It is an established principle in labour law that an employer cannot impose more than one penalty for the same offence – but what constitutes a penalty? That was the issue at the heart of Collège Boréal, an arbitral award released on July 23, 2015, where an employee appeared to receive two sanctions for the same event.

The grievor was tasked with accompanying college students at a hockey tournament in Toronto, where several incidents involving alcohol consumption and on-ice altercations took place. Upon returning to the College, the grievor failed to disclose these events. After meeting with his supervisor, he was advised, by email, that a note would be placed on his employee file due to his lack of judgment. Roughly two weeks later, the grievor was placed on administrative suspension, and terminated shortly thereafter.

During the hearing, the employer argued that the supervisor’s email did not constitute discipline, and therefore, the College was not barred from imposing a subsequent penalty – in this case termination. In assessing whether the email constituted discipline, Arbitrator Kathleen O’Neil applied “an objective interpretation”, without “placing emphasis on the intention” of the supervisor. The email was deemed disciplinary and therefore, the employer was barred from imposing a second disciplinary sanction for the same events. The Arbitrator nonetheless added supplemental discipline for events that were not properly covered by the email.

The grievor was ultimately reinstated.

OPSEU, Local 672, was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP.

In a recent arbitral award, Arbitrator Goodfellow confirmed that the cancellation of two full-time employee’s shifts during temporary slowdowns constituted a layoff within the meaning of the collective agreement. The Arbitrator agreed with the Union, CUPE, Local 139, that the cancellation of shifts was a layoff because it involved a reduction in a full-time employee’s hours of work below the permissible level in the collective agreement. Under this award, the parties agreed to a protocol to use in such circumstances in the future.

CUPE, Local 139 was represented by Wassim Garzouzi and Amanda Montague-Reinholdt of Raven, Cameron, Ballantyne & Yazbeck LLP.

On April 1, 2016, Morgan Rowe spoke to CBC Radio about a recent decision by the Human Rights Tribunal of Ontario that accepted that miscarriage is a disability. In its decision, rendered on March 14, 2016, the Tribunal rejected an employer’s request to have a Human Rights Code complaint dismissed on the basis that the employee had failed to establish the existence of a disability. Morgan represented the employee in the case before the Tribunal.

Morgan’s interview with CBC Radio is available here. CBC has also reported Morgan’s interview here.

On August 21, 2015, an Adjudicator of the Public Service Labour Relations and Employment Board reinstated two long service Parks Canada employees who were terminated for entering a restricted area at a National Park site and swimming in an underground cave pool that contained an endangered species of snail. While Adjudicator Gobeil was satisfied that the grievors had entered the premises knowing that they should not have and swam in the protected habit of the endangered snails, she rescinded the terminations. In determining that termination was not an appropriate sanction, Adjudicator Gobeil considered the 30 years of service of one of the grievors and the 14 years of service of the other grievor. In addition, both grievors had clean disciplinary records and the termination resulted from a single, unplanned incident.

The grievors were reinstated effective the date of the decision.

The grievors were represented by Wassim Garzouzi of RavenLaw.

Andrew Astritis will be speaking at a Council for Canadians with Disabilities (“CCD”) program entitled “Providing Accessible and Quality Legal Services to Clients with Disabilities” on Friday, April 8, 2016 at Gillespie’s Court Reporting at 1300 Slater Street, Ottawa. CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

Tickets for the program are available here. For more information, please contact vmena085@uottawa.ca

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

The Canada Pension Plan (CPP) disability benefit is a taxable monthly payment that is available to people who have contributed to the CPP while working and who are not able to work regularly at any job because of a disability.

Frequently Asked Questions Regarding Canada Pension Plan Benefits

1. Who is eligible for the CPP disability benefit?

To qualify for a CPP disability benefit, you must:

• have a severe and prolongeddisability
• be under the age of 65*[1]
• meet the CPP contribution requirements.

2. What is a severe and prolonged disability for the purposes of the CPP disability benefit?

To be eligible for a CPP disability benefit, you must have a severe and prolonged medical condition. What is important is how the medical condition and its treatment affect your ability to work at any job on a regular basis. Your condition must be expected to last at least one year or be likely to result in death.

3. What are the CPP contribution requirements?

To qualify for a CPP disability benefit, you must have contributed to the CPP while at work in:

• four of the last six years, or
• three of the last six years if you have contributed for at least 25 years.

However, there are certain provisions that may help you qualify for CPP disability benefits, even if you fail to meet these requirements. For example, you may be eligible if you stayed at home and raised children, if you applied too late for CPP disability benefits, if you are separated or divorced, if you lived and worked in another country, or if you were physically or mentally unable to apply for CPP disability at a specific time. You can obtain more information on these provision on the Service Canada website, by calling your nearest Service Canada centre, or by seeking legal advice.

4. When and how can you apply for CPP disability benefit?

You should apply as soon as you develop a severe and prolonged or terminal medical condition that prevents you from working regularly at any job.

You must apply for CPP disability in writing by printing out the main application form (ISP 1151), the consent forms, and any other necessary forms that can be found on the Service Canada website or at one of the Service Canada centers near you. Fill out the necessary forms and mail them to the nearest Service Canada office.

5. If the claim for CPP disability benefits is denied, what can you do?

If you disagree with the decision regarding your CPP disability application, you may request a reconsideration of the decision. A reconsideration is a new review of your application by Service Canada.

You must make your request for reconsideration in writing within 90 days after you are notified in writing of the decision. Your written request for reconsideration should be mailed to the return address on the decision letter.

Prepare your written request for reconsideration and include:

• your name, address, telephone number, and Social Insurance Number;
• a detailed explanation of why you want a reconsideration; and
• any new information that could affect the decision including any new medicals information or documents.

If you are still dissatisfied with the reconsideration decision, you can appeal to the Social Security Tribunal.

6. What if you are receiving a disability income from another source?

If you are receiving disability income from other sources, such as a private insurer or a provincial social assistance program, you may still be eligible to receive the CPP disability benefit. However, these other sources may adjust their payments if you are approved for a CPP disability benefit. For example, if you are receiving monthly Long Term Disability (LTD) benefits from your private insurer, once you are approved for CPP disability, your private insurer will reduce the amount of monthly LTD benefits you are entitled to by the amount you are now receiving under CPP disability. 

We are here to help navigate the CPP disability application and appeal process.  Consult one of our experienced Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for CPP disability benefits or if your claim for benefits has been denied. 

* If you are aged 60 to 64 and you think you might qualify for a CPP disability benefit, you may also want to apply for a CPP retirement pension. While you cannot receive both at the same time, you may qualify to begin receiving a retirement pension while you wait for your CPP disability benefit application to be assessed, which usually takes longer.