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).

There has been a consensus among Ontario arbitrators that where a worker’s misconduct is connected directly to a disability such as addiction, then termination is not appropriate and the employer should instead accommodate the worker. This approach has applied when three conditions are met:

  1. There is an addiction;
  2. The addiction has a nexus (connection) with the misconduct (e.g. stealing narcotics from a hospital);
  3. The worker came clean about the misconduct, acknowledged the addiction, and sought treatment.

Workers have been reinstated even where the employer was unaware of the addiction and where the conduct was criminal.[1] Workers are often reinstated with conditions (limited tasks, regular drug testing, and disclosure obligations).

A recent arbitration decision in Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305 (ON LA) has challenged this consensus.

A nurse admitted to stealing narcotics, sometimes diverting them from patients, and falsifying records to conceal the theft. CMH alleged that the nurse could control her behaviour and was not compelled to steal. CMH argued that it had just cause for termination because the conduct was criminal and a fundamental breach of trust.

The arbitrator considered the BC Court of Appeal’s decision in Gooding (2008 BCCA 357) which has received little attention from Ontario arbitrators. The Court of Appeal found that Mr. Gooding’s termination was not discriminatory because his alcoholism had no bearing on the decision to fire him. The Court held that he was terminated because theft is criminal misconduct and the employer would have terminated other employees for the same misconduct.

The arbitrator in the CMH decision didn’t fully adopt the Gooding decision, but relied on it for guidance. He found that before considering accommodation, “the first issue is whether an addiction is a defense to the criminal misconduct”. The arbitrator concluded that it is not:

“I don’t accept that pleading an addiction to the drug being stolen, which is to say, establishing a nexus between the addiction and the misconduct, is, in itself, a defense to termination. Put differently, it is not prima facie evidence of discrimination.”

The arbitrator distinguished this case from other decisions which have focused on the compulsive nature of an addiction as a mitigating factor. The evidence here showed that while the nurse was addicted, she was not compulsive and could abstain from using narcotics. This case was also distinguishable because the nurse failed to own up to the full extent of her misconduct. Finally, the arbitrator sought to send a message of general deterrence that pleading addiction only after getting caught should be strongly discouraged.

This decision may represent a shift in the way that addiction and associated misconduct are dealt with by arbitrators. However, these decisions are always fact specific and this decision does not bind other arbitrators. This case was factually different than previous cases because the evidence of the nurse’s addiction and compulsion to steal narcotics was weak. In many of the previous decisions which represent the consensus among Ontario arbitrators, there was strong medical evidence from addiction specialists which supported a disability-based defence to the termination.

This case raises important questions about how to handle addiction and associated misconduct. The number of reported arbitration decisions dealing with addictions and theft in medical workplaces might reflect a lack of adequate support and mental health treatment options available. The arbitrator acknowledged that “evidence suggests that drug dependency is an occupational hazard for doctors, nurses, pharmacists and other healthcare professionals, who have regular access to opioids”. Ideally, employers and unions will be able to work together to prevent these situations in the future by ensuring access to timely and effective support programs and treatment. This could mean using joint health and safety committees to identify and respond to risks in the workplace. It could also mean ensuring that workers feel comfortable raising their concerns, knowing that there will be resources available to support them and help accommodate their disability. Finally, problems associated with workers suffering from addictions are not limited to those working in the healthcare field. All employers should be aware of their duty to accommodate employees disabled by addiction.

If you were terminated because of a disability or need advice on disability accommodation in the workplace, please contact Jewitt McLuckie & Associates LLP at (613) 594-5100.

[1] See these eight previous arbitration decisions dealing with addiction and theft: William Osler Health Centre and ONA (Katie Ward), (2006), 85 CLAS 7 (Keller); Collingwood General & Marine Hospital and ONA (Smart), (2010), 195 LAC (4th) 124 (Jesin); Thunder Bay Health Sciences Centre and ONA (Gabriele), (2010), 104 CLAS 263 (Sheehan); St. Mary’s General Hospital and ONA (Harris), (2010), 199 LAC (4th) 75 (Stephens); London Health Sciences Centre and ONA (BS), (2013), 230 LAC (4th) 22 (Hayes); Hamilton Health Sciences and ONA (Pinsonnneault), (2013) 117 CLAS 6 (Herman); Sensenbrenner Hospital and ONA (Dagenais), unreported, July 6, 2015; ONA v Sunnybrook Health Sciences Centre, 2016 CanLII 62577 (ON LA)

Article: Joshua Nutt (Articling Student)

Image: “Addiction” by Kaushik Narasimhan via Flickr under Creative Commons Licence

In an exciting conclusion to a longstanding dispute, the Supreme Court of Canada recently provided a judgement from the bench in British Columbia Teachers’ Federation v British Colombia (2016 SCC 49). A 7-2 majority ruled in favour of the teachers, substantially adopting the dissenting reasons of Justice Donald from the British Columbia Court of Appeal (2015 BCCA 184, paragraphs 275-400). The decision provides important guidance on the standard of good faith consultation required when governments try to impose legislation that affects labour relations.

