Canadian Employment Law Today

January 8, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH Continued from page 1 Oct. 11, Weetabix's training co-ordinator asked Lake if she was sure she wanted to retire before the new collective agreement was ratified, since it might include a new exit package, but Lake stuck to her request to retire on Oct. 19. Lake denied being told any information about the pending agreement. A tentative agreement was reached a few days later and a ratification vote was announced on Oct. 17. The new collective agreement was approved on Oct. 20, the day after Lake retired. The agreement included an exit arrangement that allowed a certain number of senior employees to resign and receive monetary packages. Lake called Weetabix a few weeks later to ask if she qualified for the exit package and the company told her she did not. The union filed a grievance claiming Lake should be entitled to the package because her original retirement date was after the ratification and Weetabix should have informed her — in good faith and honesty — of the pending new package before moving up her retirement date. The arbitrator found that as of Oct. 11, when Lake agreed to move up her retirement date, there was no final agreement and no agreement on the terms of the exit package. Though the HR manager was aware of the negotiations, there was no indication it would be in effect anytime soon and Weetabix had no obligation "to disclose to individual employees matters which remain under discussion in the collective bargaining process." The arbitrator found there was no evidence Weetabix deliberately caused Lake to move her retirement to a date where she wouldn't be eligible for the exit package. Since it was unknown when it would be ratified, it was just as likely it could have come into effect the day after Lake's original retirement date, which would have put Lake in the same position, said the arbitrator. The grievance was dismissed. See Weetabix of Canada Ltd. and UFCW-Can, Local 175 (Lake), Re, 2013 CarswellOnt 15516 (Ont. Arb. Bd.). Attempt to get medical marijuana covered by WCB flames out A SASKATCHEWAN WORKER'S appeal to get his medical marijuana covered by workers' compensation benefits has been denied by the Saskatchewan Court of Queen's Bench after the court had previously remitted the matter for reconsideration. The worker suffered two injuries to his back in 1981 and 1997, which led to ongoing pain and back spasms that surgery couldn't fix. He was deemed unemployable by the Saskatchewan Workers' Compensation Board (WCB) in 2002. By this time, he had tried many drug therapies and treatments that didn't help much and caused severe side effects. His specialist recommended he try using marijuana and, in December 2002, Health Canada authorized him to possess medical marijuana, which he usually consumed by putting it in baked goods or through a vaporizer — but occasionally smoked when the other methods weren't possible to use. The worker applied to the Saskatchewan Workers' Compensation Board (WCB) to have the cost of the marijuana covered, but the WCB and its appeals tribunal denied the claim based on "a lack of scientific evidence regarding marijuana effectiveness and a lack of comprehensive studies on the side effects of long-term medical use." The worker appealed to the province's Court of Queen's Bench, which in 2012 found the WCB and its appeal tribunal incorrectly applied their policies, failed to consider the worker's prescription for marijuana and allowed its own medical consultant and medical department to make its decision for it. The court remitted the case back to the WCB to make "a decision according to law." However, the worker's luck didn't change in the second go-round with the WCB. The board once again rejected his claim and the worker appealed again to the Court of Queen's Bench. The court found the WCB had authority under the Saskatchewan Workers' Compensation Act to determine if a claimant was entitled to reimbursement for the cost of "medication whose medical efficacy has not been established." Though the worker argued the banning of a specific type of drug forces patients to take a different treatment than that recommended by a doctor, the court found the act granted the WCB the "discretion and ability to refuse to reimburse a specific medical treatment." The board found there was nothing in the language of the act that determining what may be necessary for a particular patient is "outside the ambit of the board's exclusive jurisdiction," as long as proper consideration was given by the board itself. "The (worker's) position is that once a doctor recommends a course of treatment or medication, the board has no authority to determine whether such treatment is 'necessary as a result of the injury' under s. 106(1)," said the court. "I do not find this to be a reasonable interpretation, however, even if this is a reasonable interpretation under the act, it is not the only reasonable interpretation. The board provided an interpretation that was also reasonable and deference must be given to it." The court noted that not only did the WCB find marijuana had not been "scientifically proven" as an appropriate treatment for the worker, but viable substitutes that were available — such as a drug called Sativex that would be reimbursed by the WCB if the worker used it and claimed the costs — were not tried by the worker. "The board refused reimbursement on the basis that medical marijuana is potentially unsafe and its positive effects are clinically unproven," said the court. "There is no evidence before me that the board based its decision on the basis that medical marijuana is a controversial moral issue." The court found the WCB's rejection of the worker's claim for medical marijuana met the standard of reasonableness. The worker's appeal was dismissed. See Heilman v. Saskatchewan (Workers' Compensation Board), 2013 CarswellSask 795 (Sask. Q.B.). EMPLOYMENT LAW BLOG Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features discussion of topics such as holiday parties, reasonable notice, insubordination and union reps, taking a piece of employee tips, and constructive dismissal. You can view the blog at Published by Canadian HR Reporter, a Thomson Reuters business 2014 7

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