In Swampillai v. Royal & Sun Alliance Insurance Company of Canada, the Court dealt with the enforceability of a full and final release executed by the Plaintiff. A claim was commenced for long term disability (“LTD”) benefits. The action named the Plaintiff’s former employer, Royal and Sun Alliance Insurance Company of Canada (“RSA”), and Sun Life Assurance Company (“Sun Life”) which administered the LTD benefits that RSA provided employees.
In response, the Defendants argued that the Plaintiff had executed a full and final release which had included LTD benefits. The Plaintiff amended his claim to plead the doctrine of unconscionability and argued the release should be set aside. The Defendants brought summary judgment motions on the basis that the release was binding and enforceable. The summary judgment motions were dismissed. The Court found that the release signed by the Plaintiff was unconscionable and ought to be set aside.
The background facts were important. The Plaintiff had been employed as a distribution clerk. After several years of working in this physically demanding job, the Plaintiff went on disability. About three months before the two year mark (where entitlement to LTD changed to the “any occupation” test), Sun Life wrote to the Plaintiff and advised that (1) he did not meet the test for entitlement; (2) benefits would be terminated at the two year mark; (3) the Plaintiff could appeal the decision; and, (4) the appeal period expired three months after the benefits were terminated. The Plaintiff appealed the decision but Sun Life maintained its denial.
By separate letter (about one month before the test for LTD benefits changed), RSA advised that the Plaintiff’s employment would be terminated at the same time as the LTD benefits were to be terminated. A severance package was offered which would require the Plaintiff to also execute a full and final release. The release provided that it related to “benefit coverage under the Company’s applicable plans and/or policies ... including short term or long term disability benefits ...” The Plaintiff’s evidence was that he did not believe the offer had anything to do with Sun Life or his LTD benefits.
In determining whether the release was unconscionable, reference was made to the Court of Appeal’s decision in Titus v. William F. Cooke Enterprises Inc., (2007 ONCA 573) which sets out the four elements that must be satisfied:
A grossly unfair and improvident transaction; and,
Victim’s lack of independent legal advice or other suitable advice; and,
Overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or other similar disability; and,
Other party knowingly taking advantage of this vulnerability.
With respect to the first element, the Court found that it was clear that in the period just before the Plaintiff was notified by RSA that his employment would be terminated, he was actively engaged with Sun Life in pursuing his claim for LTD benefits. He had provided medical evidence in support of his claim and retained Counsel because he did not agree with Sun Life’s decision. There was no dispute that this claim, if successful, would have substantial value which would have been known by both Defendants. Further, (1) Sun Life was not aware of the release until after the litigation commenced; and, (2) RSA acknowledged that its severance offer did not include any money with respect to the LTD claim. In these circumstances, the Court concluded that the settlement for the LTD claim as part of the severance settlement was grossly unfair and clearly improvident.
As to the second element, the Court found that the Plaintiff did not receive legal advice or any professional advice regarding the effect of the proposed settlement terms, including the release of his LTD claim. The Court concluded, particularly given that RSA knew the Plaintiff was appealing the denial of the LTD claim and RSA did not mention the impact on the LTD denial during the course of negotiations, that it was reasonable for the Plaintiff not to have obtained legal advice.
On the third element, the Court found that the Plaintiff was (1) in a vulnerable financial position; and (2) was suffering from health impairments that were sufficiently severe that he had qualified for LTD benefits. The Court concluded that the general vulnerability of the Plaintiff at the material time was not diminished by other circumstances. The Plaintiff did not know his options regarding the LTD claim. The Court concluded that there was an overwhelming imbalance in bargaining power.
Finally, the Court considered whether RSA knowingly took advantage of the Plaintiff’s vulnerability. The Court found that RSA offered the Plaintiff a severance package, but did not alert him to the fact that it required him to release his LTD claim. By failing to do so, RSA knowingly took advantage of the Plaintiff’s vulnerability.
The Court was satisfied that all four elements were established. The release was unconscionable and was set aside. This decision serves as a cautionary tale for parties negotiating a full and final settlement. Particularly where the Plaintiff is in a vulnerable position (which most people on long-term disability will be), it is imperative that the Plaintiff know what benefits they are resolving by signing a full and final release. Otherwise, there is a risk that the release will not be enforceable.
