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.]

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.]

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.

David Yazbeck was one of several experts from across the globe who was recently invited to speak on effective whistleblower protection with Financier Worldwide Magazine, based in Birmingham, UK. David provided his insight into establishing effective whistleblower protection, whether through legislation or through internal company policies.

The article was published in February 2019 and can be found on the Financier Worldwide Magazine website.

In a recent victory for CUPE Local 109, Jessica Greenwood provided representation to an employee whose rights under the collective agreement and the Human Rights Code were violated due to an unfair termination of her employment.

In the July 29, 2019 decision, Arbitrator Eli A. Gedalof affirmed that an employer cannot rely on a pattern of innocent absenteeism to establish frustration of contract when the absences are due to exceptional events, the employee has demonstrated a substantial improvement in attendance, and there is objective evidence that the employee will be successful in maintaining regular attendance moving forward. The decision also affirms the employer’s obligation under the Human Rights Code to accommodate an employee’s disability to the degree of undue hardship.

The Union successfully argued that the City relied on an improper and discriminatory application of their Attendance Management Program (AMP) to the Grievor’s case.  This application of the AMP program served to hide the fact that the Grievor’s attendance had improved dramatically and was continuing to improve.

Arbitrator Gedalof ruled that the City had not met its burden under the first part of the test, by failing to establish repetitive and consistent absenteeism triggering the decision to terminate. Arbitrator Gedalof noted “far from demonstrating an escalating pattern of absence in 2018 leading up to her termination, the grievor demonstrated the opposite…. what precipitated the grievor’s termination was a single day of absence following an extended period of acceptable attendance. The grievor’s attendance in 2018 reflected a substantial improvement over an extended period of time, and effectively disrupted the pattern of absences in 2017”.

Even if the employer had met the first part of the test, the Arbitrator concluded that frustration of the employment contract would still not be established on the facts. The Union had satisfied the second part of the test, which places a burden on the grievor to present objective evidence demonstrating good reason to believe that any issues that contributed to the excessive absences have been addressed and the grievor will be able to provide regular and consistent attendance in the immediate and foreseeable future. Arbitrator Gedalof noted, “The most straightforward objective evidence of the grievor’s ability to attend work is that at the time of her termination, she had in fact been attending work regularly for an extended period of time.”

As a result, despite finding that the City had applied the AMP program absent bad faith, the City’s “decision to terminate the grievor without just cause, in the absence of frustration and due to attendance issues related to their medical condition, nonetheless violated the Collective Agreement and (s.5 of) the Human Rights Code”.

The Grievor was awarded re-instatement, with no loss of service or seniority, compensation for lost wages and benefits since the termination, and damages for the breach of the Code.

RavenLaw congratulates the Grievor and CUPE Local 109 for another successful defence of employee rights!

In March 2019, David Yazbeck was re-elected as an Institutional Board Member for the Workers’ History Museum. David’s re-election continues RavenLaw’s long-standing support for the Workers’ History Museum. In addition to David’s role as a Board Member, RavenLaw has been an institutional member of the Board of Directors for a number of years.

The Workers’ History Museum was founded in 2011 with the goal of developing and preserving workers’ history, heritage, and culture in the National Capital Region and Ottawa Valley.