Montrealer’s fight for insurance benefits highlights dangers of social media: lawyers

By Morgan Lowrie

THE CANADIAN PRESS

MONTREAL _ The case of a Montreal writer who said his insurance company refused to pay him disability benefits due in part to online postings is a reminder to people to watch what they put on the Internet, according to legal experts.

Literature professor Samuel Archibald published a letter in La Presse earlier this month detailing his struggles to get disability benefits after being diagnosed with severe depression last fall.

He wrote that while he was on leave from his job at Universite du Quebec a Montreal, the school’s group insurer opened an investigation because he had been able to take part in certain activities such as speaking with students, reading poems on the radio and making a 10-minute TV appearance.

They also looked at photos he had posted on social media that showed him jogging or playing with his children.

“They also used this new trick of peeling through the insured’s Facebook and Instagram pages in order to prove, in the event of a lawsuit, that he is not depressed,” he wrote on Feb. 12.

The article prompted a wave of denunciations from doctors, union leaders and citizens, with some sharing their own stories of being denied claims with the hashtag #avecsam.

It also elicited a response from Archibald’s insurance company, which defended its commitment to mental health and promised to review his file.

“Close to half of our group insurance claims are disability cases, and less than five per cent of mental health claims are declined,” Desjardins wrote in a statement.

“It’s important to note that each claim is evaluated on a case-by-case basis, while consulting with the insured, experts  including the attending physicians and the employer.”

But the story is no surprise to legal experts, who say insurance companies are increasingly turning to social media to investigate claims.

David Share, a lawyer who specializes in insurance claims, says insurance companies have always conducted surveillance and been suspicious of certain kinds of disability claims.

He says that while firms have a responsibility to ensure claims are valid, social media can also offer “a cheaper, quicker way of trying to find grounds to deny a claim.”

As an example, he says insurance companies can argue that someone who spends a certain number of hours online is capable of working a desk job or taking calls.

“It’s easy to say ‘this person doesn’t look disabled,’ but that’s an overly simplistic way of looking at it,” he said.

Robert Currie, a lawyer and member of Dalhousie University’s law and technology institute, says insurance companies are too often allowed to be invasive and to jump to conclusions that aren’t supported by their evidence.

“You can’t judge anything meaningful about someone’s mental health based on their social media feeds,” said Currie.

“One thing we know is that social media feeds are extremely unreliable indicators of anything about a person, 95 per cent of the time.”

Both Share and Currie say that while the issue of social media monitoring raises privacy concerns, thus far there are few government regulations in place to stop it.

“The legal system is still trying to catch up with the Internet and the impact that it has, and it’s very difficult to prevent companies or investigators from being able to learn how to look things up online,” Share said.

Currie said that while people can have some legal recourse if they can show that companies breached strong privacy barriers, it’s far easier and less costly to assume that anything posted online can be found.

“A colleague has a sign on her office that reads: ‘Dance like nobody is watching; email as if it’s going to be read to a deposition some day,”’ he said.

“I think people are far too casual about this.”

New Uber feature to force drivers to take a break after 12 straight hours

By Tara Deschamps

THE CANADIAN PRESS

TORONTO _ Uber drivers in Canada trying to work for more than 12 hours straight will soon be forced to take a six-hour break before they can hit the road again.

The new policy being rolled out at the beginning of next week will be enforced through the company’s ride-hailing app, which will block drivers from accepting customers after a half a day of consecutive work.

Uber Canada’s general manager Rob Khazzam said the introduction of the feature follows similar moves made by the company in other countries, as part of an effort to curb driver drowsiness and make the platform safer.

According to research conducted by the Ontario Ministry of Transportation, 26 per cent of all fatal and injury crashes are attributed to driver fatigue, and in 2006, as many as 167,000 Ontario drivers were involved in at least one crash due to fatigue or drowsiness.

