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.

Qualifying Period

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.

Elimination Period

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.

Total Disability or Totally Disabled

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.

Own 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.

Any Occupation

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.]

Employees have the right to work in a healthy and safe workplace and, as such, employers have the obligation to take all reasonable precautions to protect the health and safety of employees.  If an employee has reason to believe that there is a dangerous condition in the workplace or that their duties are likely to present a danger to their health and safety or the health and safety of their co-workers, the employee has the right to refuse work.

Employees who consider their work unsafe due to a confirmed (or presumptive) case of COVID-19 in the workplace, or who have concerns about the risk of potential exposure to COVID-19 from customers or clients, may be able to refuse to attend work or perform certain duties.  Whether or not the work refusal is deemed reasonable will depend on individual circumstances of the employee and the workplace.  Employees must report the refusal to their supervisor or employer who then have the obligation to investigate and, if necessary, adopt measures to eliminate or reduce the risk of potential exposure.   During this first stage of a work refusal, an employee is entitled to be paid at the appropriate rate.  If the issue is not resolved, and the worker still has reasonable grounds to believe the work is unsafe, the worker or the employer must call the Ministry of Labour.  During this second stage, an investigator will be assigned by the Ministry to investigate the work refusal and render a decision in writing.

An employer may not dismiss, discipline, suspend, or impose any penalty or threaten to take any of these actions on a worker who has exercised the right to refuse dangerous or unsafe work.  An employee who believes the employer has reprised against him or her may file a complaint with the Ontario Labour Relations Board (or the relevant federal/provincial Board) or, if working in a unionized workplace, may ask the union to file a grievance under the collective agreement. Make sure that you are aware of the timelines to make these complaints.

The right to refuse work is limited if the danger or working condition is inherent in the work performed by the worker or if the refusal of work would directly endanger the life, health, or safety of another person.  The right to refuse work is therefore limited for police officers, firefighters, workers employed in the operation of a correctional institution, health care workers and persons employed in workplaces like hospitals, nursing homes, sanatoriums, homes for the aged, psychiatric institutions, mental health centres or rehabilitation facilities, residential group homes for persons with behavioral or emotional problems or a physical, mental or developmental disability, ambulance services, first aid clinics, licensed laboratories—or in any laundry, food service, power plant or technical service used by one of the above). Employees in these occupations may still raise issues relating to unsafe working conditions with their supervisors or employers in order to have their concerns addressed and reduce the risk of exposure to COVID-19, though they may not be able to refuse to work.

If you can, you should speak to an employment lawyer to understand your rights as they will be very fact-specific to your circumstances.

It is important to keep up to date with federal, provincial, and municipal government instructions on how to act during this COVID-19 state of emergency. Federal and provincial governments are issuing updates daily – sometimes several times a day.

[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.]

RavenLaw is proud to welcome two new lawyers to our team: Sean McGee and Alison McEwen.

Sean practises in the areas of Labour Law, Employment Law, and Litigation. He represents unions across Canada, with a focus on Ottawa, Eastern Ontario, and Toronto. For more information about Sean, visit: https://ravenlaw.com/people/sean-mcgee.

Alison practices in the areas of Labour Law, Employment Law, and Litigation. She also represents unions across Canada, with a focus on Ottawa and Eastern Ontario. For more information about Alison, visit: https://ravenlaw.com/people/alison-mcewen.

A couple can be living in a conjugal relationship even if they are living in different cities, according to a recent Federal Public Sector Labour Relations and Employment Board decision.

The Board found that the Department of Citizenship and Immigration was wrong to deny an Ottawa-based employee’s request for spousal relocation leave to join his partner in Vancouver, because the couple had not lived under the same roof for at least a year. The couple had lived together briefly in Ottawa and intended to relocate to Vancouver but, for personal and financial reasons, were unable to move at the same time.

The department’s collective agreement with the Public Service Alliance of Canada grants an employee leave to accommodate the relocation of a spouse or “common-law partner,” defined as a person “living in a conjugal relationship” with an employee continuously for at least a year. There is no requirement in the agreement that the couple cohabit for that entire period, the Board pointed out, only that the conjugal relationship has lasted more than one year. The Board concluded that an individualized assessment based on relevant factors, of which cohabitation is just one, is required to determine if a couple is, in fact, living in a conjugal relationship.

In this case, the Board was satisfied that, when the employee requested spousal relocation leave, the couple had been living in a conjugal relationship continuously for at least a year, even though they were living apart. The couple intended to have a common residence but were living separately mainly for financial reasons. Their relationship otherwise had the hallmarks of a common-law partnership. The factors the Board considered included the exclusivity of the couple’s relationship, the emotional and psychological support they provided to each other, their constant communication and, at considerable cost, their frequent visits across the country to see each other.

The Public Service Alliance of Canada was represented by Michael Fisher.

Ravenlaw Holiday Hours

Please note our office will be closed from December 23, 2019 until January 1, 2020. We will reopen for regular business hours on Thursday, January 2, 2020 at 8:30 am.

Warmest wishes for a happy holiday season and a wonderful new year.

The Ontario Government announced its intention to expand the closure of all “non-essential” businesses on April 3, 2020 in response to the COVID-19 pandemic. The announcement included plans to extend the shutdown to April 17, 2020 and to include new workplaces on the list of businesses that must be temporarily closed.

