Jewitt and McLuckie presents “Representing Employees with Addictions and Invisible Disabilities” – a two-day conference to study one of the most hotly-debated topics in modern employment law. Join us for lectures, panel discussions and meet some of the foremost names in the field. Register here or contact Laurena at 613-594-5100 or LNash@jewittmcluckie.ca
The Federal Court Canada (Attorney General) v Hicks, 2015 FC 599 (CanLII) recently upheld a decision of the Canadian Human Rights Tribunal which concluded that “family status” under the Canadian Human Rights Act includes eldercare obligations.
Leslie Hicks, an employee of the Federal Government, relocated from Nova Scotia to Ottawa in 2002 when his position became redundant. Unfortunately, his wife could not move with him as she was caring for her permanently disabled mother. As a result, Mr. Hicks and his wife had to maintain two residences for several years until his mother-in-law passed away.
In the meantime, Mr. Hicks submitted an expense claim for temporary dual residence assistance pursuant to Treasury Board Policy. His claim was denied as was his grievance with respect to that denial so Mr. Hicks filed a complaint with the Canadian Human Rights Commission and, after several more rounds of legal wrangling, his complaint was ultimately referred to a hearing at the Canadian Human Rights Tribunal which upheld Mr. Hicks’ complaint, awarding him nearly $17,000 for his expenses as well as interest, $15,000 in human rights damages as a result of the discriminatory practice and a further $20,000 – the maximum available under the statute – because of the Respondent’s wilful and reckless behaviour.
The Attorney General did not agree with the Tribunal’s decision and asked the Federal Court (‘FC’) to judicially review it. In May of 2015, the Federal Court agreed with the Tribunal and the Federal Court of Appeal in Johnstone that family status should be interpreted broadly to include family circumstances. The FC concluded that eldercare obligations are entrenched in Canadian societal values and demonstrates adult children’s responsibility to their elderly parents so that eldercare is an example of family circumstances that is protected by the prohibition on family status discrimination.
Ultimately, the FC agreed with the Tribunal that the Federal Government’s benefits scheme, in this regard, was prima facie discriminatory and the Federal Government’s argument that Mr. Hicks was simply a renter and not an owner pursuant to its policy and its failure to provide evidence with respect to its defence meant that it failed to establish a bona fide occupational requirement.
This decision is of particular note as, unlike past decisions regarding family status, the facts do not involve a conflict between work and family obligations but instead the FC accepted that a case of family status discrimination is made out where benefits offered to employees differ based on a prohibited ground.
As Jewitt McLuckie & Associates’ Long Term Disability Benefits specialist, Randy fights insurance companies and employers when they deny disability benefits to workers. He also helps disabled workers return to work with proper accommodations and works with unions to develop strategies that assist and protect disabled workers.
Jewitt McLuckie and Associates are at the top of their game when representing trade Unions and their members. Not only do they offer a vast wealth of substantive knowledge and experience, we have found them to be extremely diligent, focused on the task at hand, and cost-effective.
David Jewitt and Alison Longmore have been an integral part in helping Local 471 resolve our labour disputes with employers and have also played an important role in assisting in many organizing campaigns.
Local 471 would highly recommend Jewitt McLuckie and Associates to anyone that was seeking the highest level of representation when dealing with a labour relations issue.
In a recent case, a first responder developed PTSD several years after responding to calls involving multiple fatalities and life-threatening injuries. While each call involved harrowing circumstances, the worker did not immediately develop PTSD symptoms after the first, or even second, traumatic event. Symptoms only developed after attending a third traumatic scene, which resulted not only in flashbacks to that recent scene, but also triggered flashbacks to previous fatalities.
WSIB’s Traumatic Mental Stress policy is primarily designed to compensate workers who develop symptoms within 4 weeks of a traumatic event, and the longer the time lapse between a traumatic event and the onset of symptoms, the greater the onus WSIB puts on the individual worker to prove that their diagnosis is related to a workplace trauma.
Claims are made more difficult by the fact that a worker cannot make a claim for benefits until they have a definitive diagnosis under the DSM, but waitlists to see a psychiatrist are frequently a year or longer in many Ontario cities, and the criteria for diagnosis of many mental illnesses includes a requirement that symptoms remain present for several months. Both of these mean that workers are frequently left disabled and unable to work for many months without access to needed Loss of Earning benefits, and benefits to cover the cost of medications and counseling. Left without treatment there is a very high risk that a worker’s illness will have significantly worsened by the time WSIB acknowledges the injury; and the road to recovery will be that much longer as a result.
Getting PTSD recognized is made even more difficult by the fact that one of the most common symptoms is avoidance behaviour. Workers with PTSD often do not seek help until they are in complete crisis. Instead, they try to avoid anything that might initiate their symptoms, up to and including going to work at all; leading to attendance issues and discipline.
In this particular case the worker’s avoidance behaviour was labeled as poor attendance and a poor attitude, rather than an illness, and the worker was terminated from his employment before he could obtain a clear PTSD diagnosis.
WSIB frequently characterizes a lack of medical documentation as proof that a worker was not really ill, or that any illness only occurred as of the date the worker finally sees a doctor, breaking any connection back to an earlier workplace event; resulting in WSIB denying the claim.
Jewitt & McLuckie were successfully able to show WSIB that the worker’s failure to seek out medical treatment was a common symptom of PTSD and therefore a lack of medical evidence for the period right after the traumatic events occurred did not establish a lack of causation between the events and the injury. This was done through reports from academics on the nature of PTSD, and even newspaper reports about the traumatic scenes the worker attended, which established a connection between the new diagnosis of PTSD and the traumatic events of years past and resulted in the claim for PTSD as a workplace injury being approved.
There is a proposed Bill, Bill 67: Workplace Safety and Insurance Amendment Act (Post-Traumatic Stress Disorder), 2014 that would amend WSIA to include a presumption that if a First Responder is diagnosed with PTSD, it is work related. However, since that Bill has been sitting in committee since February 2014 and there is no timeline for when it will come into force, our decision provides an important way forward for PTSD claims on behalf of First Responders
Hosted with flair by CUPE Local 503 and held at Manderley on the Green, the Jacques Trépanier Open is an annual event collecting food items for the Ottawa Food Bank.
JMA donated a number of door prizes, and seven of us played a round of golf, with skill levels ranging from quite experienced to totally new.
We all enjoyed the relaxed, fun atmosphere, and even finished the afternoon with a bit of beautiful sunshine!
An employee in the Federal Public Service received a ten-day suspension that was imposed following a period of stress leave. Upon return from her suspension, her psychological symptoms persisted and her Psychologist maintained that this was due to the Employer’s conduct in addressing the underlying discipline.
The Public Service Labour Relations Board (PSLRB) recognized the excessive nature of the discipline but found they could not award damages for mental distress. The Federal Court, however, ordered that the PSLRB reconsider her entitlement to damages for mental distress. In this regard, the Court expressly stated that the Supreme Court of Canada’s finding in Honda v Keays, whereby damages can be considered for the manner of wrongful dismissal, may be extended to disciplinary actions that fall short of dismissal, so long as there is sufficient evidence that the discipline caused the damages.