On October 31, 2018, Julia Williams participated in a panel discussion at the University of Ottawa on “Interview Landmines.” The panel was a Q&A with lawyers offering insight into how to deal with difficult questions about race, gender, sexual orientation, family plans, and more during recruitment processes.  Julia would like to thank the University of Ottawa Association of Women and the Law (UOAWL), one of the largest equity-seeking groups at the University of Ottawa, for inviting her to participate in this event.

On March 1, 2018, James Cameron presented as part of the Advocates Society’s 2018 Courthouse series, speaking on complex motions and applications. James also presented a guest lecture to law school students at Queens University that same day, addressing issues arising in legal negotiations.

On September 19, 2018, Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. Morgan’s presentations addressed the most effective ways to represent union members in cases involving the duty to accommodate for human rights reasons and in harassment complaints.

On March 8, 2018, Morgan Rowe presented as part of a panel discussion in honour of International Women’s Day, hosted by CUPE 2626. The panel discussed challenges for women and gender minorities in the workplace, including addressing issues related to precarious work, domestic workers, and unpaid labour.

On September 20, 2018, James Cameron and Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. James and Morgan’s presentation addressed how to assist union members in successfully filing long-term disability applications and strategies for effective LTD benefit appeals and litigation.

On March 8, 2018, Julia Williams participated in a panel discussion at the University of Ottawa on “Challenges and Opportunities: Racialized Women Working in the Law.” The panel provided an opportunity to examine the challenges faced by women of diverse backgrounds and share insights into overcoming these challenges. Julia would like to thank the “Law Needs Feminism Because” group for inviting her to participate in this important social justice event.

The full list of student groups that collaborated to bring the panel together include:

• Asian Law Students’ Association
• South Asian Women in the Law
• Black Law Students’ Association
• Women’s Legal Mentorship Program
• Latin American Law Students’ Association
• Law Needs Feminism Because
• Middle Eastern Law Students’ Association
• South Asian Law Students’ Association

On October 9, 2018, James Cameron will present as part of a panel discussing terminations in the federal public service. The panel will tackle how employees are terminated in the public service and when those terminations can be successfully challenged.

For more information or to register, please contact the event organizer.

We are thrilled to announce that Jessica Greenwood is joining Ravenlaw!

Jessica has been successfully advocating on behalf of unions and employees her entire career. She is a proud Kingstonian and Queen’s alumni. Before joining our firm, Jessica worked at one of the largest trade unions in the country where she regularly appeared before labour arbitration boards. She brings talent, results and experience.

Jessica will be leading our Kingston office where she will continue advocating on behalf of workers and unions.

In addition, Peggy Smith, who has been working in association with our firm since January 1, 2018, will continue to service Kingston area clients.

Welcome Jessica!

The dreaded answer is:   “it depends…”

Fortunately, the Ontario Court of Appeal in Barber v The Manufacturers Life Insurance Company  (Manulife Financial) (“Barber v Manulife”)[1]  has clarified whether to file a claim for long term disability benefits in the Ontario Superior Court or to proceed in arbitration.

Firstly, one must determine whether the essential character of the dispute concerns LTD benefits.  If so, does the claim’s essential character arise from the interpretation, application, administration or violation of the Collective Agreement?  If the answer is yes, than it is the arbitrator, not the court, that has exclusive jurisdiction to decide.[2]

But wait! How do you know whether the essential character arises from the interpretation, application, administration or violation of the Collective Agreement?  Simply put, how do we determine whether the arbitrator has the jurisdiction to decide benefit entitlement claims such LTD claims?

The Ontario Court of Appeal[3] has adopted the following four categories from Brown & Beatty which help answer this question:

1. Where the collective agreement does not set out the benefit sought to be enforced, the claim is inarbitrable;
2. Where the collective agreement stipulates that the employer is obliged to provide certain medical or sick-pay benefits, but does not incorporate the plan into the agreement or make specific reference to it, the claim is arbitrable;
3. Where the collective agreement only obliges the employer to pay the premiums associated with the insurance plan, the claim is inarbitrable; and
4. Where the insurance policy is incorporated into the collective agreement the claim is arbitrable.

In Barber v Manulife, Adrian Barber became disabled from her employment as a Port Hope police constable. She applied for LTD benefits under a group policy insurance; insured by Manulife. The collective agreement, which governed Ms. Barber’s employment, required the employer to offer disability insurance coverage to the Port Hope Police Association’s members.  Ms. Barber appealed Manulife’s decision to terminate her benefits at the Superior Court of Justice. However, her claim was dismissed because the motions judge found that the collective agreement granted exclusive jurisdiction to the labour arbitration process. In other words, the Superior Court found it did not have jurisdiction over Ms. Barber’s matter.

The Ontario Court of Appeal agreed with the motions judge. The collective agreement established Ms. Barber’s rights to LTD benefits. In fact, the provisions within the collective agreement did more than merely oblige the employer to pay premiums for insurance: they covered the terms, the amount of the disability benefits and the definition of total disability.  The Court of Appeal noted that the employer could have changed insurers as long as the benefits defined in the collective agreement continued.

Takeaways

An arbitrator may have jurisdiction in determining LTD entitlements when:

• The collective agreement does more than merely oblige the employer to pay insurance premiums;
• The provisions of the collective agreement covers the terms of the LTD benefits;
• The amount of the disability benefits is specified;
• “total disability” is defined in the collective agreement;
• The insurance policy is incorporated in the collective agreement.

The courts will have jurisdiction, even in a unionized setting, when the collective agreement does not set out the benefit or only obliges the employer to pay the premium. Jurisdiction and the time lines will be determined by this analysis, so examine the collective agreement and the jurisprudence carefully before deciding whether to grieve or sue.

[1] Barber v The Manufacturers Life Insurance Company (Manulife Financial), 2017 ONCA 164.

[2] Weber v Ontario Hydro, [1995] 2 SCR 929, at paras 11, 52 and 54.

[3] London Life Insurance Co. v Dubreuil Brothers Employees Assn. (2000), 49 OR (3d) 766, at para 10.

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

On November 28, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a challenge under the Canadian Human Rights Act to discriminatory provisions of the Indian Act registration scheme.

RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, one of 14 organizations that intervened to argue in favour of a broad and purposive approach to interpreting human rights laws. Particularly, PSAC intervened to argue that the Canadian Human Rights Act should allow individuals to bring human rights challenges against government programs and benefits schemes, even where the discrimination in the program or benefit arises because of legislation.

Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of PSAC.