On May 7, the Canadian Human Rights Tribunal issued an important decision granting over $310,000 in remedies for discriminatory practices engaged in by the Canada Border Services Agency in violation of sections 7 and 10 of the Canadian Human Rights Act. In an earlier decision, the Tribunal found that the complainant, Levan Turner, was discriminated against by CBSA on the basis of his race, colour, and perceived disability of obesity.

In the remedial decision, the Tribunal found that CBSA wilfully deprived Mr. Turner of employment opportunities, conduct which was deliberate, driven by prejudice and permeated with an ulterior motive to deny Mr. Turner an opportunity to continue being employed with CBSA.

The Tribunal ordered that CBSA compensate Mr. Turner for his lost wages over a ten-year period, anticipated lost wages for the years 2015 to 2019, $15,000 for pain and suffering, and an additional $15,000 compensation arising from CBSA’s wilful discrimination.

Mr. Turner was represented by David Yazbeck of RavenLaw.

This month, Andrew Astritis and Wassim Garzouzi participated in an upper-year labour arbitration course at the University of Ottawa Law School. Andrew and Wassim enjoyed serving as panelists for the year-end labour arbitration moot and providing students with comments and feedback on their presentations.

RavenLaw gratefully acknowledges the contribution to this blog by Taylor Akin, Student-At-Law

By now, many of us have heard of Jennifer Huculak-Kimmel, the Canadian mother who was billed $950,000 when she unexpectedly gave birth while on vacation in Hawaii. Her baby was delivered nine weeks early by emergency C-section and had to be hospitalized for two months. Prior to leaving for vacation, Huculak-Kimmel had purchased travel insurance with Blue Cross and was cleared to fly by her doctor.  Blue Cross denied her coverage due to an alleged pre-existing condition. Huculak-Kimmel had contracted a bladder infection four months into her pregnancy and Blue Cross argued that this pre-existing condition made her pregnancy high risk and nullified her health insurance coverage.

In determining whether health insurance coverage is owed in these circumstances, recent Canadian judgments have applied the reasonable expectations doctrine. The British Columbia Supreme Court decided a similar (albeit less financially devastating) case that occurred in 2011. In Turpin v Manufacturers Life Insurance Company, 2011 BCSC 1162, Sandra Turpin experienced abdominal pain two weeks before a trip. She sought the advice of three different doctors and was prescribed antibiotics. She then purchased travel insurance and travelled to South California. Shortly after her trip began, Turpin felt unwell and attended a walk-in clinic. When a new prescription did not ease the pain, she spent 5 days confined to hospital.  Upon returning to Canada, she underwent an appendectomy. The family incurred just over $27,000 in medical expenses while on vacation that the insurance company refused to cover due to the alleged pre-existing medical condition.

In evaluating Turpin’s entitlement to coverage, Justice Echlin considered the reasonable expectations principle.  Although a clause in the health insurance policy excluded preexisting conditions, the court found that both parties reasonably expected Turpin to be covered on her trip. Justice Echlin followed the Ontario Court of Appeal’s earlier decision in Chilton v. Co-Operators General Insurance Company, (1997)  32 O.R. (3d) 161 (Ont. C.A.), where the Court of Appeal stated that “coverage limitations in insurance policies that conflict with reasonable expectations are not enforced even though the limitations are both explicit and unambiguous.”

Justice Echlin reached a similar conclusion: “Ms. Turpin was not eligible for medical coverage because she suffered an irregularity in her health, three days before the policy issued. The medical coverage is nullified. That is not what the parties expected. I find they expected that Ms. Turpin would be so covered.”

The question that arises in the Huculak-Kimmel case is whether the parties (that is, both the insurer and the insured) reasonably expected that the insured would be covered by her travel insurance in these circumstances. If so, does this reasonable expectation also extend to the insured’s baby?  It will be interesting to see how her case unfolds given this recent judicial willingness to hold insurance companies accountable for that which is reasonably expected – despite exclusionary clauses.

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

The Federal Court of Appeal recently issued a decision overhauling the state of federal employment law. In Wilson v Atomic Energy of Canada Ltd, 2015 FCA 17, the Court  rejected the generally accepted approach to unjust dismissal complaints under the Canada Labour Code (“Code”), which applies to workers who are employed in federally regulated industries. The decision in Wilson has profound implications for non-unionized federally regulated employees. Mr. Wilson is currently seeking leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada.

Background on termination of employment of unionized and non-unionized employees

Unionized workers can only be dismissed with just cause

For most unionized workers, terms and conditions of employment are governed by collective agreements which include a requirement that the employer only terminate an employee where there is just cause for dismissal. Just cause is a high threshold for an employer to meet and provides substantial protection for unionized workers.

