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

In Godwin v Desjardins Financial Security Investments Inc.[1], the Supreme Court of British Columbia found that the Insurer breached its duty of good faith by failing to assess the plaintiff’s disability claims in a fair and balanced manner. Moreover, the Court awarded damages for mental distress in the amount of $30,000 and punitive damages of $30,000.

The plaintiff was a paralegal that became disabled due to a psychiatric condition (anxiety and depression). Her family doctor indicated that the plaintiff’s chances of going back to work were “extremely good” but that the plaintiff should not go back to her former employment.  The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months.

A psychiatrist hired by the insurance company conducted an Independent Medical Evaluation (IME). The psychiatrist found that the plaintiff’s symptoms might include more occupational (issues with her employer) and motivational factors than a severe and limiting psychiatric impairment. The claims examiner denied the plaintiff’s claim on the basis that her condition was not severe enough to cause significant and prolonged psychiatric impairments, despite the fact that the phrase “significant and prolonged psychiatric impairment” is not found in the definition of Total Disability set out in the insurance policy.

The Court also noted that the claims examiner’s notes do not give any weight to the fact that the plaintiff’s disability was recognized by Canada Pension Plan Disability benefits. See our article: “Frequently Asked Questions regarding Canada Pension Plan Benefits”.

Moreover, the claims examiner failed to note the serious discrepancies between the IME and the plaintiff’s treating therapists and physicians.  Given the inconsistencies in the diagnoses between the medical reports, it was necessary for the claims examiner to ensure that the medical consultant had fairly reviewed the medical reports submitted by the plaintiff to the insurance company.

The Court found that the claims examiner denial of benefits was severely flawed as “she was looking for reasons to deny coverage, even to the point of manufacturing reasons, rather than trying to find a basis in the evidence for paying the claim”.

Mental Distress and Punitive Damages

In citing the Supreme Court of Canada Fidler decision[2], which sets out the rationale for mental distress damages caused by breach of a disability insurance policy, the Court awarded mental distress damages of $30,000 and another $30,000 for punitive damages.  See our article: “Seeking punitive and mental distress damages in a Long-Term Disability (LTD) Claim”.

Here, the Court found that the defendant insurance company had failed to assess the plaintiff’s Own Occupation and Any Occupation claims in a fair and balanced manner and that these failures went beyond mere errors of judgment or misunderstandings. The claims examiner repeatedly failed to analyze and to weigh the evidence before her, and applied a test for disability that went beyond the Total Disability definition set out in the insurance policy. The Court concluded that the mental distress suffered by the plaintiff as a result of the delay in the payment of Any Occupation benefits was sufficient to warrant compensation for mental distress.

Notably, the Court held that had the insurance company’s conduct only marginally aggravated the plaintiff’s symptoms. Had the insurance company been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award would have been approximately $70,000 to $80,000.

In awarding punitive damages, the Court found that the claims examiner’s rejection of the Own Occupation coverage was severely flawed, as it imported improper considerations and concluded without any foundation that motivational factors were dominating the claim. As such, the denial of the claim was arbitrary.

Takeaways

• Claims examiners are required to weigh the totality of the medical evidence against the insurance policy requirements;
• A claims examiner cannot deny coverage on the basis of a test, such as “significant and prolonged impairment”, if such a test is not found in the definition of Total Disability set out in the insurance policy;
• A delay in payment of a disability claim may be sufficient to warrant mental distress compensation.

When initiating a proceeding regarding a denial of LTD benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer. In suitable cases, courts can award these damages.

[1] Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 (CanLII)

[2] Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 SCR 3,  2006 SCC 30 (CanLII)

David Yazbeck has recently been retained as a Canadian Expert Panelist for the European Commission, as part of a study examining whistleblower protection laws and empirical evidence of such protections. The Panel is conducting its whistleblower study so that the Commission can learn what is working and what is not working in terms of whistleblower protection in many jurisdictions.

The larger study aims to:

• Map the existing rules on whistleblower protection in the EU-28 and gather empirical evidence on their effectiveness;

• Assess the need for further measures at the EU level to strengthen whistleblower protection across the EU, and;

• Assess the key impacts (economic, social and on fundamental rights) of potential EU measures to strengthen whistleblower protection across the EU.

David has extensive experience in whistleblower law and has argued many of the leading cases in the Federal jurisdiction in Canada.

On October 11, 2017, Morgan Rowe spoke to University of Ottawa students as part of the “Introduction to the Study of Law” class. She presented on issues related to the life of an employment contract, from formation to termination, as well as workers’ rights during employment. Morgan specifically addressed issues that arise when employment contracts conflict with the Employment Standards Act.