The recent decision of Roskaft v. RONA Inc., 2018 ONSC 2934, sheds some light on when an employer can successfully claim frustration of contract when an employee is in receipt of long-term disability benefits.
The facts of this case were fairly straight forward. The Plaintiff began working for RONA in 2002 in a clerical role. In 2012, he started a leave of absence due to a medical condition. The Plaintiff had access to short term and long-term disability benefits provided by Sun Life. Sun Life approved the Plaintiff’s claim for LTD benefits. RONA had no involvement with the Plaintiff’s LTD claim. In December, 2014, Sun Life allegedly advised RONA that the Plaintiff was “permanently” disabled from his own occupation and any occupation. In September, 2015, three years after the onset of his disability, RONA terminated the Plaintiff’s employment due to frustration of contract. RONA relied on Sun Life’s December, 2014 letter and the fact the Plaintiff continued to receive LTD benefits. He was paid his statutory minimum entitlements under the Employment Standards Act, 2000. The Plaintiff commenced an action for wrongful dismissal. He alleged that RONA failed to obtain information from the Plaintiff which would have indicated his condition was improving at the time of dismissal.
On a summary judgment motion, Pollak J., found that the contract of employment between RONA and its employee of 13 years was frustrated by the employee’s 3 year absence.
Interestingly, Pollack J., concluded that the December, 2014 letter from Sun life, on its own, was insufficient to conclude that the Plaintiff was “permanently” disabled. Notably, there was apparently no reference to “permanent” disability in the correspondence. However, due to the following points, he found that it was reasonable to conclude that there was “no reasonable likelihood” that the plaintiff would return to work within a reasonable period of time:
Sun Life’s determination that the plaintiff was sufficiently disabled to receive long term disability benefits;
The Plaintiff’s post termination representations to Sun Life that his medical condition had not improved; and
The Plaintiff’s continued receipt of LTD benefits.
While employers are usually unable to rely on post termination medical documentation to support their claim for frustration, Pollack J., allowed the representations to Sun Life in as evidence. It is likely this post termination evidence that carried the day for the employer. Pollack J., specifically indicated it directly contradicted the plaintiff’s assertion that he would have provided further evidence had RONA asked and have been able to return to work in a reasonable period of time.
It is apparent that Pollack J., was unwilling to let the Plaintiff have his cake and eat it too. On the one hand, the Plaintiff was reporting to Sun Life that his condition remained stable and unchanged. On the other hand, he alleged that had RONA asked for additional medical information, he would have advised that he was improving. Both were unlikely to be accurate.
It is unfortunate that Pollack J. sidestepped the issue of which party had the obligation it is to submit or request medical information. Notably, the Plaintiff dropped his claim under the Human Rights Code, and so Pollack J., did not have to address the issue of accommodation by RONA. While there is case law that suggests an employer may suffer repercussions if they request information too frequently, many employment lawyers will vehemently argue that simply relying on the conclusion of the LTD insurer is insufficient to justify a claim of frustration without more. This decision would suggest that that a determination by the LTD carrier of ongoing disability, coupled with the continued receipt of LTD benefits may be a sufficient basis for employers to allege frustration of contract.
The Plaintiff’s receipt of long-term disability benefits for three years suggests his disability was severe enough that he was unable to engage in any employment for which he was reasonably suited. Those in the long-term disability industry recognize that this is a stringent test to meet and would be compelling evidence for employers to consider a frustration argument. However, as best practices, employers should request additional information from time to time from their employee and seek legal advice prior to making a final determination. While RONA was ultimately successful, their decision to dismiss the employee resulted in costly litigation.
On April 19, 2018 the Ontario Court of Appeal reversed the trial decision in MacIvor v Pitney Bowes, finding that the LTD policy in question covers claims that arise during the course of an employee’s employment, even if, as occurred in this case, the employee did not discover the claim for many years and had quit and started employment elsewhere in the meantime.