Non-unionized federal workers cannot be dismissed “unjustly”

Section 240 of the Code provides non-unionized federal workers with the right to make “unjust dismissal” complaints, provided they have been employed for at least 12 months and they allege that they have been dismissed “unjustly”. The Code also provides statutory remedies for federal workers who are dismissed unjustly, including reinstatement to employment, which are not available to non-unionized provincial workers.

Non-unionized provincial workers can be dismissed without cause

At common law, non-unionized employees who work for provincially regulated employers – the vast majority of employers in Canada – can be dismissed without cause provided that employers provide reasonable notice of termination, or pay in lieu or reasonable notice. A dismissal that is both without cause and without reasonable notice is a wrongful dismissal. Read more about termination in the provincial sphere here.

The Pre-Wilson Approach to Unjust Dismissal Complaints under the Code

Prior to Wilson, there was an established line of cases holding that federal employers could only dismiss employees for cause, similar to the just cause protections provided for in collective agreements. Leading employment law scholars, Innis Christie and Geoffrey England, have explained that the Code’s unjust dismissal provisions were intended to:

“provide the non-unionized employee with substantially similar protections against unjust discharge as the unionized employee enjoys under a collective agreement.”

However, Code adjudicators have disagreed on this point and there are conflicting decisions on whether the Code permits dismissals on a without cause basis. As Code adjudicators are bound by decisions of the Federal Court of Appeal, Wilson settles the disagreement, unless the Supreme Court of Canada grants leave to appeal and weighs in on the issue.

Wilson v Atomic Energy of Canada Ltd

A Code adjudicator determined that AECL had violated the Code by terminating Wilson on a without cause basis. AECL applied for judicial review of this decision at the Federal Court, and the Federal Court overturned the adjudicator’s decision. Mr. Wilson appealed the Federal Court’s decision to the Federal Court of Appeal.

A dismissal without cause is not “unjust”

In Wilson, the Federal Court of Appeal concluded that:

• a dismissal without cause is not automatically unjust under the Code;
• this is consistent with the common law of employment, which allows for dismissal without cause so long as the reasonable notice requirement is met; and
• the Code cannot be interpreted as giving non-unionized employees a “right to the job” or attempting to place unionized and non-unionized employees in the same position.

Code adjudicators must determine if a dismissal is “unjust” in all of the circumstances

The Court also explained the role of Code adjudicators in unjust dismissal complaints:

• it is up to Code adjudicators to look into the circumstances of each case to determine if the dismissal was “unjust”; and
• adjudicators do not have “free rein” to find a dismissal unjust on any basis, although the fact that an employer has paid an employee severance pay does not preclude a finding that the dismissal was unjust.

However, beyond commenting that “unjust” is a term that “sits alongside and gathers much, if not all, of its meaning from well-established common law and arbitral cases concerning dismissal”, the Court declined to interpret the meaning of “unjust”. It will now be up to Code adjudicators to determine the meaning of “unjust” through the development of case law.

Supreme Court will decide whether to weigh in on this dramatic change for federal employees

The Federal Court of Appeal’s decision marks a major departure from an established line of cases, and creates considerable uncertainty in the law going forward. The Federal Court of Appeal left open the meaning of “unjust”, the very basis for section 240 complaints, which may now make it more difficult for a worker to assess the merits of an unjust dismissal complaint. Mr. Wilson’s leave application will thus be closely followed by federal workers and their advocates, who undoubtedly hope the Supreme Court will intervene on this important issue.

Some of the questions that may be raised, if the appeal is heard by the Supreme Court, include:

• What, if any, differences are there between a common law wrongful termination and an unjust dismissal under the Code?
• Is it contrary to the policy reasons for section 240 of the Code to permit terminations “without cause”?
• Will reinstatement remain available as a remedy for unjust dismissal complaints under the Code, if employers are now permitted to terminate without cause? If so, under what circumstances will it be ordered?

It is hoped that an appeal before the Supreme Court will bring clarity to these issues, and resolve them in a manner that is consistent with the protections Parliament intended to afford to federally regulated employees.

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

On May 14, 2015, Morgan Rowe and University of Ottawa Professor Ravi Malhotra celebrated the launch of the paperback version of their book, Exploring Disability Identity and Disability Rights through Narratives: Finding a Voice of Their Own. The event was a resounding success, with the first order of the book selling out before the end of the event. Morgan would like to thank everyone who came out and contributed to making the event such a success.

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Morgan Rowe will be celebrating the paperback launch of her book, Exploring Disability Identity and Disability Rights through Narratives: Finding a Voice of Their Own, on May 14, 2015. The book explores the relationship between disability, human rights, and personal identity in the lives of Canadians with disabilities. The book launch is being hosted by Octopus Books. More details about the event can be found here.