Similarly, an Insurance Corporation of British Columbia survey from 2014 found 30 per cent of respondents admitting to nodding off behind the wheel.

Khazzam called Uber’s new feature “common sense.”

“If you’re a rider, you don’t want to get into a car with a driver who has been driving more then 12 hours,” he said. “But positively on the drivers’ side, we continue to give them flexibility.”

The feature does constitute a notable shift for Uber, which has long touted a hands-off approach with its employees, leaving work hours and locations up to the drivers to choose.

But Khazzam said most Uber drivers won’t even encounter a block on accepting rides because the “vast majority” are behind the wheel for fewer than 15 hours a week.

The forthcoming feature will allow drivers to check how much time they have before a mandatory break and will notify them when they have two hours, one hour and 30 minutes before they’ll have to rest.

The app will not count periods when a driver is parked for more than one minute between trips and doesn’t account for drivers who may also be working for a competitor like Lyft.

Uber first experimented with stopping drivers from accepting fares after multiple consecutive hours in a handful of U.S. cities and Australia last fall. In January, it brought the feature to the U.K. and launched it nationally in the U.S. earlier this month.

It comes on top of a separate 2017 initiative from the company that gave drivers access to data about their speeding and braking habits, in hopes of boosting safety.

Though he couldn’t talk about any further safety features or policy changes that might be in the works, Khazzam said that “people should expect more from us on this front.”

Online insurance sales: a looming disaster

LONGUEUIL, QCFeb. 21, 2018 /CNW Telbec/ – In conjunction with the detailed review of Bill 141, the Regroupement des cabinets de courtage d’assurance du Québec (RCCAQ) would like to emphasize the importance of protecting consumers’ financial well-being by requiring a certified representative to be involved in insurance purchases. The RCCAQ is seeking to avoid disastrous consequences for consumers, particularly when submitting claims to insurers.

Modernization and consumer protection should go hand in hand

The RCCAQ supports efforts to modernize the legislative framework governing the distribution of property and casualty (P&C) insurance products. It decries the fact, however, that this process stands to jeopardize consumers’ interests. “The government should ensure that consumers have access to a distribution model offering the highest possible levels of protection. For many people, a home, a car and a cottage are among their most valuable financial assets,” said RCCAQ chair Christopher Johnson.

Consumers would be left to their own devices

If adopted in its current form, Bill 141 would allow consumers to purchase home or auto insurance online without the involvement of a representative such as a broker. Subject to ongoing training requirements and governed by a strict code of ethics, certified professionals serve as a safety net during insurance transactions, ensuring that responsibility for purchases does not fall solely on consumers’ shoulders. Nevertheless, this fundamental principle is on the verge of being undermined.

“In 2016, a Leger survey1 showed that 76% of Quebecers regarded P&C insurance as complex,” noted Mr. Johnson. “Although they may make for dry reading, riders, exclusions and other insurance policy provisions constitute essential information that brokers are able to explain to their clients. Our role is to work on consumers’ behalf and defend their interests when claims are submitted to an insurer.”

Consumer bankruptcies, as well as painful and expensive court cases with insurers, are likely to occur. The ideal solution, however, is within reach: simply require a certified professional to be involved in the online sales process.

About the RCCAQ
The RCCAQ is a professional association that seeks to promote and defend the socio-economic interests of its member firms, including over 4,200 brokers at some 500 firms and branch offices across the province of Quebec.

___________________________________________
1
 Leger survey conducted on behalf of CHAD in January 2016 (500 Quebecers aged 18 or older were interviewed).

www.rccaq.com

SOURCE Regroupement des cabinets de courtage d’assurance du Québec

‘Alberta’s Top Employers’ for 2018 are announced

Leading in the new economy:

CALGARYFeb. 21, 2018 /CNW/ – After two years of tough economic adjustment, Alberta employers are once again creating a lot of new jobs.  While it might be too early to talk about a recovery, the province is expected to lead the country this year in economic growth.  Alberta employers are once again raising the bar when it comes to progressive working conditions and forward-thinking HR policies.  The best of these were recognized today, as winners of this year’s “Alberta’s Top Employers” competition were announced.

