Category Archives: Resources

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.

Julia Williams Presents at 2nd Annual OnCALL Conference

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.

The Critical Importance of Long Term Disability Benefits

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.]

Morgan Rowe Presents on Harassment and Health & Safety

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.

RavenLaw Appears in Charter Challenge before Québec Court of Appeal

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.

David Yazbeck Appears Before Standing Committee on Industry, Science and Technology

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:

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;
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
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.

Selecting a Long Term Disability Benefits Lawyer – Updated May 2021

When selecting a Long Term Disability Benefits Lawyer, or Long Term Disability Law Firm, it is important that they have the knowledge and experience in areas that will have a direct impact on your Long Term Disability claim and/or severance package. These areas of expertise include employment law, pension law, and human rights law.

Why Hire an Employment Lawyer?

Battling with an insurance company can be stressful and the interaction with employment law can be complex. A lawyer skilled in the intricacies of Long Term Disability Benefits law can ease the pressure, especially for someone interacting with an insurance company while simultaneously battling with physical or emotional ill-health. Getting caught between an insurance company pushing you to return to work and an employer who doesn’t think you’re ready to return to work can be stressful. Having a lawyer to strategically navigate you through that insurance company-employer stand-off to get your rightful Long Term Disability rights or severance package, is a heavyweight off the shoulders. In Long Term Disability cases you often do not have to pay legal fees upfront. Under a contingency arrangement, a client only pays when he or she gets money from the insurance company. This arrangement gives clients much needed legal expertise and significantly more power when taking on the financial might of an insurance company.

Getting the Right LTD Answers

Employment law can impact your Long Term Disability claim against an insurance company. What happens if I lose my job while on Long Term Disability benefits? What happens if I receive a severance package while receiving Long Term Disability payments? Does my pension continue to accrue? What do I do if my insurance company asks me to apply for Canada Pension Plan Disability benefits (CPPD benefits)? What happens if you get fired while you are claiming Long Term Disability benefits? These are all questions a skilled employment lawyer can answer.

Frustration of Contract

Frustration of contract is a legal term. When an employee is unable to return to work, employers will raise the concept of frustration of contract or will claim that the employment contract is frustrated. A frustrated contract effectively terminates the employee and employer relationship. This is a common occurrence when clients are off work and receiving disability payments. Usually, an employer will claim frustration of the contract after an employee has been off work on disability for approximately two years. If an employee can show medical evidence that there is a reasonable prospect of returning to work, an employer may not be able to claim frustration of contract. If an employer is successful, it would result in termination of employment without the non-statutory elements of a severance package.

Severance Package and Long Term Disability

It is possible that an employer offers a severance package to an employee who is on Long Term Disability leave. However, it is important to consult a disability lawyer before agreeing to such a severance package. Most Long Term Disability contracts state that any income received will be used to offset your Long Term Disability payments. In other words, the severance package amount you receive could go directly into the pockets of your insurance company. Your lawyer may be able to restructure a settlement with the employer to avoid offsetting an LTD payment.

Is Long Term Disability Insurance Mandatory?

No, it is not a legal requirement but you would be unwise not to have it. In the event that you are unable to work, long term disability coverage will provide income replacement of approximately 50 to 70% of your pre disability salary. Without LTD, you may qualify for Ontario Disability Support Program at around $10,000-$12,000 a year and Canada Pension Plan Disability at about $14,000 a year until age 65.

Canada Pension Plan Disability Benefits

Many insurance contracts require eligible employees to apply for Canada Pension Plan Disability benefits. A lawyer with Canada Pension Plan Disability benefits expertise will be able to assist you through this process.

Please see our article “Applying for a Canada Pension Plan Disability Benefit.” If you’re cut off LTD benefits, it is often a good strategic move to apply for CPP disability benefits. To qualify for those benefits you must demonstrate that your injury or illness is severe and will be prolonged. These benefits can also be paid up to 12 months retroactively but if you’re already getting LTD benefits any retroactive benefit may be clawed back by the insurance company. Please see our article on LTD Benefit Offsets.

Further details can also be found here on the official Government of Canada website.

Pensions and Long-Term Disability

If you are contributing to a pension plan where your pensionable time accrues while you are receiving Long Term Disability benefits and short term disability benefits you will want a lawyer knowledgeable in pension law to represent you. Federal public servants who have been off work for a period of 18 to 24 months will typically receive an options letter requiring them to resign, medically retire or return to work with approval from Health Canada. Negotiating a settlement for LTD benefits with the insurance company can be a complex process because the insurance company will want to claw back medical retirement benefits that the employee would be entitled to if they medically retire before age 65.

Do I Need a Human Rights Lawyer?

LTD is not a human right but it is a sensible, if not vital, self-protection for all working people. When people return to work on a gradual or employer-accommodated basis, an employee can feel pressured by the insurance company and an employer. For example, the employer can fail to provide appropriate accommodations for the employee and pressure the employee to stay on LTD until he or she is fully fit to return to work. In contrast, the insurer will usually insist that the employee do the exact opposite by pushing the employee to attempt a return to work. When an insurance company is pushing an employee to return to work too soon or if the employer is failing in its duty to accommodate, consider consulting a Long Term Disability Lawyer with experience in human rights law.