Mr. MacIvor suffered a severe back injury and a traumatic brain injury while participating in a company event while employed with Pitney Bowes. He was off work for four months post-accident and upon returning to work he struggled to perform at the same level he had pre-accident. Pitney Bowes reduced his work responsibilities overtime but the plaintiff continued to struggle and eventually quit.
Mr. MacIvor subsequently obtained employment with Samsung but, after less than a year there, he was terminated as his work was sub-par due his ongoing disabilities as a result of the accident.
The Court found that Mr. MacIvor only discovered the ongoing and permanent nature of his disabilities after Samsung terminated him. At that point, he made a claim under Pitney Bowes’ LTD policy.
An agreed statement of facts was submitted at the initial trial, with the parties agreeing that Mr. MacIvor was totally disabled from the time of the initial injury.
In rejecting the lower court’s decision that coverage ends when the employee ceased to be actively employed (ie when he resigned), the Court of Appeal held that the termination provisions did not exclude coverage for undiscovered disability claims that originated during the employee’s employment stating:
To so conclude would leave former employees in an untenable position of having no disability coverage from either their former or new employer. Such a result would be contrary to the very purpose of the disability insurance and the plain meaning of the coverage provision.
However, this alone did not resolve the issues between the parties in this case. Entitlement was still subject to the policy requirements to provide timely proof of claim and commencement of the action within the relevant limitation period.
Pursuant to the policy, proof of claim was required “within 90 days of the date benefits would begin”. Despite the passage of more than four years since the accident, and the finding that Mr. MacIvor had discovered his claim in August 2009, the Court held that the “the date benefits would begin” was after Mr. McIvor’s termination package from Samsung ended plus a month, since LTD benefits are paid in arrears. Despite what appears to be a very generous interpretation of when benefits would begin, Mr. MacIvor still did not file proof of claim within 90 days of this date, but did so about 100 days later instead. Although relief from forfeiture was not raised at trial, the Court of Appeal found it was in the interests of justice to grant relief here, citing a long list of factors, including the fact that Mr. MacIvor was injured during his employment, while covered by an LTD policy; that he did not appreciate the significance of his injury; the Insurer conceded his total disability as of the accident, and; that all of these facts had been known to the parties for years.
The Insurer also argued that the policy had a one-year limitation period to commence legal actions. However, the Court found that the provision also prevented any legal actions until 60 days had lapsed from the written proof of loss. In any event the Court concluded it was unlikely that the one-year limitation period would be upheld, referencing obiter from their 2014 decision of Kassberg v Sun Life Assuantce Company of Canada, 2014 ONCA 922 (CanLii), 124 O.R. (3d) 171.
All in all a very interesting decision, in circumstances that are unlikely to occur too often. However, Insurers, it may be time to revisit your policies to ensure they don’t provide for unintended exposure. Please feel free to contact me at firstname.lastname@example.org or 416-679-2781 x 210.
Lisa has an insurance law practice that has focused exclusively on insurance defence for 15 years. Her practice focuses on complex insurance-related litigation, including accident benefits and bodily injury. Read more ...
In a recent decision, of Wilken v. Sunlife, the Ontario Court of Appeal has confirmed that a long-term disability insurer is entitled to enforce the wording of the policy where a participant’s action or inaction would adversely vary an insurer’s interest.
The decision, Wilkens v. Sun Life Assurance Company, addressed the situation of Mr. Wilkens, an individual who was injured resulting from a motor vehicle accident while in the course of his employment. He elected to forgo Workplace Safety and Insurance Board (“WSIB”) benefits in order to pursue a tort claim. The appellant’s long-term disability insurer was considered a second payor under the policy and was entitled to an “offset” for any WSIB benefits the appellant was “eligible” for. The insurer took the position that despite electing to pursue a tort claim, at the time of the onset of disability, the appellant was “eligible” for WSIB benefits. Accordingly, it should be entitled to a credit despite the appellant retroactively electing to pursue a tort claim.
The motion judge, and subsequently the Court of Appeal, agreed.