“It’s hard not to be impressed by the resilience of the Alberta economy – and the employers that call this province home,” says Richard Yerema, Managing Editor of the Canada’s Top 100 Employers project at Mediacorp Canada Inc., which manages the competition.  “When you look at the range of industries represented by this year’s winners, you can see the outlines of the new economy in Alberta.”

“In addition to providing their staff with training and skills development, many of this year’s winning organizations are placing more emphasis on health and wellness,” says Kristina Leung, Senior Editor at the Canada’s Top 100 Employers project. “Having a healthy workforce is a strong driver of productivity, which is important for organizations looking for ways to fuel long-term growth.”

Some notable initiatives that the editors highlighted this year:

  • Lafarge Canada of Calgary identifies future leaders through an 18-month leadership development program, which is offered to high-potential employees, that includes a series of in-person course modules together with assignments and projects.
  • Edmonton-based ATB Financial prioritizes the health of its employees through a variety of initiatives including a Wellness Leadership Committee, a network of wellness champions and various wellness challenges that address topics such as sleep health, nutrition, physical health and mental health.
  • Getty Images of Calgary supports employees who are new mothers with maternity leave top-up payments, to 100% of salary for up to 15 weeks, as well as parental leave top-up for fathers and adoptive parents.
  • Calgary-based WestJet Airlines provides a range of opportunities for employees to volunteer with charitable initiatives each year – through their ‘WestJet Cares for Kids’ program, the airline has donated over 65,000 flights to children in need.
  • To encourage employees to stay healthy, the City of Edmonton provides a $1,100 health spending account as part of its health benefits plan, allowing employees to top-up coverage to meet their individual needs.

First published in 2006, Alberta‘s Top Employers is a special designation that recognizes Alberta employers that lead their industries in offering exceptional places to work. Employers throughout Alberta were evaluated by the editors at Canada’s Top 100 Employers using the same criteria as the national competition: (1) Physical Workplace; (2) Work Atmosphere & Social; (3) Health, Financial & Family Benefits; (4) Vacation & Time Off; (5) Employee Communications; (6) Performance Management; (7) Training & Skills Development; and (8) Community Involvement. Employers are compared to other organizations in their field to determine which offer the most progressive and forward-thinking programs. The annual competition is open to any employer with its head office in Alberta; employers of any size may apply, whether private or public sector.

Founded in 1992, Mediacorp Canada Inc. is the nation’s largest publisher of employment periodicals. Since 1999, the Toronto-based publisher has managed the Canada’s Top 100 Employers project, which includes 18 regional and special-interest editorial competitions that reach over 15 million Canadians annually through a variety of magazine and newspaper partners. Mediacorp also operates Eluta.ca, the largest Canadian job search engine, which includes editorial reviews from the Canada’s Top 100 Employers project and is now used by almost 7 million users in Canada each year. Together with Willis Towers Watson, Mediacorp also hosts the Top Employer SummitCanada’s largest conference for senior-level HR professionals.

The full list of Alberta’s Top Employers for 2018 is attached. The winners were announced in a special magazinepublished in the Calgary Herald and Edmonton Journal this morning. Detailed reasons for selection, explaining why each of the winners was selected, with hundreds of additional stories and photos, were also released this morning and are accessible via the competition homepage.

