Category Archives: Resources

This week, the Government has started accepting applications from employers for the Canada Emergency Wage Subsidy (CEWS), part of the Government’s economic response to the COVID-19 pandemic crisis. This new benefit is unprecedented in scope and is likely to be well received by many employers and employees. However, the design of this benefit arguably leaves too much power in the hands of employers.

What is the CEWS?

The CEWS is a wage subsidy intended to help employers that are struggling due to COVID-19, allowing them to recall employees that have been laid off, and to avoid future layoffs. Eligible employers will receive a subsidy for up to 12 weeks between March 15 and June 6, provided they can show the required reduction in revenue for that period. The Government has not imposed any size limit on eligible employers and has extended the benefit to all types of businesses, as well as not-for-profit organizations and charities. Only public institutions, such as schools and hospitals, are excluded.

How much does the subsidy cover?

The subsidy will cover up to 75% of wages on the first $58,700 that an employee earns, up to a maximum of $847 a week. There are special calculations for employees whose pay has been reduced since before the crisis, and for non-arm’s length employees.

Employees who have been laid off can become eligible retroactively for the CEWS if the employer rehires them. However, if those employees have received the Canada Emergency Response Benefit (CERB), and they will earn more than $1000 per month as a result of being rehired, they will have to repay the CERB.

Does the CEWS give too much power to employers?

This program is new and therefore may be revised and adjusted in response to public criticism, similar to the CERB. The Government may want to consider some of the ways in which this program’s design places too much power in the hands of employers.

No obligation on employers to pay remaining 25% of wages

The Government is not requiring employers to pay the remaining 25% of employees’ wages as a condition of eligibility for the CEWS. The Government has stated publicly that it “expects” employers to make best efforts to pay the remaining salary amounts, but it is unclear whether there will be any mechanism to enforce that expectation. As a result, there is a concern that many employers will recall employees at only 75% of their previous pay rate, or even potentially reduce the pay of existing employees. This program should obviously not create an incentive for employers to pay their workers less.

Employers decide the level of government benefit for workers

The CEWS (up to $847 per week) is a far more valuable benefit than the CERB ($500 per week). A worker who has been laid off due to COVID-19 is only eligible for the CERB, but that worker’s employer could choose to rehire them solely for the purposes of accessing the CEWS, thereby granting that worker access to a significantly larger benefit.

This program therefore gives a huge amount of power to employers to basically decide how much financial relief their workers will receive during this crisis. One way to fix this flaw is to increase the value of the CERB to make it equivalent to the CEWS.

Will the CEWS strengthen a claim of constructive dismissal?

While the CEWS appears to place workers at the mercy of their employers in many respects, one way in which it may hand some power back to workers is in claims for constructive dismissal.

Many employment law experts have questioned how courts will consider claims of constructive dismissal in these extraordinary circumstances. Some argue that the COVID-19 crisis may justify greater changes to the employment relationship than have previously been accepted, on the theory that a reasonable person in the employee’s position would not consider the change to amount to a dismissal in this unique context.

The CEWS offers significant relief to employers in meeting payroll obligations, and so it may play a role in the constructive dismissal analysis. A reasonable employee may, for example, consider themselves constructively dismissed if they are laid off or have their wages reduced, if the employer cannot prove that these changes were necessary despite the presence of the CEWS benefit.

These questions, unfortunately, will not be answered by the courts for some time. Therefore, it is important for employees to obtain legal advice before claiming constructive dismissal, to fully understand the risks and consequences.

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

Federal Court of Appeal Affirms Fundamental Requirement for Discipline Decisions

In Walker v Canada (Attorney General), the Federal Court of Appeal set aside a decision of the Federal Public Sector Labour Relations and Employment Board upholding the dismissal of a longer-service and discipline-free public service employee because the Board decision-maker failed to consider whether the employee’s state of mind mitigated her alleged misconduct.

The employee’s union, the Public Service Alliance of Canada, argued that “many of the actions for which [the employee] was disciplined were motivated by a desire to protect herself and other employees from threatening and possibly dangerous acts of her subordinate” whom she genuinely feared.