The History – Challenges to Collective Bargaining

At issue was the Education Improvement Act, SBC 2012, c 3 (“Bill 22”), which the BCTF argued infringed the teachers’ freedom of association under s. 2(d) of the Charter. The Act essentially nullified hundreds of provisions in the teachers’ collective agreement that addressed classroom composition, class sizes, and other staffing related issues. The government had previously implemented similar changes (“Bill 28”), which were found to be unconstitutional (2011 BCSC 469). The Province attempted to remedy the unconstitutional Bill 28 by conducting pre-legislative consultations before enacting nearly identical provisions in Bill 22. The BCTF again challenged the constitutionality of the legislation.

The Trial Judge decided that Bill 22 was unconstitutional and could not be saved by s. 1 (2014 BCSC 121). She concluded that Bill 22 was invalid from the date on which it purported to come into force. She also awarded $2 million in s. 24(1) Charter damages.

The Decision – The Court Shows Deference to the Trial Judges’ Factual Findings

The Court of Appeal overturned the Trial Judge’s findings on multiple grounds and held that Bill 22 did not infringe section 2(d). However, the Supreme Court agreed with Justice Donald, the lone dissenting judge from the BC Court of Appeal.

Justice Donald explained the importance of good faith in the s.2(d) analysis:

“The freedom of association protected under s. 2(d) of the Charter in the labour relations context is the right of employees to associate in pursuit of workplace goals and to a meaningful process within which to achieve these goals […] This freedom is breached if government legislation or actions substantially interfere with collective bargaining in purpose or effect in such a way that does not respect a process of good faith consultation” (para 283).

One of the main issues was whether the consultation process was sufficient to be consistent with s.2(d). Justice Donald found that consultations could be sufficient in certain cases:

“Pre-legislative consultation, then, can be seen as a replacement for the traditional collective bargaining process, but only if it truly is a meaningful substitution. To be meaningful, the bargaining parties must consult from an assumed position of “approximate equality”.” (para 291).

Before the Supreme Court, the Province argued that the Trial Judge had erred in law by probing too deeply into the substantial reasonableness of the parties’ positions during the pre‑legislative consultations. However, the Supreme Court pushed back on this position, repeatedly asking counsel where they should draw the line with respect to the inquiries that the Trial Judge could make. Counsel for the Province seemed unable to provide a satisfactory answer to the Supreme Court.

The dissent written by Justice Donald and adopted by the Supreme Court reiterates that s.2(d) can be protected through different consultative processes, but that courts may scrutinize those processes to determine whether the parties are acting in good faith:

“the constitutional test for bad faith on the part of government should be expressed in the same language used by the Supreme Court of Canada in Health Services and Fraser. Parties are required to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground. In order to determine whether the government is bargaining in good faith, it may sometimes be necessary to probe and consider the government’s substantive negotiating position.” (para 348).

Justice Donald acknowledged the substantial power imbalance that exists between workers and the government. If the government relies on consultations, workers are without tools such as mediation, arbitration, and strikes, while the government has the power to unilaterally affect labour relations through legislation. With this in mind, Justice Donald reasoned that government would have a “free hand” to act as it pleased if it were not for the court’s ability to inquire into the substantive reasonableness of the government’s position.

The Trial Judge found that during the consultations, the Province had closed its mind to alternatives to the proposed legislation. The Trial Judge also found that the Province did not even read the terms regarding working conditions that were the basis on the BCTF’s position until 5 months into the consultations. Failing to read the other side’s proposal is the absolute minimum that is required from the employer. Justice Donald accepted the Trial Judge’s findings that the Province entered the consultations with no intention of returning the nullified clauses to the collective agreement. He also agreed with the Trial Judge’s findings that the consultation did not demonstrate good faith. In his own words, the Province intended “to keep the door shut”, but allow the union “to have input on exactly what kind of door would be used” (para 322). The Supreme Court also agreed with Justice Donald’s decision in this regard.

The Supreme Court’s remedy was to declare Bill 22 unconstitutional, and of no force or effect. However, the Supreme Court declined to reinstate the Trial Judge’s $2 million damage award.

The Impact Going Forward – What Does s. 2(d) Protect?

While the decision was positive for the BCTF, it also reinforced that governments can use legislation to change the terms of employment, particularly where sufficient consultation is done:

“If the government, prior to unilaterally changing terms of employment, gives a union the opportunity to meaningfully influence the changes made, on bargaining terms of approximate equality, it will likely lead to a finding that the union was not rendered feckless and the employees’ attempts at associating to pursue workplace goals were not pointless or futile” (para 287).

