Randy Slepchik successfully represented CUPE 503 in an “LTD Offset” policy grievance filed against the City of Ottawa. The Union grieved that the Employer was improperly counting time spent by employees working in accommodated positions as time that would reduce their entitlement to Long Term Disability benefits during their own occupation period. In the decision, an Arbitration Panel chaired by Arbitrator Brian Keller found that the Employer should not have reduced the “own occupation” period as the employees were actively employed and in receipt of wages.
Ottawa(City) v Canadian Union of Public Employees, Local 503, 2023 CanLII 50239 (ON LA)
Dina Mashayekhi defeated a preliminary motion brought by Carleton University when it tried to argue that Arbitrator Kevin Burkett had no jurisdiction to make a determination about a salary adjustment for members of the Carleton University Academic Staff Association. Arbitrator Burkett sided with the Union on the basis that section 48(1) of the Ontario Labour Relations Act requires there to be an adjudicative process chaired by a neutral third party and that the procedure followed by the University did not meet that test.
Carleton University v Carleton University Academic Staff Association, 2023 CanLII 12176 (ON LA)
Samantha Lamb and Dina Mashayekhi represented the Carleton University Academic Staff Association in Superior Court in a successful challenge to Bill 124, the Provincial Government’s wage restraint legislation. In the challenge, CUASA, along with a host of other unions, argued that the Act infringed on their members’ freedom of association, freedom of speech and equality rights under the Canadian Charter of Rights and Freedoms. Not only were the applicants successful in establishing that the legislation violated their freedom of association under section 2(d) of the Charter but that it was not saved by section 1 of the Charter. The Government is currently appealing the decision.
Ontario English Catholic Teachers Assoc. v. His Majesty, 2022, 2022 ONSC 6658 (CanLII)
On Thursday, October 26th John McLuckie will be one of the moderators for the Lancaster House Panel discussion addressing trends and changes to worker’s compensation law.
Jewitt McLuckie is proud to announce that University of Ottawa Law Student Samarah Arafat will be joining us for the 2021-2022 articling term.
Samarah’s background includes research into minimum wage policy in the Asian garment industry, volunteering with Women at the CentrE, where she focused on the intersection between the criminal justice system and women’s rights, as well as advocacy as a caseworker at the University of Ottawa Legal Clinic. Samarah also placed as a semi-finalist in the Nelligan O’Brien Payne Moot Competition.
We hope you’ll join us in warmly welcoming Samarah to Jewitt McLuckie!
Photo by Belinda Fewings on Unsplash
A bus driver from Oakville, Ontario has recently won a workplace discrimination case against the province. Ms. Di Cienzo is a cancer survivor who lost her right eye due to the disease. Ms. Di Cienzo was a bus driver for Oakville transit, and her position required she hold a Class-C driver’s license. A requirement for someone to hold a valid Class-C driver’s license is that the licensee must have vision in both eyes. As a result of this, the province revoked her Class-C driver’s license, and Ms. Di Cienzo subsequently lost her job.
In Di Cienzo v. Attorney General of Ontario, Ontario’s Superior Court held that the provincial vision regulations regarding Class-C drivers licenses were unconstitutional. The court found that the regulations perpetuate a stereotype about the abilities of monocular individuals to safely drive commercial vehicles, including buses. The court further highlighted that the regulations, which were enacted under the auspices of safety, are arbitrary and have no connection to safety.
The province highlighted that the prohibition against commercial bus drivers obtaining a Class-C driver’s license was reasonable due to the safety risks involved. The court reviewed expert evidence from both sides of the argument and ultimately found that “the expert evidence and studies reviewed overall do not support, and in some cases contradict, the supposition that there would be a reasonable level of correspondence with the safe-driving capacities” of monocular individuals.
Many other provinces allow individuals to undergo special assessments to determine their fitness to drive, instead of Ontario’s blanket ban on monocular commercial drivers. The court points out that Ontario is not entitled to be out of step with other provinces “when its divergent choice violates constitutional rights.” The court highlighted that there is no evidence to suggest that the other Canadian provinces do not have high standards of road safety.