But despite the media attention to this announcement, details of what exactly the shutdown means for employees have been few and far between, leaving many questions unanswered. For example, what businesses can stay open? And when can an employee be required to go into a closed workplace during the shutdown?

The starting point for understanding how the COVID-19 shutdown affects employees lies in the regulations that the Ontario Government has passed as part of its declaration of a state of emergency. Since March 17, 2020, the Government has passed a series of regulations under the Emergency Management and Civil Protection Act which have closed different kinds of Ontario business and workplaces for different periods of time.

The main regulation enforcing the current shutdown of non-essential businesses is O. Reg. 82/20, or the “Closure of Places of Non-Essential Business” regulation. It provides that all businesses which are not listed as essential in the regulation must be closed from 11:59PM on March 24, 2020 and for as long as regulations require.

1. Reg. 82/20 listed a number of types of businesses that are considered essential and which are allowed to remain open and operate as normal. This included certain kinds of retail business, such as grocery stores and gas stations; restaurants but only for the purposes of takeaway and delivery; support and maintenance services for buildings; IT and telecommunications companies; agricultural businesses, and others.

The most recent planned update to the “essential” business list will remove certain categories of business that were originally considered essential, forcing them to now close down. Workplaces which now must close include cannabis stores and producers; veterinary service providers, except those providing urgent care; automobile rental and leasing businesses; and office, hardware, and pet supply businesses. In addition, only critical construction projects are allowed to continue during the shutdown.

Any business which does not fall into one of the categories listed in O. Reg. 82/20 must generally close and remain closed until the shutdown is over. But O. Reg. 82/20 does allow for a few, narrow exceptions to this rule, including:

• A business does not need to shut down any work that can be done remotely, including shipping goods through the mail, by delivery, or for pick-up
• Employees can be required to go into a closed workplace to perform inspections, maintenance, or repairs
• Employee can still be required to go to a closed workplace in order to provide security services
• Employees can be required to temporarily attend a closed workplace to attend to “critical matters relating to the closure of the place of business, if the critical matters cannot be attended to remotely”
• Employees can be required to temporarily attend a closed workplace to access materials, goods or supplies necessary for the business to operate remotely

These rules about when employees can still be required to go in to work during the shutdown can be trumped by other employee rights, however. For instance, in some circumstances, employees may have a right to refuse unsafe work due to COVID-19, depending on their individual situation, regardless of whether the workplace is considered “essential” or not.

Where employees are required to stay home because their workplace is closed by the shutdown, they may have access to certain lay-off rights, as well as to new benefit packages that both the provincial and federal government are introducing to address the impact of the pandemic. Employees looking for information on the legal options available to them because of the shutdown should contact an employment lawyer to discuss their specific circumstances.

Currently, the planned end date for the Ontario shutdown is April 17, 2020, but the Government has a lot of leeway to change this plan as long as the provincial state of emergency continues. The shutdown can be lengthened or shortened, and new categories of “essential businesses” can be added at any time to respond to the rapidly changing circumstances in the province.

[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.]

On December 12, 2019, RavenLaw appeared before the Supreme Court of Canada to argue in support of a Charter challenge to portions of the RCMP pension plan, which have been applied to prevent employees from buying back periods of service during which they had temporarily reduced hours of work for childcare reasons.

RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, to argue that the pension law discriminates against women and other parents on the grounds of sex and family status. Particularly, PSAC intervened to argue that the RCMP’s treatment of reduced hours of work for childcare worsened the negative impacts that women already experience under traditional pension designs, given their disproportionate share of parental responsibilities. PSAC also argued that the RCMP pension plan failed to protect the ability of employees to make meaningful personal choice in a core area of their lives.

Andrew Astritis and Morgan Rowe from RavenLaw appeared on behalf of PSAC.

The Government of Canada has started accepting applications for the Canada Emergency Response Benefit (CERB) this week, as part of its response to the COVID-19 pandemic crisis. While this benefit is going to provide crucial support to many who have lost income due to the pandemic, there are lingering questions about who has been excluded from the benefit, and whether the Government will provide further support to those who have been left out.

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.

Who is eligible for the CERB?

To qualify for the CERB, you must 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; AND
• Have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row.

Who is NOT eligible for the CERB?

There are unfortunately many people excluded from this benefit, despite also being significantly impacted by the COVID-19 pandemic.

Workers with reduced hours/income

Many workers have not lost all of their income due to the pandemic, but have seen a dramatic drop in their hours of work. Since they still have some level of income, they are ineligible for the CERB—this is true even if their income from employment is less than the value of the CERB.

Students seeking summer employment

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. Similarly, students who are about to graduate and were about to enter the job market will not have access to this benefit.

Seasonal and unemployed workers

Like students, many workers have seasonal jobs, and therefore have not lost current income. Instead, they have lost or are likely to lose out on expected employment in the coming months. These workers do not fit the criteria for the CERB.

And, of course, any workers who are currently unemployed will not qualify for the CERB, and may be at or near the end of their EI benefits with no reasonable prospect of future employment.

More help may be on the way

The Government has received numerous inquiries about the gaps in the eligibility for the CERB, and has assured Canadians that additional help will be coming for these groups. Prime Minister Trudeau has publicly stated that the Government is exploring ways to help everyone in Canada that needs it, and should have more to say in the coming days about additional supports. He has specifically referred to forthcoming help for students, and to the possibility of extending the CERB to cover workers with reduced hours.

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.]