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.

Earlier this year, the Ontario Divisional Court issued a decision in Western Life Assurance Company v. Penttila, 2019 ONSC 14 (CanLII) addressing when the time limit for filing a claim, known as the limitation period, begins to run for individuals who were denied long-term disability (LTD) benefits. The Court determined that the limitation period starts once the individual receives a final decision from the insurance company. This is after all appeals are finished.

Background

Ms. Pentilla was receiving Long Term Disability benefits from Western Life Assurance Company. In February 2013, Western Life advised her that, effective March 2013, she would no longer meet the definition to qualify for benefits. In their letter, Western Life informed her while she could appeal the decision, they were not waiving their right to rely on any statutory time limit. Ms. Pentilla appealed the decision and provided additional medical information. In November 2013, Western life asked for more medical information, and wrote to Ms. Pentilla that they would complete the review of her appeal once they received the information. Their letter did not include any statement about relying on statutory time limits. In October 2014, Western Life wrote to Ms. Pentilla that they had reviewed the new medical information, but their position remained unchanged. Several months later, Ms. Pentilla told Western Life she had not received a decision letter, and so, in June 2015, Western Life wrote to Ms. Pentilla that she did not meet the definition for Long Term Disability benefits and therefore any further benefits remained denied. Approximately one year later, in June 2016, Ms. Pentilla issued her statement of claim.

The Motion Judge’s Decision

Western Life brought a motion for summary judgment that Ms. Pentilla’s claim should be statute barred because she had not brought her claim within two years of it being discovered. In Ontario, the Limitations Act, 2000 provides a two-year limitation period for most claims, meaning that an individual must start legal proceedings within two years of their claim being discovered. The motion judge dismissed Western Life’s motion for summary judgment, finding that Ms. Pentilla’s claim was discovered in October 2014 or June 2015 because before those dates, a reasonable person would not have understood that a proceeding was an appropriate remedy. Western Life appealed that decision to the Divisional Court.

The Divisional Court’s Decision

On appeal, Western Life argued that Ms. Pentilla should have known that a legal proceeding would be an appropriate means to seek a remedy by March 2013, when she no longer qualified for benefits. Ms. Pentilla argued that, by March 2013, Western Life had not finally determined her appeal, so a legal proceeding would not have been appropriate.

The Divisional Court upheld the motion judge’s decision. The court found that the two-year limitation period started on the date it would be appropriate to begin legal proceedings for payment of Long Term Disability benefits that the insurer refused to pay. A reasonable person in Ms. Pentilla’s situation would have made an internal appeal to Western Life before starting legal proceedings. At all times between receiving her initial denial in February 2013 and receiving her final appeal decision in June 2015, Ms. Pentilla believed that Western Life was considering her appeal. In this case, Western Life’s statement that it was not waiving its right to rely on statutory time limits was not sufficiently clear to show Ms. Pentilla that the limitation period was running before her appeal had been decided.

Discussion

The Divisional Court’s decision is a positive step for individuals who have been denied Long Term Disability benefits. It reinforces that the statutory time limit for starting a legal proceeding may not begin to run until the insurance company has issued a final decision. The Court also reinforced that it is reasonable for an individual to go through the insurance company’s internal appeal process before starting litigation.

This decision follows the Ontario Court of Appeal’s decision in Kassburg v. Sun Life Assurance Company of Canada, which found that the court must consider when the claim was clearly and unequivocally denied. In Kassburg, the Court also upheld a motion judge’s conclusion that the insured discovered her claim on the date of the letter in which the insurer told her that her final appeal was denied.

These cases suggest that legal proceedings may be premature until the insurance company’s internal appeal process has run its course. This determination, however, will depend on many factors, including the clarity of the language that the insurance company uses to show that the statutory limitation period runs during the time the internal appeal is being considered. See our article, Limitation Periods for Long-Term Disability Claims. If your insurance company has denied you Long Term Disability benefits, contact a lawyer to discuss your legal rights and how limitation periods may apply in your situation.

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

On February 28, 2019, Julia Williams participated in a roundtable discussion at the University of Ottawa on careers in social justice and labour law. The roundtable was a Q&A with practitioners offering insight into paths to labour law, followed by a discussion on the challenges and rewards of pursuing a social justice career.  Julia would like to thank the Labour Law and Human Rights Association at the University of Ottawa, Faculty of Law, for inviting her to participate in this event.

RavenLaw is proud to sponsor the 20th Annual County of Carleton Law Association/Great Canadian Theatre Company Lawyer Play. The annual fundraiser supports the operations of Great Canadian Theatre Company (GCTC) and benefits a charity partner, which this year was St. Mary’s Home, an Ottawa-based social service agency that provides a full range of programs and services for young pregnant women, young moms and dads, and their infants and young children.

Over the last 20 years, the Lawyer Play fundraiser has raised well over $1 million dollars for GCTC and designated charity partners. Each year, the play’s cast is composed entirely of members of Ottawa’s legal community. This year’s play, War of Two Worlds, runs from June 6-8, 2019 and features RavenLaw lawyer Amanda Montague-Reinholdt as Flo.