Based on their analysis, the court found the regulations regarding class-C drivers licenses were a violation of Ms. Di Cienzo’s charter rights. The court further ruled that the charter infringement was not demonstrably justified. Because of this, the court decided that the regulations were unconstitutional, and gave the province one year to establish new regulations that uphold road safety in the province, while not infringing the charter rights of Ontarians.
This case brings to mind a similar case from 2009 in which Ontario’s Divisional Court dismissed an arbitrator’s decision regarding a paramedic’s vision accommodation. In Corporation of Simcoe County v OPSU Local 911, a paramedic developed vision issues that interfered with the requirement that all paramedics hold a valid class-F driver’s license. In that case, the court ruled that the vision requirement was an essential element of the job and that accommodating this disability could not be done without undue hardship to the employer. As a result of this recent Di Cienzo decision, cases involving vision accommodations in the workplace may soon see differing results. The court has ruled that if the charter rights of an individual are infringed, and that infringement is not justified, the regulation will not stand.
Reference: Di Cienzo v. Attorney General of Ontario, 2020 ONSC 4347 (CanLII), Di Cienzo v. Attorney General of Ontario
Article by Cole Boucher
Image credit: Reflection in the side mirror of bus. Road trip by Marco Verch Professional Photographer and Speaker via Flickr under Creative Commons Licence
UPDATE:
Dear friends and clients,
In an effort to minimize community spread of the COVID-19 virus in Ottawa, the partners have made the decision to close our office, but we continue to provide legal services remotely.
Voicemails left at 613-594-5100 will be checked remotely, so please feel free to leave us a message or send an email. Check the Team page to look up emails. We thank you for your patience and cooperation as we all take what steps we can to self isolate and wish everyone safety, good health and serenity as we work together to overcome this health emergency.
Sincerely,
The JMA Team
Photo by Benjaminrobyn Jespersen on Unsplash
The British Columbia Supreme Court has released a decision that is notable for a large award against insurer Desjardins for its improper handling of a Long Term Disability claim.
The plaintiff, Mr. Dennis Greig, suffered an injury in 2011 and a further injury in 2014. He applied for Long Term Disability Benefits. Desjardins, as insurance plan administrator, initially accepted his application for Long Term Disability Benefits. Mr. Greig later attempted to return to work in a rehabilitation program run by Desjardins but Mr. Greig struggled with the rehabilitation program and provided Desjardins with medical information setting out concerns with the program. Desjardins ignored this medical information and demanded that Mr. Greig return to work on a part-time basis, despite evidence that Mr. Greig’s medical symptoms remained as disabling as ever. Desjardins was also demanding continuous proof that he was still disabled at his own expense, even though they knew that he could no longer make his mortgage payments and was trying to sell his house. Facing these ongoing hardships, Mr. Greig provided medical information to Desjardins speaking to growing mental health issues. The Court found that Desjardins ignored this aspect of the claim.
Eventually, Desjardins terminated Mr. Greig’s entitlement to Long Term Disability. The Court, however, found that Desjardins did not have medical information that supported their decision to terminate his entitlement to benefits. Mr. Greig’s lawyers later submitted an internal appeal to Desjardins but the Court noted that Desjardins ignored the appeal and did not respond to any efforts to re-establish his entitlement to LTD.
Desjardins’ actions had awful consequences for Mr. Greig and his family. In the absence of Long Term Disability Benefits and as he continued to struggle with disability, he declared bankruptcy and was not able to maintain the family farm. Mr. Greig was eventually diagnosed with Depression and his family were even homeless for a six-week period.
Justice Young of the British Columbia Supreme Court found that Desjardins’ actions were in breach of the insurance policy and failed to meet the insurer’s obligation of good faith in administering a disability benefit policy. Beyond liability for the disability benefits themselves, the Court found that Desjardins was additionally liable to Mr. Greig in the amount of $50,000 in aggravated damages, and an additional $200,000 in punitive damages for the bad faith they had shown in administering the claim.