Alberta’s Top Employers
2018 Winners

Agriculture Financial Services Corporation / AFSC, Lacombe
Alberta Blue CrossEdmonton
Alberta Central, Calgary
Alberta Health Services / AHS, Edmonton
Alberta Investment Management Corporation / AIMCo., Edmonton
Alberta School Employee Benefit Plan / ASEBP, Edmonton
Alberta Securities Commission / ASC, Calgary
Alberta Teachers’ Retirement Fund Board / ATRF, Edmonton
Alberta-Pacific Forest Industries Inc., Boyle
AltaGas Ltd., Calgary
ATB Financial, Edmonton
Beaver Municipal Solutions, Ryley
Bennett Jones LLP, Calgary
Bethany Care Society, Calgary
BioWare ULC, Edmonton
Bow Valley College, Calgary
Calgary Airport Authority, The, Calgary
Calgary Co-operative Association Limited, Calgary
Calgary Roman Catholic Separate School District No. 1, Calgary
Capital Power Corporation, Edmonton
CapitalCare Group Inc., Edmonton
Champion Petfoods LP, Edmonton
Chandos Construction Ltd., Edmonton
Collins Barrow Calgary LLP, Calgary
Connect First Credit Union, Calgary
Covenant Health, Edmonton
DIALOG, Calgary
Duncan Craig LLP, Edmonton
DynaLIFE Dx, Edmonton
Edmonton Catholic Separate School District No.7, Edmonton
Edmonton Police Service, Edmonton
Edmonton Regional Airport Authority, Edmonton
Edmonton, City of, Edmonton
Enbridge Inc., Calgary
EPCOR Utilities Inc., Edmonton
Fillmore Construction Management Inc., Edmonton
Fountain Tire Ltd., Edmonton
Getty Images, Inc., Calgary
Graham Group, Calgary
Graycon I.T., Calgary
Hallmark Tubulars Ltd., Calgary
Health Quality Council of Alberta, The, Calgary
Inter Pipeline Ltd., Calgary
Kenway Mack Slusarchuk Stewart LLP, Calgary
Keyera Corp., Calgary
Lac La Biche County, Lac La Biche
Lafarge Canada Inc., Calgary
Lakeland CollegeVermilion
Legal Education Society of Alberta, The, Edmonton
NAIT / Northern Alberta Institute of Technology, Edmonton
National Energy Board, Calgary
Olympia Financial Group Inc., Calgary
PCL Construction, Edmonton
Pembina Pipeline Corporation, Calgary
Rogers Insurance Ltd., Calgary
Rohit Group of Companies, Edmonton
SAIT, Calgary
Shaw Communications Inc., Calgary
Shell Canada Limited, Calgary
Silvacom Ltd., Edmonton
Stuart Olson Inc., Calgary
SysGen Solutions Group Ltd., Calgary
Travel Alberta, Calgary
UFA Co-operative Limited, Calgary
United Way of Calgary and Area, Calgary
Univar Canada Ltd., Calgary
University of CalgaryCalgary
Valard Geomatics Ltd., Edmonton
WestJet Airlines Ltd., Calgary
Workers’ Compensation Board – Alberta, Edmonton

SOURCE Mediacorp Canada Inc.

Your auto insurance will be cheaper if you sign up in this month

Your auto insurance rate is cheaper if you sign up when the weather is warm. That’s the key takeaway from a two-year price analysis by LowestRates.ca.

The financial product comparison website found that rates quoted in Ontario were at their lowest between July and October, dipping by as much as six per cent in August 2017 from the annual average. The colder months, between January and April, saw the average rate spike by over six per cent in February. The same pattern was observed in 2016.

LowestRates.ca managing editor John Shmuel said he believes similar seasonal price swings play out in other provinces where auto insurance is not publicly managed.

“We were really surprised by the data,” he told CTVNews.ca on Tuesday. “Summer, in general, is a great time to get auto insurance.”

Insurers base their pricing on a combination of you and your vehicle. Age, sex, marital status, postal code and driving history all factor in. More expensive cars that are pricier to fix and models that see a higher volume of claims are costlier for drivers to insure.

The season in which you get your quote factors in because more people buy cars in the summer. Insurance companies in Ontario’s competitive market are eager to undercut one another to capture the annual flurry of new business, Shmuel explains.