Megan Fultz, one of RavenLaw’s 2017 Human Rights/Social Justice interns, is co-author of a ground-breaking report on the legalization of cannabis which was published by the Global Strategy Lab of the uOttawa Centre for Health Law, Policy and Ethics.  The report titled “Reconciling Canada’s Legalization of Non-Medical Cannabis with the UN Drug Control Treaties”, identifies the legal barriers the government will face with the legalization of cannabis and proposes innovative solutions.   The report was cited by the New York Times upon the introduction of legislation by the Canadian government to legalize the recreational use of cannabis. Congratulations Megan!

On November 30, 2017, Morgan Rowe will present at the 3rd Annual Council of Canadians with Disabilities Conference. This year, the conference will be addressing the duty to accommodate. Morgan will be presenting on issues related to accommodating disabilities in education.

CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

For more information or to register, please visit the conference’s event page.

RavenLaw gratefully acknowledges the contribution of this post by summer student Emily Cumbaa

A recent case before the Ontario Divisional Court examined ODSP’s reimbursement rate for medical travel. After many years of receiving reimbursement that only covered their operational travel costs, Ontarians who are on disability support can now seek reimbursement at a rate that covers both operational and ownership costs associated with their travel for medical treatments, such as appointments with out-of-town specialists. The case and the subsequent policy changes reveal that advancements in disability rights are slow, uneven, and hard-won.

The Case

Wayne Corrigan is a recipient of benefits under the Ontario Disability Support Program (“ODSP”), Ontario’s program providing income and other financial supports for individuals with a disability. Mr. Corrigan frequently travels between Oshawa and Toronto for specialized medical treatments.

A Regulation under the Ontario Disability Support Program Act states that benefits will be paid for “the cost of transportation that is reasonably required in any month for medical treatment for members of the benefit unit… if the cost of that transportation in the month is $15 or more” (O. Reg. 222/98, s. 44(1)1(iii.1)).  Under ODSP policy, Mr. Corrigan could only be reimbursed for his medical travel at the rate of $0.18 per kilometre. However, Mr. Corrigan estimated that his actual travel costs were $0.45 per kilometre.

Mr. Corrigan asked ODSP to review its rate and reimburse him at the rate of $0.45 per kilometre. ODSP denied that request, and also denied an internal review. Mr. Corrigan then appealed to the Social Benefits Tribunal. The Tribunal denied Mr. Corrigan’s appeal.

The Tribunal relied on its reasoning from an earlier decision, which also denied extra reimbursement, distinguishing between operational and ownership costs associated with a vehicle. The Tribunal found that the phrase “cost of transportation” in the legislation included only operational, and not ownership costs.

Mr. Corrigan appealed the Tribunal’s decision to the Ontario Divisional Court. In October 2016, the Court ruled that limiting reimbursement for medical travel to only “operational” expenses was unreasonable. The Court sent the matter back to the Tribunal “for redetermination of the reasonable costs of transportation,” and emphasized both operational and ownership costs can be included in costs of transportation.

A quick note for everyone who is interested in administrative law: the Court found that the appropriate standard of review was reasonableness, despite both parties agreeing that correctness was the appropriate standard. The Court’s finding reinforces that administrative tribunals are owed substantial deference, even on a statutory appeal as opposed to an application for judicial review.

The Government’s Response

In January 2017, the Ontario government increased the mileage rate for medical travel to $0.41 per kilometre in the North and Northeast Regions of Ontario, and $0.40 per kilometre everywhere else in the province. This represents an increase of more than 220%. The medical travel mileage rates are retroactive to October 1, 2016.

The new rates also apply for self-employed persons on ODSP if they use their personal car for business travel to generate income. The business travel rates are not retroactive, and therefore came into effect on January 9, 2017.

The Takeaway

This case and the subsequent policy changes highlight that advancements in disability rights are:

1. slow;
2. uneven; and
3. hard-won.

Advancements are slow. When the new increases were announced, the rates for medical travel had not changed in 17 years. In that time, the cost of driving had increased substantially, largely driven by gas prices. The Social Benefits Tribunal had more than once denied an increase to the rate for medical travel.

Advancements are uneven. The Divisional Court noted that other programs paid higher rates for medical travel than ODSP. The rate increase also applies to Ontario Works recipients. But before the increase took effect, every municipality in the province was responsible for setting their own rate, creating differences across the province.

Advancements are hard-won. ODSP and the Tribunal were both reluctant to review and increase the medical travel rate.  It is not surprising, therefore, that the Income Advocacy Support Centre reported that the rate increases were the result of years of advocacy work. This work included legal supports, a letter to the Minister, and collaboration between community and advocacy groups.

Thankfully for people on ODSP who must travel with their car for medical reasons, they can now be reimbursed at a rate that reflects their actual travel costs.

