Canadian Employment Law Today

November 9, 2016

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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PM40065782 Emplo y ment Law Today Canad ad a ian November 9, 2016 Employer gets relief from worker's compensation claim AN ONTARIO employer is entitled to 100 per cent cost relief for a worker's compensa- tion claim because the accident was caused by the worker's pre-existing medical condi- tion, the Ontario Workplace Safety and In- surance Board has ruled. e worker was a truck driver for a waste management company in Ontario, hired in June 2006. He had no history of fainting or other medical conditions that caused him to lose consciousness. On April 13, 2015, the worker was driv- ing a truck as part of his regular duties. At one point, he lost control of the vehicle and struck several posts, another vehicle, and several trees before ending up in a ditch. Af- ter an ambulance took him to the hospital, he was diagnosed with a fractured spine and other injuries. e worker couldn't remember events leading up to the accident and it became evident he had lost consciousness while driving. Doctors investigated for epilepsy but tests came back negative. However, they found he suff ered from severe obstructive sleep apnea, and the worker indicated he also suff ered from severe insomnia. e worker fi led a claim for workers' com- pensation for the injuries and was granted benefi ts. e employer then fi led a request for full relief of the costs of this claim from the Ontario Workplace Safety and Insurance Board's (WSIB) second injury and enhance- ment fund. e fund is a "special reserve fund" established under the province's Workplace Safety and Insurance Act that is designed to "meet losses that may arise from a disaster or other circumstance that, in the opinion of the board, would unfairly burden the employers in any class." e fund was also governed by a WSIB policy manual document that stipulated "if a Ending LTD benefi ts at 65 not age discrimination Worker claimed she was forced to retire at 65 and take pension after LTD benefi ts ended BY JEFFREY R. SMITH MANDATORY retirement no longer ex- ists in Ontario, meaning workers who reach the age of 65 can continue working if they wish. Employers who try to pressure older workers into retiring can face claims of age discrimination. However, does this right to choose not to retire apply to workers receiv- ing long-term disability benefi ts? Not if the plan specifi es benefi ts end and pension be- gins at 65, according to an adjudicator. Trudy Austin began working for Bell Canada in 1969. She worked for many years without any major problems until July 2002, when she had to go on long-term disability (LTD) leave. Bell's LTD plan included an income pro- tection program that stipulated benefi ts — upon which the employee would continue to make pension contributions the same as if Claims of duress, misrepresentation not enough to invalidate signed release pg. 3 Financial concerns normal outcome of termination CREDIT: OLIVIER LE MOAL/SHUTTERSTOCK Painting accommodation with broad strokes pg. 4 New Ontario Human Rights Commission policy emphasizes the need for employers to avoid a narrow approach to accommodating employee disabilities ASK AN EXPERT pg. 2 Employee refusing to sign disciplinary letter UNDERLYING on page 7 » INSURANCE on page 6 » with Meghan McCreary

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