Change to Employment Agreement Extends Limitation Period

I have a chronic medical condition which unfortunately has become worse over time. For the last two years I have been receiving benefits through my employer’s disability insurance plan. Recently, the insurer wrote to advise me that the terms of the policy have changed and that they now require additional medical information - why is this happening and am I at risk of losing my benefits?

‍Most disability insurance policies provided by employers have different coverage for different periods of time. For the first two years of an employee’s disability benefits are generally provided on the basis that you cannot perform the essential duties of your existing occupation. The definition of disability changes after two years in most policies.

One of the first steps in your case is to obtain a copy of the policy from your employer. This policy will usually include a brief description of the criteria that an employee must meet to be entitled to disability benefits. In the vast majority of cases after two years of paying benefits policies will limit an employee’s entitlement to further benefits unless the employee is unable to work in any occupation to which they are reasonably suited.

Because of this change to the disability definition, insurance companies will generally review files and seek additional medical information if someone has been receiving benefits for two years. However, Ontario courts have recognized that whether an individual is able to perform any occupation depends not only on their particular disability, but also their basic skill set and educational background. In many cases insurers won’t cut off benefits once they have completed their review and have received additional medical information. However, if you and your insurer disagree about whether you are capable of returning to the workforce it may be time to contact a Lawyer.

I own a small events and promotions business. Every so often I get emails from students asking if they could volunteer to learn about the business. I’ve never hired a student because they’re inexperienced but I’m considering hiring one as an intern this summer. I don’t have the budget for a full time employee but I would be willing to pay them a modest stipend. I’ve heard both paid and unpaid internships are illegal in Ontario. Is this true?

In Ontario, the rules around internships are strict and in recent years some employers have been required to change their internship programs as a result. If someone is receiving on the job training from a business they are considered to be an employee of the business under Ontario law. As an employee they are entitled to a minimum wage under the Employment Standards Act so paying them a stipend that does not meet the minimum wage is against the law.

There are two exceptions to this general rule which recognize the educational value of internships. The first is internship programs approved by a college or university which are permitted.

The second exception is internships that meet criteria set by the Ministry of Labour. These requirements include that the intern is receiving valuable training, is not taking someone else’s job, and has not been promised a job after their training. The most important feature is the educational component: the primary purpose of internships is to teach valuable skills, not to provide cheap labour to businesses.

The safest way to ensure compliance with the law is to have an internship approved as part of a college or university program. Alternatively, you should design the internship ahead of time to focus it around training and skills development.

I was injured in a car accident while driving to drop off a package for my employer—I almost never drive as part of my job.  I work in an office as a clerk.  The other driver was charged.  Now I am off work and need physiotherapy.  My doctor says I may have a permanent injury to my back. I have received a Notice from the Workplace Safety Insurance Board (WSIB) requesting that I elect whether or not I want to receive benefits.

‍Can I sue the other driver and receive benefits?

‍No. In Ontario injured workers who receive WSIB benefits forego their right to sue on their own behalf.  You may choose to elect not to receive benefits and preserve your right to sue a third party in some limited circumstances.   In Ontario, employees who are insured under the Workplace Safety Insurance Act scheme are not permitted to sue their own employer for injuries sustained while working.  Depending on the nature of your job, you may not be able to sue another worker or employer either.

However, if you are injured in a vehicle collision and the responsible driver is not a worker as defined in the Act then you may elect whether or not you wish to receive WSIB benefits or pursue the at fault driver. That is a complicated decision.

Generally speaking, the more serious the injuries you have sustained the more likely you will be better off foregoing WSIB benefits and pursuing the at fault driver.  However, if there are questions about liability (if you are wholly or partially at fault), or if there is a question about your ability to successfully recover damages in a tort action the WSIB scheme may be the best option for you.

Deciding whether or not to elect to receive WSIB benefits is complicated, and best made with the assistance of a Lawyer with experience in such matters.  Experienced Lawyers are available to consult with you, often without obligation to you.