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

In a recent decision, the Federal Court of Appeal conclusively determined that federal public service adjudicators may hear and decide on cases where the Federal Government revokes an employee’s reliability status and then terminates her for the loss of that status.

The adjudicator in the case at hand had found that the employer did not have a legitimate concern that the Grievor posed a security risk when it decided to revoke her reliability status and then terminate her. He therefore found that the Grievor’s termination had been without cause and ordered her reinstatement.

Before the Federal Court of Appeal, the Government argued that this decision should be overturned. The Government took the position that federal public service adjudicators could only consider whether an employee was terminated for cause and did not have the power to consider whether the Government’s decision to revoke an employee’s reliability status was justified.

The Federal Court of Appeal squarely rejected this claim, finding that the adjudicator’s approach was “the only reasonable approach to be taken.” In doing so, the Court overturned a number of cases which had limited employees’ right to grieve where they were terminated due to the loss of reliability status. The Court concluded that these cases were “no longer valid,” cementing the right of employees to bring forward grievances in these circumstances and for public service adjudicators to determine whether a revocation leading to termination is, in fact, justified.

The employee was represented by Andrew Raven of RavenLaw.

On October 31, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a Charter challenge to certain restrictive portions of Québec’s pay equity legislation.

In particular, in 2009, the Québec government made changes to its pay equity law which required employers to review their wage rates every five years to determine whether changes to wages had resulted in wage discrimination. However, the 2009 amendments to the Pay Equity Act also prevented affected employees from claiming any remedy for discrimination that occurred in between the five-year reviews.

Before the Supreme Court, unions, workers, and pay equity and women’s organizations joined together to argue that these amendments resulted in ongoing discrimination against women and breached their Charter rights.

Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada.

For the second time, a decision of the Canadian Human Rights Commission to dismiss a complaint regarding discrimination related to medicinal marijuana has been set aside by the courts. In McIlvenna v Bank of Nova Scotia, the Federal Court found that the Commission breached its duty of fairness and ignored obviously crucial evidence supporting a complaint that Scotiabank had called in a mortgage because of the presence of medicinal marijuana on the mortgaged property.

Background

The Applicant, Robert McIlvenna, had a mortgage with the Bank, and had applied for an additional line of credit to perform renovations on the mortgaged house, which was occupied by his son and daughter-in-law. The Bank refused the line of credit and called in Mr. McIlvenna’s mortgage, and he alleged the Bank took this action because it had learned that medicinal marijuana was being grown in the home under a Health Canada license. The Bank maintained that the reason for its actions was a violation of the terms of the mortgage.

The Canadian Human Rights Commission initially rejected the complaint without an investigation. That decision was overturned by the Federal Court of Appeal, which found it unreasonable for the Commission to refuse to investigate, when there was a live factual dispute between the parties as to whether the Bank made its decision on discriminatory grounds. (See the Federal Court of Appeal’s decision here.)

The complaint was returned to the Commission for investigation. Following its investigation, the Commission again dismissed the complaint, finding that further inquiry into the complaint was not warranted. Mr. McIlvenna again sought judicial review of the decision in Federal Court. Among his arguments, he raised the fact that there were internal Bank emails in the Commission’s investigation file, which clearly supported the McIlvennas’ allegation that the mortgage was called in because of the presence of medicinal marijuana.

Judgment of the Federal Court 

In his judgment, dated July 19, 2017, Justice Boswell of the Federal Court allowed the Application for judicial review. He found that the Commission failed to investigate obviously crucial evidence before it—specifically, the internal Bank emails. The Court held:

“The content of these two emails, in particular the email sent July 15, 2010, is obviously crucial evidence given the relevant allegations in the Applicant’s human rights complaint and the contradictory statements by the Applicant and his son. A reasonable person would agree that this evidence was crucial because it lends credence to the Applicant’s position that his son’s growing of medical marijuana may have been a factor in the Bank’s decision to call in the mortgage. Although the July 15, 2010 email is certainly not conclusive of exactly what was said during the July 15th meeting, at the very least it tends to corroborate the Applicant’s claim that Ms. Joliat discussed the Bank’s policy on grow-ops during their meeting and is crucial in determining the merits of the Applicant’s claim.”

Justice Boswell found that the Investigator “glossed over this evidence”, and failed to investigate the Bank’s policy on marijuana “grow-ops” in determining whether the Bank had a reasonable, non-discriminatory explanation for calling in the mortgage. The Court went on to find the ultimate decision unreasonable, because the Commission’s analysis “essentially ignores the evidence contained in Ms. Joliat’s two emails”, despite the fact that these emails supported the McIlvennas’ version of events. The complaint was referred back to the Commission for re-determination and, if necessary, further investigation.

The Applicant was represented in the Federal Court by Andrew Astritis and Amanda Montague-Reinholdt of RavenLaw.