The Court of Appeal adopted the motion judge’s reasoning that the plaintiff's voluntary decision to make a retroactive election, foregoing WSIB benefits to pursue a tort action, effectively would deny the insurer its contemplated and permitted offset, thereby elevating the insurer's relevant coverage obligation to a "first payor" status that obviously was not intended.
The Court found that the LTD carrier was entitled to deduct or offset the amount of WSIB benefits the appellant could have received had he exercised his entitlement to them, and not the amount of WSIB benefits actually received and retained in the wake of the plaintiff's retroactive election to proceed with his tort claim.
This decision continues to build on the Court’s decision in Richer v. Manulife Financial, 2007 ONCA 214. In the long-term disability context, courts will pay particular attention to the policy to give it its intend effect. This decision is also notable, as it has already been referenced in the recent FSCO decision of Pan v. Allstate, discussed further in our blog post here. In that case we raised the Court of Appeal’s rationale in Wilkins andArbitrator Smith relied on the decision in support of his finding that the Accident Benefits Insurer was entitled to deduct CPP disability benefits that may have been “available” but not yet applied for by the claimant.
These cases suggest that decision makers are treating the order of payment contemplated by the contract paramount to the individual claimant’s choice to selectively pursue benefits.
The full decision of Wilkens v. Sun Life Assurance Company, 2017 ONCA 975,can be found here.
Lisa has an insurance law practice that has focused exclusively on insurance defence for 15 years. Her practice focuses on complex insurance-related litigation, including accident benefits and bodily injury. Read more ...
The recent Superior Court decision of Nemchin v. Green by Corthorn J. is a significant win for auto insurers dealing with the deductibility of collateral benefits from large future loss of income awards. The plaintiff was injured in a motor vehicle accident in 2010. A trial took place in April, 2017. At the time of the trial, the plaintiff continued to receive long-term disability benefits from a third party insurer. At trial the plaintiff was awarded $600,000.00 for future loss of income. This was reduced to $540,000.00 for contributory negligence.
After the trial, two issues arose. First, the defendant sought an assignment of the plaintiff’s ongoing long term disability benefits pursuant to section 267.8(12(a)(ii), of the Insurance Act. Second, despite the finding in the recent El-Khodr and Cobb decisions, the plaintiff sought to have the judge use her discretion to alter the pre-judgment interest rate from 1.3% to 3.5%.
Regarding the assignment, the plaintiff opposed the defendant’s request because she argued it was not possible to match the $540,000.00 lump sum temporally to the ongoing disability benefits. She pointed out that the defendant opposed a jury question requiring the jury to break down any future payments by annual loss and duration. The defendant argued that the statutory provision or case law did not require “temporal matching”. Corthorn J. noted that the law in this area remained unsettled and the Court of Appeal was assembling a five member panel to hear Cadieux v. Saywall, 2016 ONC 7604, where they were expected to address the deduction of collateral benefits. However, the parties required finality in this matter and so she rendered her decision.
Corthorn J. granted the defendant an assignment until the plaintiff turned age 65 (when her LTD coverage ceased), or when the $540,000.00 had been fully paid by the LTD insurer. She also found that there was no basis to utilize her discretion to adjust the pre-judgment interest rate from 1.3% to 3.5%.
In her analysis, Corthorn J. confirmed that the burden of proving an assignment fell to the defendant. She addressed four main issues in determining whether the assignment should be granted. First, she found that it was undisputed that the plaintiff was in receipt of LTD benefits at the time of the jury verdict and would remain in receipt for as long as she met the disability test. Second, Corthorn J. agreed with the defendant that there was no requirement for “temporal matching”. Therefore, it fell to the trial judge to determine the duration of the assignment based on the record. Third, she found a global award for future loss of income did not preclude her from deciding the relevant issues. Finally, she found there was no risk the plaintiff would be undercompensated. The defendant is only entitled to an assignment once the plaintiff was paid the $540,000.00. At which point, the plaintiff would be fully compensated for her future loss of income. Relying on the decision of El-Khodr, Corthorn J. found the Court of Appeal’s commentary on the deductibility of Statutory Accident Benefits payments to be applicable.
