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

Randy Slepchik had the chance to speak with CBC Morning Live about the importance of collaboration in the disability accommodation process and how disability accommodation is part of creating a more just society:

Discussion begins around the 2:20 mark:

https://www.cbc.ca/listen/live-radio/1-100-ottawa-morning

In Wood v. CTS of Canada Co., 2018 ONCA 758, the Ontario Court of Appeal (“ONCA”) upheld the Superior Court of Justice’s finding of a “qualitative” component to reasonable notice of termination.

The closure of a Streetsville manufacturing plant had resulted in a mass termination for the purposes of section 41 of the Employment Standards Act, 2000 (“ESA”). The former employees sued regarding reasonable notice of the termination of their employment and Ontario Superior Court of Justice since, during the period of notice before their employment ended, the Employer was making them work above the maximum overtime hours permitted under the ESA.

The Ontario Superior Court determined that the employer failed to provide “reasonable” working notice and that the employer could not credit to its notice period any week where an employee worked over the ESA maximums. The Court found it cannot count as notice where an employee does not have a reasonable amount of time to look for work.

The Employer appealed but the Ontario Court of Appeal dismissed the appeal, holding that the motion judge did not err by invalidating parts of the working notice period. The Court of Appeal found that “quality of opportunity” is a relevant consideration during a notice period and it was not present because of the forced overtime that prevented the employees’ ability to find alternative work.

According to the Wood decision, an employer must provide employees a meaningful opportunity to seek other work during the notice period. Otherwise, the qualitative component is not met, and the court may invalidate some or all of the notice period. In such a case, employers are unable to credit that portion to the period of notice and employees will be entitled to pay in lieu of notice.

Post by  Lindsay McLellan, student-at-law

Image: No Boss I didn’t see a thing! by Neil Moralee via Flickr under Creative Commons licence

By: Elsa Ascencio, articling student.

Recently, the Supreme Court of Canada weighed in on how a trade union can be sued and determined that trade unions can properly be sued by way of representation order. A representation order is an order that can be obtained from a court whereby one or more persons are appointed to defend a legal action on behalf of the trade union.

The Supreme Court was addressing a situation whereby an employee of International Brotherhood of Electrical Workers, Local 773, sued her union-employer alleging wrongful dismissal. The worker initially sued the union directly. Local 773 argued against the lawsuit on the basis that a trade union cannot be sued in Ontario under the Rights of Labour Act. The worker then amended the lawsuit to include individual persons within the union as proper representatives of the union.

In addressing the question of how a union may properly be sued, the Supreme Court of Canada is clear that suing via a representation order is proper. Nonetheless, the Supreme Court permitted the lawsuit as filed against the individuals standing in for the union.

This case affirms that while trade unions can’t be sued in their own name as per Ontario’s The Rights of Labour Act. It further affirms that obtaining a representation order is the appropriate means of suing a union. Nonetheless, the Supreme Court has signalled that courts are permitted some flexibility as to in accepting lawsuits against individuals sued as representative of a union.

Image: “Supreme Court of Canada” by detsang via Flickr under Creative Commons licence

On March 5th, 2018, Associate Alycia Shaw and our articling student, Elsa Ascencio, were invited to speak at an event hosted by the Women’s Legal Mentorship Program at the University of Ottawa. The event – titled “Racialized Women Working in Law”— explored the barriers that racialized female lawyers face in the legal profession. Alycia and Elsa, along with other lawyers from the Ottawa legal community, answered questions from the audience in regards to recruitment, mental health, and involvement in civic society.
The event came at an appropriate time, notably with the rise of the #MeToo and #TimesUp movement. The event was in partnership with other racialized student groups and the #LawNeedsFeminismBecause group at the University of Ottawa. Thank you to the Asian Law Students Society and the Latin American Law Students Association for inviting us!

Jewitt McLuckie started the year by visiting with medical students at Ottawa Hospital’s general campus. On January 3, 2018, Randy and Alycia met with physical medicine and rehabilitation resident physicians to talk to them about how they can best support patients who struggle with disability and who are having difficulty accessing disability benefits. Both Randy and Alycia were impressed by the engagement and intelligence of the young women and men who attended the session.

Image credit: The Ottawa Hospital

Our articling student, Elsa Ascencio, was recently interviewed by New York Magazine about the Trump’s Administration’s decision to deport 200,000 Salvadorans from the United States. Nearly 200,000 Salvadorans have lived in the States for more than a decade through the Temporary Protected Status program. The program was a response to the devastating earthquake that struck the country in 2001.

