Law Times

Law Times • June 4, 2018 Page 7 www.lawtimesnews.com Former employer liable for undiscovered claims BY NIKOLAY Y. CHSHERBININ I n MacIvor v. Pitney Bowes, 2018 ONCA 381, the Court of Appeal for Ontario determined that an employee could benefit from his former employ- er's long-term disability coverage, even though he did not discover the disability until after he began working for another employer. In the court's view, the exclu- sionary language of the Manulife Policy did not limit the LTD coverage to only current employees and extended it to un- disclosed disability claims that arose dur- ing their employment. In MacIvor, Lenard MacIvor suffered a traumatic brain injury and a significant musculoskeletal injury during a compa- ny-sponsored event in Costa Rica. Fol- lowing his incident, MacIvor was off work for nearly four months. He was a different man when he re- turned to his employment, where he en- countered difficulties. As a result, his responsibilities were continuously reduced and, in frustration, he quit his employment. MacIvor was unaware of the permanent and disabling nature of his brain injury until after he resigned his employment with Pitney Bowes. Within days of his resignation, MacIvor secured employment with Sam- sung where he performed a role similar to the one he held at Pitney Bowes. The difficulties he had experienced in job performance before leaving Pit- ney Bowes soon became apparent and, less than a year later, Samsung dismissed him. Having asked Samsung about making an LTD claim, MacIvor learned that because his injury occurred when he was working for Pitney Bowes, he would have to apply for the coverage under Pitney Bowes' policy. At trial, Pitney Bowes ar- gued that its policy provides for coverage only during em- ployment and that coverage ends when employment ends. In a section titled "Termina- tion of Coverage," the policy stipulated: "[Y]our coverage will termi- nate on the earliest of the following dates unless continuation of coverage is pro- vided under the Extension of Coverage Provision . . . the day on which you cease to be Actively Employed." Justice Andra Pollak accepted Pitney Bowes' position and concluded that the policy provided no coverage for former employees. The governing principles of interpreta- tion applicable to insurance policies have been recently re-affirmed by the Supreme Court of Canada in Ledcor Construc- tion Ltd. Northbridge Indemnity Insur- ance Co., 2016 SCC 37, where it reminded that "[t]he primary interpretive principle is that where the language of the insur- ance policy is unambiguous, effect should be given to that clear language, reading the contract as a whole." The top court added that "where, how- ever, the policy's language is ambiguous, general rules of contract con- struction must be employed to resolve that ambiguity." It further explained that "if ambiguity still remains after the above principles are ap- plied . . . coverage provisions in insurance policies are [to be] interpreted broadly, and exclusion clauses narrowly." Relying on these prin- ciples, the ONCA reversed Pollak's conclusion, because it was of the view that the exclu- sionary language of the policy relates to future claims, not claims that may have arisen during the course of the employee's employment. In other words, if an employee's claim arises as the result of an occurrence that takes place during his employment, the policy provides coverage. In the ONCA's view, to conclude oth- erwise would leave former employees, like MacIvor, in the untenable position of having no disability coverage from either their former employer or any new em- ployer. Such a result "would be contrary to the very purpose of disability insurance and the plain meaning of the coverage provi- sion." The policy required MacIvor to file the proof of claim within 90 days of the date benefits would begin. MacIvor filed the proof of claim ap- proximately 10 days late. Pitney Bowes argued that MacIvor's failure to comply with the policy defeated his claim. In re- sponse, the ONCA stated that "it would be most unfair . . . to permit the imperfect compliance with the 90-day contractual period to defeat [MacIvor's] claim in the particular circumstances of this case." As a result, the court exercised its dis- cretion and granted an equable remedy of relief from forfeiture, even though it was not raised at trial. MacIvor is a rare case and a personifi- cation of the old adage "Where there's a will, there's a way." It serves as a good illustration that, in deserving cases, a court will unilaterally invoke a remedy if doing so is in the inter- est of justice. The exclusionary language of a policy that terminates former employees' entitle- ment to the LTD coverage for undiscov- ered claims may no longer shield their former employers and their insurers from liability. In a case where a younger employee be- comes injured during their employment but did not appreciate the significance of their injury until after their employment ended, the financial impact on the former employer's business may be substantial. The former employer could be found li- able to pay the value of the LTD benefits, potentially indefinitely. LT uNikolay Chsherbinin is an employment and immigration lawyer and author of The Law of Inducement in Canadian Employment Law. He can be reached at 416-907-2587 or by visiting nclaw.ca. Challenging trial by jury without cause BY MICHAEL A. JOHNSTON T rial by jury is constitutionally entrenched in our criminal justice system, but more subtle is its critical role to our democracy. Jury nullification — the power of a jury to refuse to apply an oppressive law — is illustrative of trial by jury serving as both a judicial and political