the arbitrator found that, although oral swab testing is less invasive than other methods of drug testing, it still amounts to “an unjustified affront to the dignity and privacy rights of the affected employees.”

This award, in favour of the Union, is one of the first post-legalization decisions in Canada that affirms the Canadian model, which requires employers to demonstrate an existing and pervasive alcohol or drug problem in the workplace before random testing can be justified. Importantly, employers cannot rely on the legalization of cannabis to justify upending the status quo on drug testing in Canadian workplaces.

RavenLaw congratulates OPEIU on its hard-fought and successful defence of employee privacy rights in Canada.

On March 5, 2020, Anna Lichty and Megan Fultz represented Ravenlaw at the 2020 uOttawa Career Day at the Ottawa Conference and Event Centre.

Anna and Megan hosted four Community & Public Lawyering Roundtables, conducted a series of mock interviews with students interested in labour and employment law, and had the opportunity to meet and discuss our firm’s work with many first and second-year law students at a networking lunch. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at Ravenlaw, please contact us at studentrecruitment@ravenlaw.com.