It is well-established, the Federal Court of Appeal concluded, that a labour adjudicator’s inquiry into the appropriate penalty for alleged misconduct “requires review of all the relevant surrounding circumstances, including mitigating factor’s such as the employee’s state of mind, which has a direct bearing on culpability.” Yet, the decision-maker in this case not only failed to address this issue but went so far as to state, on a related issue, that it was “not my role to determine whether … [the employee] had a legitimate fear for her safety.”

This judicial review decision represents one of the first times where the Federal Court of Appeal has applied the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov. Vavilov instructed that an administrative decision-maker’s failure to address fundamental arguments raised before it may result in the decision being unreasonable due to a lack of transparency and intelligibility.

As the employee’s fear of her co-worker was central to her defence, the Court of Appeal found that it was directly relevant to the issues the decision-maker was required to determine and could have changed the outcome of the case. The Court of Appeal concluded that the Board decision-maker’s “failure to consider whether such fear constituted a mitigating factor renders it decision … unreasonable as it is impossible to discern from the decision what weight would have been attributed to this factor by the Board, had it considered it.”

The Federal Court of Appeal returned the matter to a different Board decision-maker for redetermination.

Andrew Raven and Michael Fisher appeared for the Applicant.

What to do if you experience workplace harassment, post-Merrifield

In a recent judgment, the Ontario Court of Appeal overturned a lower court decision and held that there is no independent tort of harassment in Ontario. The Court explained that there was no support in the case law in Canada or internationally to extend the law to recognize this new tort. This judgment has left many Ontario employees wondering – what recourse do I have now, if I experience workplace harassment? This post will explore some of the possible options you may still have to pursue your rights, depending on your particular circumstances.

Discriminatory harassment – human rights complaint

Is the workplace harassment you are experiencing based on a prohibited ground of discrimination? For example, is it harassment based on your sex, race, age, or disability? If so, you could bring an Application to the Human Rights Tribunal of Ontario, alleging that you have experienced discrimination and harassment in the course of your employment. If the Tribunal finds in your favour, you could be awarded monetary compensation, reinstatement to your employment if you’ve been terminated, and systemic orders against your employer to comply with human rights legislation going forward.

Workplace harassment in a unionized environment – grievance

Are you a unionized employee? If so, you could talk to your union about filing a grievance about the workplace harassment. Many unionized workplaces have collective agreement protections against harassment, or employer policies prohibiting harassment in the workplace, that can form the basis of a grievance. Harassment grievances are often challenging to succeed in, but if successful, an arbitrator has broad discretion to award an appropriate remedy.

Failure of employer to conduct harassment investigation – Ministry of Labour complaint

Did you ask your employer to investigate the harassment incident, and the employer failed to do so? If so, you could file a complaint with the Ministry of Labour. All Ontario workplaces have obligations to implement appropriate harassment policies and programs under the Occupational Health and Safety Act, and a Ministry of Labour inspector could order the employer to comply with the Act if it has failed to do so. However, this avenue of recourse is limited, as a Ministry inspector cannot investigate whether workplace harassment actually occurred, and cannot award any individual remedies to an employee.

Harassment leading to resignation – claim for constructive dismissal

Was the harassment so severe that it led you to resign from your employment? If so, you may be able to pursue a claim for constructive dismissal in court. This claim requires conduct by your employer that is inconsistent with an intention to continue to be bound by your employment contract, including creating a toxic work environment due to harassment. If successful in a claim of constructive dismissal, a court may award you damages similar to what you would receive if your employment had been wrongfully terminated.

Flagrant or outrageous harassment – claim for intentional infliction of mental distress

Depending on the severity of the workplace harassment, you may still have a tort claim available in the courts. In Merrifield, the Ontario Court of Appeal noted that the tort of intentional infliction of mental distress still exists in the employment context, and is available in situations where someone like Merrifield would seek to claim damages for harassment. The test for intentional infliction of mental distress is stricter than the test the lower court had articulated for harassment, however; it requires conduct that : a) is flagrant and outrageous ; b) is calculated to produce harm; and c) results in visible and provable illness. This is a relatively high threshold to meet, but if it can be met, it could result in an award of general damages.

If all else fails – attempt to revive the tort of harassment?

Curiously, the Ontario Court of Appeal left the door open to accept the existence of the tort of harassment in the future. The Court held that it did “not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”. The Court did not elaborate on what those appropriate contexts might be. Accordingly, if none of the above avenues of recourse apply, but the claim for workplace harassment is compelling based on the evidence, it may be worth revisiting the potential existence of this tort.