institu- tion. Bill C-75 threatens this synergy. Bill C-75 was spawned in the aftermath of two cases rocking the public, R. v. Jordan in 2016 and R. v. Stan- ley in 2018. The Supreme Court's ruling in R. v. Jordan indicted the criminal justice system's culture of com- placency toward delay. Eighteen- and 30-month dead- lines were imposed for prosecutions in the provincial and superior courts, respectively. In the wake of Jor- dan, proposals for creating procedural and substantive efficiencies proliferated. In early 2018, while the justice system was being critically assessed, Gerald Stanley, a white farmer, was tried for the alleged murder of Colten Boushie, an Indigenous man, who was trespassing. At issue was whether the fatal shot was intentional or ac- cidental. During jury selection, Stanley issued peremp- tory challenges of five citizens who appeared to be In- digenous. Ultimately, he was acquitted by an all-white jury. The public criticized the all-white jury. The crit- ics were blissfully unaware of what the Supreme Court said in R. v. Kokopenace in 2015. "There is no right to a jury roll of a particular com- position, nor to one that proportionately represents all the diverse groups in Canadian society. Courts have consistently rejected the idea that an accused is en- titled to a particular number of individuals of his or her race on either the jury roll or petit jury," said the SCC ruling. Notwithstanding jury representativeness being a function of how the government constitutes a jury roll, as well as the fact that the Liberals themselves ensured the legacy of an all-white Supreme Court of Canada in 2017, jury selection got reactively tossed on the Jordan- inspired legislative chopping block. Bill C-75 was tabled soon after. Among other things, it professes to expedite matters in the criminal justice system and address issues in jury selection. In my opin- ion, C-75 will unjustifiably erode the political and judi- cial efficacy of trial by jury. For example, bill C-75 seeks to preserve s. 638(c) of the Criminal Code. The section allows for the exclu- sion of all citizens who served time in a penitentiary but have not been pardoned from serving on a jury. In combination with provincial legislation, criminal re- cords are being used to automatically disqualify up to 10 per cent of the population. This in turn deprives the system of a valuable set of perspectives and experiences. Ironically, automatically disqualifying citizens be- cause of a criminal record — rather than on proof of actual bias (like for all other citizens) — strikes at the heart of the politics in R. v. Stanley. Aboriginal Cana- dians are over-represented in our criminal justice sys- tem and prisons. The automatic exclusion of citizens with criminal records disproportionately excludes Aboriginals from jury duty — the very thing that get- ting rid of peremptory challenges is allegedly aimed at remedying. Bill C-75 also proposes to change how a jury is se- lected. Since 1892, rotating jurors have been used to determine the truth of a challenge for cause. Using ro- tating jurors avoids the risk that a single opinion might unfairly taint jury selection. The use of rotating jurors also benefits the jurors by providing them with the pre- liminary experience of judging a witness. Judges are now to fulfil this role. To the extent that judges impose their views on the composition of a jury, the more the jury belongs to the government, as opposed to the liti- gants, and the people. This shift tacitly communicates an implicit lack of confidence in the peoples' respon- sible use of power. Similarly, bill C-75 proposes that peremptory chal- lenges be eradicated for litigants but seeks to vest that power exclusively with the judiciary. Rather than equip lawyers with "Batson challenges" during jury selec- tion — an American procedure that allows for the review/denial of a peremptory challenge if it is based on objectionable criteria — Parliament prefers to wrest this power away from the people and their law- yers, who best understand their causes. One of the vital roles trial by jury fulfils is the in- fusion of the lay jurors' perspectives into the law. The common sense of lay jurors colours the views of the ju- diciary, which could otherwise become parochial and oligarchical. As judgments of the court better harmo- nize with the perspectives of the people, the greater the "consent of the governed." If there are fewer jury trials, the more this symbiosis will suffer. Every indictable offence must be tried by a jury, ex- cept where otherwise expressly provided by law, where a defendant so elects. No summary conviction offences can be tried by a jury. Bill C-75 proposes to "hybridize" more than 100 indictable offences, which will allow a Crown attorney to determine if the offence should be prosecuted by indictment or summarily. Pragmati- cally, this will result in more summary elections and, therefore, fewer trials by jury. While we should be encouraging greater citizen in- volvement in our democracy, bill C-75 advocates for less. Alexis De Tocqueville aptly wrote on the virtues of jury duty in Democracy in America. "It imbues all classes with a respect for the thing judged and with the notion of right. . . . It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off the private selfishness which is the rust of society," he said. Trial by jury is good for our criminal justice system and our democracy. Bill C-75 is not. LT uMichael A. Johnston is a barrister-at-law with Shore Davis Johnston in Ottawa. He can be reached at shoredavisjohnston.com, mj@shoredavis.com or @MJ_Esq on Twitter. u SPEAKER'S CORNER COMMENT Labour Pains Nikolay Y. Chsherbinin

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