The decision will have a lasting impact on Salvadoran families across the United States because many of them have built their lives in the U.S. Our articling student, Elsa Ascencio, spoke out on the issue. Although many Salvadoran immigrants are proud of their heritage, El Salvador still faces high levels of poverty and violence among youth. As the daughter of Salvadoran immigrants, Elsa wants others to know that countries like Canada and the United States have given opportunities for immigrants to pursue their dreams. Elsa uses her story as an example. Her parents arrived to Canada as immigrants and they worked in factories to support Elsa’s dream to go to law school.

At Jewitt McLuckie & Associates LLP, we promote the advancement of human rights in our society and we stand with our articling student in her dedication to a fair future for all immigrants.

Check out the full video here: http://nymag.com/daily/intelligencer/2018/01/the-deportation-administration-whats-at-stake.html

An Ontario Court recently released the Hoang v Personal Insurance Co. decision on legal costs against insurance companies that have wrongfully denied a claim. The Court noted that it is typical for courts to award legal costs to the successful party on a partial indemnity basis- that is in the range of 40-60% of one’s legal fees. But the Court here determined that the unique nature of an insurance policy suggests that successful plaintiff’s should be better compensated when fighting the wrongful denial of their insurance benefits:

 One purchases an insurance policy for coverage in the event of liability, and it is the premium payable under the policy that is the cost of that coverage. Insurance companies are by their nature constantly involved in litigation, and it would be unfair and burdensome to make their customers pay a premium plus legal fees in order to obtain the coverage they bought. The premium is presumed to reflect the insurance company’s risk. If it chooses to attempt to reduce that risk by engaging in litigation over its obligation to provide coverage it should be made to fully compensate the successful party if it loses.

 The Court thereby awarded the plaintiff full indemnity of their legal costs. As an office that assists many people through their struggle to access their insurance benefits, we certainly support the Court’s reasoning.

 

Image via Flickr: Denied by Jonathan Melhuish under Creative Commons Licence

Employees in Ontario are entitled notice of the termination or pay in lieu if they are terminated without cause. The notice period may be set out in a contract, but employees can be entitled to longer common law notice periods if they do not have a valid contract.

Judges primarily apply the factors set out in Bardal v Globe & Mail Ltd, 1960 CanLII 294 (ON SC) to determine the length of notice required:

A judge’s analysis is flexible and fact-driven. Nevertheless, length of service continues to be a strong indicator of the proper notice period.[1]

As the population ages, older employees with many years of service might have to deal with the consequences of termination. Ontario courts have repeatedly held that older employees who have worked with the same employer for many years are entitled to longer notice periods.

In Ozorio v Canadian Hearing Society, 2016 ONSC 5440 (CanLII), Ms. Ozorio was 60 years old and had 30 years of service when she was terminated. Her position was Toronto Regional Director, which involved managing 65 staff, overseeing an $8 million budget, and reporting directly to the CEO. She tried to mitigate her damages by searching for a new job, but could not get a similar senior position.

The Court decided that 24 months of pay in lieu of notice was appropriate. The Court noted that while there is an informal cap of 24 months of notice, “there have been numerous cases in which older and long term employees in non-executive positions such as the plaintiff have been found to be entitled to 24 months’ pay in lieu of notice”.[2] Longer notice periods are justified for older employees with longer terms of service because of the competitive disadvantage they face in finding new employment when competing with a younger and less costly talent-pool.[3]

If you need advice on whether to accept a severance package, please contact us today at (613) 594-5100.

Article: Joshua Nutt (Articling Student)
Image: Liam Matthews via Flickr under Creative Commons Licence

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[1] KW Thornicroft, “The Assessment of Reasonable Notice by Canadian Appellate Courts from 2000 to 2011” (2013) 17 Canadian Labour and Employment Law Journal 1, at 29.

[2] See for example: Bolibruck v Niagara Health System, 2015 ONSC 1595 (CanLII); Brien v Niagara Motors Ltd, 2009 ONCA 887 (CanLII); Lowndes v Summit Ford Sales Ltd, 2006 CanLII 14 (ONCA); Kerr v Canada Alloy Castings, [2000] OJ No 5169; Cowper v Atomic Energy of Canada Ltd, 1999 CanLII 14853 (ON SC), affirmed 2000 CanLII 2995 (ONCA)

[3] See Drysdale v Panasonic Canada Inc, 2015 ONSC 6878 (CanLII), citing Mckinney v University of Guelph, [1990] 3 SCR 229, 1990 CanLII 60 (SCC), and also Paquette v TeraGo Networks Inc, 2015 ONSC 4189 (CanLII).