However, the decision also indicated that courts can look at the substantive reasonableness of the parties’ positions when assessing whether the chosen consultation process meets the standard of good faith.

The decision does not mean, as some of the intervenors argued, that unions now have a constitutional veto on legislation. Based on Health Services, Justice Donald reasoned that not all legislation affecting collective bargaining would interfere with 2(d). Rather, only substantial interferences such as the unilateral nullification of terms would infringe 2(d). The nullification of hundreds of terms in this case amounted to a significant interference with the teachers’ rights, especially because there was a temporary bar on negotiating for working conditions. Justice Donald’s comments are worth repeating:

“The act of associating for the purpose of collective bargaining can also be rendered futile by unilateral nullification of previous agreements, because it discourages collective bargaining in the future by rendering all previous efforts nugatory […] This is not an exercise in “constitutionalizing” the terms of a collective agreement or the result of collective bargaining, but is instead the result of constitutionalizing the right to a meaningful process that is not continually under threat of being rendered pointless.” (para 285).

Overall, this decision indicates that governments can legislate changes to employment conditions in collective agreements, albeit only after a good faith consultation process. Therefore, it is incredibly important that unions hold governments to account and continue to fight for freedom of association protections with real teeth.

Article: Joshua Nutt (Articling Student)

Image: Supreme Court of Canada, Wellington St, Ottawa (492095) by Robert Linsdell via Flickr under Creative Commons licence

 

 

 

It may be news to many workers that the Ontario Human Rights Code (the “Code”) protects against discrimination based on family status. “Family Status” is defined in the Code as “the status of being in a parent and child relationship”. The Federal Court of Appeal has emphasized the importance of ensuring that workers are not discriminated against because of their family status:

“Indeed, without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force […] The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.” (Johnstone, para 66)

A recent decision by the Human Rights Tribunal of Ontario (“HRTO”) in Misetich v Value Village Stores Inc (2016 HRTO 1229) (“Misetich”) has reopened the debate over which test courts and tribunals should apply to determine whether there is discrimination based on family status. Previously, there were several different tests in different jurisdictions, but the law appeared to be somewhat settled in 2014 by the Federal Court of Appeal in Canada v Johnstone (2014 FCA 110) (“Johnstone”). However, the HRTO in Misetich explicitly rejected that approach, instead favouring a more traditional discrimination analysis.

The Federal Court of Appeal’s decision in Johnstone involved a worker who worked overnight and rotating shifts, and was unable to find childcare. The Court found that her employer violated her rights when it refused to accommodate her. The Court outlined a test that it said should be applied flexibly and contextually. In its view, there is discrimination where:

  1.  The child is under the care/supervision of the worker seeking accommodation;
  2. The childcare obligation at issue engages the worker’s legal responsibility for the child (not a personal choice
  3. The worker made reasonable efforts to meet the childcare obligations through reasonable alternatives, and no such alternative is reasonably accessible;
  4. The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In Misetich, a worker developed an injury that prevented her from performing certain physical work. Her employer sought to accommodate her by assigning lighter duties. However, the accommodation required her to work on evenings and weekends. The worker informed her employer that this accommodation would not work because she had to prepare meals for her elderly mother in the evenings. The employer asked for more details regarding the elder care required and whether the worker had explored other options. The worker refused to provide more detail. The worker did eventually provide a short doctor’s note, but the employer continued to seek more specific evidence regarding the elderly mother’s care needs, and whether the worker had explored other reasonable care options. The worker was eventually terminated on the basis that she had abandoned her position.

While the HRTO acknowledged that not every negative impact on family obligations constitutes discrimination, it nevertheless concluded that a distinct test different from other areas of discrimination is not required.

The HRTO outlined five reasons to support its position:

The HRTO’s fourth point is particularly important considering that workers are increasingly providing care as baby-boomers age. It will be important for the law to ensure that employers and workers can work together on accommodations for situations where a worker needs to take care of an elderly parent.

Rejecting the Johnstone test, the HRTO applied the general test that applies in other areas of discrimination. The HRTO described its test for family status discrimination as follows:

“In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.” (para 54)

The contextual nature of the analysis means that the decision maker will consider factors such as whether the worker is a single parent in assessing the impact of the employer’s position. Once prima facie discrimination is proven, the burden shifts to the employer to show that there is a bona fide occupational requirement or that accommodation would cause undue hardship.

In Misetich, the HRTO concluded that the worker failed to show that she was discriminated against. In this case, the HRTO found that the worker made bald assertions which failed to provide her employer with sufficient detail for it to understand her needs and the worker’s ability to provide meals for her mother was not adversely affected by the proposed schedule because she could have changed her meal preparation process.

