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.

On December 4, 2018, Lancaster House presented its 2018 Bargaining in the Broader Public Sector Conference at the Sheraton Centre Toronto Hotel. The conference tackled current issues facing unions and their members when dealing with collective bargaining in the broader public sector, including such key issues as the role of politics and the Charter at the bargaining table, the changing face of the workforce, and the future of work.

David Yazbeck was pleased to be selected as the union-side co-chair for this conference and to assist in organizing the conference and moderating various panels during the day.

RavenLaw is pleased to announce that David Yazbeck has been appointed to the Board of Directors of Copyright Visual Arts – Droits d’outeur Arts visuels (COVA-DAAV). COVA-DAAV is the business operating name of CARCC, which is a copyright collective founded by Canadian Artists’ Representation – Le Front des Artistes Canadiens (CARFAC) in 1990 to assist artists in administering their copyrights. David is also a member of the Board of CARFAC and, as part of the governance structure for COVA-DAAV, CARFAC is entitled to appoint board members to the COVA-DAAV Board.

David is excited for this opportunity to continue his advocacy efforts on behalf of visual artists in Canada, particularly as it relates to protecting and promoting artists’ copyright in Canada and Quebec. Any interested artists from Canada and Quebec may affiliate with Copyright Visual Arts.

In 2017, the Public Servants Disclosure Protection Tribunal rendered its first decision on the merits of a reprisal complaint under the Public Servants Disclosure Protection Act. As the first decision on the merits, a number of critical issues of legal principle were raised by the parties. Ultimately, the Tribunal ruled on several of these issues, a ruling which had significant implications for future Tribunal cases. In particular, the Tribunal concluded:

• Intent, in the sense of vengeance, must be proven in order to establish reprisal;

• Minor or insignificant reprisals were not protected by the Act, effectively imposing a de minimus standard; and

• An employee cannot receive reprisal protection for subsequent disclosures of the same wrongdoing.

In addition to these legal rulings, the Tribunal dismissed the complaint on the facts, concluding that the employee had not proven that she experienced negative effects as a result of the alleged reprisal measures.

The employee sought judicial review of the Tribunal decision. In a judgment rendered this month, the Federal Court of Appeal dismissed the application, concluding that the Tribunal’s findings that there was no negative effect on the employee could not be set aside.

Counsel had urged the Court to address the legal issues given their impact upon other cases. The Court declined to do so, because this would take it “too far into a law-making role”. In spite of this, the Court went on to comment upon the Tribunal’s analysis as follows:

“But we wish to add that many of the legal conclusions reached by the Tribunal in this case warrant critical scrutiny. As a matter of administrative law, other members of the Tribunal are not bound by the legal conclusions reached here… If the particular case requires it, and until this Court settles the matter, a member of the Tribunal is free to conduct her or his own analysis and reach different legal conclusions.”

By this language, it would appear that the Court has signaled that the reasoning of the Tribunal on these legal issues need not be followed in the future, a conclusion which represents significant progress for complainants who are victims of reprisal.

The employee in this matter was represented by David Yazbeck and Michael Fisher of our firm.

On September 29, 2018, Julia Williams was a panelist at the Ontario Region – Canadian Association of Labour Lawyers’ second annual conference (OnCALL2) in Kingston, Ontario. Julia participated in the “Ten Minute Labour Lawyer” panel, presenting on the recent arbitral decision in City of Kingston v CUPE 109. Julia would like to thank the organizers of OnCALL2 for inviting her to participate in this event.

Ask most healthy working people to name their greatest financial asset, and more than likely, they will say ‘my house.’ A fair response. After all, maintaining and paying for a home is where a significant chunk of our income and time is spent. 

But for most healthy working people, it’s the wrong answer: A far greater financial asset is their ability to earn an income over the course of their career, often a long period of time. The consequences of not being able to do so can be financially devastating.

Most people have only a hazy understanding of the financial consequences of being unable to continue working due to mental or physical illness. We know that during our working lives, there is always the possibility of being laid off from one job and having to find another, but if chronic illness or a serious accident prevents us from working at all, the option of finding another job disappears. In fact, there are limited options for those employees; one of the options is Long Term Disability (LTD). 

As employment lawyers, we understand that few people think about the possibility of their working lives coming to a premature end. When it does happen, the questions are inevitably many. Here are answers to just a few basic LTD questions:  

How Do You Obtain Long Term Disability Benefits?