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

RavenLaw Presented at Human Rights and Labour Law Conference

RavenLaw was pleased to be invited to consult on this year’s Lancaster House Human Rights and Labour Law conference in Ottawa and to present on multiple panels. The annual two-day conference addresses a wide range of topical and emerging issues in the area of labour and human rights law.

Andrew Astritis served on the conference’s Advisory Committee this year, helping to plan the event. Wassim Garzouzi presented on October 10, 2019 as part of the panel “Taking Stock, Looking Ahead: Major caselaw and legislative update.” Morgan Rowepresented on October 11, 2019, discussing the difficult questions that arise when workers experience illnesses and disabilities due to workplace stress, bullying, and interpersonal conflicts.

Long Term Disability benefits: Employee Responsibilities

As an employee, once you have applied for Long Term Disability (LTD) benefits, you have certain responsibilities you must fulfil to ensure that your claim for benefits is accepted or to ensure that you continue receiving benefits. The specifics of these responsibilities will be listed in the benefits policy and will usually include the following:

Making reasonable efforts to recover

As part of your responsibilities, the insurance company expects that you will make efforts to recover from your illness or injury. This includes being under the care of a physician, specialist, or other treatment providers and also requires you to participate in any reasonable and customary treatment or rehabilitative program.

If you and your treating physician(s) believe that you cannot take part in a program recommended by the insurance company, you will need to provide medical evidence as to why you cannot take part. This should state that your participation in a program would hinder your recovery efforts and explain why in detail.

Making reasonable efforts to attempt a return to work

The insurance company will also expect you to make reasonable efforts to attempt to return to work either in your own occupation or in an alternate job.

Usually, a return to work will start gradually, taking your physicians’ advice regarding hours, schedule, restrictions, and limitations. The return to work may also consist of modified duties for a certain period, depending on your physician’s advice.

Applying for other benefits

Your policy will most likely set out your responsibility to apply for other benefits that you may qualify for, such as Canada Pension Plan (CPP) Disability benefits. Some policies will even ask that you appeal any decision denying those benefits.

Insurers usually set up their insurance policies, so they become the “payors of last resort”. This means that other sources of income, such as CPP Disability benefits, are deducted or offset from your LTD benefit. You will also be required to let your insurance company know if you apply for other benefits and they are approved. Those new benefits may reduce the amount you receive from the insurance company.

For more information on this topic, please refer to our article on long term disability offsets.

Reporting other income

The insurance company will expect you to report any income you are receiving from sources other than your LTD claim.

It is important for you to advise your caseworker about any other sources of income from other employment or benefits. If you do not advise your insurance company, you could be responsible for repaying some or all of the LTD benefits you have already received.

Check your specific policy to see what qualifies as reportable income, but generally, it consists of the following:

CPP Disability Benefits;
WSIB payments;
Notice or Severance payment from your employer if you are terminated; and
Employment Income not previously approved by the insurance company.
Cooperating with the Insurance Company regarding your health

It is important to cooperate with your insurance company and provide them with updated medical documents and medical information when they ask for them. This might include surgery dates, new diagnosis, new findings, test results, and new medications.

Unlike the employment context, where there is no obligation to provide all medical reports or diagnoses to your employer when on sick leave or when making an accommodation request, dealing with an insurance company is different. You are required to provide them with medical reports and diagnosis to show that you meet the definition of disability as set out in the LTD policy.

It is also valuable to inform the insurance company of your progress or setbacks regarding your illness/injury.

We are here to help navigate the Long Term Disability claim 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 disability 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.]

Continuing to Work for the Same Employer After Resigning from Employment

Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469

How is the employment start date affected when an employee resigns, but then continues working under a new employment agreement for the same employer? The Ontario Court of Appeal has recently released two decisions that discuss how an employee resigning and then continuing to work affects the start date of their employment. The decisions show that the specific facts of the resignation and re-hire will determine whether an individual will be limited by the terms and conditions of their new employment agreement.

In Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449, the employee had agreed to waive his previous years of service to make the change from full-time to part-time hours. The Court determined that the employee was not bound by the new employment agreement because he had not intended to resign. By contrast, in Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469, the Court determined that an employee who resigned and then withdrew her resignation before her last day of work was bound by her new employment agreement.

Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449

In 1986, the employee started full-time employment as an architect. When the business was sold, the employee was notified that his employment would be terminated because of the sale. He signed a new offer of employment, which did not contain any termination provisions. In 2013, the employee wanted to reduce to part-time hours. The employer agreed, but only if the employee resigned and entered into a new employment agreement, where the employee specifically agreed to waive his previous years of service. The employer told him that these terms were non-negotiable. The employee agreed to these terms and changed to part-time employment.

Three years later, in 2016, the employee was dismissed without cause from his employment. The employer relied on the 2013 employment agreement and limited the employee to his minimum statutory entitlements, as though the employee had started his employment in 2013.

The motion judge determined that the employee had not waived his years of service. On appeal, the Ontario Court of Appeal found that the 2013 agreement to waive the employee’s previous service was in violation of the Employment Standards Act, because neither the employer or employee actually intended the employee to resign at the time. The Court found the agreement was constructed to circumvent statutory notice and severance based on the employee’s actual years of service.

In 1993, the employee started her employment as a dental hygienist. Over the course of her employment, she was required to sign a series of employment agreements. In 2005, the employee gave her notice of resignation, but then she changed her mind before her last day of work. Her employer agreed to let the employee stay but required her to sign a new contract. When the employee was terminated without cause in December 2012, the employer relied on the newest employment agreement to limit her statutory entitlement to one year of service.

The trial judge found that the employee’s employment had continued uninterrupted since 1993, and she was not limited to one year of service. The trial judge found that none of the three employment contracts signed by the employee during her employment were enforceable because they lacked consideration. Therefore, the trial judge determined that the employee was wrongfully dismissed and assessed her damages at 15 months’ notice.

On appeal, the employer argued that the trial judge erred in failing to take account of the employee’s 2005 resignation. The Court of Appeal held that the employee’s resignation, even though it was rescinded, opened the door to the employer instituting a new contract. Even though the employee never stopped working, there was effectively a resignation and a re-hiring, which broke the employee’s length of service. The Court determined a valid contract had been formed after the employee’s resignation because the employee offered to be employed again and the employer accepted her offer. The employee was therefore limited to the minimum statutory entitlements under the Employment Standards Act as though she had started her service after her resignation.

Commentary

These two decisions from the Ontario Court of Appeal, highlight that the circumstances of the resignation and the subsequent re-hire will be crucial to determining an employee’s start date. If neither the employee nor the employer intends for the employee to resign, and the new employment agreement is just a legal fiction, then the courts will likely find that employee’s previous years of service count when determining their reasonable notice entitlements. However, if the employee did intend to resign, but changes their mind, then the employer may be entitled to ask the employee to sign a new employment agreement, waiving the employee’s previous years of service.

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

LYME DISEASE DISABILITY CLAIMS

https://www.webmd.com/rheumatoid-arthritis/arthritis-lyme-disease#2-6

What is Lyme Disease?

Lyme disease is an inflammatory and infectious disease spread to humans through tick bites. It is caused by borrelia bacteria, which commonly infects animals. Ticks pick up the bacteria by biting infected animals and then passing it on to other animals, including humans. The disease can develop within days, weeks, or even years after infection if left untreated or improperly treated. In more extreme scenarios, albeit in an ever-increasing number of cases, it can gradually result in long-term disability, leaving people unable to work. This inevitably begs the question: Is there such a thing as a Lyme Disease Disability Claim? The short answer is yes but negotiating disability benefits for Lyme disease is often a long, arduous, and frustrating process.

What are the Symptoms of Lyme Disease?

Chronic Lyme disease symptoms can be diverse and vary in intensity, often making accurate diagnosis difficult or impossible, which is why claiming disability benefits for Lyme disease can be a long stressful process. Initial symptoms can include the development of a rash (sometimes shaped like a “bull’s eye” mark) and flu-like symptoms. Other symptoms can include fever, headache, nausea, jaw pain, light sensitivity, red eyes, muscle aches, and neck stiffness. They can also include arthritis, severe fatigue, headaches, vertigo, sleep disturbances, and mental confusion and can lead to significant functional impairment. Any mix of these symptoms can result in an individual being incapable of continuing to work.

How is it Diagnosed?