This decision should be considered a significant success for defendants. It continues a growing trend in the case law where the deductibility of collateral benefits is addressed in a practical and holistic fashion. Overly technical jury questions requiring awards to be matched, year by year for a specific duration will not be required for a defendant to raise a claim for assignment.
Employers often provide their employees with access to long-term disability benefits through a group benefit plan. These benefits are usually provided and administered by a third party insurer. The insurer’s role is to manage the disability claim and adjust the file according to the available medical evidence. The employer’s role is to hold the employee’s position and accommodate a return to work as necessary. Ideally, the management of an injured employees return to work should be a collaborative process between employer, long-term disability insurer, and employee. Unfortunately, once an employee is injured and in receipt of disability benefits, misconceptions regarding the parties’ respective roles can expose them to increased risk and liability.
Misconception #1: The employer is no longer involved in the disability process
An insurer’s acceptance of a long-term disability claim does not end the employer-employee relationship. The employer has an ongoing obligation to accommodate the employee’s disability. This may be as simple as keeping their position available while benefits are being paid. It can also require the employer to significantly modify the workspace or duties of the employee to assist in a return to work. The employee has a reciprocal obligation to fully participate in any accommodation process. Failure to participate may give grounds for the employer to terminate their employment due to frustration. It may also give grounds for the insurer to discontinue benefits. To determine whether a claim of frustration is appropriate, employers should to obtain updates on their employee’s functional abilities at regular, but not excessive, intervals.
Misconception #2: If the employee receives disability benefits for 2 years, their employment can be terminated
Ontario’s Human Rights Code,prevents employers from terminating employees on the basis of disability. The exception is when an employer can prove that they have accommodated to the point of “undue hardship” and the contract of employment has been “frustrated” by the employee’s disability. Frustration is a legal doctrine that refers to an intervening event that prevents the further performance of a contract. Depending on the wording of the contract of employment, this doctrine may relieve parties from any further obligation to each other, with the exception of statutory minimum entitlements to notice, severance, or pay in lieu of notice under the Employment Standards Act.
Most frustration claims arise at the two year mark. This is in part due to the change of disability tests contained in many long-term disability policies. Usually, after two years, the policy’s disability definition changes to the “any occupation” definition. This is a stringent test requiring the employee to unable to engage in any occupation they are reasonably suited for by age, experience, and training. Employers may believe that if an employee meets this test of being able to unable to perform any job, their contract is frustrated.
However, the courts have found that the two year mark is not definitive in satisfying the employer’s burden. Frustration of contract is a fact driven analysis that will take into account the nature of the worker’s position, disabilities, and the employer’s meaningful steps to accommodate. Where an employer has taken a “hands off” approach due to misconception #1, their claim for frustration may not succeed.
Misconception #3: If the employee no longer meets the policy definition of disability, they must return to work
An employer is required to accommodate its employee even where the insurer has discontinued benefits. A long-term disability insurer’s decision to terminate benefits is not determinative of the employee’s ability to engage in his occupation. Potential accommodation may entail allowing the employee to remain off work without pay. It may also require the employer to accept a gradual return to work, starting with part time hours. However, an insurer’s denial of benefits may be a good time for an employer to seriously consider instituting a formal return to work program with relevant checkpoints and milestones. If an employee is unable, or unwilling, to participate in this program, the employer may have a better case for frustration.
Avoiding Exposure Through Collaboration
When dealing with an injured employee, benefit entitlement, accommodation, and potential termination of employment are areas of significant risk and exposure for both the employer and the long-term disability insurer. The overlap of contractual, statutory and common law obligations between the three parties make the management of long-term disability claims particularly complex. If an employer fails to take positive steps to accommodate an employee or terminates their employment prematurely, the insurer may face an individual with no incentive to return to the work force. This may result in a protracted disability claim. Similarly, an employer who prematurely terminates an employee exposes themselves to wrongful dismissal and human rights claims.
Properly evaluating the employer’s obligations in the context of a long-term disability claim is a necessary step in avoiding these risks. For further information on how to successful avoid these pit falls, contact the long-term disability and employment lawyers at Strigberger Brown Armstrong LLP.
Devan Marr’s practice has focused on bodily injury, long term disability, statutory accident benefits, and employment claims.