Most people who have Long Term Disability benefits have them through their employery, and typically, the cost of these benefits is shared between the employee and the employer. Having the employer pay for some (or all) of the benefits, while superficially attractive, also results in the benefit being taxable. Meaning if you ever receive money under the LTD policy, you will have to pay tax on the amounts you receive.

If, on the other hand, you pay for the full cost of the LTD policy, any money received would be non-taxable. Having a non-taxable benefit can make a huge difference in the event you need to rely on LTD benefits, as you are often receiving only a portion of your prior income and may be struggling to live off significantly reduced income. 

It is important to explore with your employer or your union whether your salary can be increased by the value of the employer contribution, and then you can make the full payment for the  LTD policy.

Another option is to buy full LTD insurance yourself if your employer does not offer this benefit as part of your remuneration package. 

Do You Have Sufficient Long Term Disability Benefits?

The answer to this question will depend on a variety of factors, including age, savings, cost of benefits, number of dependents, etc. It is also probable that the answer will change over time as your personal circumstances change. Given the importance of the benefit, should you be unable to work, it is important to seek advice from an LTD insurance expert.

What Happens To Your Long Term Disability Benefit If You Lose Your Job?

It is extremely common for people to lose their LTD benefits shortly after they lose their jobs. Termination letters typically contain provisions ending Long Term Disability benefits after the statutory notice period found in the Employment Standards Act. This period is often a matter of weeks rather than months.

After this period, former employees are frequently left with no LTD benefits while they look for other work. Insurers will often not sell LTD insurance to the unemployed, and that compounds an already stressful situation.

One way to avoid this scenario is to purchase LTD insurance independently. (See next question).   

How Can You Protect Yourself, such that Long Term Disability Benefits Are Not Lost?

One method of ensuring LTD protection in the face of uncertain job security is to have your own LTD benefits policy that you have arranged for outside of your employer. That way, should you lose your job, your coverage continues. This type of arrangement will be particularly important for those with precarious employment.

Own Occupation Disability Insurance – The Gold Standard, but what is it?

Most LTD policies provide for “own occupation” disability insurance coverage for a period of two years. This means that should you be unable to perform the essential functions of your own job, you would meet the definition of disability and should receive benefits.

After that initial period (usually two years), in most insurance policies, the coverage definition changes to “any occupation.” This means that even if you continue to be unable to complete the essential functions of your own job, say as a teacher, if you can do any work, you may no longer be entitled to benefits. If this other occupation is something for which the employee is suitable by reason of their background, the insurer can insist they take the job or risk having their benefits cut off.

It is possible to independently purchase “own occupation” disability insurance coverage at an increased cost. This will provide you with LTD benefits, should you be unable to perform the essential duties of your own occupation. It will typically last until age 65.

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

On October 12, 2018, Morgan Rowe presented as part of the Union of Taxation Employees’ National Health and Safety Conference. Morgan’s presentation addressed the proposed changes to federal harassment protections introduced by Bill C-65, as well as recent cases on harassment and work place violence in federal workplaces.

On January 28, 2019, RavenLaw appeared before the Québec Court of Appeal to argue in support of a challenge under section 2(d) of the Canadian Charter of Rights and Freedoms to restrictions on collective bargaining in the Federal Public Sector Labour Relations Act. Appearing for the intervener, the Public Service Alliance of Canada, RavenLaw argued that section 113 of the Act, which excludes pension and staffing issues from collective bargaining, violates the freedom of association, including by preventing workers from exercising their constitutionally protected right to strike on important workplace issues.

PSAC was represented by Andrew Astritis from RavenLaw.

On October 15, 2018, David Yazbeck appeared before the House of Commons Standing Committee on Industry, Science and Technology, acting on behalf of Copyright Visual Arts – Droits d’auteur Arts visuels (COVA-DAAV). Currently, the Committee is undertaking a review of the Copyright Act. David’s presentation related to recommendations by COVA-DAAV regarding improvements to the Act which would assist visual artists.

In particular, COVA-DAAV is recommending three changes to the Act:

1. The inclusion of limitations on the educational fair dealing provisions so that the interests of visual artists and users are more balanced, and interference in collective licensing is removed;
2. The removal of the 1988 cut-off date for the exhibition right so that artists with works created prior to that date would benefit from that right as it applies to those works; and
3. The establishment of the artist’s resale right, a right which would require the payment of a royalty on transactions of secondary public art sales (i.e. where an artist’s work is sold subsequent to the first sale).

While all of these measures may seem minor, visual artists have among the lowest incomes in Canada and each measure would benefit visual artists immensely.

The full presentation can be viewed here.