“Ontario has a lot of insurance companies. We believe that these insurance companies are artificially lowering their prices,” he said.

Canada’s 2017 new light vehicle sales did in fact peak during the summer, according to data from DesRosiers Automotive Consultants. But the largest monthly volume, with 200,400 vehicles sold, was April, a month when auto insurance rates were found to be 3.7 per cent above average.

Vehicle sales statistics fell more in line with the price trend for auto insurance during the winter. January was the low point for sales (108,600). That month was found to have the second highest auto insurance rates, six per cent above average, virtually the same as February’s 6.1 per cent increase.

“No one wants to test drive a car in the snow. It’s stressful. It isn’t fun. You don’t want to be driving your new car when there is all this salt on the ground,” Shmuel said. “It (sales) correlates with the seasons.”

Drivers looking for lower rates may not have the option to wait for summertime insurance rates. Like most financial products, auto insurance rates can be negotiated. There are several ways to lower your premium. Customers can ask for their deductible to be increased, bundle auto insurance with other insurance products, or remove some parts of comprehensive coverage, for example.

Arming yourself with relevant data can help you haggle if you are forced to buy when prices are above average.

“You can definitely speak to a representative at your insurance company if you feel like you are not getting a good quote,” Shmuel said.

Top 10 Issues For Employers, Issue #7: Obligations When Terminating Without Cause

Top 10 Issues For Employers, Issue #7: Obligations When Terminating Without Cause

Article by Labour & Employment Group
Blake, Cassels & Graydon LLP

This is the seventh instalment in our Top 10 Issues for Employers series. This issue addresses termination entitlements upon a “without cause” dismissal.

OVERVIEW

Understanding an employee’s entitlements upon a without cause dismissal is an essential step towards avoiding unnecessary wrongful dismissal claims. Canadian law imposes obligations on employers to provide their employees with certain entitlements in the event of a without cause dismissal. Since there is a very high bar for establishing “just cause” — which generally permits an employer to provide no notice or other entitlements upon dismissal — the vast majority of terminations in Canada will be without cause.

REASONABLE NOTICE OF TERMINATION

In the absence of an enforceable termination clause in a written employment contract, an employee’s termination entitlements will be governed by Canadian common law (with the exception of Quebec, discussed below). One obligation imposed upon employers by the common law is to provide employees with reasonable notice of termination of employment, or pay in lieu of reasonable notice, in the absence of just cause for dismissal.

There is no fixed formula for determining reasonable notice in any given case. There are, however, several factors that courts consider when determining reasonable notice, including the availability of similar employment as well as the employee’s age, length of service, position and level of compensation. In essence, the courts aim to identify, on a case-by-case basis, the length of notice that the employee will need to find alternate work of a similar nature. By way of example, reasonable notice generally ranges from a few weeks up to 24 months depending on the above factors, but there are exceptions.

The concept of reasonable notice signifies actual or written notice. In principle, the employee is expected to continue his or her active employment during the applicable notice period. As an active employee, the individual would usually be entitled to all elements of his or her compensation package during the notice period. However, employers typically provide an employee with pay in lieu of notice or a “package” upon termination of employment rather than actual or working notice. Thus, in the pay in lieu of notice scenario, to mirror what they would have received had they been provided with actual notice, employees are generally entitled to payment reflecting all elements of their compensation package, including, for example, salary, benefits and pro-rated bonus or other incentive compensation (subject to the terms of any applicable policies or plans).

Written employment agreements may modify and/or limit an employer’s common law obligations. In general terms, where there is a proper and enforceable employment contract that specifies what the employee will receive upon termination of employment, then it will be the employment contract — and not the common law — that the employer will rely on in determining an employee’s entitlements upon termination. However, any contract that a court finds as providing less than the employee’s minimum statutory entitlements will be viewed as unenforceable and an employee in such a scenario will be entitled to reasonable notice of termination.

