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F.A.Q.

Here is the list of the most frequently asked questions. If you can’t find the answer contact us here.

Am I going to pay fees?

The cost of legal services can be threatening and disconcerting. Most of our clients have never been involved with a legal matter and we realize that financial security is the primary concern in their situation.

Our first duty to you is to put in plain words the fee structure in a clear and up-front manner.

We offer a free initial assessment, which is not binding, at which point, we will advise you on the various options for recourse that you may have.

If we believe that we can assist you, we will arrange for a consultation at our offices.  The fee for this service is $275.00 plus H.S.T., and is usually waived if you decide to proceed with our firm.  Going forward, the majority of our fees are collected at the conclusion of your matter based on a Percentage of a Recovery System. This enables you to deal with your employer and the insurance company on a level playing field.

We believe that no one should have to be burdened with legal costs in these circumstances. However, if you initiate a claim against the insurance company/employer, they may be required to make a contribution to your legal costs. The remainder can be deducted as an expense on your income tax..

Can my employer ask me to sign an employment contract that permits it to terminate me "at will"?

US style “At will” termination clause are strictly prohibited in Canada, at both the Federal and Provincial level. All employees are entitled to minimum notice and severance rights contained in Employment Standards legislation. In most cases any contract containing such a clause is void.

Does my receipt of Employment Insurance benefits affect my claim against an employer?

No, but the Employment Insurance Act provides that you cannot receive severance and EI for the same period. You will be required to repay a portion of your unemployment insurance benefits received during the period of notice procured from your former employer. However if you should remain unemployed at the conclusion of your severance period, EI will “top up” your benefits for the equivalent of the clawback amount.

Does my receipt of Worker's Compensation benefits affect my rights on severance?

Workplace compensation provides compensation for work related accident/illness to employees who have received healthcare and have lost time or wages from work. An employee cannot collect more than one wage benefit during the period of notice. With the exception of minimum statutory notice/severance and amounts paid by WSIB would be set off to the employers credit.

However, for those employers who have 20 or more employees, there are additional compensation payments and penalties available to a Worker who is terminated within six (6) months to two (2) years if the employer fails to accommodate, or terminates the employee upon return from a WSIA injury.

Is my employer obligated to provide health benefits?

No. However, if there is a plan available the employee cannot be selectively discriminated against by reason of your health condition. All employees of a similar status must be treated equally.

Can an employer insist on a pre-employment medical exam?

No.

Employers used to discriminate any applicants with disabilities according to medical information asked for on application forms or received through pre-employment medical examinations. The Ontario Human Rights Commission believes that: “Pre-employment medical examinations or inquiries at the interview stage should be limited to determining an individual’s ability to perform the essential duties of a job”. Any health evaluation to confirm or decide an individual’s capability to perform the necessary duties of a job, ought to only take place after a conditional offer of employment is made, preferably in writing. This allows an applicant with a disability the right to be considered exclusively on her or his merits during the selection process.

Am I entitled to disability benefits even if I am denied my claim because I am no longer employed?

Yes. Even though you are denied your claim, as long as you made the employer aware of the illness or the disability during the time you were employed or at least by the end of the employment statutory severance period.

Why, if given the option, should you contribute to the coverage of your LTD benefits cost?

If you contribute to disability benefits and your employment is terminated you are entitled to receive both a severance payment and disability payments, without any set-off against one another. In the event, that you do not contribute to your disability benefits any money you receive upon your termination of employment would be applied towards the payments that you receive from your disability provider.

If you contribute all or part of the LTD costs, it has two major effects: 1. Benefits received will be on a non-taxable basis. 2. In most circumstances you can collect or receive LTD benefits and severance for the same period of time.

Is my job secure while I'm on disability leave?

Yes. The employer must return you to your employment on terms comparable to your pre-disability employment. However, after a period of two years the employer may in certain circumstances consider the employment to be “frustrated”.

What is the duty to mitigate and how does this affect my claim against an employer?

The right to income protection for a reasonable notice period is counterbalanced by the employee’s duty to mitigate, or simply put: to exercise diligent efforts to search for employment. In Canada an Employer can attempt to argue that an Employee has lost his/her right to income protection by proving that the Employee has failed in this duty.

However, this is a heavy burden: an employee must be shown to have been unreasonable in all respects relating to the job search:  For example It is common to try to demonstrate that a job search is too narrow in geographic and income requirements. However if the Employee can show that he has not received the assistance of a positive reference letter or outplacement counseling from the employer and  conducted a consistent job search , it is doomed  to fail.

What specific Legislation (federal and provincial) directly impacts upon the employment relationship?

Federal:

Canadian Labour Code

Canadian Human Rights Code

The Public Services Act Employment Insurance Act

The Income tax Act

Provincial:

Employment Standards Act

Ontario Human Rights Code Workplace Safety and Insurance Act

Occupational Health and Safety Act

Wages Act

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