There is no accepted diagnostic test for Lyme disease, but according to the Public Health Agency of Canada, cases are on the rise – both literally and statistically. In the early 2000s, cases known to have been contracted in Canada were relatively rare but during the latter part of the decade reached a reported high of more than 2,000 cases. Because the disease causes so many and varied symptoms that can be confused with other ailments, the real figure is almost certainly much higher.

Because diagnosis is based on symptoms and history of tick exposure, those applying for disability benefits for Lyme disease face challenges when dealing with health and insurance systems.

What options are available to me if I require Disability Benefits for Lyme disease?

People who are unable to work as a result of the symptoms associated with a diagnosis of Lyme disease have a couple of potential options: Canada Pension Plan (CPP) Disability benefits or Long-Term Disability (LTD) benefits.

The main purpose of the CPP Disability is to support you if you have a mental or physical disability that regularly stops you from doing any type of substantially gainful work or have a disability that is long-term and of indefinite duration, or is likely to result in death. To qualify for CPP disability benefits, you must have been employed for ]four of the past six years and paid into the CPP program. You will also be required to show that your disability is severe enough to prevent you from working.

The other option is to apply for LTD insurance if you are enrolled in a plan. An LTD plan is commonly part of employee benefits packages and provides benefits should you be unable to work.

How do I apply for Long Term Disability benefits for Lyme disease?

To make a successful claim for LTD benefits for Lyme disease, it is important to work closely with your doctor. You will need to discuss your symptoms, limitations, restrictions, and potential treatment options. Your doctor will then be required to provide a diagnosis, describe your symptoms, and record his or her findings. The insurance company will use this information to assess your level of functional impairment and determine whether you qualify for Lyme disease disability benefits.

Because the symptoms of Lyme disease are so diverse and common to so many other diseases and illnesses, confirming an LTD claim for Lyme disease will be challenging.

The foundation for a successful disability claim for Lyme disease is a detailed record of symptoms you are experiencing, along with notes describing how those symptoms prevent you from working. Those notes should also include all the treatments you have undergone, along with their intended effect and their actual effect.

For these reasons, it is crucial to record how the disease has progressed and identify any possible patterns and/or correlations with other factors (environment, sleep, diet, activity level, etc.). In all cases, it is important to be honest and candid about your symptoms and to keep lines of communication open with your physician.

Throughout the LTD claims process, you and your doctor will be asked to provide information on a number of important areas including your symptoms, their impact on you (limitations/restrictions etc.), and any progress or regression you experience. You will be required to report on all treatments you have received, the impact of those treatments, and the future plans and prospects for managing your condition.

What if my Claim is Denied?

If your disability claim for Lyme disease is denied, you can fight the decision through the insurance company’s internal appeal process. This can be done with the help of a disability lawyer. The insurance company may change their decision if you are able to provide new or additional medical evidence. You can also hire a disability lawyer to pursue legal action against the insurance company. No matter which route you choose, seeking legal advice as quickly as possible after benefits are refused is extremely important as there are time limits to both the internal appeal process and to pursuing litigation.

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.]

Sources:

https://canlyme.com/lyme-basics/symptoms/

RavenLaw Supports Annual LEAF Persons Day Breakfast

RavenLaw was proud to again support the Annual Women’s Legal Education and Action Fund (LEAF) Ottawa Persons Day Breakfast, held on October 25, 2019. This year’s breakfast focused on women’s rights and climate change, and how to consider the impact of climate change on gender equality when finding ways to create a more sustainable future for all people.

RavenLaw Supports Annual LEAF Persons Day Breakfast — RavenLaw attendees (Anna Lichty, Megan Fultz, and Geoff Dunlop) and guests.
Photo credit: Sarah Noble (LEAF Ottawa Executive)

LEAF is a charitable non-profit organization that works to advance the equality rights of women and girls in Canada. The annual fundraising breakfast commemorates the Persons Case – the October 18, 1929 decision of the Judicial Committee of the Privy Council that ruled that women were to be considered persons under the law and should be eligible to sit in the Canadian Senate. Proceeds from the Persons Day breakfast contribute to LEAF’s litigation efforts and help to sustain equality education programs such as LEAF at Work, the Only Yes Means Yes Campaign, and the Reproductive Justice Campaign.

WHAT IS SHORT-TERM DISABILITY INSURANCE?