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

After two months of working from home, Jewitt McLuckie is taking our first steps towards reopening the office with a small daily staff presence on site starting May 25.  In keeping with public health recommendations, we will be sanitizing surfaces regularly, handwashing, using masks and barriers, and minimizing the number of people in the office to avoid COVID-19 spread.  Email remains a good way to reach us and we want to assure you that if you are unable to speak to a staff member when you call, our answering system will forward your voicemail to the recipient right away, so please don’t hesitate to leave us a message.  We are grateful to our clients and community for your support during this challenging time and want to express our continued commitment to fight the good fight for unions and workers, whether at home or in the office.

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

We are bidding adieu to our wonderful associate Alycia Shaw and her incomparable pupper Maggie.  Alycia is moving on to a new opportunity in Toronto, and so the time has come to bring a new associate on board at Jewitt McLuckie.

Here are the key details about the position:

Please share our job ad with anyone who may be interested!

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

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

JMA was delighted to continue our annual summer tradition of hosting a barbecue for everyone at our building this afternoon.  This year  was extra poignant as outgoing president of CUPE Local 503 and longtime friend of JMA, Brian Madden, began a well-earned retirement this summer!  We were happy Brian was able to make it out for our event and to keep him from getting slothful in his post-presidential years, we made him cut the cake.   We wish everyone a happy final few weeks of summer and look forward to a productive fall of fighting the good fight!

This past Saturday John, Randy, Meghan and Helen took advantage of the beautiful sunshine and proudly supported ATU 279‘s annual Golf 4 CHEO fundraising event.  Thank goodness for Best Ball or else they’d all still be out on the back 9!

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

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