Can an employer refuse a return to work while on Long Term Disability? An employer has the duty to accommodate an employee who wishes to attempt a return to work. However, this duty is not limitless, an employer has the obligation to accommodate an employee’s return to work up to the point of undue hardship. Please see our article “The Duty to Accommodate”. Insurance companies will sometimes argue that it is reasonable for the employer to accommodate the employee’s limitations and cease to pay Long Term Disability benefits. This is not necessarily a valid reason to terminate Long Term Disability benefits and the employee may wish to appeal the insurer’s decision.

Return to Work

As mentioned above, an employer has the duty to accommodate a return to work, and a partial return to work can prevent an employer from being able to claim that an employment contract is frustrated. Some insurance contracts will allow the insured person to receive income from their employer – in addition to Long Term Disability payments – without being subject to an offset. The insurance policy typically has provisions pertaining to a rehabilitation program allowing the employee to claim employment income while in receipt of LTD benefits for a certain period of time.

Choosing a Long Term Disability Benefits Lawyer: Other Considerations

When applying for Long Term Disability Benefits or when your Long Term Disability Benefits are denied, choose a lawyer who has contacts with medical experts that will assist in providing evidence to support your claim.

Check Google reviews for the firm or the lawyer; and
Meet with multiple lawyers and law firms to determine the best fit for you.

Please see the following articles concerning what to expect should your Long Term Disability be denied:

1. WHAT TO DO IF (AND WHEN) YOUR CLAIM FOR LONG TERM DISABILITY (“LTD”) INSURANCE IS DENIED
2. NAVIGATING YOUR CLAIM FOR LONG-TERM DISABILITY (“LTD”) INSURANCE

Denial of Damages for Sexual Assault Struck Down by Federal Court of Appeal

The Federal Court of Appeal recently overturned a decision of the Federal Public Sector Labour Relations and Employment Board (“Board”), which had denied any damages to an employee who was sexually harassed and sexually assaulted in her workplace. The Court found the Board’s decision unreasonable, and criticized the Board Member’s reasons for reflecting improper stereotypes about sexual assault.

Background

The Applicant (pursuing her case under the pseudonym Jane Doe) was subject to months of verbal sexual harassment by a co-worker, culminating in an incident that the employer acknowledged was a sexual assault. She filed a grievance against her employer for failing to provide a harassment-free workplace. The employer acknowledged that the applicant had experienced sexual harassment and sexual assault, but argued that it was not liable for the co-worker’s conduct, or that the Board had no jurisdiction to award damages.

In its decision regarding the Applicant’s grievance, the Board accepted that the Applicant had experienced sexual harassment, contrary to the Canadian Human Rights Act. The Board rejected the employer’s argument that it did not have jurisdiction to award damages to the Applicant. However, the Board found that the Applicant was not entitled to any damages. Among the reasons given, the Board stated:

The “incident” the Applicant experienced was “a vulgar prank”;
There were steps that a “confident employee” such as the Applicant could have taken to deal with the harassment, if the work environment had truly been as difficult to cope with as she described;
It was “unlikely, to say the least” that the “vulgar prank” caused the “extreme emotional impact” she described.

Judgment of the Federal Court of Appeal

In its judgment issued on October 10, 2018, the Federal Court of Appeal overturned the Board’s decision. The Court held that the Board had improperly denied damages to the Applicant because the sexual assault was not solely responsible for the Applicant’s psychological injury. The Court noted that it was not in dispute that the sexual assault had caused the Applicant to experience harm, and it was not necessary for it to be the sole cause of that harm. The Court conclusively held that, “once pain and suffering caused by a discriminatory practice are established, damages should follow”.

In view of the Court’s finding that the Board’s decision was unreasonable, the Court found it unnecessary to decide whether the Board Member’s decision also gave rise to a reasonable apprehension of bias. Nonetheless, the Court chose to comment on two problematic aspects of the Board Member’s reasons.

First, the Court noted that the Board never referred to the culminating incident as a sexual assault, instead calling it a “vulgar prank”. The Court noted that there may be a number of reasons for a decision-maker to choose to use certain language; however, “it is necessary to take care not to inappropriately downplay or diminish the seriousness of unacceptable conduct. The sexual assault at issue in this case could not be reasonably characterized as a “prank”.”

Second, the Court commented on the Board Member’s apparent reliance on stereotypes about how someone would react to sexual harassment or sexual assault. Noting the Supreme Court’s caution against presuming how people who experience sexual assault will behave, the Court stated:

In my view, characterizing an employee as a “confident employee who handled the work easily and had aspirations of joining the management team” (reasons, paragraph 142) similarly does not permit an inference to be made that such an employee would react in a particular way to an escalating number of sexually explicit and violent comments made by a co-worker. One employee might complain immediately to management while another might “go along to get along”. It was an error for the Board to conclude that the applicant exaggerated how difficult it was to cope with her work environment on the basis that the Board characterized the applicant to be a “confident” employee.

Equally, because there is no one typical response by victims to a sexual assault, there was no basis for the Board to infer mainly from the applicant’s responses that the co-worker’s conduct could not have caused the harm described by the applicant. This is particularly troublesome when the Board’s own concept of logic or common sense was substituted for its assessment of the actual evidence before it.

The Applicant was represented before the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.

Long Term Disability Benefits Offsets – Does it Actually Reduce the Amount of Benefits? – Updated May 2021