The Greig decision is a reminder that insurers have a great deal of power over people who need disability benefits, and are expected to use that power responsibly. If they fail to do so, Courts may take a hard line against insurance companies for their failure to properly administer disability claims and make them pay.
If you are concerned that your insurer is not handling your claim properly, Jewitt McLuckie & Associates’ LTD experts can fight to get you the benefits you worked for. You can schedule a consultation by calling 613-594-5100 – we will be happy to see how we can help.
Image credit: “Aspen Grove, British Columbia, Canada” by Krusty Da Clown via Flickr under public domain
Three recent Social Security Tribunal decisions illustrate the significant role union representatives can play to help workers with disabilities access their Canada Pension Plan Disability Benefits.
Jewitt McLuckie & Associates recently received three decisions from the Social Security Tribunal. In each of these matters, we presented evidence from the appellants’ union speaking to the union’s substantial but ultimately unsuccessful attempts to the have the appellant accommodated. In each of the decisions, the Tribunal noted the persuasiveness of the union representative’s evidence.
For example, in K.D. v. Minister of Employment and Social Development, the adjudicator highlighted the importance of the union representative’s evidence as follows:
Her testimony persuaded me that the Claimant could not perform any
substantially gainful work, not merely his usual job…Accordingly, I am
satisfied that Ms. Moore has offered real world evidence that the Claimant
was not able to work in the competitive workforce due to his medical
conditions.
Indeed, the adjudicator specifically noted that the union representative’s evidence was more compelling than the medical evidence presented by the appellant. This suggests that evidence demonstrating a union’s substantial but ultimately unsuccessful efforts to have a member accommodated in their workplace can be a valuable part of establishing entitlement to the Canada Pension Plan Disability Pension.
Detailed evidence regarding the employer’s and union’s efforts in accommodating or finding alternative work for the Appellants was given substantial weight in all three decisions. In D.M. v. Minister of Employment and Social Development, the adjudicator relied on the union representative’s evidence to conclude that:
…despite the breadth of the employer’s network and their sophisticated
program for assisting disabled employees, it became clear that he was not
an appropriate candidate for accommodation. Given his restrictions and
limitations…I am satisfied that the Claimant does not have the ability to function
in a vocational setting despite his young age.
The third of these decisions, J.M. v. Minister of Employment and Social Development, demonstrates the impact that a union representative’s evidence can have in a particularly complex case. In J.M., the minimum qualifying period had passed in 2011, while the appeal was being heard in 2019. This meant the Appellant had to establish she met the statutory “severe and prolonged” standard of disability as of 2011 and continuously thereafter. The length of time that had elapsed was a substantial challenge in this case. However, the union representative’s thorough evidence about the union’s extensive but ultimately unsuccessful efforts to have the member accommodated played a substantial role in satisfying the Tribunal that the Appellant was entitled to Canada Pension Plan disability benefits. In this regard, the adjudicator explained that this was a case where the subjective evidence was sufficient to overcome the lack of objective medical evidence supporting entitlement. He explained that this was in part due to the union representative’s persuasive evidence speaking to the appellant’s extensive and dedicated efforts to remain at work and ultimate inability to do so due to her medical restrictions and limitations.
These three decisions demonstrate that unions may be well placed to provide valuable evidence re disability benefit entitlement at the Social Security Tribunal. This can be done by live testimony or by affidavit evidence. These cases also suggest that workers appealing the denial of their CPP Disability Pension to the Social Security Tribunal can benefit by presenting evidence of their efforts to return to active employment.
The lawyers at Jewitt McLuckie & Associates have extensive experience helping clients who have been denied the CPP Disability Pension as well as other disability benefits. If you have been denied disability benefits and require assistance with your matter, please contact Jewitt McLuckie & Associates at (613) 594-5100.
The appellants in K.D., D.M., and J.M. were each represented by Randy Slepchik.
Article by Ramona Kapoor, student-at-law.
Image credit: “hand in hand” by Tamaar via Flickr under Creative Commons licence