Andrew Astritis will be presenting at the 2015 Accommodation Law Conference, hosted by Labour Law Online – Centre for Labour-Management Development. The conference, which takes place on April 22 and 23, 2015 at the Chateau Laurier in Ottawa, will address recent development in human rights and accommodation law, including a summary of recent cases in the area. More information on the conference is available here.

On Friday, March 20, 2015, Andrew Astritis participated in an upper-year human rights seminar in the University of Ottawa’s common law program. The class addressed developments in family status accommodation, including the decision in Canada (Attorney General) v Johnstone. Andrew Raven and Andrew Astritis appeared as counsel on behalf of Ms Johnstone.

RavenLaw was proud to sponsor the 16^th Annual County of Carleton Law Association/ Great Canadian Theatre Company Lawyer Play. The annual fundraiser supports the operations of Great Canadian Theatre Company (GCTC) and benefits a charity partner, which this year was StreetSmarts. Over the last 15 years, the Lawyer Play fundraiser has raised over $1.2 million dollars for GCTC and designated charity partners. Each year, the play’s cast is composed entirely of members of Ottawa’s legal community. This year’s play, Parfumerie, ran from April 15 – 18, 2015 and featured RavenLaw lawyer Amanda Montague-Reinholdt as Miss Ritter.

In addition to compensation for long-term disability benefits, it is possible to also claim damages for mental distress from the insurance company, as well as punitive damages to punish the company for its conduct. However, to successfully claim these amounts, the relevant legal tests must be satisfied. The Ontario Court of Appeal recently rendered a decision which clarifies the test to be applied in determining punitive and mental distress damages.

Background

In Fernandes v Penncorp Life Insurance Company, 2014 ONCA 615, the plaintiff ran a successful brick laying business in Kitchener, Ontario, when he injured his back after two separate falls. After the second fall, he never worked as a brick layer again. Mr. Fernandes was, at the time of his injury, 40 years old with an equivalent of a grade 8 education.

The trial judge awarded the plaintiff approximately $236,000 in compensation, and also awarded significant punitive and mental distress damages. Mr. Fernandes was awarded $200,000 in punitive damages because the insurance company had not “dealt with the claim fairly and in a balanced way”. He was also awarded $100,000 for mental distress damages for the failure of the insurance company to pay him what they had contracted to pay him. Notably, Mr. Fernandes had originally only sought $25,000 for these mental distress damages. Finally, Mr. Fernandes was awarded full legal costs amounting to about $212,000.

The insurance company appealed the trial judge’s decision regarding the awards for punitive and mental distress damages, as well as full indemnity costs.

Decision of the Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeal in part, reducing the legal costs awarded by $30,000 and reducing the mental distress damages awarded. However, the Court upheld the finding that punitive and mental distress damages were payable in respect of Mr. Fernandes’ treatment by the insurance company.

Punitive Damages

The Court summarized the key applicable principles for a finding of punitive damages as follows:

• Punitive damages are designed to address the objectives of retribution, deterrence and denunciation, not to compensate the plaintiff.
• They are awarded only where compensatory damages are insufficient to accomplish these objectives.
• They are the exception rather than the rule.
• The impugned conduct must depart markedly from ordinary standards of decency; it is conduct that is malicious, oppressive or high-handed and that offends the court’s sense of decency.
• In addition to the breach of contract, there must be an independent actionable wrong.
• In a case of breach of an insurance contract for failure to pay insurance benefits, a breach by the insurer of its contractual duty to act in good faith constitute an independent actionable wrong.

Applying those principles, the Court of Appeal found that there was sufficient evidence to support the conclusion that punitive damages were appropriate in Mr. Fernandes’ case.

Mental Distress Damages

The Court noted that the Supreme Court of Canada in Fidler has held damages for mental distress for breach of contract may be awarded “where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made”. This however, does not obviate the need to prove the actual loss.

Here, both parties agreed that an objective of the insurance policy was to secure a psychological benefit and that at the time, the parties reasonably contemplated that the failure to pay benefits could cause the respondent mental distress. However, the insurance company contested the amount awarded.

The Court noted that there was no good explanation how the trial judge had arrived at the figure of $100,000, or what facts justified such an amount. It noted further that the award appeared inordinately high and entirely disproportionate, as compared to other awards and noted that the award was four (4) times greater than that requested by Mr. Fernandes. It finally noted that mental distress damages are to be compensatory and not punitive and reduced the award from $100,000 to $25,000.

Commentary

In order to successfully bring a claim for punitive damages or mental distress damages in the context of an LTD claim, it is important to advance the facts upon which those claims can be supported. The trial judge must have a factual basis to grant the amounts sought, and which will satisfy the tests as articulated in the Ontario Court of Appeal’s judgment.

When initiating a proceeding regarding a denial of long-term disability benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer.

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

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