As part of its coverage on International Women’s Day, the Ottawa Citizen interviewed Andrew Raven to discuss the 20^th anniversary of the Federal Public Service Pay Equity settlement. Andrew had represented the Public Service Alliance of Canada in this historic pay equity complaint, which sought to address systemic gender-based wage discrimination across the federal public service.

The final settlement, valued at $3.6 billion, affected over 200,000 federal government employees and remains the largest pay equity award in Canadian history. Since then, PSAC has continued to fight for pay equity on behalf of its members, including at Canada Post, the Government of the Northwest Territories, and at various separate employers in the federal government. While progress has been made in the last 20 years concerning pay equity, much remains to be done to address this important issue.

RavenLaw is pleased to announce that Anna Lichty has been appointed to the Board of Directors of the Kiwanis Club of Ottawa.

The Kiwanis Club of Ottawa is a not-for-profit organization and registered charity with members who effect positive change within the Ottawa community by volunteering their time and raising funds for programs that promote youth literacy and leadership, help individuals with special needs and assist those struggling in the community.

Anna is thrilled to be joining the Board of Directors. Anna is an active member of the Kiwanis Club of Ottawa and previously a member of the youth group Circle K of the University of Ottawa. She looks forward to continuing to assist the Kiwanis Club of Ottawa with their initiatives.

Attempting to return to work after receiving long-term disability insurance benefits can seem daunting. Many questions arise, but one we often hear is “what happens if I fail or get sick again?”  The short answer is that it depends on the amount of time that has passed since you returned work. You may start receiving long-term disability benefits again without having to wait.  Or in other words, without having to satisfy another “elimination period”.

Most long-term disability insurance policies have terms dealing with successive periods of total disability.  If you have returned to work and are unsuccessful or become ill again, then it will be important to review the terms of your policy with a disability benefits lawyer. The terms and time limits to qualify may vary from policy to policy.

Recurrent Disability

Long term disability insurance policies will often have certain requirements. Some will allow an employee to restart benefits if they become ill or are unable to work due to the same illness or cause within a specific time period.  For example, an employee with Fibromyalgia attempts to return to work following a one-year absence. A progressive return to work plan is established and the employee returns to work.  Unfortunately, she suffers from a flair up of her symptoms and her treating physician provides the insurance company with a medical report stating that the employee is unable to work.  Providing the recurrence took place within the time limit, this employee would qualify for an immediate reinstatement of benefits. Typically, the time limit for a recurrence of the same illness is 12 months.

Related Disability

Long term disability insurance policies will also often have provisions allowing benefits to be reinstated. This occurs if the employee becomes ill or is otherwise unable to work due to a related illness within a specific period of time, typically 6 months.  A related illness is one that results from the same cause as the initial illness or disability.  For example, an employee who develops mental health issues as a result of a physical disability. If they cannot work, this would be considered totally disabled due to a related disability.  An employee whose related illness renders them totally disabled would qualify for an immediate reinstatement of benefits. Of course, this is providing the recurrence took place within the time limit provided in the policy.

Unrelated Disability

In the event of Total Disability due to an unrelated cause or illness, Long term disability insurance policies also often provide for a reinstatement of benefits.  In this case the time limit is typically one month.  If this period has passed, then the employee will be required to satisfy the “elimination period” before having access to long term disability benefits.

Unfortunately, insurance companies may refuse to reinstate benefits even if the employee is within the time limit provided in the policy. They may argue that the fact that the employee was able to return to work temporarily demonstrates that they are not totally disabled.

Insurance companies may also refuse to reinstate benefits. This occurs when they do not believe the employee is experiencing a recurrence of the same illness or disability. It can also happen because they do not believe the new disability is related to the previous illness or disability.

Contact a disability benefits lawyer for assistance if your claim for reinstatement of long-term disability benefits is denied. We can often assist in resolving the issue with the insurance company. We can take action to obtain the necessary updated medical information or medical reports from the employee’s treating physicians or specialists.

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

In a recent decision, a labour arbitrator found that an employer had failed to exhaust the search for accommodation options for an employee with a permanent disability before attempting to terminate her employment. 

In Sodexo Canada Ltd v Canadian Union of Public Employees, Local 145, Arbitrator Randi Abramsky recognized that the search for accommodation for the grievor’s disability had been a long and difficult one. Nonetheless, she determined that the employer had not yet met the point of undue hardship in accommodating the grievor when it attempted to end her employment in mid-2018.

The Arbitrator found that the employer had not addressed two considerations which were fundamental to its duty to accommodate. First, the employer could not establish that the grievor was unable to perform a modified version of her former position using assistive equipment. Second, even if the grievor could not perform her own position, the Arbitrator found that the employer had not looked beyond the grievor’s original work location to attempt to find position she could perform at other worksites.

As a result, the Arbitrator concluded that the employer had breached its procedural duty to accommodate the grievor, contrary to the Human Rights Code. She therefore directed the employer to work with the grievor and the Union to explore these accommodation options, with the issue of damages and compensation for the breach to be determined once the accommodation process concluded.

The Union was represented in this case by Morgan Rowe of RavenLaw.