QUEBEC CONSIDERATIONS

Common law principles are not applicable in Quebec. Rather, employers’ obligations are established by the Civil Code of Québec, which provides that an employee can claim reasonable notice (or compensation in lieu of notice) of the termination of his or her employment, such that an employee’s entitlements upon a without cause dismissal in Quebec are substantially similar to those of employees in the common law provinces and territories.

That being said, Canadian employers should be aware of the fact that there are unique legislative and other requirements relating to employment in Quebec that are not present in the common law provinces and territories.

STATUTORY MINIMUM STANDARDS

Employment standards legislation in all Canadian jurisdictions sets out minimum notice (or pay in lieu of notice) obligations for employers when they dismiss an employee without cause. It should be emphasized that the statutory minimums prescribed by employment standards legislation with respect to notice and severance are just that — minimum standards. They represent the lowest possible amounts that an employee is entitled to receive on dismissal without cause. An employer cannot contract out of the statutory minimum entitlements.

Generally, an employee’s entitlement to statutory minimum notice of dismissal increases with his or her length of service. For example, in Ontario, employees are generally entitled under statute to one week’s notice (or pay in lieu of notice) for each completed year of employment, to a maximum of eight weeks. Although employees’ entitlement to notice of termination of employment varies slightly from province to province, employment standards legislation across the Canadian jurisdictions currently provide for a maximum statutory notice requirement of eight weeks or less.

Further, many employment standards statutes include enhanced notice requirements for employers that effect a mass termination of employment, which is defined in most provinces and territories as the dismissal of 50 or more employees in a span of four weeks or less (although in several provinces the threshold is as low as 10 employees).

In Ontario and the federal jurisdiction, employment standards legislation also requires employers to provide employees with statutory severance payments (in addition to statutory notice or pay in lieu of notice) in certain circumstances. In Ontario, employees who have five or more years of service at the time of their dismissal are entitled to statutory severance pay, if their employer has a payroll of C$2.5-million or more, or if the dismissal is part of a discontinuance of a business involving the termination of 50 or more employees in a period of six months or less. Severance pay is equal to one week’s pay for each completed year of employment and a proportionate amount of one week’s pay for a partial year of employment, to a maximum of 26 weeks’ pay. In the federal jurisdiction, an employee is entitled to statutory severance pay if he or she has completed 12 consecutive months of employment with an employer before being dismissed. Statutory severance pay in the federal jurisdiction is calculated as the greater of two days’ wages for each year of employment completed by the employee and five days’ wages.

BONUS AND OTHER INCENTIVE AWARDS

Even after the appropriate length of notice has been determined, there are often still disputes over whether compensation for lost bonus or other incentive awards should be included. As mentioned above, when employees are provided with pay in lieu of notice, they are normally entitled to all elements of compensation that they would have received had they remained employed during the notice period, which may include bonus and other incentive awards. However, the terms of any underlying bonus or incentive plans or policies are relevant to the determination of whether compensation for such awards should be included as part of an employee’s termination entitlements. For this reason, employers should ensure they have well-drafted plan documents.

CONCLUSION

Determining an employee’s entitlements upon a without cause dismissal may not always be straightforward. It requires considering whether common law reasonable notice applies or whether a contractual provision (including those which may limit an employee to the statutory minimums) governs an employee’s termination entitlements. If common law reasonable notice applies, the notice period must take into account various factors, including the availability of similar employment as well as the employee’s age, length of service, position and level of compensation. On the other hand, a contractual termination provision must be checked to ensure it is enforceable and that it complies with applicable statutory minimum standards. Finally, it must be determined which elements of compensation will be owed during the notice period, including bonus or other incentive awards.

Investing in well-drafted employment contracts and plan documents at the outset, and ensuring they are regularly reviewed and updated, is a good way to avoid potential pitfalls and bring additional certainty and consistency to the termination process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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