While the Johnstone decision remains good law for federally regulated employees, the Misetich decision has reopened the debate regarding the proper test for family status discrimination.

Regardless of which test applies, it is important for workers to know that employers have an obligation to work with them to find appropriate accommodations that meet eldercare and childcare needs. However, workers need to be aware that they must do more than make bald assertions and must provide sufficient information to their employer to substantiate their care responsibilities. Workers who need accommodation should be open with their employers about the extent of their needs and should be prepared to be flexible in finding a solution that works for everyone.

The lawyers at Jewitt McLuckie & Associates LLP have extensive experience with discrimination and accommodation issues. If you need advice on being accommodated by your employer, please contact us today at (613) 594-5100.

Article: Joshua Nutt (Articling Student)

Image: Helping Hands (public domain)

One our clients unfortunately suffered severe injuries to both of his hands and could no longer work. He was denied access to Canada Pension Plan Disability Benefits, but Randy Slepchik at Jewitt McLuckie & Associates LLP helped him through the appeal process at the Social Security Tribunal. We presented a strong case that showed the extent of our client’s injuries and his lack of qualifications for other more sedentary jobs. Evidence from our client’s physiotherapist and family doctor, as well as an independent medical examination by a surgeon, showed that our client had reached maximal medical recovery and that he would live with his disability for the rest of his life. We successfully showed that our client made substantial and fair efforts to find alternative work, but that his disability was so severe and prolonged that alternative employment was not possible. The result was that our client was awarded his CPP Disability Benefits going back over three years to the time shortly after he was forced to leave work.

The lawyers at JM&A have extensive experience helping clients who have been denied CPP and long-term disability benefits. Contact us today so that we can support you through every step of the claims process.

October 2016 – Denial of Canada Pension Plan Disability Pension

On September 8, 2016, Ontario’s Sexual Violence and Harassment Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) came into effect and introduced significant legislative changes to the Occupational Health and Safety Act and The Ministry of Training, Colleges and Universities Act.  This article sets out a very brief summary of the key legislative amendments and accompanying policy initiatives.

OHSA Amendments

As a result of these legislative reforms, the definition of “workplace violence” in the OHSA has been amended to include “sexual harassment” and new obligations have been imposed on employers including:

An obligation to develop a workplace harassment program aimed at preventing harassment in the workplace, including sexual harassment. This program must be developed and maintained in consultation with any joint health and safety committee or health and safety representative;

The Act also makes it clear however that, “reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.”

In anticipation of these legislative changes, the Ministry of Labour published a Code of Practice to Address Workplace Harassment under the OHSA which sets out guidelines for employers to follow in order to ensure compliance with the Act and provides sample policies.  The Code is available online here: https://www.labour.gov.on.ca/english/hs/pubs/harassment/

Amendments to the Universities Act

The Universities Act has also been amended to include the following definition of “sexual violence”:

“sexual violence” means any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

In addition, every college of applied arts and technology and every university in the province that receives regular and ongoing operating funds from the government for the purposes of post-secondary education is required to develop a sexual violence policy that includes a complaint process, considers student input in developing the policy, regularly reviews the policy and reports sexual violence statistics to the Minister.

Sexual Violence and Harassment Training Projects for Frontline Workers

Coincident with the legislative amendments coming into force, the Province also announced $1.7 million in funding for 6 sexual violence and harassment training projects for frontline workers:

Training will be developed for frontline workers and management in the hospitality sector to recognize and intervene when they witness harassment in the workplace;

Article: Alison Longmore

Image credit: “Survivors in the Sun” by Wolfram Burner.  Via Flickr Creative Commons licence

We are pleased to announce that John McLuckie will be co-chairing Lancaster House’s annual Bargaining in the Broader Public Sector Conference this fall.

When: December 7, 2016, plus pre- and post-conference workshops

Where: Toronto Westin Harbour Castle

Early registration will save you lots of money, so don’t wait.  Check out details and register on  the Lancaster House website: http://lancasterhouse.com/conferences/show/id/63

 

Following several unsuccessful days of bargaining in which the County of Essex demanded they agree to major concessions on such major issues as sick leave, vacation scheduling, meal breaks and hours of work, the paramedics of Essex-Windsor put their new contract into the hands of Interest Arbitrator Jim Hayes.

In a ruling released on July 20, 2016, Arbitrator Hayes rejected all of the major concessions sought by the County while awarding the Paramedics strong wage increases and additional vacation days.

This arbitration decision is a major win for the medics of Essex County and allows them to maintain their historic position as a leader for paramedic working conditions in Ontario.

The full text of Arbitrator Hayes’ ruling can be found HERE.

CUPE Local 2974 was represented by our lawyers John McLuckie and Alycia Shaw.

Photo: “Ambulance” by Flickr user Ian Murphy under Creative Commons licence