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:
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:
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 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.
Dependent Children benefits resulting from Canada Pension Plan Disability (“CPPD”) benefits may be deducted from the Long Term Disability (“LTD”) benefits. Some insurance contracts will explicitly exclude CPP Dependent Children benefits from being deducted from LTD benefits while others will state that monthly LTD benefits are reduced by CPP disability benefits including the benefits dependent children. However, insurance contracts are not always as explicit. As such, an ambiguous clause could lead a judge or decision maker to conclude that the CPP Dependent Children benefits should not be deducted from the monthly LTD benefits.
In Hennig v Clarica Life Insurance Co.[1] (“Hennig”) the Court decided that the insurance company was not entitled to deduct any CPP Dependent Children Benefits from the LTD benefits. Importantly, the Court held that the CPP Dependent Children benefits were found to be beneficially owned by the children under the Canada Pension Plan Act[2]. The double recovery resulting to the family was found to be irrelevant because the disability coverage was bought and paid for privately. Therefore, the plaintiff was entitled to the full benefit provided by the insurance contract without the insurer being entitled to deduct the Dependent Children benefits.
The Court reached this decision by applying the contra proferentem interpretation rule. This Latin maxim means that if the words in a contract are ambiguous the contract should be interpreted against the one who wrote the words. In this context, the contra proferentem rule, favoured the interpretation of “received” as meaning beneficial and legal receipt rather than benefits paid in trust to the insured’s children. The Court concluded that the portions of the insurance company’s policy which purport to allow such a deduction were ambiguous because they did not clearly indicate whether monies received by the plaintiff fell within the types of payments the insurance company was entitled to deduct from any disability payments.
The case of Dubasoff v Mutual Life Assurance Company of Canada[3] is another illustration of the courts reluctance to deduct child benefit amounts from Long Term Disability payments.
For unionized employees, arbitrators will look at the collective agreement to determine whether the benefits for dependent children will be deducted. See our article: “Where should unionized employees appeal their Long Term Disability benefits claims”, if you are unsure whether you must file a claim in Superior Court or file a grievance to contest the denial of Long Term Disability benefits.
In London (City) v London Civil Employees Local 107[4], the arbitrator concluded that the CPPD child benefits did not fall within the ambit of “all income sources participated in by the employer and employee” The Arbitrator emphasized that there must be a sufficiently clear expression of intention by the parties to deduct the CPPD child benefits from the LTD benefits.
In Ruffolo v Sun Life Assurance Company of Canada[5], the opposite conclusion was reached. There, the plaintiffs were receiving Long Term Disability benefits under group insurance policies issued by the defendant insurer. They also received disability benefits for their dependent children under the Canada Pension Plan Act. The insurer deducted the CPPD Dependent Children Benefit from the LTD amounts payable under the insurance policy. The insurance policy provided that “monthly LTD benefits are to be reduced by the disability income to which the disabled member is entitled under a government plan (including benefits under the Canada Pension Plan, including benefits for dependent children)”. The Ontario Court of Appeal upheld the Trial Court’s decision, finding that the CPP Dependent Children benefits were incorporated by contractual consent into the concept “disability income to which the disabled member is entitled”. As such, the insurance company was entitled to deduct the benefits for dependent children from the LTD benefits.
Takeaways:
It is important to examine the insurance contract, the collective agreement (if applicable), the legislation and the jurisprudence carefully to determine whether the Dependent Children Benefits can be deducted from LTD monthly benefits.
[1] Hennig v Clarica Life Insurance Co. (2001), 33 CCLI (3d) 280; affirmed (2003), 2003 Carswell Alta 269 (Alta CA)
[2] Canada Pension Plan, RSC, 1985, c C-8.
[3] Dubasoff v Mutual Life Assurance Co., [1995] 123 DLR (4th) 577 (SK CA)
[4] London (City) v London Civil Employees Local 107 [2006] L.V.I. 3602-6.
[5] Ruffolo v Sun Life Assurance Company of Canada, 2009 ONCA 274 (leave to appeal to SCC refused)
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]